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Republic of the Philippines
Department of Labor and Employment
NATI ONAL LABOR RELATI ONS COMMI SSI ON
Quezon City


SECOND DI VI SI ON


BERTHI ER P. ECULLA, OFW-SEA BASED
Complainant-Appellee, NLRC LAC No. 10-000841-12
NLRC Case No. (M ) NCR-1 1 -1 7 4 1 7 -1 1

-versus-


EPSI LON MARI TI ME SERVI CES,
I NC., SAFETY MANAGEMENT
SERVI CES SA., CAPT. LI BERATO
CAPAYAS,
Respondents-Appellants,
x-----------------------------------------x



MOTI ON FOR
RECONSI DERATI ON


COMPLAINANT-APPELEE BERTHIER P. ECULLA by undersigned
counsel, within the period provided by law and the rules, respectfully
moves for reconsideration of the Decision dated 29 November 2012 of
this Honorable Commission (2
nd
Division) which was received by
undersigned counsel on 21 December 2012, by stating as follows


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TI MELI NESS OF FI LI NG THI S
MOTI ON FOR RECONSI DERATI ON


Undersigned counsel received on 21 December 2012 the above-
mentioned Decision dated 29 November 2012, the dispositive portion of
which reads

WHEREFORE, PREMISES CONSIDERED, the
Decision of the Labor Arbiter dated January 31, 2012
is MODIFIED in that the award of disability benefits
should be US$13,302.63.

The award of attorneys fees is deleted
considering that there was no bad faith on the part of
the respondents in denying the claim for full disability
benefits.

SO ORDERED.

Complainant-appellee therefore ordinarily has ten (10) days or until
31 December 2012 within which to file this Motion For Reconsideration
pursuant to the 2011 NLRC Rules of Procedure. However, since 31
December 2012 and 01 January 2013 are legal holidays, complainant-
appellee had until the next working day, or on 02 January 2013 within
which to file this Motion for Reconsideration.

This motion is therefore timely filed as it is hereby filed today, 02
January 2013, by registered mail due to distance and unavailability of
delivery personnel.

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GROUNDS FOR RECONSI DERATI ON

I.

THIS HONORABLE COMMISSION (SECOND DIVISION)
COMMITTED A REVERSIBLE ERROR WHEN IT
DISREGARDED THE FINDINGS OF FACT BY THE
HONORABLE LABOR ARBITER THAT THE TREATMENT
PERIOD OF COMPLAINANT-APPELLEE LASTED AND WILL
ACTUALLY CONTINUE FOR MORE THAN 240 DAYS AS IT
HAS BEEN ACTUALLY OBSERVED AND DECLARED BY THE
COMPANY DESIGNATED PHYSICIANS THEMSELVES.
HENCE, COMPLAINANT-APPELLEE IS ENTITLED TO TOTAL
PERMANENT DISABILITY BENEFITS;

II.

THIS HONORABLE COMMISSION (SECOND DIVISION)
COMMITTED A REVERSIBLE ERROR WHEN IT
DISREGARDED APPLICABLE JURISPRIUDENCE AND THE
VERY FACT THAT INDEED NO PROFIT MINDED EMPLOYER
WILL HIRE COMPLAINANT-APPELLEE IN HIS PHYSICAL
CONDITION WHERE HE HAS TOTAL AND COMPLETE LOSS
OF USE OF HIS RIGHT INDEX FINGER, A PART OF HIS
BODY INDISPENSABLY USED IN THE PERFORMANCE OF
HIS JOB AS A GENERAL PURPOSE UTILITY SEAFARER;

III.

THIS HONORABLE COMMISSION (SECOND DIVISION)
COMMITTED A REVERSIBLE ERROR WHEN IT DELETED THE
AWARD OF ATTORNEYS FEES INSPITE OF THE CLEAR
FACT THAT IT WAS RESPONDENT-APPELLANTS
WRONGFUL REFUSAL TO PAY THE TOTAL PERMANENT
DISABILITY COMPENSATION OF COMPLAINANT-
APPELLEE WHICH COMPELLED THE LATTER TO LITIGATE
IN ORDER TO PROTECT HIS RIGHTS AND INTERESTS.



1. The first two grounds are hereby jointly discussed as they are
anchored on the findings of facts of the Honorable Labor Arbiter.

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Such findings of facts are in accord with the undisputed facts as well
as the applicable jurisprudence and legal principles hereinafter set
forth.

With all due respects, complainant-appellee submits that the
findings of facts and the ensuing ratiocinations of the Honorable Labor
Arbiter are the ones in accord with the undisputed evidence and settled
jurisprudence on disability compensation cases.

The pertinent and correct findings of facts of the Honorable Labor
Arbiter are found on pages 5, 6, and 7 of the appealed Decision in NLRC
NCR OFW Case No. 11-17417-11. It is therein stated as follows

In this case, Dr. Nicomedes Cruz, company-
designated physician, submitted his assessment on
December 16, 2011, more or less 210 days from May 12,
2011, the date when complainant reported in compliance
with the post employment medical examination. Thus, by
merely considering the above-mentioned period, it cannot
be denied that it is within the 240-day rule.

This office, however, observes that the above-cited
rule does not fall squarely in this case. A perusal of the
records reveal that per respondents 12
th
Medical Report
dated November 09, 2011 (Annex 14, Respondents
Position Paper), it was stated that complainant started his
PT sessions and will have PT 3x per week. Per Medical
Report dated November 16, 2011 of Dr. Narciso SJ
Fernandez (Annex J, Complainants Position Paper), of the
RMR PT/OT Clinic, recommendation was made for
complainants continuous rehabilitation due to the findings

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of having poor progressive and with remarks full
progressive.

From the foregoing, respondents company-
designated physician, Dr. Nicomedez Cruz issued on
December 16, 2011 his assessment finding complainants
disability to be partial, i.e., Grade 11, without finally giving
the medical report on the result of his therapy which took
place between November 16, 2011 to December 2011. Let it
be stressed that per Dr. Fernandezs above-mentioned
recommendation, complainants rehabilitation should be
continuous due to poor progressive, hence, when the
disability assessment was rendered, there is an absence of
final diagnosis of his therapy or rehabilitation. And for
respondents failure to pay his total permanent disability,
complainant sought the medical opinion of an independent
physician, Dr. Nicanor F. Escutin, Orthopedic Surgeon, who,
per Disability Report December 27, 2011, conducted the
following pertinent physical examination:

xxxxx xxxxx xxxxx

FINAL DIAGNOSIS:
- MALUNITED, PROXIMAL PHALANGE, 2
ND
DIGIT
RIGHT HAND
- STATUS-POST, OPEN-REDUCTION WITH BONE
PLATING, PROXIMAL PHALANGE, 2
ND
DIGIT
RIGHT HAND
- ANKYLOSIS, 2
ND
DIGIT, RIGHT HAND

DISABILITY RATING:

x x x x His 2
nd
finger was aligned but he cannot
move it. He is unable to flex and extend his 2
nd
finger. He
cannot hold objects properly for a long time. He underwent
physical therapy but there was no improvement on the
movement of his 2
nd
finger. His physiatrist gave him a poor
prognosis on his end finger which means he will have
difficulty in moving it. As a seaman, he should have a
hundred percent functioning hands, right and left. If one of
his hands cannot function, he is not physically capable of
performing the strenuous and vigorous activities of a
seaman.

He is given PERMANENT DISABILITY. He is UNFIT TO
WORK as a seaman in whatever capacity.

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(Italization and underscoring supplied for emphasis.)

Records show that the respondents failure to submit
proof that complainants therapy or rehabilitation was
successfully finished before the issuance of the disability
grading casts doubt on their findings that the latters injury
was correctly assessed to be partial in nature, more so, that
when it was issued, complainant was not deployed by the
respondents to resume his work as a seaman nor was
offered a new contract of employment.

Moreover, the prolong period of medical treatment
of the complainant should not be solely attributable to the
latters failure to report for medical check-up on July 29,
2011, as directed by Dr. Nicomedez Cruz. It bears stressing
that complainant reported for post medical examination on
May 12, 2011, or within 72 hours, but respondents took one
month to refer him for medical treatment at NGC Medical
Clinic.

Corollary thereto, complainants disability cannot be
said to be partial, but total and permanent. Anent
complainants claim for application of the Collective
Bargaining Agreement, this office considers the Cyprus
Collective Bargaining Agreement for Seafarers on board
Cyprus Cargo and Tanker Vessels for Cyprus beneficially
owned vessels in view of the respondents undisputed
contention that MV Pedhoulas Leader bears the Cyprus flag.
Thus, complainant is entitled to US$89,100.00.

For instituting this case in order to protect
complainants rights and interests, he is awarded attorneys
fee equivalent to ten (10%) percent of the total judgment
award pursuant to Article 111 of the Labor Code.



The Honorable Labor Arbiters findings of facts which were carefully
gathered from the records of the above-captioned case, clearly show that
the partial impediment grade given by the company-designated physician
was haphazardly issued in order to put a semblance of finishing the

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treatment, therapy or rehabilitation of complainants injury within the
240 day period. It is however very clear that the treatment, rehabilitation
and therapeutic requirements of complainant-appellee must continue
beyond the said 240 day period. Hence, he is totally and permanently
disabled in the eyes of the law.

The thrust of the Honorable Labor Arbiters findings was correctly
leaned towards the actual state of lifetime incapacity of the complainant-
appellee to perform again his customary job as an all-purpose utility
seaman on-board respondents vessels or any other profit-minded
maritime employers for that matter. This is in accord with applicable
jurisprudence which states that


x x x x, we have consistently ruled that disability is
intimately related to ones earning capacity. The test to
determine its gravity is the impairment or loss of ones
capacity to earn and not its mere medical
significance. Permanent total disability means
disablement of an employee to earn wages in the same
kind of work or work of a similar nature that he was
trained for or accustomed to perform, or any kind of
work which a person of his mentality and attainment can
do. It does not mean state of absolute helplessness
but inability to do substantially all material acts
necessary to the prosecution of a gainful occupation
without serious discomfort or pain and without material
injury or danger to life. In disability compensation, it is
not the injury per se which is compensated but the
incapacity to work.

Although private respondents injury was
undeniably confined to his left foot only, w e c annot

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c l ose our eyes, as pet i t i oner s w oul d l i k e us t o, t o
t he i nesc apabl e i mpac t of pr i vat e r espondent s
i nj ur y on hi s c apac i t y t o w or k as a seaman. I n t hei r
desi r e t o esc ape l i abi l i t y f r om pr i vat e r espondent s
r i ght f ul c l ai m, pet i t i oner s deni gr at ed t he f ac t t hat
even i f pr i vat e r espondent i nsi st s on c ont i nui ng t o
w or k as a seaman, no pr of i t -mi nded empl oyer w i l l
hi r e hi m. Hi s i nj ur y er ased al l t hese possi bi l i t i es.
(Boldface supplied for emphasis.)

x x x x Petitioners are, at this point, reminded
that the POEA standard employment contract for seamen
was designed primarily for the protection and benefit of
Filipino seamen in the pursuit of their employment on
board ocean-going vessels. Its provisions must be
construed and applied fairly, reasonably and liberally in
their favor. Only then can its beneficent provisions be
fully carried into effect.

(SEAGULL MARITIME CORP., ET. AL., vs. JAYCEE
DEE, ET.AL., G.R. No. 165156, April 2, 2007; citing
Bejerano v. Employees Compensation Commission, G.R.
No. 84777, 30 January 1992, 205 SCRA 598, and
Philippine Transmarine Carriers v. NLRC, G.R. No.
123891, 28 February 2001, 353 SCRA 47)


Moreover, it must be observed that in the hot-item case of Santiago
vs. Pacbasin Shipmanagement, Inc., [G.R. No. 194667, April 18, 2012], the
Third Division of the Supreme Court relied on Section 2(b), Rule VII of the
Implementing Rules of Title II, Book IV of the Labor Code, as amended, or
the Amended Rules on Employees Compensation Commission (ECC
Rules); which was discussed in the said case as follows --

Section 2(b), Rule VII of the Implementing
Rules of Title II, Book IV of the Labor Code, as

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amended, or the Amended Rules on Employees
Compensation Commission (ECC Rules), reads:

Sec. 2. Disability. x x x

(b) A disability is total and permanent if as a
result of the injury or sickness the employee is
unable to perform any gainful occupation for a
continuous period exceeding 120 days, except as
otherwise provided for in Rule X of these Rules.

x x x x

Section 2, Rule X of the ECC Rules reads:

SEC. 2. Period of entitlement. (a) The
income benefit shall be paid beginning on the first
day of such disability. If caused by an injury or
sickness it shall not be paid longer than 120
consecutive days except where such injury or
sickness still requires medical attendance beyond
120 days but not t o ex c eed 240 days f r om onset
of di sabi l i t y in which case benefit for temporary
total disability shall be paid. However, the System
may declare the total and permanent status at any
time after 120 days of continuous temporary total
disability as may be warranted by the degree of
actual loss or impairment of physical or mental
functions as determined by the System.


The accident which injured complainant-appellee occurred 26
February 2011. It is factual and logical that this was the date of the onset
of the disability of complainant-appellee. There can be no other date. He
was incapacitated as of that date. It is of no moment that there was delay
so much delay in his repatriation. Such delay arose from circumstances or
fault not attributable to him. It is undisputed on record that the delay in

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repatriating complainant went until 10 May 2011 or almost three (3)
months from the date of the accident, the onset of the disability.

Thus, by December 2011, inspite of the fact that complainant-
appellee Mr. Eculla, continued to be under medication, treatment and
therapy for more than eleven (11) months from the date of accident
(onset of disability) on 26 February 2011, respondents thru respondent
Epsilon refused and failed to acknowledge his Total Permanent Disability.
After more than 240 days from onset of disability, there was therefore an
unjustified refusal on the part of respondents to pay the Total Permanent
Disability benefits of complainant-appellee Eculla under the applicable
Cyprus Collective Bargaining Agreement (CBA) in relation to the
applicable jurisprudence.

2. The award of attorneys fees is justified under the circumstances.

As discussed above and in the other records of the instant case, by
reason of respondents unjustified refusal and failure to pay the total
permanent disability benefits of complainant Eculla, he was constrained
to file the instant complaint against respondents before this Honorable
Commission. In the process, he had to secure the services of undersigned
counsel. And for this reason, an award of at least ten percent (10%)
attorneys fees is justified at the minimum.

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RELI EF SOUGHT

WHEREFORE, premises considered, it is respectfully asked of this
Honorable Commission that ITS DECISION IN THE ABOVE-CAPTIONED
CASE BE RECONSIDERED and that the appealed DECISION OF THE
HONORABLE LABOR ARBITER BE REINSTATED AND AFFIRMED, awarding
in favor of complainant Total Permanent Disability Benefits in the amount
of US$ 89,100.00 Dollars, and Attorneys Fees equivalent to 10% thereof.

Other reliefs just and equitable are respectfully sought.

RESPECTFULLY SUBMITTED.
Santa Cruz, Laguna for Quezon City, 02 January 2013.



At t y. EMMANUEL E. SANDI CHO
Counsel for the Complainant
117 P. Guevarra St., Santa Cruz, Laguna
IBP No. 905396, 01.02.2013, Laguna
PTR No. 8163771, 02.05.2012, Laguna
Roll No. 42246 admitted on 9 May 1997
MCLE Compliance No. III-0020564
Copy furnished by

DEL ROSARI O & DEL ROSARI O LAW
15
th
Floor Pacific Star Building
Corner of Sen. Gil Puyat & Makati Ave.,
Makati City 1200 Metro Manila

EXPLANATION: Service was done by way of registered mail due to
distance and unavailability of messenger.