This document is a rejoinder filed by the complainant Nelson Libre Esconde in response to the respondents' position. It argues that (1) the disability grade assigned by the company doctor does not preclude further review, and (2) jurisprudence from the Supreme Court has established that if a seafarer is unable to return to work within 120-240 days of treatment, their partial disability becomes total and permanent regardless of the initial disability grade. It cites a Supreme Court case to support the position that an assessment must declare the seafarer's capacity to resume work for it to preclude a total disability claim.
This document is a rejoinder filed by the complainant Nelson Libre Esconde in response to the respondents' position. It argues that (1) the disability grade assigned by the company doctor does not preclude further review, and (2) jurisprudence from the Supreme Court has established that if a seafarer is unable to return to work within 120-240 days of treatment, their partial disability becomes total and permanent regardless of the initial disability grade. It cites a Supreme Court case to support the position that an assessment must declare the seafarer's capacity to resume work for it to preclude a total disability claim.
This document is a rejoinder filed by the complainant Nelson Libre Esconde in response to the respondents' position. It argues that (1) the disability grade assigned by the company doctor does not preclude further review, and (2) jurisprudence from the Supreme Court has established that if a seafarer is unable to return to work within 120-240 days of treatment, their partial disability becomes total and permanent regardless of the initial disability grade. It cites a Supreme Court case to support the position that an assessment must declare the seafarer's capacity to resume work for it to preclude a total disability claim.
This document is a rejoinder filed by the complainant Nelson Libre Esconde in response to the respondents' position. It argues that (1) the disability grade assigned by the company doctor does not preclude further review, and (2) jurisprudence from the Supreme Court has established that if a seafarer is unable to return to work within 120-240 days of treatment, their partial disability becomes total and permanent regardless of the initial disability grade. It cites a Supreme Court case to support the position that an assessment must declare the seafarer's capacity to resume work for it to preclude a total disability claim.
COMPLAINANT’S REJOINDER Complainant NELSON LIBRE ESCONDE by counsel, respectfully submits this Rejoinder, to wit –
1. To the mind of respondents, the disability grade (7)
given by their designated attending physician supposedly foreclosed any further recourse or contradictory conclusion from the side of the complainant. Such posture however is legally incorrect, self-regarding and unreasonable.
2. Complainant’s position on the other hand is supported
by sound and just reason, backed-up by real facts and applicable laws, and updated by consistent jurisprudence on the matter. It is no less than the Supreme Court itself which cannot agree that everything stops at the stroke of the company doctor’s pen. PAGE 1 OF 6 - REJOINDER (ESCONDE)
3. To be more precise, the bare declaration of a partial
disability grade coming from the company doctor is not enough to frustrate the complainant’s cause. The declaration must be coupled with a statement that the complainant worker can still return to work before the expiration of the 120 or 240 days treatment period, as the case may be. Otherwise, by applying the substantive provisions of the Labor Code as distinguished from issuances emanating from said law, the Supreme Court has pointed out consistently that the partial disability grade in such cases, become total and permanent upon the lapse of the applicable 120 or 240 days treatment period and the seafarer still unable and unfit to work.
4. Thus, in the following cases, the Supreme Court along
this line of reasoning emphatically declared as follows –
4.1. 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 said:
“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 PAGE 2 OF 6 - REJOINDER (ESCONDE)
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 x x x x” “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 PAGE 3 OF 6 - REJOINDER (ESCONDE)
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.)
4.2. 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 also said:
“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 PAGE 4 OF 6 - REJOINDER (ESCONDE)
further medical treatment, then he is, under
legal contemplation, totally and permanently disabled. x x x.” (Underscoring and italics supplied.)
4.3. 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 expounding on the Kestrel Shipping case doctrine, definitively declared:
“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.)
5. All the submissions contained in complainant’s Position
Paper and Reply are hereto reiterated in so far as they are relevant and material to refute respondents’ allegations.
RELIEF SOUGHT
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- PAGE 5 OF 6 - REJOINDER (ESCONDE)
1. Total Permanent Disability Pay = US$ 60,000.00 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 = US$ 6,000.00 Dollars plus 100,000 Pesos
Other reliefs just and equitable are respectfully sought.
RESPECTFULLY SUBMITTED. Santa Cruz, Laguna for Quezon City, 15 September 2016.
Atty. EMMANUEL E. SANDICHO
Counsel for the Complainant nd 2 Floor GCL Bldg., 6081 National Highway Sambat, Labuin, Santa Cruz, Laguna 4009 CALABARZON Philippines E-mail address: attysandicho@gmail.com IBP O.R. No. 995689, 04 January 2016, Laguna PTR O.R. No. 2967138, 04 January 2016, Laguna Roll No. 42246 admitted to practice, 09.05.1997 MCLE Compliance No. V-0015412, 6 March 2016
Copy furnished:
ATTY. RICA C. RIVERA-LUMIBAO
Counsel for the Respondents 1103 East Tower, Philippine Stock Exchange Center, Exchange Road, Ortigas Center Pasig City 1605 NCR PAGE 6 OF 6 - REJOINDER (ESCONDE)
