Position Paper

Republic of the Philippines
Department of Labor and Employment

NATIONAL LABOR RELATIONS COMMISSION
National Capital Region
Quezon City
OFW-SEA BASED
BOY GIOVANI OCCENA DIAZ, NLRC CASE NO. NCR-10-14686-17
Complainant, Hon. L. A. J. POTENCIANO F. NAPENAS JR.
- versus –
RCCL CREW MANAGEMENT, INC.,
and/or ROYAL CARIBBEAN CRUISE LINE
and/or RONALD T. DE GUZMAN,
Respondents.
x---------------------------------------------x
COMPLAINANT’S
POSITION PAPER
COMPLAINANT BOY GIOVANI OCCENA DIAZ, by
undersigned counsel, respectfully submits this Position Paper,
constitutive of his causes of action against the respondents, to
wit-
PREFATORY STATEMENTS
“Courts are called upon to be vigilant in their

time-honored duty to protect labor, especially in cases
of disability or ailment. When applied to Filipino
seamen, the perilous nature of their work is
considered in determining the proper benefits to be
awarded. These benefits, at the very least, should
approximate the risks they brave on board the vessel
PAGE 1 OF 29 - POSITION PAPER (DIAZ)
every single day.”
Accordingly, if serious doubt exists on the

company-designated physician’s declaration of the
nature of a seaman’s injury and its corresponding
impediment grade, resort to prognosis of other
competent medical professionals should be made. In
doing so, a seaman should be given the opportunity to
assert his claim after proving the nature of his injury.
These evidences will in turn be used to determine the
benefits rightfully accruing to him.” (LEOPOLDO
ABANTE VS. KJGS FLEET MANAGEMENT MANILA,
ET. AL., G.R. No. 182430, 04 December 2009)
“We have consistently ruled that disability is

intimately related to one’s earning capacity. The test to
determine its gravity is the impairment or loss of one’s
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. (SEAGULL
MARITIME CORP., ET. AL., vs. JAYCEE DEE, ET.AL.,
G.R. No. 165156, 02 April 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)
“A total disability does not require that the

employee be completely disabled, or totally paralyzed.
What is necessary is that the injury must be such that
the employee cannot pursue his or her usual work and
earn from it. On the other hand, a total disability is
considered permanent if it lasts continuously for more
than 120 days. What is crucial is whether the
employee who suffers from disability could still
perform his work notwithstanding the disability he
incurred.”
“Therefore, it is fitting that respondent be entitled

to permanent total disability benefits considering that
he would not able to resume his position as a maritime
officer and the probability that he would be hired by
other maritime employers would be close to
impossible. Indeed, a sight-impaired maritime
applicant cannot stand in the same footing as his
healthy co-applicant.” (FIL-STAR MARITIME
CORPORATION, ET., AL., V. HANZIEL O. ROSETE, G.R.
No. 192686, 23 November 2011)
STATEMENT OF THE CASE
This is an action asking for payment by respondents of the

permanent total disability benefits, damages and attorney’s fees
in favor of herein complainant Boy Giovani Occena Diaz These
claims are based on the pertinent provisions of the VER.DI-ITF-
TCC Collective Bargaining Agreement (CBA) which was expressly
incorporated and made applicable in the contract of employment
agreed upon by herein parties; pertinent provisions of the POEA
Standard Contract for Seafarers Employed On-board Ocean-
going Vessels; and applicable jurisprudence.
T H E PA R T I E S
Complainant-Appellee RICKY CONSUL, SR., (hereinafter referred

to as complainant-appelee Consul) is of legal age, Filipino, married and
a resident of Block 1 Lot 12 Sec. 23, Phase 2 Pabahay 2000, Bagtas,
Tanza, Cavite. He can be served with notices, orders, resolutions and
other processes of this Honorable Labor Arbitration Branch at the
address of his counsel of record, Atty. NENITA C. MAHINAY, No. 57-
A Cordillera Heights, Cordillera Street cor. N. Roxas Street, Brgy.
Lourdes, Quezon City.
(Note:
Respondent RCCL CREW MANAGEMENT, INCORPORATED

(hereinafter referred to as respondent RCCL-Phils.) is a Philippine
corporation operating as a manning agency engaged in the
recruitment and placement of seafarers for deployment abroad to their
foreign principals. It may be served with orders, resolutions and other
processes of this Honorable Office at Ground Floor Five E-Com Mall of
Asia Complex, Harbor Drive, Pasay City 1300 NCR.
Respondent foreign principal ROYAL CARIBBEAN CRUISE LINE

(hereinafter referred to as respondent RCCL-Int’l.) is one of the foreign

principals of respondent RCCL-Phils., where complainant Diaz was
deployed. Its office is located abroad. However, for purposes of being
sued and notified in the Philippines, service of notices, orders and
resolutions of this Honorable Office can be done at the office of
respondent RCCL-Phils., its resident agent in the Philippines.
Respondent RONALD T. DE GUZMAN (hereinafter referred to as

respondent De Guzman) is the President of respondent RCCL-Phils..
She is of legal age, Filipino and with office address at Ground Floor
Five E-Com Mall of Asia Complex, Harbor Drive, Pasay City 1300 NCR
where she may be served with notices, orders and resolutions of this
Honorable Labor Arbitration Office.
STATEMENT OF THE FACTS
1. On 23 May 2012, the parties signed a Contract of

Employment for complainant Diaz to serve as SECURITY
GUARD of the vessel “MV MEIN SCHIFF 4” (Official No.
9678408; GRT: 99,500; Classification Society: DNV-
GERMANISCHER LLOYD), under the following terms, to wit
–
Duration of Contract : Eight (8) months

Position : SECURITY GUARD
Basic Monthly Salary : US$ 434.00/mo.
Hours of work : 44 hours/week
Initial Overtime : US$ 148.00/mo.
Supplemental OT : US$ 173.00/mo.
OT Rate After 303 hrs : US$ 3.42/hr.
Vacation Leave Pay : US$ 122.00/mo.
Point of Hire : Manila, Philippines
CBA : Ver.di (German Union)
The contract of employment was approved by the POEA on

15 January 2016, copy of which is hereto attached as Annex
“B” for immediate reference. An Addendum To Contract was
issued on 31 January 2016 increasing the total pay to
US$1,417.00/month. The addendunm and the allotment slip
are hereto attached as Annexes “B-1” and “B-2”.
NOTE: The contract was originally executed with Philippine

Transmarine Carriers (PTC). However, prior to deployment,
the vessel was transferred to RCCL-Phils. and RCCL-Int’l.,
hence, the employers of complainant Diaz became herein
respondents RCCL-Phils. and RCCL-Int’l.
2. Prior to the signing of the above-mentioned contract,

respondents sent complainant Diaz to its accredited
medical clinic for pre-employment medical examination.
Complainant Diaz was found to be in good health condition
and fit for duty prior to his employment. Hence, he was hired
by respondents.
3. On 23 October 2016 pursuant to the contract of employment,
complainant Diaz left the Philippines for abroad, and
eventually joined the vessel MV MEIN SCHIFF 4 as its
SECURITY GUARD.
4. Complainant Diaz had a rough day of work on 16 December

2016 which caused him to drowse heavily. Thence on 17
December 2016 upon waking up, he noticed that he had a
problem with his left hand. He realized that he cannot flex
his fingers with numbness on his left hand. He thought it
was just due to compression on his left arm while sleeping,
so he simply reported for work. He later on realized that it
was more serious than what he initially thought.
5. After five (5) days, complainant Diaz further realized that he

can no longer flex his fingers and cannot feel any sensation
on his left hand. He reported this problem to his superior.
And it was decided that he had to be examined in a medical
facility upon reaching a port of call.
6. On 19 December 2016, upon arrival of the vessel in Spain,

complainant Diaz was seen in a medical facility by a
specialist who advised that he should have an EMG-NCV
study.
7. On 20 December 2016, upon the vessel’s arrival in France,

complainant Diaz was once again brought to a medical
facility where he was placed under EMG-NCV examination
studies. The studies revealed that complainant Diaz has
ULNAR NERVE COMPRESSION SYNDROME. He was
advised to undergo decompression surgery which was
agreed upon to be conducted upon his repatriation to the
Philippines.
Copy of the EMG-NCV Studies Report (results) from France,

signed by Dr. Ahmad Al Chakkif, consisting of five (5) pages;
and the Doctor’s Letter consisting of two (2) pages signed
both shipside and shoreside physicians, are respectively
attached as Annexes “C” (to “C-4), and “D” (to “D-1”).
8. On 24 December 2016, complainant Diaz’s Medical Leave

and medical repatriation was approved. Copy of Medical
Leave, consisting to 2 pages and Medical Disembarkation
Acknowledgment, likewise consisting of 2 pages, are
respectively attached hereto as Annexes “E” (to “E-1”) and
“F” (to “F-1”).
9. On 27 December 2016, upon arrival of complainant Diaz in

the Philippines, he reported immediately to respondent
RCC-Phils., for medical referral. He was referred to
ShipHealth for medical management. He was seen by a
specialist who advised him to undergo physical therapy in
the meantime to determine if there will be any improvement
in his condition. He had physical therapy for about four
months and was again re-evaluated by his specialist.
10. Since there was no improvement on complainant Diaz’s

condition, he was advised to undergo surgery. He was
referred back to his agency (herein respondent RCCL-Phils.)
for final decision. He was told that he can return to work but
was not given any contract because it was clear that he
cannot use his left hand. Respondents also suggested that
complainant’s disability be placed at GRADE 8 impediment
rating under the POEA Standard Contract for seafarers. This
is no acceptable to complainant since his employment is
expressly covered by the Ver.di CBA.
11. Inspite of months PT sessions, complainant Diaz’s

condition showed no signs of remarkable recovery to
normal health. Respondents did not approve the suggestion
by their own designated doctor/s that complainant Diaz
should undergo surgery. His left hand continues to be weak
and useless.
12. Complainant Diaz’s injured left hand can be considered as a

result of an accident as it was A SUDDEN AND
UNFORESEEN OCCURRENCE, completely unexpected and
not a usual or ordinary consequence of the work performed
by complainant. Per section 19 of the VER.DI/ITF-TCC CBA
(attached hereto as Annex “G”), it is provided that “A
Seafarer who suffers an injury as a result of an accident
from any cause whatsoever whilst in the employment of the
Company, including accidents occurring whilst travelling to
or from the ship or as a result of marine or other similar peril,

and whose ability to work is reduced as a result thereof,
shall receive from the Company in addition to their sick pay
(§ 15 above), a compensation as stated below:”
Compensation:
a) Masters and Officers and ratings above AB - US$ 250.000
b) All Ratings, AB and below - US$ 125.000
Degree of disability rate of compensation
% Ratings AB and Officers &
below Ratings above
AB
US$ US$
50 -100 125,000 250,000
Copy of the applicable VER.DI/ITF-TCC CBA is hereto

reproduced and attached as Annex “G” for immediate
reference.
13. Notably, complainant Diaz’s position as SECURITY GUARD

is higher than that of an AB. Hence, he is entitled to Total
Permanent Disability Benefits of US$250,000.00 under the
VER.DI/ITF-TCC CBA which was expressly made applicable
in the Contract of Employment signed by the parties. And as
discussed above, the proximate cause of complainant
Diaz’s injuries was the accident which happened on or about
15 August 2012 which working in the vessel owned and/or
operated by respondent German principal.
14. Complainant Diaz sought a second medical opinion form Dr.

Nicanor F. Escutin, MD, FICS, Orthopedic Surgeon – a
specialist and fellow of the International College of
Surgeons, and Philippine Society of Surgery of Trauma. The
findings of Dr. Escutin are as follows –
PERTINENT PHYSICAL EXAMINATION

General Survey: Conscious, coherent, ambulatory
LEFT WRIST EXAMINATION:

> Numbness on his palm ulnar side involving 5th, 4th
and 3rd digit, Left Hand
> Pain on flexion/extension
> Pain on abduction/adduction
> Grip is weak, cannot feel the object he is holding
> Pain on twisting the hand
> Cannot hold object for a long time, tendency to
lose grip
> ATROPHY of hypothenar imminence
FINAL DIAGNOSIS
> ULNAR COMPRESSION SYNDROME, LEFT HAND
> CARPAL TUNNEL SYNDROME, LEFT HAND
> ULNAR/MEDIAN NERVE NEUROPATHY, LEFT HAND
DISABILITY EVALUATION
xxxx xxxxx
He is UNFIT TO WORK AS A SEAMAN in whatever capacity.

He is given a PERMANENT DISABILITY.
14. Copy of the Medical Opinion and Diagnoses of Dr. Escutin,

consisting of two (2) pages, is hereto attached as Annex “L”
(to “L-2”).
ISSUES TO BE RESOLVED
[a]. Whether or not complainant Diaz is entitled to payment of

Permanent Total Disability Benefits pursuant to the
VER.DI/ITF-TCC CBA (herein Annex “L”), the facts and
relevant jurisprudence; and
[b]. Whether or not complainant Diaz is entitled to payment of

moral and exemplary damages, and attorney’s fees.
ARGUMENTS AND DISCUSSIONS
Complainant Diaz thru undersigned counsel respectfully

submits in the affirmative for both issues.
Complainant Diaz submits that he is entitled to be paid,

among others, his total permanent disability benefits of Two
Hundred Fifty Thousand US Dollars [US$250,000.00] under the
VER.DI/ITF-TCC CBA (herein Annex “L”).
COMPLAINANT DIAZ RESPECTFULLY SUBMITS THAT THE

PROVISIONS ON DISABILITY COMPENSATION UNDER THE
VER.DI/ITF-TCC CBA IS APPLICABLE IN THIS CASE. IT IS
RESPECTFULLY SUBMITTED THAT AN ACCIDENT WITHIN THE
CONTEMPLATION OF SETTLED LABOR LAW JURISPRUDENCE
EXISTS IN THIS CASE.
At the heart of the subject matter in this case is the issue of

the applicability of the CBA to complainant Diaz’s disability claim.
Now an accident is generally regarded as a sudden and
unforeseen event which ordinary diligence could not possibly
have avoided (Black’s Law Dictionary). In this case, the proximate
cause of complainant Diaz’s injuries was the accident discussed
in paragraphs 4 and 5 of the statement of facts. Such accident
was sudden, unintended, unexpected and unforeseen when it
happened.
DOUBTS SHOULD BE RESOLVED IN A MANNER FAVORABLE

AND BENEFECIAL TO THE SEAFARER.
If a given concept that touches upon the application of the

CBA or the POEA Standard Employment Contract is capable of
two or more interpretations, the one most favorable to the
working man must be sustained. This is in accordance with the
time-honored legal principle that “any doubts or ambiguity in the
contract between management and the union members should be
resolved in the light of Article 1702 of the Civil Code that “in case
of doubt, all labor legislation and all labor contracts shall be
construed in favor of the safety and decent living for the laborer.
This is also in consonance with the principle enunciated in the
Labor Code that all doubts should be resolved in favor of the
worker.” (Cited in PLASTIC TOWN CENTER CORPORATION,
vs. NLRC, Et., Al., G.R. No. 81176 April 19, 1989.)
COMPLAINANT DIAZ CAN NO LONGER WORK AS A

SEAFARER ON ACCOUNT OF HIS CONTINUING PHYSICAL
WEAKNESS AND RECURRING PAINS ON HIS LEFT HAND. AS
SHOWN IN HIS MEDICAL RECORDS, THE SAME IS RECURRENT
AND UNPREDICTABLE. PHYSICAL THERAPY SESSIONS AND
MEDICATIONS WERE NOT ABLE TO RESTORE HIS HEALTH.
The following Supreme Court teachings are apropos to the

instant case, to wit –
“The law looks tenderly on the laborer. Where the

evidence may be reasonably interpreted in two
divergent ways, one prejudicial and the other favorable
to him, the balance must be tilted in his favor
consistent with the principle of social justice.”
“As to whether petitioner can claim disability

benefits, the Court rules in the affirmative. 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. In the case at bar, it was only on February 20,
2001 that the Certificate of Fitness for Work was issued
by Dr. Lim, more than 6 months from the time he was
initially evaluated by the doctor on July 24, 2000 and
after he underwent operation on August 18, 2000.”
“It is gathered from the documents emanating

from the Office of Dr. Lim that petitioner was seen by
him from July 24, 2000 up to February 20, 2001 or a
total of 13 times; and except for the medical reports
dated February 5, 2001 and February 20, 2001 (when
the doctor finally pronounced petitioner fit to work), Dr.
Lim consistently recommended that petitioner
continue his physical rehabilitation/therapy and revisit
clinic on specific dates for re-evaluation, thereby
implying that petitioner was not yet fit to work.”
(LEOPOLDO ABANTE VS. KJGS FLEET
MANAGEMENT MANILA, ET. AL., G.R. No. 182430, 04
December 2009)
complainant respectfully emphasizes that complainant’s claim

for total permanent disability benefits rests on sound and
stable recent judicial rulings which amplified and further
affirmed the doctrine in Kestrel Shipping Co., Inc., Capt.
Amador P. Sevillion and Atlantic Manning Ltd., vs. Francisco
D. Munar [G.R. No. 198501, 30 January 2013]. To be more
particular and clear on this point, the following equivocal
pronouncements of the High Court are hereby respectfully
quoted, to wit –
1. This year (2017), in the case of REYNALDO Y. SUNIT vs.

OSM MARITIME SERVICES, INC., ET. AL., (G.R. No.
223035, 27 February 2017), the Supreme Court re-
affirmed the above-mentioned Kestrel doctrine, by
declaring as follows:
“This conclusion is in accordance with Kestrel,

wherein this Court underscored that if partial and
permanent injuries or disabilities would
incapacitate a seafarer from performing his usual
sea duties for a period of more than 120 or 240 days,

depending on the need for further medical
treatment, then he is, under legal contemplation,
totally and permanently disabled:”
“Indeed, under Section 32 of the POEA-SEC, only

those injuries or disabilities that are classified as
Grade 1 may be considered as total and permanent.
However, if those injuries or disabilities with a
disability grading from 2 to 14, hence, partial and
permanent, would incapacitate a seafarer from
performing his usual sea duties for a period of more
than 120 or 240 days, depending on the need for
further medical treatment, then he is, under legal
contemplation, totally and permanently disabled. In
other words, an impediment should be
characterized as partial and permanent not only
under the Schedule of Disabilities found in Section
32 of the POEA-SEC but should be so under the
relevant provisions of the Labor Code and the
Amended Rules on Employee Compensation
(AREC) implementing Title II, Book IV of the Labor
Code. That while the seafarer is partially injured or
disabled, he is not precluded from earning doing
the same work he had before his injury or disability
or that he is accustomed or trained to do.
Otherwise, if his illness or injury prevents him from
engaging in gainful employment for more than 120
or 240 days, as the case may be, he shall be deemed
totally and permanently disabled.”
“In determining whether a disability is total or

partial, what is crucial is whether the employee who
suffered from disability could still perform his work
notwithstanding the disability he met. A permanent
partial disability presupposes a seafarer's fitness to
resume sea duties before the end of the 120/240-day
medical treatment period despite the injuries
sustained, and works on the premise that such
partial injuries did not disable a seafarer to earn
wages in the same kind of work or similar nature for
which he was trained.”
2. In DARIO A. CARCEDO (substituted by his wife

PRISCILLA DELA CRUZ-CARCEDO) v. MAINE MARINE
PHILIPPINES, INC. and/or MISUGA KAJUN CO., LTD.,
and/or MA. CORAZON GEUSE-SONGCUYA [G.R. No.

203804, 15 April 2015], the Supreme Court declared as
follows:
“As these provisions operate, the seafarer,

upon sign-off from his vessel, must report to the
company-designated physician within three (3)
days from arrival for diagnosis and treatment. For
the duration of the treatment but in no case to
exceed 120 days, the seaman is on temporary total
disability as he is totally unable to work. He
receives his basic wage during this period until he
is declared fit to work or his temporary disability is
acknowledged by the company to be permanent,
either partially or totally, as his condition is defined
under the POEA Standard Employment Contract
and by applicable Philippine laws. 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 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.
The seaman may of course also be declared fit to
work at any time such declaration is justified by his
medical condition. “
“Hence, a partial and permanent disability

could, by legal contemplation, become total
and permanent. The Court in Kestrel Shipping
Co., Inc. v. Munar held that the declaration by
the company-designated physician is an
obligation, the abdication of which transforms
the temporary total disability to permanent total
disability, regardless of the disability grade,
viz:” (Underscoring and italics supplied.)
“Indeed, under Section 32 of the POEA-SEC,

only those injuries or disabilities that are classified
as Grade 1 may be considered as total and
permanent. However, if those injuries or
disabilities with a disability grading from 2 to 14,
hence, partial and permanent, would incapacitate a
seafarer from performing his usual sea duties for a
period of more than 120 or 240 days, depending on
the need for further medical treatment, then he is,

under legal contemplation, totally and permanently
disabled. In other words, an impediment should be
characterized as partial and permanent not only
under the Schedule of Disabilities found in Section
32 of the POEA-SEC but should be so under the
relevant provisions of the Labor Code and the
Amended Rules on Employee Compensation
(AREC) implementing Title II, Book IV of the Labor
Code. That while the seafarer is partially injured or
disabled, he is not precluded from earning doing
the same work he had before his injury or disability
or that he is accustomed or trained to do.
Otherwise, if his illness or injury prevents him
from engaging in gainful employment for more
than 120 or 240 days, as the case may be, he
shall be deemed totally and permanently
disabled.” (Underscoring and italics supplied.)
3. In AL O. EYANA v. PHILIPPINE TRANSMARINE

CARRIERS, INC., ALAIN A. GARILLOS, CELEBRITY
CRUISES, INC. (U.S.A.), [G.R. No. 193468, 28 January
2015], the Supreme Court further declared as follows:
“In Kestrel Shipping Co., Inc. v.

Munar, likewise involving a seafarer who had
sustained a spinal injury and had lost two-thirds of
his trunk’s lifting power, the Court is emphatic that:
Indeed, under Section 32 of the POEA-SEC, only
those injuries or disabilities that are classified as
Grade 1 may be considered as total and permanent.
However, if those injuries or disabilities with a
disability grading from 2 to 14, hence, partial and
permanent, would incapacitate a seafarer from
performing his usual sea duties for a period of
more than 120 or 240 days, depending on the
need for further medical treatment, then he is,
under legal contemplation, totally and
permanently disabled. x x x.” (Underscoring and
italics supplied.)
xxxx
“x x x Section 29 of the 1996 POEA SEC itself

provides that "[a]ll 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." Even without this
provision, a contract of labor is so impressed with
public interest that the New 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.”
“Thus, the Court has applied the Labor Code

concept of permanent total disability to the case of
seafarers. x x x.”
x x x [T]he POEA [SEC] provides its own

system of disability compensation that
approximates (and even exceeds) the benefits
provided under Philippine law. The standard terms
agreed upon, as above pointed out, are intended to
be read and understood in accordance with
Philippine laws, particularly, Articles 191 to 193 of
the Labor Code and the applicable implementing
rules and regulations in case of any dispute, claim
or grievance.”
4. In BELCHEM PHILIPPINES, INC./UNITED PHILIPPINE

LINES, FERNANDO T. LISING v. EDUARDO A. ZAFRA,
JR., [G.R. No. 204845, 15 June 2015], the Supreme
Court also declared as follows:
“There is no dispute that Zafra has been

suffering permanent disability because he has
remained unable to resume sea duties after the
lapse of the 240-day period. The dispute is simply
whether such permanent disability is partial or total
in character. If the permanent disability is partial,
then Zafra shall be entitled to US$3,590.73 only, the
amount corresponding to the assessed Grade 10
disability pursuant to the schedule provided in the
POEASEC. If it is total, Zafra shall receive the
maximum US$60,000.00 as compensation.”
“The Court has reiterated in many cases

that total permanent disability means the

disablement of an employee to earn wages in the
same kind of work that he was trained for, or
accustomed to perform, or any kind of work
which a person of his mentality and attainments
could do. It does not mean absolute helplessness.
In disability compensation, it is not the injury which
is compensated, but rather it is the incapacity to
work resulting in the impairment of one's earning
capacity.” (Underscoring and italics supplied.)
“Partial disability, on the one hand, is when the

employee suffers a permanent partial loss of the use
of any part of his body as a result of the injury or
sickness.”
“In Vicente v. Employees Compensation

Commission, the Court laid down the litmus test
and distinction between Permanent Total Disability
and Permanent Partial Disability, to wit:”
“x x x while permanent total disability

invariably results in an employee’s loss of work or
inability to perform his usual work, permanent
partial disability, on the other hand, occurs when an
employee loses the use of any particular anatomical
part of his body which disables him to continue with
his former work. Stated otherwise, the test of
whether or not an employee suffers from permanent
total disability is a showing of the capacity of the
employee to continue performing his work
notwithstanding the disability he incurred. Thus, if
by reason of the injury or sickness he sustained, the
employee is unable to perform his customary job for
more than 120 or [240] days and he does not come
within the coverage of Rule X of the Amended Rules
on Employees Compensability (which, in a more
detailed manner, describes what constitutes
temporary total disability), then the said employee
undoubtedly suffers from permanent total disability
regardless of whether or not he loses the use of any
part of his body.”
“In Fil-Star Maritime Corporation v. Rosete, the

Court emphasized that in determining whether a
disability was total or partial, what was crucial was

whether the employee who suffered from disability
could still perform his work notwithstanding the
disability he met.”
“In brief, permanent partial disability

presupposes a seafarer’s ‘fitness to resume sea
duties before the end of the 120/240-day medical
treatment’ period despite the injuries sustained.
The premise is that such partial injuries ‘did not
disable’ a seafarer to earn wages in the same
kind of work or similar nature for which he was
trained.” (Underscoring and italics supplied.)
xxxx
“In this case, petitioners seek the Court’s

attention to the "final" assessment, dated April 19,
2010, issued by the attending physician, which was
earlier quoted.”
“To the petitioners, this assessment

forecloses any claim that Zafra’s injury is total or
one that incapacitates the employee to continue
performing his work. They treat it as the certification
required under Section 20 (B)(3) of the POEA-
SEC as it contained his degree of disability and
fitness to resume sea duties.”
“The statement, however, is clearly devoid of

any definitive declaration as to the capacity of Zafra
to return to work or at least a categorical and final
degree of disability. As pointed out by the CA, all the
medical certificates found in the record merely
recited his medical history and, worse, it made no
mention as to whether the seafarer was even
capable of resuming work. In fact, it was merely a
suggestion coming from the attending doctor and
not from the company-designated physician, as if
the letter was written while the process of
evaluation was still being completed. To stress,
Section 20 (B)(3) of the POEA-SEC requires the
declaration of fit to work or the degree of permanent
disability by the company-designated physician and
not by anyone else. Here, it was only Dr. Chuasuan,
Jr. who signed the suggested assessment,

addressing the letter solely to Dr. Lim, the company-
designated physician. Taken in this context, no
assessment, definitive in character, from the
company-designated physician’s end was issued to
reflect whether Zafra was fit or unfit to resume
duties within the 120/240 day period, as the case
may be. Thus, the Court deems him unfit to resume
work on board a sea vessel.”
“It makes sense then to conclude that

because Zafra has been deemed unfit to work
after the expiration of the 240-day period, it
would be illogical to declare him as merely
permanently, partially disabled. To reiterate,
partial disability exists only if a seafarer is found
capable of resuming sea duties within the
120/240 period. Here, there was no such finding.
Thus, the petitioners’ claim that Zafra only suffered
a partial disability has undoubtedly no basis on
record. If at all, the basis was not strong enough to
merit its affirmation by the NLRC and the CA.”
(Underscoring and italics supplied.)
“Conversely, the weight of evidence

overwhelmingly tilts on the side of Zafra. Evident in
the record is the fact that he has remained
unemployed as a seafarer for more than 240 days
from the time of his repatriation on October 22,
2009. His allegation that he was unable to perform
the same physical activities he used to perform
prior to his injury has not been contradicted by the
petitioners or by contrary documentary evidence.”
xxxx
“Lastly, considering that Zafra was forced to

litigate and incur expenses to protect his right and
interest, his right to attorney's fees in the amount of
US$ 6,000.00 or an amount equivalent to 10% of his
claim is likewise affirmed by this Court.”
Complainant’s claim is likewise in accord with the doctrinal

rulings in Crystal Shipping, Inc. Et Al., v. Deo P. Natividad, [G.R.
No. 154798, 20 October 2005] and Bernardo Remigio v. NLRC, Et

Al., [G.R. No. 159887, 12 April 2006], as well as subsequent
jurisprudence maintaining the said rulings, notwithstanding the
revisions made in the POEA Standard Contract.
It is very clear that the injury was sustained in the course of

employment and undeniably in the performance of duty. Section
20 [B] of the POEA Standard Contract provides –
“B. COMPENSATION AND BENEFITS FOR
INJURY OR INJURY
“The liabilities of the employer when the

seafarer suffers work-related injury or illness
during the term of his contract are as follows:
1. The employer shall continue to pay the

seafarer his wages during the time he is on
board the vessel;
2. If the injury or illness requires medical

and/or dental treatment in a foreign port, the
employer shall be liable for the full cost of such
medical, serious dental, surgical and hospital
treatment as well as board and lodging until the
seafarer is declared fit to work or to be
repatriated.
However, if after repatriation, the seafarer still

requires medical attention arising from said
injury or illness, he shall be so provided at cost
to the employer until such time he is declared
fit or the degree of his disability has been
established by the company-designated
physician.
3. Upon sign-off from the vessel for medical

treatment, the seafarer is entitled to 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 xxx xxx
xxxxx xxxxx
5. Once signed off from the vessel for medical

treatment, the employer shall bear the full cost

of repatriation in the event the seafarer is
declared (1) fit for repatriation; or (2) fit to work
but the employer is unable to find employment
for the seafarer on board his former vessel or
another vessel of the employer despite earnest
efforts.
In case of permanent total or partial disability

of the seafarer caused by either injury or
illness the seafarer shall be compensated in
accordance with the schedule of benefits
enumerated in Section 32 of his Contract.
Computation of his benefits arising from an
injury or disease shall be governed by the rates
and the rules of compensation applicable at
the time the injury or disease was contracted.”
In this case, the illness was work-related since the same was
sustained during an accident in the course of duty. Said illness
was not pre-existing since complainant underwent the mandatory
pre-employment medical examination before he was employed by
respondent, and was found to be fit and given a clean bill of health
prior to his employment.
In Crystal Shipping, Inc. Et Al., v. Deo P. Natividad, [G.R. No.

154798, 20 October 2005], the Supreme Court ruled 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. As gleaned from
the records, respondent was unable to work
from August 18, 1998 to February 22, 1999, at
the least, or more than 120 days, due to his
medical treatment. This clearly shows that his
disability was permanent.
“Total disability, on the other hand, means the

disablement of an employee to earn wages in
the same kind of 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 attainments could do. It does not
mean absolute helplessness. In disability
compensation, it is not the injury which is
compensated, but rather it is the incapacity to

work resulting in the impairment of one’s
earning capacity.”
The ruling in the Crystal Shipping Case is a refinement of

earlier decisions, viz –
“In the case of the Philippine Transmarine
Carriers, Inc. vs. NLRC. 358 SCRA 47, the
Supreme Court held 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 accustomed to perform, or any
kind of work which person of his mentality and
attainment could do. It does not mean absolute
helplessness (ECC vs. Edmund Sanico, 321
SCRA 268: GSIS vs. CA 285 SCRA 430; GSIS vs.
CA 260 SCRA 133: Bejerano vs. ECC, 205 SCRA
598).”
In disability compensation, it is not the injury

which is compensated, but rather it is the
incapacity to work resulting in the impairment
of one’s earning capacity (Bejerano vs. ECC 205
SCRA 598: Ulibas vs. Republic, 83 SCRA 819;
Roma vs. WCC, 80 SCRA 170).
One should always remember that the POEA

Standard Employment Contract for Seamen 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 and liberally in their
favor. Only then can its beneficent provisions
be fully carried into effect (Wallem Maritime
Services, Inc. vs. NLRC 318 SCRA 632).
The ruling in the Crystal Shipping case was maintained,

reinforced and more clearly expounded in the case of Bernardo
Remigio v. NLRC, Et Al., [G.R. No. 159887, 12 April 2006] when this
Honorable Court, acting through then Associate Justice [later on
Chief Justice] Renato Puno, included the application of the

concept of Permanent Total Disability under the Labor Code in
favor of the sick or injured seafarer in addition to the provisions
of the POEA Standard Employment Contract for seafarers. The
ruling in the said case reads as follows:
“Second. Is the Labor Code's concept of

permanent total disability applicable to the
case at bar? Petitioner claims to have suffered
from permanent total disability as defined
under Article 192(c)(1) of the Labor Code, viz:
“Art. 192 (c) The following disabilities shall be

deemed total and permanent:
“(1) Temporary total disability lasting

continuously for more than one hundred
twenty days, except as otherwise provided in
the Rules; x x x
“Petitioner likewise cites Vicente v. ECC1[35]

and Abaya, Jr. v. ECC,2[36] both of which were
decided applying the Labor Code provisions
on disability benefits. Private respondents, on
the other hand, contend that petitioner erred
in applying the definition of ‘permanent total
disability’ under the Labor Code and cases
decided under the ECC as the instant case
involves a contractual claim under the 1996
POEA SEC.
“Again, we rule for petitioner.
“The standard employment contract for

seafarers was formulated by the POEA
pursuant to its mandate under E.O. 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.’3[37] Section 29 of the 1996 POEA
SEC itself provides that ‘[a]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.’ Even without this provision, a
contract of labor is so impressed with public
interest that the New 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’."4[38]
“Thus, the Court has applied the Labor Code

concept of permanent total disability to the
case of seafarers. In Philippine Transmarine
Carriers v. NLRC,5[39] 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,6[40] GSIS v. CA,7[41]
and Bejerano v. ECC8[42] 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 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 Bejerano v. ECC,9[43] 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 one's earning capacity.
The law does not require that a seafarer be totally paralyzed

as in this case, or be an invalid resigned to his wheelchair or bed,
in order to claim total permanent disability benefits.
Jurisprudence laid down reasonable parameters to determine a
claim for permanent-total disability benefits. The following time-
honored principles were re-affirmed 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], 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."[1] On the other hand, "[p]ermanent 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."
The definitive thrust of this litigation must be leaned

towards the actual state of lifetime incapacity of the complainant
Diaz to perform again his customary job as a seafarer 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 one’s earning
capacity. The test to determine its gravity is the
impairment or loss of one’s 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 respondent’s injury was

undeniably confined to his left foot only, we
cannot close our eyes, as petitioners would like us
to, to the inescapable impact of private respondent’s
injury on his capacity to work as a seaman. In their

desire to escape liability from private respondent’s
rightful claim, petitioners denigrated the fact that
even if private respondent insists on continuing to
work as a seaman, no profit-minded employer will
hire him. His injury erased all these possibilities.”
(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)
Complainant Diaz is entitled to moral and exemplary

damages, and attorney’s fees.
On account of respondents’ refusal to declare entitlement

and pay complainant what is clearly due to him as a matter of
right, which act manifests violation of complainant Diaz’s rights
and an evident sign of bad faith on their part, respondents must
likewise be ordered to pay moral damages in favor of complainant
Diaz who, in addition to his sickness/loss of right testis, also
suffered serious anxiety, sleepless nights, wounded feelings and
loss of appetite. Such moral damages must amount to at Five
Hundred Thousand Pesos [Php500,000.00] Philippine currency.
In order to serve as a lesson to the general public and

prevent further commission of the same or similar acts injurious
to complainant, respondents must likewise be ordered to pay
exemplary damages of at least Five Hundred Thousand Pesos
[Php500,000.00] Philippine currency.
Since it was respondents’ act of refusing to pay

complainant’s total permanent disability benefits which forced

the latter to litigate, respondents must likewise be ordered to pay
attorney’s fees equivalent to at least ten percent [10%] of the total
award in favor of complainant Diaz.
RELIEF SOUGHT
WHEREFORE, premises considered, it is respectfully asked

of this Honorable Labor Arbitration Office that the following be
awarded in favor of complainant Diaz by ordering respondents to
pay -
1. Total Permanent Disability Pay= US$250,000.00 Dollars

2. Moral damages = PhP 500,000.00 Pesos
3. Exemplary damages = PhP 500,000.00 Pesos
4. Attorney’s Fees equivalent to 10% of total award
Other reliefs just and equitable are respectfully sought.
RESPECTFULLY SUBMITTED.
Santa Cruz, Laguna for Quezon City, 24 November 2017.
A t t y. E M M A N U E L E . S A N D I C H O
Legal Counsel for Complainant
nd
2 Floor GCL Bldg., No. 6081 National Highway
Sambat, Labuin, Santa Cruz, Laguna 4009 Phils.
IBP O.R. No. 1062872, 21 February 2017, Laguna
PTR O.R. No. 4505390, 09 January 2017, Laguna
Roll No. 42246 admitted to practice, 09.05.1997
MCLE Compliance No. V-0015412, 06 March 2016
Republic of the Philippines ]
Quezon City NCR ] s.s.
VERIFICATION & CERTIFICATION
I, BOY GIOVANI OCCENA DIAZ, of legal age, Filipino, married

and resident of 822 Apelo Ext., Malibay, Pasay City 1300 NCR, after
having been sworn in accordance with law, depose and state that-
 I am the complainant in the above captioned case; I caused the

preparation and filing of the foregoing Position Paper; I read
and understood the same; I certify that the declarations are
true and correct of my own personal knowledge and on the
basis of authentic records.
 I have not commenced any action or proceeding involving the

same issues before any other court, agency or tribunal. To my
personal knowledge, no such action or proceeding is pending
before any other court, agency or tribunal. If I come to know
of any other pending action to that effect, I will inform this
office within five [5] days thereafter.
IN WITNESS WHEREFORE, I affixed my signature this 24th day

of November 2017 in Quezon City NCR.
BOY GIOVANI OCCENA DIAZ

Affiant
SUBSCRIBED AND SWORN to before me this 24 November 2017

in Quezon City by affiant with Passport No. EC2310366 issued at
DFA-Manila on 04 October 2014, valid until 03 October 2019.
Doc. No. _____;

Page No. _____;
Book No. _____;
Series of 2017.
_____________________________________________________________
Copy furnished:
NOLASCO & ASSOCIATES LAW OFFICES

Rm. 101 / 425 Padilla -Delos Reyes Bldg.,
232 Juan Luna St., Binondo, Manila

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Republic of the Philippines

Department of Labor and Employment

“Courts are called upon to be vigilant in their

every single day.”

Accordingly, if serious doubt exists on the

“We have consistently ruled that disability is

“A total disability does not require that the

“Therefore, it is fitting that respondent be entitled

STATEMENT OF THE CASE

This is an action asking for payment by respondents of the

Complainant-Appellee RICKY CONSUL, SR., (hereinafter referred

Respondent RCCL CREW MANAGEMENT, INCORPORATED

Respondent foreign principal ROYAL CARIBBEAN CRUISE LINE

(hereinafter referred to as respondent RCCL-Int’l.) is one of the foreign

Respondent RONALD T. DE GUZMAN (hereinafter referred to as

STATEMENT OF THE FACTS

1. On 23 May 2012, the parties signed a Contract of

Duration of Contract : Eight (8) months

The contract of employment was approved by the POEA on

NOTE: The contract was originally executed with Philippine

2. Prior to the signing of the above-mentioned contract,

4. Complainant Diaz had a rough day of work on 16 December

5. After five (5) days, complainant Diaz further realized that he

6. On 19 December 2016, upon arrival of the vessel in Spain,

7. On 20 December 2016, upon the vessel’s arrival in France,

Copy of the EMG-NCV Studies Report (results) from France,

attached as Annexes “C” (to “C-4), and “D” (to “D-1”).

8. On 24 December 2016, complainant Diaz’s Medical Leave

9. On 27 December 2016, upon arrival of complainant Diaz in

10. Since there was no improvement on complainant Diaz’s

11. Inspite of months PT sessions, complainant Diaz’s

12. Complainant Diaz’s injured left hand can be considered as a

or from the ship or as a result of marine or other similar peril,

Copy of the applicable VER.DI/ITF-TCC CBA is hereto

13. Notably, complainant Diaz’s position as SECURITY GUARD

14. Complainant Diaz sought a second medical opinion form Dr.

PERTINENT PHYSICAL EXAMINATION

LEFT WRIST EXAMINATION:

He is UNFIT TO WORK AS A SEAMAN in whatever capacity.

14. Copy of the Medical Opinion and Diagnoses of Dr. Escutin,

[a]. Whether or not complainant Diaz is entitled to payment of

[b]. Whether or not complainant Diaz is entitled to payment of

ARGUMENTS AND DISCUSSIONS

Complainant Diaz thru undersigned counsel respectfully

Complainant Diaz submits that he is entitled to be paid,

COMPLAINANT DIAZ RESPECTFULLY SUBMITS THAT THE

At the heart of the subject matter in this case is the issue of

DOUBTS SHOULD BE RESOLVED IN A MANNER FAVORABLE

If a given concept that touches upon the application of the

COMPLAINANT DIAZ CAN NO LONGER WORK AS A

The following Supreme Court teachings are apropos to the

“The law looks tenderly on the laborer. Where the

“As to whether petitioner can claim disability

benefits, the Court rules in the affirmative. Permanent

“It is gathered from the documents emanating

complainant respectfully emphasizes that complainant’s claim

1. This year (2017), in the case of REYNALDO Y. SUNIT vs.

“This conclusion is in accordance with Kestrel,

sea duties for a period of more than 120 or 240 days,

“Indeed, under Section 32 of the POEA-SEC, only

“In determining whether a disability is total or

2. In DARIO A. CARCEDO (substituted by his wife

and/or MA. CORAZON GEUSE-SONGCUYA [G.R. No.