Republic of the Philippines

Department of Labor and Employment

NATI ONAL LABOR RELATI ONS COMMI SSI ON
Quezon City


NATIONAL CAPITAL REGION
ARBITRATION BRANCH


BERTHIER P. ECULLA, OFW-SEA BASED
Complainant, NLRC Case No. (M) NCR-11-17417-11
Hon. Labor Arbiter Jenneth B. Napiza
-versus-

EPSILON MARITIME SERVICES,
INC., SAFETY MANAGEMENT
SERVICES S.A., CAPT. LIBERATO
CAPAYAS,
Respondents,
x-----------------------------------------x


COMPLAI NANTS POSI TI ON PAPER


COMPLAINANT BERTHIER P. ECULLA by undersigned counsel,
respectfully submits this Position Paper, constitutive of his causes of action
against the respondents, to wit

STATEMENT OF THE CASE

This is an action asking for payment by respondents of the permanent
total disability benefits, damages and attorneys fees in favor of herein
complainant. These claims are based on the Collective Bargaining
Agreement (CBA) between complainants Union and respondent companies;
the POEA Standard Contract For Seafarers On-board Ocean-going Vessels;
and other pertinent labor laws and jurisprudence.

THE PARTIES

Complainant Berthier P. Eculla (hereinafter referred to as
complainant Eculla) is of legal age, Filipino, married and a resident of E.
Aldama Extn. Street, Igbaras, Iloilo 5029. He can be served with notices,
orders, resolutions and other processes of this Honorable Labor Arbitration
Branch at the address of his undersigned counsel.

Respondent EPSILON MARITIME SERVICES, INC. (hereinafter
referred to as respondent Epsilon) is a Philippine corporation operating
as manning agency engaged in the recruitment and placement of seafarers
for deployment abroad to their foreign principals. It may be served with
summons, orders, resolutions and other processes of this Honorable Office
at Unit-8 4
th
Flr. Vernida LV Bldg., Leviste St., Salcedo Village, Makati City
1227 Metro Manila.

Respondent SAFETY MANAGEMENT SERVICES SA., (hereinafter
referred to as respondent SMS) is one of the foreign principals of
respondent Epsilon, where complainant Eculla was deployed. It is based in
Cyprus, but 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 Epsilon, its resident agent in the
Philippines.

Respondent CAPT. LIBERATO A. CAPAYAS (hereinafter referred
to as respondent Capayas) is the President/ CEO/ Gen. Manager/ POEA
Registered Contact Person of respondent Epsilon. He is of legal age, Filipino
and with office address at Unit-8 4
th
Flr. Vernida LV Bldg., Leviste St., Salcedo
Village, Makati City 1227 Metro Manila, where he may be served with
notices, orders and resolutions of this Honorable Labor Arbitration Office.

STATEMENT OF THE FACTS
1. On 12 May 2010, the parties entered into a Contract of Employment
for complainant Eculla to serve as a Gen. Purpose Utility on board the
vessel MV PEDHOULAS LEADER under these terms, to wit:

Duration of Contract : Five [5] months Plus Three [3] upon mutual
consent of the parties
Position : Gen. Purpose Utility (Ordinary Seaman or
O/ S)
Basic Monthly Salary : US$ 279.00 per month
Hours of Work : 40 hours per week
Overtime Rate : US$ 77.00 per month
Vacation Leave Pay : US$ 74.00 per month
Point of Hire : Makati City, Philippines

Copy of the Contract of Employment is hereto attached as Annex A.

2. Prior to the signing of the above-mentioned contract, respondent
Epsilon sent complainant Eculla to its accredited medical clinic for
pre-employment medical examination. Complainant Eculla was found
fit for duty prior to his employment. Hence, he was hired by
respondents.

3. On 17 May 2010, upon instruction of respondent Epsilon, complainant
Eculla left the country on a flight to join the vessel MV PEDHOULAS
LEADER in Labuan, Malaysia. He arrived in Labuan, Malaysia on 18
May 2010 and boarded the vessel on the same day as shown in the
pertinent pages of complainant Ecullas Seamans Book, copy of which
is hereto attached as Annexes B and B-1.

4. Complainant Eculla was working on-duty on the vessel 26 February
2011 when an accident happened, causing an injury to his right hand.
Complainant Ecullas right hand was accidentally hit by the lever
handle of the gangway winch motor. The accident resulted in a broken
index finger in his right hand. Since the ship was at sea at the time,
complainant Eculla was only given first aid treatment; and he was not
immediately sent to a hospital or clinic. It was excruciatingly painful.
Complainant Eculla cannot sleep at night. The pain was compounded
by the harsh weather and the rough sea conditions. Copy of the Initial
Accident Report in the form of an E-mail from Capt. R.A. Tejada, Master
of MV Pedhoulas Leader, addressed to respondents, cc: complainant
Eculla, is hereto attached as Annex C.

5. It took more than two (2) weeks of nights and days sufferings before
complainant Eculla was brought to a medical center on 14 March 2011
in Brazil, where the vessel arrived and was anchored. His right hand
was placed on x-ray. And it was shown that he sustained a broken
proximal phalange, 2
nd
finger of the right hand. The hand was placed
in a splint. Still, there was no comprehensive or sufficient treatment
given to complainant Eculla. He was merely given paracetamol, pain
relievers and anti-biotics; no operation whatsoever. To make matters
worse, complainant Eculla was not immediately repatriated for
medical treatment. He remained on duty. This further gave rise to a
mal-alignment of his index finger and worsening of the fracture
sustained. Copy of a Medical Report Form consisting of two (2) pages
and received by the Master of MV Pedhoulas Leader is hereto attached
as Annexes D and D-1.

6. As early as the x-ray examination in Brazil on 14 March 2011, the
fracture which caused the broken proximal phalange, 2
nd
finger of the
right hand was confirmed. His manifestations of severity of painful
movements caused by said debilitating injury was already established
in the medical report (Annex D) signed by Luis Eduardo Schun, M.D.,
and addressed to the MV Pedhoulas Leader.

7. It was only on 10 May 2011 that complainant Eculla was repatriated to
the Philippines, as shown in the immigration arrival stamp on the
pertinent page of his passport and hereto attached as Annexes E and
E-1. Hence, complainant Eculla, inspite of the fracture in his broken
index finger, was ordered to continue working for three (3) straight
months from the time of the accident, as a Gen. Purpose Utility (O/ S).
He had to bear the pain while waiting for orders concerning his
repatriation.

8. In compliance with the Post Employment Medical Examination (PEME)
requirement of the POEA Standard Contract for Seafarers On-Board
Ocean-Going Vessels, complainant Eculla reported to respondent
Epsilon on 12 May 2011, well within the seventy-two (72) hours
directory provisions of the said standard contract. It took another one
(1) month after he reported to respondent epsilon or only on 14 July
2011, when complainant Eculla was eventually referred for medical
treatment at the Nicomedez G. Cruz (NGC) Medical Clinic, located at
Times Plaza Building, corner Taft and United Nations Avenue.

9. The medical examinations, procedures and treatments from 14 July to
16 November 2011 (by NGC Medical Clinic, University Physicians
Medical Center [UPMC]) including the surgical operation conducted at
the Manila Doctors Hospital, on the fractured index finger of
complainant Eculla arrived at the following diagnoses and conditions

[a]. Malaligned fracture on the proximal phalanx of the index
finger with evidence of osteyomayelitis (bone/ marrow
infection); (Please see Annex F Radiographic Report)

[b]. Fracture angulation (40deg.) was worse than seen on AP.
The bone exhibits patchy demineralization; (Please see
Annex G second Radiographic Report)

[c]. Numerous drugs and medicines, at least seven, were
ordered for bodily intake by complainant Eculla; (Please
see Annexes H and H-1 -- Prescriptions given by NCG
Medical Clinic);

[d]. Operation Performed: Osteotomy, metal plating of the
bone in the proximal phalanx and mobilization of the
flexor profundus tendon of the index finger, right hand;
(Please see Annexes I, I-1, I-2 and I-3 Records of
operation and Medical Abstract);

[e]. Complainant Ecullas therapy medical report as of 16
November 2011 reveal that he still had limited ROM2
movement. Poor prognosis indicated. Cotinuous rehab
was still recommended. (Please see Annex J Medical
Report from Rehabilitation Meds Practitioner Narciso SJ
Fernandez, M.D.).

10. By December 2011, inspite of the fact that complainant Eculla
continued to be under medication, treatment and therapy for more
than eleven (11) months from the date of accident on 26 February
2011, respondents thru respondent Epsilon refused and failed to
acknowledge his Total Permanent Disability. Respondents therefore
refused and failed to pay the Total Permanent Disability benefits of
complainant Eculla under the Collective Bargaining Agreement (CBA)
in relation to the POEA Standard Contract and applicable
jurisprudence.

11. The refusal of respondents to acknowledge and pay the Total
Permanent Disability benefits of complainant Eculla inspite of more
than eleven (11) months of continuing treatment and medication,
made him decide to seek the opinion of Dr. Nicanor F. Escutin, an
Orthopedic Surgeon and Fellow, International College of Surgeon
(FICS). The purpose was to have an examination that will come to an
expert conclusion regarding his condition. Copy of the Disability
Report issued by Dr. Nicanor F. Escutin after examining complainant
Eculla is hereto attached as Annex K.

12. The essential findings on the metal-plated right index finger of
complainant Eculla, per Dr. Escutins report, are as follows

RIGHT HAND, 2
ND
FINGER EXAMINATION:
Incisional scar on the posterior aspect 2
nd
finger
Cannot flex
Limited extension
With limitation of motion
Finger to thumb movement is limited
Grip is weak

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:

Based on the physical examination and supported by laboratory
examination, he injured his right hand while working. He was
accidentally hit on the right hand by the lever handle when it
suddenly turns on by another seaman while it was still in
manual. It resulted in a broken 2
nd
finger, right hand. It was
temporarily placed in a splint and it was only after 3 weeks that
he was treated in a medical facility. It was also placed in cast and
upon arrival in Manila after four months (from accident) that it
was evaluated by an orthopedic surgeon. He was receommended
to undergo corrective surgery on his finger. It was later done
after two months. His 2
nd
finger was aligned but he cannot move
it. He was 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 2
nd
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 a PERMANENT DISABILITY. He is UNFIT TO WORK as
a seaman in whatever capacity.

13. By reason of respondents refusal and failure to pay the total
permanent disability benefits of complainant Eculla, he filed the
instant case against respondents. Attempts to arrive at a settlement
failed, hence, this Position Paper is now filed.

ISSUES TO BE RESOLVED

[a]. Whether or not complainant Eculla is entitled to payment of
Permanent Total Disability Benefits; and
[b]. Whether or not complainant Eculla is entitled to payment of
moral and exemplary damages, and attorneys fees.


ARGUMENTS AND DISCUSSIONS

Complainant Eculla thru undersigned counsel respectfully submits in
the affirmative for all the issues.

Complainant Eculla submits that he is entitled to be paid, among
others, his total permanent disability benefits of Eighty-Nine Thousand and
One Hundred US Dollars [US$89,100.00] under Collective Bargaining
Agreement, copy of which (upon being secured by subpoena or personal
efforts) shall hereafter be attached as Annex L, in relation to the basic
provisions of the POEA Standard Contract of Employment for Seafarers On-
board Ocean-going Vessels.

This claim is 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
ILLNESS

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

4. Those illnesses not listed in Section 32 of this Contract
are disputably presumed as work-related.

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 illness or
disease shall be governed by the rates and the rules of
compensation applicable at the time the illness or
disease was contracted.

In this case, the injury was work-related since the same was sustained
in the course of duty. Said injury 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 ones 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 ones 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.


Complainant Eculla is entitled to moral and exemplary damages, and
attorneys fees.

On account of respondents wanton refusal to pay complainant what is
clearly due to him, which act manifests evident bad faith on their part,
respondents must likewise be ordered to pay moral damages in favor of
complainant Eculla who, in addition to his sickness, 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 complainants
disability benefits which forced the latter to litigate, respondents must
likewise be ordered to pay attorneys fees equivalent to ten percent [10%]
of the total award in favor of complainant Eculla.



R E L I E F
WHEREFORE, premises considered, it is respectfully asked of this
Honorable Labor Arbitration Office that the following be awarded in favor
of complainant by ordering respondents to pay -

1. TP Disability Benefits = US$ 89,100.00 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$ 8,910.00 Dollars; and
= PhP 100,000 Pesos

Other reliefs just and equitable are respectfully sought.

RESPECTFULLY SUBMITTED.
Santa Cruz, Laguna for Quezon City, 16 February 2012.



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








Republic of the Philippines ]
Quezon City, Metro Manila ] s.s.

VERIFICATION & CERTIFICATION

I, BERTHIER P. ECULLA, of legal age, Filipino, married and resident of E.
Aldama Street, Igaras, Iloilo, after having been sworn in accordance with
law, depose and state that

I am the complainant in the above captioned case; I have caused the
preparation and filing of the foregoing Position Paper; I have read
and understood the same; I certify that the declarations therein 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. In the event I come to know of any
other pending action to that effect, I undertake to inform this office
within five [5] days thereafter.

IN WITNESS WHEREFORE, I hereto affixed my signature this 16
th
of February
2012 in Quezon City.



BERTHIER P. ECULLA
Affiant

SUBSCRIBED AND SWORN to before me this 21 December 2011 in
Quezon City by affiant with Seamans Book No. B0340592421 issued at
Manila on 31 July 2008 and valid until 30 July 2013.

Doc. No. _____;
Page No. _____;
Book No. _____;
Series of 2012.





Copy furnished --

EPSILON MARITIME SERVICES, INC.
Unit-8 4
th
Flr. Vernida LV Bldg., Leviste St., ________________________
Salcedo Village, Makati City 1227 ________________________