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Republic of the Philippines
Department of Labor and Employment
NATIONAL LABOR RELATIONS COMMISSION
Quezon City


NATI ONAL CAPI TAL REGI ON
ARBI TRATI ON BRANCH


CANDELARI O T. AGUHAR, OFW-SEA BASED
Complainant,
NLRC Case No. ( M ) NCR-1 1 -1 7 4 1 7 -1 1
Hon. Labor Arbi t er Enri que L. Fl ores, Jr.
-versus-

SEALANES MARI NE SERVI CE
I NC., WAGENBORG SHI PPI NG
BV, and CHRI STOPHER DI NO
C. DUMATOL,
Respondents,
x----------------------------------------------------------------------x



COMMENT AND OPPOSI TI ON TO RESPONDENTS
MOTI ON TO SUBMI T COMPLAI NANT TO A THI RD
DOCTORS MEDI CAL ASSESSMENT;

WI TH MOTI ON TO ADMI T THE ATTACHED
POSI TI ON PAPER OF THE COMPLAI NANT;

AND TO RENDER SUMMARY J UDGMENT BASED ON
RESPONDENTS MANI FESTATI ONS AND HEREI N
ATTACHED POSI TI ON PAPER OF COMPLAI NANT



COMPLAINANT CANDELARIO T. AGUHAR, by undersigned
counsel, respectfully states


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1. For resolution by this Honorable Office is a Manifestation
with Motion To Submit Complainant To A Third, Final and
Binding Assessment filed by respondents through their
counsel of record. While the said manifestation and
motion was dated 18 April 2012, the undersigned counsel
received the same only recently as the same was
addressed to the former counsel of complainant.

2. In their manifestation, respondents declared and
admitted inter alia, on paragraphs 3 to 7 thereof the
following

3. On 19 September 2011, complainant
suffered injuries and was therefore
disembarked in St. Petersburg for
treatment. He suffered polytrauma and
was hospitalized due to strong pain in
left ribs and collarbone.

4. He was subsequently repatriated and
referred to the company physician for
further treatment.

(Note that complainant was repatriated
and admitted at Manila Doctors Hospital
on 24 September 2011, per respondents
Annex 2.)

5. Treatment consisting of tests,
medications and therapy was provided
until complainant was declared fit to
work on 15 February 2012 (Annex 2
thereof) (i.e., by the company
designated physician).

6. Subsequently, a complaint was filed on
15 February 2012, wherein complainant

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demands payment of total and
permanent disability benefits, damages
and attorneys fees.

7. Conciliatory conference was held during
which complainant submitted the
medical report of his personal doctor,
Dr. Ticman, who considered him to have
suffered a total and permanent disability
and who opined that he was unfit to
work as a seaman in any capacity
(Annex 3 thereof).

3. Based on respondents own manifestation, and as borne
by records of his treatment, complainant Aguhar was
working on-duty on the vessel 19 September 2011 when
an accident happened to him, requiring his immediate
hospitalization, treatment in St. Petersburg, and
repatriation to the Philippines for medical reasons.

4. Actually, complainant Aguhar fell down from more than
two (2) meters high going down a ladder from hatchcover
to main deck. As he fell down, the left side of his chest
crashed to a metal box; instantaneously causing severe
painful injury to his lower lateral chest area. Complainant
Aguhar sustained multiple rib fractures (6
th
, 7
th
, and 8
th

ribs). The left collar-bone was likewise badly hurt. Copy
of the Accident Report consisting of three (3) pages from
Capt. Makarevych, Master of Voormeborg, is attached as
Annex C of herein attached Position Paper of
complainant.

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5. Likewise, based on respondents manifestations,
complainant Aguhar was repatriated on 24 September
2011. On the same day upon his arrival, he was confined
at the Manila Doctors Hospital for examination, operation,
and further treatment by company designated physicians.

6. Furthermore, it was admitted by respondents that
treatment lasted until 15 February 2012; and that it was
only on 15 February 2012 when the company designated
physician, Dr. Salvador, declared complainant Aguhar Fit
to Work (allegedly, after 149 days of treatment).

7. Based on respondents own manifestation, complainant
Aguhar has been under treatment from 19 September
2011 until 15 February 2012 under the care of company
appointed physicians from abroad and here in our
country. Said period of treatment stretched for 149 days;
and complainant Aguhar continued to be unable to work
even thereafter and even up to the present on account of
his injury sustained during the accident on-board.

8. Conservatively, if we are to count his treatment from the
date of repatriation on 24 September 2011 up to the
pronouncement of the company appointed physician on
15 February 2012, complainant Aguhar remained unfit
and unable to work per respondents own record, for a

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period of not less than 145 days. Actually, complainant
Aguhar continues to be under constant pain and
medication up to present.

9. THEREFORE, BASED ON THE RECORD AND THE FACTUAL
ADMISSIONS / MANIFESTATIONS OF RESPONDENTS
THROUGH THEIR COUNSEL OF RECORD, IN RELATION TO
PERTINENT JURISPRUDENCE OF THE SUPREME COURT,
THERE I S NO MORE BASI S TO SUBMI T COMPLAI NANT
AGUHAR TO A THI RD ASSESSMENT. THE REASON FOR
THIS IS THAT THE FACTUAL ADMISSIONS FROM
RESPONDENTS [AND THE RECORD] INDICATE THAT
COMPLAINANT AGUHARS CASE DEFINITIVELY INVOLVES
A TOTAL AND PERMANENT DISABILITY AS SAID
COMPLAINANT WAS UNABLE TO PERFORM HIS JOB FOR
MORE THAN 120 DAYS DUE TO THE INJURIES HE
SUSTAINED IN THE ACCIDENT WHILE WORKING ON-
BOARD RESPONDENTS VESSEL.

10. These circumstances being attendant here, respondents
manifestations and admissions can rightfully be treated
as their official position in the instant case. Hence, if this
Honorable Office would now admit the attached Position
Paper of complainant, the case may be decided on the
basis thereof.


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LEGAL BASIS

11. In the fairly recent case of CARMELITO N. VALENZONA,
petitioner, vs. FAIR SHIPPING CORPORATION AND/OR
SEJIN LINES COMPANY LIMITED, respondents, [G.R. No.
176884, October 19, 2011],the Supreme Court re-
affirmed the 120 day principle which has been
consistently held in a long line of cases, thus

Permanent disability refers to the inability
of a worker to perform his job for more than 120
days, regardless of whether he loses the use of
any part of his body. What determines
petitioner's entitlement to permanent disability
benefits is his inability to work for more than
120 days. On the other hand, permanent total
disability means disablement of an employee to
earn wages in the same kind of work, or work of
similar nature that he was trained for or
accustomed to perform, or any kind of work
which a person of his mentality and attainment
could do. It does not mean absolute
helplessness.
(Other citations omitted.)


12. The latest word of the Supreme Court on the matter is the
MAGSAYSAY MARITIME CORPORATION, ET. AL., v.
OBERTO S. LOBUSTA, (25 January 2012, G.R. No.
177578). In that case, the Supreme Court re-affirmed its
previous rulings concerning the determination of total
and permanent disability, to wit

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Petitioners are mistaken that it is only the POEA
Standard Employment Contract that must be
considered in determining Lobusta's disability.
In Palisoc v. Easways Marine, I nc.,
25
we said that
whether the Labor Codes provision on permanent
total disability applies to seafarers is already a
settled matter. In Palisoc, we cited the earlier case
of Remigio v. National Labor Relations
Commission
26
where we said (1) that the standard
employment contract for seafarers was formulated by
the POEA pursuant to its mandate under Executive
Order No. 247
27
to secure the best terms and
conditions of employment of Filipino contract
workers and ensure compliance therewith, and to
promote and protect the well-being of Filipino
workers overseas; (2) that Section 29 of the 1996
POEA Standard Employment Contract itself provides
that all rights and obligations of the parties to the
contract, including the annexes thereof, shall be
governed by the laws of the Republic of the
Philippines, international conventions, treaties and
covenants where the Philippines is a signatory; and
(3) that even without this provision, a contract of
labor is so impressed with public interest that
the Civil Code expressly subjects it to the special
laws on labor unions, collective bargaining, strikes
and lockouts, closed shop, wages, working
conditions, hours of labor and similar subjects.
28

In affirming the Labor Code concept of permanent total
disability, Remigio further stated:
Thus, the Court has applied the Labor Code
concept of permanent total disability to the case of
seafarers. In Philippine Transmarine Carriers v.
NLRC, seaman Carlos Nietes was found to be
suffering from congestive heart failure and
cardiomyopathy and was declared as unfit to work
by the company-accredited physician. The Court
affirmed the award of disability benefits to the
seaman, citing ECC v. Sanico, GSI S v. CA, and
Bej erano v. ECC that disability should not be
understood more on its medical significance but on
the loss of earning capacity. Permanent total
disability means disablement of an employee to
earn wages in the same kind of work, or work of
similar nature that [he] was trained for or

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accustomed to perform, or any kind of work which
a person of [his] mentality and attainment could
do. It does not mean absolute helplessness. It
likewise cited Bej erano v. ECC, that in disability
compensation, it is not the injury which is
compensated, but rather it is the incapacity to work
resulting in the impairment of ones earning
capacity.

The same principles were cited in the more
recent case of Crystal Shipping, I nc. v. Natividad.
In addition, the Court cited GSI S v. Cadiz and I j ares
v. CA that permanent disability is the inability of a
worker to perform his job for more than 120 days,
regardless of whether or not he loses the use of
any part of his body.
x x x x
These facts clearly prove that petitioner was
unfit to work as drummer for at least 11-13 months
from the onset of his ailment on March 16, 1998
to 8-10 months after June 25, 1998. This, by itself,
already constitutes permanent total disability. x x
x
29

In Vergara v. Hammonia Maritime Services, I nc.,
30
we
also said that the standard terms of the POEA Standard
Employment Contract agreed upon are intended to be
read and understood in accordance with Philippine laws,
particularly, Articles 191 to 193 of the Labor Code, as
amended, and the applicable implementing rules and
regulations in case of any dispute, claim or grievance.
Thus, the CA was correct in applying the Labor
Code provisions in Lobustas claim for disability benefits.
The Labor Arbiter erred in failing to apply them.
Article 192(c)(1) under Title II, Book IV of the Labor
Code, as amended, reads:

ART. 192. Permanent total disability. x x x
x x x x
(c) The following disabilities shall be deemed
total and permanent:

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(1) Temporary total disability lasting continuously
for more than one hundred twenty (120) days,
except as otherwise provided in the Rules;
x x x x
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), 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.

13. Lastly, respondents seem to make us want to believe that
a third doctors opinion is mandatory under the Dutch CBA
(Annex 4 of respondents manifestation and motion) as
well us under the POEA Standard Employment Contract.
This is not the case. The cited provisions of the Dutch CBA
and the POEA Standard Contract reads:

22.4.2. If a doctor appointed by the officer or
rating and AMOSUP disagrees with the
assessment, a third doctor may be
agreed upon jointly between the
Company, the officer or rating and
AMOSUP. The third doctors opinion shall
be final and binding on both parties.

(Dutch CBA)


Section 20 (B) no. 3 paragraph 3


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If a doctor appointed by the seafarer
disagrees with the assessment, a third
doctor may be agreed jointly between
the employer and the seafarer. The third
doctors decision shall be final and
binding on both parties.

(POEA Standard Contract)

14. It is also clear that the option to seek a third doctors
assessment is not mandatory but merely
recommendatory. This can be gleaned from the use of the
term may. The parties may agree after considering the
circumstances attendant to a particular case, such as
when the treatment took long and exceeded 120 days. In
the instant case, the pronouncement of the company
designated physician on the fitness or unfitness of
complainant Aguhar became immaterial under the
circumstances. Complainant Aguhar, based on the
admitted facts, is considered permanently and totally
disabled, after being unable to work again upon the lapse
of 120 days of treatment (without any impediment
grading having been declared within said period).

R E L I E F

WHEREFORE, premises considered, it is respectfully asked
of this Honorable Labor Arbitration Office that


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[a]. The Manifestation of respondents be duly noted on
the record; and that Motion For a Third Doctors Assessment
be Denied for being inappropriate under the circumstances;

[b]. Herein attached Position Paper of the Complainant be
admitted on the record and that the Manifestation and
admissions of respondents be considered as their position
paper; and

[c]. On the basis thereof, the following be awarded in
favor of complainant by ordering respondents to pay -

1. TP Disability Benefits = US$ 80,000.00 Dollars
2. Moral damages = PhP 500,000.00 Pesos
3. Exemplary damages = PhP 500,000.00 Pesos
4. Attorneys Fees equivalent to 10% of total award
= US$ 8,000.00 Dollars; and
= PhP 100,000 Pesos

Other reliefs just and equitable are respectfully sought.

RESPECTFULLY SUBMITTED.
Santa Cruz, Laguna for Quezon City, 08 May 2012.



Atty. EMMANUEL E. SANDICHO
Counsel for the Complainant
117 P. Guevarra St., Santa Cruz, Laguna
IBP No. 848920, 01.06.2012, Manila-IV
PTR No. 8163771, 02.05.2012, Laguna
Roll No. 42246 admitted on 9 May 1997
MCLE Compliance No. III-0020564

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________________________________________________

Copy furnished --

DEL ROSARIO & DEL ROSARIO LAW
15
TH
Floor Pacific Star Building
Corner Makati and Gil Puyat Avenues
Makati City, Metro Manila


Received by:

Signature : _________________
Name : _________________
Position : _________________
Date : ________________