Motion for Reconsideration

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

SECOND DIVISION

BERTHIER P. ECULLA, Complainant-Appellee,

OFW-SEA BASED

NLRC LAC No. 10-000841-12 NLRC Case No. (M) NCR-11-17417-11

-versusEPSILON MARITIME SERVICES, INC., SAFETY MANAGEMENT SERVICES SA., CAPT. LIBERATO CAPAYAS, Respondents-Appellants, x-----------------------------------------x

MOTION FOR RECONSIDERATION

PAGE 1 OF 11 - MOTION FOR RECONSIDERATION

COMPLAINANT-APPELEE BERTHIER P. ECULLA by undersigned counsel, within the period provided by law and the rules, respectfully moves for reconsideration of the Decision dated 29 November 2012 of this Honorable Commission (2nd Division)

which was received by

undersigned counsel on 21 December 2012, by stating as follows –

TIMELINESS OF FILING THIS MOTION FOR RECONSIDERATION

Undersigned counsel received on 21

December 2012 the above-

mentioned Decision dated 29 November 2012, the dispositive portion of which reads –

“WHEREFORE, PREMISES CONSIDERED, the Decision of the Labor Arbiter dated January 31, 2012 is MODIFIED in that the award of disability benefits should be US$13,302.63.” “The award of attorney’s fees is deleted considering that there was no bad faith on the part of the respondents in denying the claim for full disability benefits.” “SO ORDERED.”

Complainant-appellee therefore ordinarily has ten (10) days or until 31 December 2012 within which to file this Motion For Reconsideration pursuant to the 2011 NLRC Rules of Procedure. However, since 31

PAGE 2 OF 11 - MOTION FOR RECONSIDERATION

December 2012 and 01 January 2013 are legal holidays, complainantappellee had until the next working day, or on 02 January 2013 within which to file this Motion for Reconsideration.

This motion is therefore timely filed as it is hereby filed today, 02 January 2013, by registered mail due to distance and unavailability of delivery personnel.

GROUNDS FOR RECONSIDERATION

I. THIS HONORABLE COMMISSION (SECOND DIVISION) COMMITTED A REVERSIBLE ERROR WHEN IT DISREGARDED THE FINDINGS OF FACT BY THE HONORABLE LABOR ARBITER THAT THE TREATMENT PERIOD OF COMPLAINANT-APPELLEE LASTED AND WILL ACTUALLY CONTINUE FOR MORE THAN 240 DAYS AS IT HAS BEEN ACTUALLY OBSERVED AND DECLARED BY THE COMPANY DESIGNATED PHYSICIANS THEMSELVES. HENCE, COMPLAINANT-APPELLEE IS ENTITLED TO TOTAL PERMANENT DISABILITY BENEFITS; II. THIS HONORABLE COMMISSION (SECOND DIVISION) COMMITTED A REVERSIBLE ERROR WHEN IT DISREGARDED APPLICABLE JURISPRIUDENCE AND THE VERY FACT THAT INDEED NO PROFIT MINDED EMPLOYER WILL HIRE COMPLAINANT-APPELLEE IN HIS PHYSICAL CONDITION WHERE HE HAS TOTAL AND COMPLETE LOSS OF USE OF HIS RIGHT INDEX FINGER, A PART OF HIS BODY INDISPENSABLY USED IN THE PERFORMANCE OF HIS JOB AS A “GENERAL PURPOSE UTILITY SEAFARER”;

PAGE 3 OF 11 - MOTION FOR RECONSIDERATION

III. THIS HONORABLE COMMISSION (SECOND DIVISION) COMMITTED A REVERSIBLE ERROR WHEN IT DELETED THE AWARD OF ATTORNEY’S FEES INSPITE OF THE CLEAR FACT THAT IT WAS RESPONDENT-APPELLANTS’ WRONGFUL REFUSAL TO PAY THE TOTAL PERMANENT DISABILITY COMPENSATION OF COMPLAINANTAPPELLEE WHICH COMPELLED THE LATTER TO LITIGATE IN ORDER TO PROTECT HIS RIGHTS AND INTERESTS.

1.

The first two grounds are hereby jointly discussed as they are anchored on the findings of facts of the Honorable Labor Arbiter.

Such findings of facts are in accord with the undisputed facts as well as the applicable jurisprudence and legal principles hereinafter set forth.

With all due respects, complainant-appellee submits that the findings of facts and the ensuing ratiocinations of the Honorable Labor Arbiter are the ones in accord with the undisputed evidence and settled jurisprudence on disability compensation cases.

The pertinent and correct findings of facts of the Honorable Labor Arbiter are found on pages 5, 6, and 7 of the appealed Decision in NLRC NCR OFW Case No. 11-17417-11. It is therein stated as follows –

PAGE 4 OF 11 - MOTION FOR RECONSIDERATION

“In this case, Dr. Nicomedes Cruz, companydesignated physician, submitted his assessment on December 16, 2011, more or less 210 days from May 12, 2011, the date when complainant reported in compliance with the post employment medical examination. Thus, by merely considering the above-mentioned period, it cannot be denied that it is within the 240-day rule.” “This office, however, observes that the above-cited rule does not fall squarely in this case. A perusal of the records reveal that per respondents’ 12th Medical Report dated November 09, 2011 (Annex 14, Respondents’ Position Paper), it was stated that complainant started his PT sessions and will have PT 3x per week. Per Medical Report dated November 16, 2011 of Dr. Narciso SJ Fernandez (Annex J, Complainant’s Position Paper), of the RMR PT/OT Clinic, recommendation was made for complainant’s continuous rehabilitation due to the findings

of having poor progressive’.”

progressive and with remarks

‘full

“From the foregoing, respondents’ companydesignated physician, Dr. Nicomedez Cruz issued on December 16, 2011 his assessment finding complainant’s disability to be partial, i.e., Grade 11, without finally giving the medical report on the result of his therapy which took place between November 16, 2011 to December 2011. Let it be stressed that per Dr. Fernandez’s above-mentioned recommendation, complainant’s rehabilitation should be continuous due to ‘poor progressive’, hence, when the disability assessment was rendered, there is an absence of final diagnosis of his therapy or rehabilitation. And for respondents failure to pay his total permanent disability, complainant sought the medical opinion of an independent physician, Dr. Nicanor F. Escutin, Orthopedic Surgeon, who, per Disability Report December 27, 2011, conducted the following pertinent physical examination:” xxxxx

xxxxx

xxxxx

“FINAL DIAGNOSIS: - MALUNITED, PROXIMAL PHALANGE, 2ND DIGIT RIGHT HAND - STATUS-POST, OPEN-REDUCTION WITH BONE PLATING, PROXIMAL PHALANGE, 2ND DIGIT RIGHT HAND - ANKYLOSIS, 2ND DIGIT, RIGHT HAND”

PAGE 5 OF 11 - MOTION FOR RECONSIDERATION

“DISABILITY RATING:” “x x x x His 2nd finger was aligned but he cannot move it. He is unable to flex and extend his 2nd finger. He cannot hold objects properly for a long time. He underwent physical therapy but there was no improvement on the movement of his 2nd finger. His physiatrist gave him a poor prognosis on his end 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 PERMANENT DISABILITY. He is UNFIT TO WORK as a seaman in whatever capacity.”

(Italization and underscoring supplied for emphasis.) “Records show that the respondents’ failure to submit proof that complainant’s therapy or rehabilitation was successfully finished before the issuance of the disability grading casts doubt on their findings that the latter’s injury was correctly assessed to be partial in nature, more so, that when it was issued, complainant was not deployed by the respondents to resume his work as a seaman nor was offered a new contract of employment.” “Moreover, the prolong period of medical treatment of the complainant should not be solely attributable to the latter’s failure to report for medical check-up on July 29, 2011, as directed by Dr. Nicomedez Cruz. It bears stressing that complainant reported for post medical examination on May 12, 2011, or within 72 hours, but respondents took one month to refer him for medical treatment at NGC Medical Clinic.”

PAGE 6 OF 11 - MOTION FOR RECONSIDERATION

“Corollary thereto, complainant’s disability cannot be said to be partial, but total and permanent. Anent complainant’s claim for application of the Collective Bargaining Agreement, this office considers the Cyprus Collective Bargaining Agreement for Seafarers on board Cyprus Cargo and Tanker Vessels for Cyprus beneficially owned vessels in view of the respondents’ undisputed contention that MV Pedhoulas Leader bears the Cyprus flag. Thus, complainant is entitled to US$89,100.00.” “For instituting this case in order to protect complainant’s rights and interests, he is awarded attorney’s fee equivalent to ten (10%) percent of the total judgment award pursuant to Article 111 of the Labor Code.”

The Honorable Labor Arbiter’s findings of facts which were carefully gathered from the records of the above-captioned case, clearly show that the partial impediment grade given by the company-designated physician was haphazardly issued in order to put a semblance of finishing the

treatment, therapy or rehabilitation of complainant’s injury within the 240 day period. It is however very clear that the treatment, rehabilitation and therapeutic requirements of complainant-appellee must continue beyond the said 240 day period. Hence, he is totally and permanently disabled in the eyes of the law.

The thrust of the Honorable Labor Arbiter’s findings was correctly leaned towards the actual state of lifetime incapacity of the complainantappellee to perform again his customary job as an “all-purpose utility seaman” on-board respondents’ vessels or any other profit-minded maritime employers for that matter. This is in accord with applicable

PAGE 7 OF 11 - MOTION FOR RECONSIDERATION

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)

Moreover, it must be observed that in the hot-item case of Santiago vs. Pacbasin Shipmanagement, Inc., [G.R. No. 194667, April 18, 2012], the

PAGE 8 OF 11 - MOTION FOR RECONSIDERATION

Third Division of the Supreme Court relied on Section 2(b), Rule VII of the Implementing Rules of Title II, Book IV of the Labor Code, as amended, or the Amended Rules on Employees’ Compensation Commission (ECC Rules); which was discussed in the said case as follows --

“Section 2(b), Rule VII of the Implementing Rules of Title II, Book IV of the Labor Code, as

amended, or the Amended Rules on Employees’ Compensation Commission (ECC Rules), reads: “Sec. 2. Disability. – x x x “(b) A disability is total and permanent if as a result of the injury or sickness the employee is unable to perform any gainful occupation for a continuous period exceeding 120 days, except as otherwise provided for in Rule X of these Rules.” xxxx “Section 2, Rule X of the ECC Rules reads: “SEC. 2. Period of entitlement.— (a) The income benefit shall be paid beginning on the first day of such disability. If caused by an injury or sickness it shall not be paid longer than 120 consecutive days except where such injury or sickness still requires medical attendance beyond 120 days but not to exceed 240 days from onset of disability in which case benefit for temporary total disability shall be paid. However, the System may declare the total and permanent status at any time after 120 days of continuous temporary total disability as may be warranted by the degree of actual loss or impairment of physical or mental functions as determined by the System.”

PAGE 9 OF 11 - MOTION FOR RECONSIDERATION

The accident which injured complainant-appellee occurred 26 February 2011. It is factual and logical that this was the date of the onset of the disability of complainant-appellee. There can be no other date. He was incapacitated as of that date. It is of no moment that there was delay so much delay in his repatriation. Such delay arose from circumstances or fault not attributable to him. It is undisputed on record that the delay in

repatriating complainant went until 10 May 2011 or almost three (3) months from the date of the accident, the onset of the disability.

Thus, by December 2011, inspite of the fact that complainantappellee Mr. Eculla, continued to be under medication, treatment and therapy for more than eleven (11) months from the date of accident (onset of disability) on 26 February 2011, respondents thru respondent Epsilon refused and failed to acknowledge his Total Permanent Disability. After more than 240 days from onset of disability, there was therefore an unjustified refusal on the part of respondents to pay the Total Permanent Disability benefits of complainant-appellee Eculla under the applicable Cyprus Collective Bargaining Agreement (CBA) in relation to the applicable jurisprudence.

2.

The award of attorney’s fees is justified under the circumstances.

PAGE 10 OF 11 - MOTION FOR RECONSIDERATION

As discussed above and in the other records of the instant case, by reason of respondents unjustified refusal and failure to pay the total permanent disability benefits of complainant Eculla, he was constrained to file the instant complaint against respondents before this Honorable Commission. In the process, he had to secure the services of undersigned counsel. And for this reason, an award of at least ten percent (10%) attorney’s fees is justified at the minimum.

RELIEF SOUGHT

WHEREFORE, premises considered, it is respectfully asked of this Honorable Commission that ITS DECISION IN THE ABOVE-CAPTIONED CASE BE RECONSIDERED and that the appealed DECISION OF THE HONORABLE LABOR ARBITER BE REINSTATED AND AFFIRMED, awarding in favor of complainant Total Permanent Disability Benefits in the amount of US$ 89,100.00 Dollars, and Attorney’s Fees equivalent to 10% thereof.

Other reliefs just and equitable are respectfully sought.

RESPECTFULLY SUBMITTED.

PAGE 11 OF 11 - MOTION FOR RECONSIDERATION

Santa Cruz, Laguna for Quezon City, 02 January 2013.

Atty. EMMANUEL E. SANDICHO Counsel for the Complainant 117 P. Guevarra St., Santa Cruz, Laguna IBP No. 905396, 01.02.2013, Laguna PTR No. 8163771, 02.05.2012, Laguna Roll No. 42246 admitted on 9 May 1997 MCLE Compliance No. III-0020564 Copy furnished by – DEL ROSARIO & DEL ROSARIO LAW 15th Floor Pacific Star Building Corner of Sen. Gil Puyat & Makati Ave., Makati City 1200 Metro Manila EXPLANATION: Service was done by way of registered mail due to distance and unavailability of messenger.