Republic of the Philippines

Department of Labor and Employment

NATIONAL LABOR RELATIONS COMMISSION
Sub-Regional Arbitration Branch X
Iligan City

GABRIEL MEJORADA,
Complainant,

-versus- NLRC CASE No. RABX (M)-04-

10755-09

MATAGUMPAY MARITIME INC.

and/or NOIMI L. ZABALA,
Respondents.
x----------------------/

POSITION PAPER

COMPLAINANT, through the undersigned counsel, unto this

Honorable Office, most respectfully submits this position paper, and in
support thereof, hereby states that:

PREFATORY STATEMENT

The standard employment contract for seafarers was formulated by

the Philippine Overseas Employment Agency (POEA) pursuant to its
mandate under Executive Order No. 247 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.1

It is designed primarily for the protection and benefit of Filipino

seamen in the pursuit of their employment on board ocean-going vessels.
Its provisions must, therefore, be construed and applied fairly, reasonably
1
MAGSAYSAY MARITIME CORP. vs. JAIME M. VELASQUEZ, G.R. No. 179802, November 14, 2008
and liberally in their favor. Only then can its beneficent provisions be fully
carried into effect.2

STATEMENT OF FACTS AND OF THE CASE

Since year 1978, complainant had already been engaged by

respondent MATAGUMPAY MARITIME, INC. (“MATAGUMPAY” for brevity)
as a seafarer. Complainant’s 28-year career as a seafarer had been
devoted exclusively to MATAGUMPAY.

On July 4, 2006, complainant was again engaged by MATAGUMPAY

for its foreign principal, co-respondent YEH SHIPPING CO., LTD., as a First
Assistant Engineer. The POEA approved Contract of Employment 3 entered
into by and between the complainant and the respondents contained the
following terms and conditions:

Duration: Nine (9) months

Position: First Assistant Engineer
Basic Monthly Salary: US$ 1,149.00
Hours of work: 40 hours per week
Overtime: US$ 855.00 FOT 105 hours
Vacation Leave with Pay: US$ 306.00 per month
Point of hire: Manila, Philippines
Subsistence Allowance: US$ 44.00 per month

Before the said contract was executed, complainant was made to

undergo a Pre-employment Medical Examination 4 (PEME) and was found to
be fit to work by the attending physician Dr. Teresita F. Gonzales. The
PEME showed, among others, that complainant was not suffering any high
blood pressure or any heart trouble.

2
Philippine Transmarine Carriers v. NLRC, G.R. No. 123891, 28 February 2001, 353 SCRA 47.
3
Attached hereto as Annexes “A, A-1 to A-10” are copies of Contract of Employment which form an
integral portion hereof.
4
Attached hereto as Annexes “B, B-1 to B-4” are copies of the Pre-employment Medical Examination and
its supporting documents which form an integral portion hereof.
 On July 14, 2006, complainant departed from the Philippines and
boarded the vessel MV Ken Ten in Japan on the same day.

On November 25, 2006, while complainant was on his duty, he

started to feel that his right arm was numbed/weakened but just ignored it
thinking that it was just a normal numb. After his duty, he went back to his
room and requested the Messman to massage his right arm for therapy. 5

However, on November 27, 2006, immediately after having his

routine inspection around the engine room, complainant suddenly felt dizzy
and eventually collapsed in the Engine Control Room. Luckily, his shipmates
were able to revive him.6

When the vessel reached Australia, complainant was brought to the

Health Watch Clinics and underwent several medical examinations from
November 30, 2006 to December 5, 2006. Accordingly, complainant was
diagnosed to have Right Hemiparesis, Gout, Hypertension and Elevation of
inflammatory markers.7 For this reason, complainant was repatriated to the
Philippines on December 8, 2006.

From December 14-22, 2006, complainant was referred to a

company-designated physician at the Delos Santos Medical Center for
further medical care and treatment. All the medical records of complainant
while he was in Delos Santos Medical Center are all in the possession of
MATAGUMPAY. Thereafter, complainant went back home to his residence in
the Municipality of Maigo, Lanao del Norte. At present, complainant is still
suffering partial paralysis and had not been able to resume work as a
seafarer.

5
Attached hereto as Annex “C” is a copy of the Master’s Report which forms an integral portion hereof.
6
Supra.
7
Attached hereto as Annex “D, D-1 and D-10” are copies of the Medical Reports of Health Watch Clinics.
 On January 17, 2007, complainant was admitted to the ANDOT
MEDICAL CLINIC in Bacolod, Lanao del Norte and was attended by Dr. Bob
Andot. Said physician made the following diagnosis: Transient Hypotension,
Gout, Acute Gastritis and Status Post Stroke.8

Subsequently, sometime in October 2007, respondents through Noimi

Zabala (“Mr. Zabala for brevity), the owner/president of MATAGUMPAY,
together with his son, nephew and a company-designated physician visited
complainant at his house. During said visit, Mr. Zabala with the company
physician assured complainant and his wife that they will receive a Grade 6
disability benefit which is 50 % of US$ 50,000. On said occasion,
complainant’s wife asked Mr. Zabala for the copy of complainant’s medical
records during his confinement in Delos Santos Medical Center, in order that
she could process complainant’s benefits. However, Mr. Zabala told her that
there was no need for her to have the copies thereof because
MATAGUMPAY will be the one who will process complainant’s benefits.

Relying on the sweet assurances and promises of Mr. Zabala,

complainant and his wife felt secured that he will eventually receive his
disability benefits. But, much to their dismay, until now MATAGUMPAY has
yet to pay complainant’s disability benefit.

Almost three years has passed, complainant was starting to feel

anxious and suspicious as his right to claim for the disability benefit is about
to prescribe. Thus, sometime in January 2009, complainant went to the
CENTER FOR ALTERNATIVE LEGAL FORUM AND JUSTIC (CALL FOR
JUSTICE), INC., an NGO based in Iligan City, to seek legal advice. On
February 3, 2009, the CALL FOR JUSTICE sent an invitation letter to
MATAGUMPAY for a possible mediation9.

8
Attached hereto as Annex “E’ is a copy of Dr. Bob C. Andot’s Medical Findings.
9
Attached hereto as Annex “F’ is a copy of the Invitation Letter.
 Sometime in April 2009, the CALL FOR JUSTICE received a letter 10
from the lawyers of MATAGUMPAY, pertinent portions thereof are as
follows:
“1. Our client has completely fulfilled all its obligations to Mr.
Mejorada under the POEA Contract. When complainant was diagnosed
with his injury/illness, he was afforded all the necessary medical treatment
and assistance. He was likewise paid his full sickness allowance.

2. The claim for disability benefits was properly rejected as Mr.

Mejorada’s illness was found to be pre-existing and not work-related.

Under Section 20-B of the POEA contract for an illness/injury to be

compensable, such must be (a) work-related; and (b) suffered during the
term of his employment contract.

In the instant case, the company-designated physician has decalred

that Mr. Mejorada’s illness is not work-related.

Further, it was found that Mr. Mejorada knew of his illness for the
past 4 years taking Neobloc and Delehex as maintenance.

Due to the foregoing, Mr. Mejorada is not entitled to any disability

benefits under the POEA Contract.”

Disappointed with MATAGUMPAY’s response on his claim,

complainant filed the instant complaint before this Honorable Office on
April 21, 2009.

On May 11, 2009, a mandatory conference was held for a possibility

of amicable settlement and determination of other matters, such as but not
limited to the simplification of issues. However, no agreement was reached
or amicable settlement was entered into. As a consequence, this Honorable
Office issued an order directing the parties to submit their respective
position paper.

Hence, this position paper.

10
Attached hereto as Annexes “G – G-1” are copies of the letter sent by Respondents’ counsel to Call For Justice.
 ISSUES:

1. WHETHER OR NOT COMPLAINANT IS ENTTILED TO A DISABILITY

PAY;

2. WHETHER OR NOT COMPLAINANT IS ENTITLED TO A SICKNESS

ALLOWANCE;

3. WHETHER OR NOT RESPONDENTS ARE LIABLE FOR MORAL AND

EXEMPLARY DAMAGES TO THE COMPLAINANT; and

4. WHETHER OR NOT COMPLAINANT IS ENTILED TO RECOVER

ATTORNEY’S FEES FROM RESPODENTS.

DISCUSSIONS:

I.

COMPLAINANT IS ENTITLED TO DISABILITY BENEFITS

Under the 2000 POEA Standard Employment Contract, it is provided

that for an illness/injury to be compensable, such must be (a.) work
related; and (b) suffered during of his employment contract.

The abovementioned requisites are present in the instant case.

FIRST. THERE IS A REASONABLE

CONNECTION BETWEEN
RESPONDENT’S ILLNESS AND THE
NATURE OF HIS JOB. THUS, IT IS
WORK RELATED.

Respondents, in their letter dated April 13, 2009, claimed that

complainant is not entitled to disability pay because complainant’s illness
was found to be pre-existing and not work related. Assuming arguendo
that complainant’s illness was pre-existing, the same does not deprive
complainant from being entitled to disability benefits. In the case of NYK-
FIL SHIP MANAGEMENT INC. vs. ALFONSO T. TALAVERA, G.R. No. 175894,
November 14, 2008, the Supreme Court, expounded the nature of a
“work-related injury or illness”, to wit:

“x x x Compensability of an ailment does not depend on whether

the injury or disease was pre-existing at the time of the employment but
rather if the disease or injury is work-related or aggravated his
condition. It is indeed safe to presume that, at the very least, the arduous
nature of Hormicillada's employment had contributed to the aggravation of
his injury, if indeed it was pre-existing at the time of his employment.
Therefore, it is but just that he be duly compensated for it. It is not
necessary, in order for an employee to recover compensation,
that he must have been in perfect condition or health at the time
he received the injury, or that he be free from disease. Every
workman brings with him to his employment certain infirmities, and while
the employer is not the insurer of the health of his employees, he takes
them as he finds them, and assumes the risk of having a weakened
condition aggravated by some injury which might not hurt or bother a
perfectly normal, healthy person.”

As reflected in the Master’s Report, complainant’s duty as a First

Assistant Engineer requires him to have a daily routine inspection inside
the vessel’s engine room. In line with his duty, complainant had been
constantly exposed to rapid variations of temperature, from the excessive
heat inside the engine room to the cold weather in the open sea. This kind
of work environment has caused complainant to suffer a stroke due to
hypertension. Thus, as in the above cited case, it can be deduced that the
arduous nature of complainant’s duty caused his illness or at least
aggravated any pre-existing condition he might have had, and is thus
work-related.

SECOND. COMPLAINANT
SUFFERED A STROKE DURING THE
TERM OF HIS EMPLOYMENT.

With respect to the second requisite, there is no question that

complainant suffered his illness during the term of his employment with
respondents. This is evidenced by the Master’s Report which reflected that
complainant suffered a stroke due to hypertension while he was in the
engine room.
 Worthy of note is the fact that complainant spent his entire career as
a seafarer with respondent MATAGUMPAY. Complainant started with
MATAGUMPAY way back in 1978. Back then, complainant was a healthy
and an efficient seafarer which was the main reason why respondents
continued to engage complainant until the latter suffered a stroke and was
subsequently repatriated in 2006. Since complainant had only one
employer in his entire career which was the respondent, thus, there can be
no other logical explanation as to where did complainant acquire his illness,
but only from his employment with the respondents.

Besides, when complainant underwent his PEME, the attending

physician pronounced him to be fit to work and it also showed that before
complainant boarded the vessel, he was not suffering any high blood
pressure or any heart trouble. No doubt complainant acquired his illness in
the course of his employment with respondents because he was declared
to be healthy prior to his departure. Had he not been found fit to work
prior to his departure, he would not have been allowed to board the vessel.

In view of the above premises, it is clear that complainant’s illness is

compensable under the 2000 POEA Standard Employment Contract.

COMPLAINANT’S DISABILITY IS
TOTAL AND PERMANENT.

With regards to the degree of complainant’s disability, it is posited

that it is total and permanent. The Labor Code concept of permanent total
disability in the case of seafarers 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
accustomed to perform, or any kind of work which a person of his mentality
and attainment could do. In addition, the Supreme Court in GSIS v. Cadiz11
11
G.R. No. 145093, July 8, 2003
held 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.12

In the case at bar, complainant has no longer able to resume his work
as a seafarer from the time he was repatriated, mainly because his illness
has caused him partial paralysis. Until now, complainant is still under
treatment and medications. What is worse, complainant still has difficulty of
moving the right portion of his body which he suffered during the stroke
that occurred while he was performing his duty with the respondents. As
stated in Dr. Vicente P. Mejorada’s Medical Certficate 13, complainant could
no longer able to perform the same work as he used to before his
repatriation.

Such being the case, complainant’s disability is considered total and

permanent and because of which, he is entitled to a Grade 1 disability
benefit which is computed as follows: US $ 50, 000 x 120% = US $ 60,000.

II.

COMPLAINANT IS ENTITLED TO A SICKNESS ALLOWANCE

Under the 2000 POEA Standard Employment Contract, the liabilities

of the employer when the seafarer suffers work-related injury or illness
during the term of his contact include, among others, a sickness allowance
equivalent to his basic wage until he is declared fit to work or the degree
of permanent disability has been assessed by the company-designated
physician but in no case shall this period exceed one hundred twenty (120)
days. However, if the 120 days initial period is exceeded and no such
declaration is made because the seafarer requires further medical
attention, then the temporary total disability period may be extended up to

12
MAGSAYSAY MARITIME CORP. vs. JAIME M. VELASQUEZ, G.R. No. 179802, November 14, 2008
13
Attached hereto as Annex ‘H” is Dr. Mejorada’s Medical Certificate.
a maximum of 240 days, subject to the right of the employer to declare
within this period that a permanent partial or total disability already exists.

In this case, there was no such declaration made by the company-

physician that has been communicated to the complainant regarding the
degree of his disability. In fact, all medical records of the complainant
while he was confined in Delos Santos Medical Center are still in the
possession of the respondents. Up to now, complainant is still under
treatment and medication. As a consequence, the sickness allowance of
the complainant should be computed at the maximum period which is 240
days or 8 months. Hence, the computation is as follows: US $ 1, 149.00 as
his basic wage multiplied by 8 months (240 days) = US $ 9, 192 at its peso
equivalent at the time of payment.

III.

RESPONDENTS ARE LIABLE FOR DAMAGES

RESPONDENT ACTED IN BAD

FAITH.

It has been almost three years now that respondents made

complainant to believe that they were just processing his disability benefit.
All the while, complainant had trusted respondents’ sweet promises that he
is going to receive his disability benefit. But, much to his dismay,
complainant received a letter from the respondents recently denying his
claim for disability benefit. Respondents’ deliberate act of misleading
complainant clearly shows bad faith on their part which almost causes
complainant’s right to claim to be barred by prescription. Were it not for
the timely advised of the Call For Justice to file this instant complainant,
complainant’s right to claim would have already been prescribed this year.
The deceptive promise of the respondents was really intentional in order to
defeat complainant’s right to claim. For this reason, an award of moral
and exemplary damages should be given in favor of the complainant.

IV.

RESPONDENTS ARE LIABLE FOR ATTORNEY’S FEES

Under Article 2208 of the New Civil Code, attorney's fees can be
recovered in actions for the recovery of wages of laborers and actions for
indemnity under employer's liability laws. Attorney's fees are also
recoverable when the defendant's act or omission has compelled the
plaintiff to incur expenses to protect his interest. 14

In the instant case, respondents’ refusal to give complainant’s

disability benefit has compelled the complainant to hire the services of the
undersigned counsel for a fee in order to protect his right.

PRAYER

WHEREFORE, premises considered, it is hereby respectfully prayed

for that a judgment be rendered finding for complainant and ordering
respondents to jointly and severally pay the former the following:

(1) US$60,000 at its peso equivalent at the time of

payment, representing disability benefits corresponding to Total
Permanent;

(2) US $ 9, 192 at its peso equivalent at the time of

payment, representing Sick Wage allowance;

(3) P500,000, representing moral and exemplary damages;

and

14
BERNARDO REMIGIO vs. NATIONAL LABOR RELATIONS COMMISSION, G.R. No. 159887, April 12, 2006
 (4) Attorney’s fees equivalent to 10% of the judgment
award.

Other reliefs which are just and equitable are likewise prayed for.

Done this ___ day of August 2009, in Iligan City, Philippines.

ATTY.VERMIN M. QUIMCO
Counsel for the Complainant
IBP No. 716098 12-24-08
Roll No. 35377 05/28/1988
MCLE COMPLIANCE No. II-0016426
CALL FOR JUSTICE, Inc.
RM 202 Monsanto Bldg., Don Pedro Celdran St.,
Rosario heights, Tubod, Iligan City

Copy furnished:

Del Rosario and Del Rosario

Counsel for the Respondents
15/F Pacific Star Building
Makati Ave., cor. Sen. Gil Puyat Ave.
1200 Makati City

EXPLANATION

A copy of this position paper is being served to the other parties

through registered mail due to geographical distance between Iligan City
and Makati City.

ATTY. VERMIN M. QUIMCO

Republic of the Philippines )
City of Iligan )S.S.

VERIFICATION

I, VERMIN M. QUIMCO, of legal age, Filipino, married, and a

resident of Dona Maria Subdivision, Iligan City after having been duly
sworn to oath in accordance with law, do hereby depose and say, THAT:

1. I am the counsel of the complainant in the above-entitled

case;
2. Upon the instruction and initiative of my client, I prepared the
foregoing position paper; and
3. I affirm the authenticity of the documents attached thereto as
well as the veracity of the allegations therein are based on the
personal knowledge of my client.

IN WITNESS WHEREOF, We have hereunto set our hands this ____

day of August 2009, in Iligan City, Philippines.

VERMIN M. QUIMCO

SUBSCRIBED AND SWORN to before me this ___th day of August

2009, in Iligan City, Philippines. Affiant is personally known to me.
Republic of the Philippines )
ILIGAN CITY ) S.S.

AFFIDAVIT OF SERVICE

I, KERTH ABLANQUE, as legal staff of Atty. Vermin Quimco, whose

office address is situated at RM 202 Monsanto Bldg., Don Pedro Celdran St., Rosario
heights, Tubod, Iligan City, after having been duly sworn to oath, depose and say:

1. That on _____________, I served a copy of the following pleading by Registered

Mail:

NATURE OF PLEADING/PAPER

POSTION PAPER
In Re: Mejorada vs. Matagumpay Maritime Inc., et. al., NLRC
Case No. RABX(M)-04-10755-09

2. That I served said position paper together with its annexes by depositing
a copy in the post office in a sealed envelope, plainly addressed to the parties,
with postage fully prepaid, as evidenced by the attached Registry Receipt with
Registry Receipt Numbers below, with the instructions to the postmaster to
return the mail to the sender after ten (10) days if undelivered;

3. That the address and the respective registry receipt are:

Name of Addressee R.R. No.

Del Rosario and Del Rosario

15/F Pacific Star uilding
Makati Ave., cor. Sen. Gil Puyat Ave.
1200 Makati City ___________________

4. That I am executing this affidavit of service to attest to the truth of the

foregoing, particularly that copies of herein position paper was sent to the above
addressee by registered mail during the date specified..

IN WITNESS WHEREOF, I have hereunto set my hand this, _______ day of August
2009, Iligan City, Philippines.

Kerth Ablanque
Affiant
 SUBSCRIBED AND SWORN to before me this ______ day of August 2009 at Iligan
City, Philippines, affiant is personally known to me.