REPUBLIC OF THE PHILIPPINES

DEPARTMENT OF LABOR AND EMPLOYMENT

NATIONAL LABOR RELATIONS COMMISSION
NATIONAL CAPITAL REGION
BANAUE, QUEZON CITY
RONNELLO ABORDO MAGANA,
Complainant,

-versus-

NCR Case No. (M)-11-13814-15

Arbiter: HON. IRENE C. DE QUIROZ
Room 307 3F, PPSTA Bldg.

MULTINATIONAL SHIPMANAGEMENT, INC.,

SINGASHIP AGENCIES PTE., LTD AND/
OR RENE F. AGUIRRE,
Respondents.
x---------------------------------------------------x

REPLY
Complainant, through counsel, respectfully avers:
1. That in the interest brevity, the following portions of the
complainants Position Paper submitted on July 8, 2016 are
hereby repleaded:
a. Statement of the Case
b. Parties and their Pertinent Details
c. Brief Statement of Facts
2. That we noted that both parties have advanced practically
the same issues in their position papers;
3. That is view of this, we will just expound our position on said
issues, viz:
I.

WHETHER OR NOT COMPLAINANT IS

ENTITLED TO FULL DISABLITY BENEFITS.

II.

WHETHER OR NOT COMPLAINANT IS

ENTITLED TO DAMAGES.

III.

WHETHER OR NOT COMPLAINANT IS

I.

ENTITLED TO ATTORNEYS FEES.

COMPALAINANT IS ENTITLED
TO FULL DISABLITY BENEFITS.

As borne by the facts, there is no issue that the complainant

suffered an injury while doing his job as a Chef De Partie. The only
issue left is whether or not he is entitled to full or partial disability
benefits this considering that the findings of the third doctor
indicated a grading of 11 while at the same time mentioned that:
Advised to:
Advised to:

Repeat EMG NCV; Plain MRI, Lumbar Spine

Refer to Rehab for PT
Further tests/treatment then therefore
NOT FIT FOR SEA DUTIES
He is assigned Grade 11

We respectfully submit that these recommendations clearly

show that Mr. Magana is not fit to work as a seaman in whatever
capacity. In fact, Dr. Reynaldo Ang (the third doctor) twice
mentioned that Mr. Magana is NOT FIT FOR SEA DUTIES, in that
he must undergo further treatment and therapy sessions.
We further submit that the disability grading of 11 is not the
proper parameter as it should be Mr. Maganas capacity (or
incapacity) to still work as a seaman considering his health
condition and as supported by applicable jurisprudence, the most
recent of which being that of Sealanes Marine Services, Inc. et
al v. Dela Torre. He should therefore be granted the full
disability benefits of US$60,000.00.
First, in Philippine Transmarine, Inc. v. NLRC 1, the High Court
said that:
"[D]isability should not be understood more on its medical
significance but on the loss of earning capacity. Permanent
1 G.R. No. 123891, February 28, 2001
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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. In disability compensation, We
likewise held, it is not the injury which is compensated, but
rather it is the incapacity to work resulting in the impairment
of ones earning capacity." (emphasis supplied)

Verily, with his actual condition now, complainant is considered as

not being able 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.
Moreover, in the case of NYK-FIL SHIP MANAGEMENT INC. v.
ALFONSO T. TALAVERA2, the Supreme Court, expounded on the
nature of a work-related injury or illness, to wit:
x x x Compensability of an ailment does not depend on
whether the injury or disease was pre-existing at the time of the
employment but rather if the disease or injury is work-related or
aggravated his condition. It is indeed safe to presume that, at the
very least, the arduous nature of Hormicillada's employment had
contributed to the aggravation of his injury, if indeed it was preexisting at the time of his employment. Therefore, it is but just
that he be duly compensated for it. It is not necessary, in order
for an employee to recover compensation, that he must have
been in perfect condition or health at the time he received
the injury, or that he be free from disease. Every workman
brings with him to his employment certain infirmities, and while
the employer is not the insurer of the health of his employees, he
takes them as he finds them, and assumes the risk of having a
weakened condition aggravated by some injury which might not
hurt or bother a perfectly normal, healthy person. (emphasis
supplied)

In the case of MAGSAYSAY MARITIME CORPORATION v.

OSCAR D. CHIN, JR.,3 the Supreme Court had the opportunity to
rule on the definition of disability as regards claims of seafarers,
thus:
2 G.R. No. 175894, November 14, 2008
3 G.R. No. 199022 , April 7, 2014
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Here, there is no second action to speak of since the subsequent

awards were merely the result of a remand from the CA for the
Labor Arbiter to determine the amounts to which Chin is entitled
to receive aside from the full US$60,000.00 permanent total
disability compensation.
Xxx
Definitely, the Labor Arbiters award of loss of earning is
unwarranted since Chin had already been given disability
compensation for loss of earning capacity. An additional award
for loss of earnings will result in double recovery. In a catena of
cases, the Court has consistently ruled 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. Disability, therefore, is not
synonymous with "sickness" or "illness." What is compensated
is ones incapacity to work resulting in the impairment of his
earning capacity. (emphasis supplied)

Again, as validated by the third doctor, even after all the 30

therapy sessions Mr. Magana can still not work as a seaman.
In further justifying the claim for total and permanent
disability, we also respectfully cite the recent case (2015) of
Sealanes Marine Services, Inc. et al v. Dela Torre4 wherein the
Supreme Court ruled in favor of the seafarer:
It is expressly provided in Article 192(c)(1) of the Labor Code that
a "temporary total disability lasting continuously for more
than [120] days, except as otherwise provided in the Rules,"
shall be deemed total and permanent. Section 2(b), Rule VII of
the AREC, likewise provides that "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 under Rule X of
these Rules."
As to sickness allowance, Section 2(a), Rule X of the AREC,
referred to in Article 192(c)(1) of the Labor Code, reads:

4 G.R. No. 214132, February 18, 2015

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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.
For its part, the POEA SEC for seafarers provides in Paragraph 3 of
Section 20(B) thereof that: 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 companydesignated physician but in no case shall this period exceed one
hundred twenty (120) days.
For this purpose, the seafarer shall submit himself to a postemployment medical examination by a company-designated
physician within three working days upon his return except when
he is physically incapacitated to do so, in which case, a written
notice to the agency within the same period is deemed as
compliance. Failure of the seafarer to comply with the mandatory
reporting requirement shall result in his forfeiture of the right to
claim the above benefits.
If a doctor appointed by the seafarer disagrees with the
assessment, a third doctor may be agreed jointly between the
employer and the seafarer. The third doctors decision shall be final
and binding on both parties.
True, under Section 20(B)(3) of the POEA SEC, it is the companydesignated physician who should determine the disability grading
or fitness to work of the seafarer. Also, under Article 21.4.1 of the
Dutch CBA governing the parties, it is the doctor appointed by the
companys medical advisor who shall determine the degree of
disability suffered by a seafarer:
21.4.1 DISABILITY COMPENSATION the degree of disability
which the COMPANY subject to this Agreement is liable to pay
shall be determined by a doctor appointed by the COMPANY'S
MEDICAL ADVISOR.
Under Section 32 of the POEA
disabilities classified as Grade
permanent. In Kestrel Shipping
read the POEA SEC in harmony
5 | REPLY: Magana v. Multinational Shipping

SEC, only those injuries or

1 are considered total and
Co., Inc. v. Munar, the Court
with the Labor Code and the

AREC, and explained that: (a) the 120 days provided under Section
20(B)(3) of the POEA SEC is the period given to the employer to
determine fitness to work and when the seafarer is deemed to be in
a state of total and temporary disability; (b) the 120 days of total
and temporary disability may be extended up to a maximum of 240
days should the seafarer require further medical treatment; and (c)
a total and temporary disability becomes permanent when so
declared by the company-designated physician within 120 or 240
days, as the case may be, or upon the expiration of the said
periods without a declaration of either fitness to work or
permanent disability and the seafarer is still unable to resume his
regular seafaring duties.
The respondent was repatriated on August 4, 2010 and
immediately underwent treatment and rehabilitation at the
company-designated facility, Marine Medical Services of the
Metropolitan Medical Center. It lasted until July 20, 2011,
exceeding the 240 days allowed to declare him either fit to work or
permanently disabled. Although he was given a Grade 11
disability rating on March 10, 2011, the assessment may be
deemed tentative because he continued his physical therapy
sessions beyond 240 days. Yet, despite his long treatment and
rehabilitation, he was eventually unable to go back to work as
a seafarer, which fact entitled him under the Dutch CBA to
maximum disability benefits. (emphasis supplied)

We humbly submit that this very similar to the case of

Mr. Magana. He was given a grading of 11, yet he was advised
by the third doctor, no less - to undergo some more treatment
and therapy sessions plus MRI. We further submit that the
Supreme Court ruling is very clear on this matter and should
be followed in the instant case. Mr. Magana is entitled to
maximum disability benefits.
In the same Sealanes case, the Supreme Court further said:
It was held in Kestrel that the POEA SEC provides merely for the
basic or minimal acceptable terms of a seafarers employment
contract, thus, in the assessment of whether his injury is partial
and permanent, the same must be so characterized not only under
the Schedule of Disabilities in Section 32 of the POEA SEC, but
also under the relevant provisions of the Labor Code and the AREC
implementing Title II, Book IV of the Labor Code. According to
Kestrel, while the seafarer is partially injured or disabled, he
must not be precluded from earning doing the same work he
had before his injury or disability or that he is accustomed or
6 | REPLY: Magana v. Multinational Shipping

trained to do. Otherwise, if his illness or injury prevents him

from engaging in gainful employment for more than 120 or
240 days, as may be the case, then he shall be deemed totally
and permanently disabled.
In Crystal Shipping, Inc. v. Natividad, the Court ruled that it is
of no consequence that the seafarer recovered from his illness or
injury, for what is important is that he was unable to perform his
customary work for more than 120 days, and this constitutes total
permanent disability.
Petitioners tried to contest the above findings by showing that
respondent was able to work again as a chief mate in March 2001.
Nonetheless, this information does not alter the fact that as a
result of his illness, respondent was unable to work as a chief mate
for almost three years. It is of no consequence that respondent was
cured after a couple of years. The law does not require that the
illness should be incurable. What is important is that he was
unable to perform his customary work for more than 120 days
which constitutes permanent total disability. An award of a
total and permanent disability benefit would be germane to
the purpose of the benefit, which is to help the employee in
making ends meet at the time when he is unable to work.
Thus, that the respondent required therapy beyond 240 days
and remained unable to perform his customary work during
this time rendered unnecessary any further need by him to
secure his own doctors opinion or that of a neutral third
doctor to determine the extent of his permanent disability.
(emphasis supplied)

Again, as borne by the undisputed facts, Mr. Magana was told by

Dr. Ang to undergo further therapy even after the company doctor
(Dr. Canlas) already declared him to be fit to work. The fact that
Mr. Magana was advised to undergo such further sessions simply
means he is still unfit up to today.
Unfortunately, the respondents are no longer helping him.
We then pose humbly these questions:
Is Mr. Magana already fit to work as mentioned by the
company doctor?
A:

The facts say no.

7 | REPLY: Magana v. Multinational Shipping

What does the third doctors advice of letting Mr. Magana

undergo more therapy sessions even after the respondents no longer
want to treat Mr. Magana mean?
A: We submit that Mr. Magana should already be given full
disability benefits.
II.

CLAIMS FOR MORAL AND

EXEMPLARY DAMAGES

We submit that Mr. Magana is entitled to moral and

exemplary damages.
First, even when he told respondents that we was still in
severe pain after having been declared fit to work by the
company doctor, Dr. Canlas, still, he was asked to sign the
discharge slip and his fit to work report. But he did not.
Mr. Magana then requested Dr. Celino of ShiptoShore that a
magnetic resonance imaging (MRI) procedure be undertaken for
him. However, he was told that Dr. Canlas did not require it so he
has no basis to require it either.
Mr. Magana then went back to his agency, Multinational Ship
Management, Inc. and talked to its officer, Aima Uy, to report that
he was still feeling severe pain despite the therapy sessions and as
such would like to request for an MRI procedure. He was then
told to wait for the principals approval.
No approval came. Worse, even after the third doctor
advised that Mr. Magana should still continue with his
rehabilitation and therapy sessions, the respondents did not do
anything. They did not offer any help.
Mr. Magana is now jobless and could not even find a job
anymore owing to his condition.
Thus, in view of the all the trouble, serious anxiety, mental
anguish, sleepless nights, physical suffering
and social
humiliation caused to the complainant, by way of MORAL
8 | REPLY: Magana v. Multinational Shipping

DAMAGES, an amount of ONE HUNDRED THOUSAND PESOS

(Php 100,000.00) is claimed plus another FIFTY THOUSAND
PESOS (Php 50,000.00) for EXEMPLARY DAMAGES imposed by
way example or correction for the public good.
In the same MAGSAYSAY MARITIME CORPORATION v. OSCAR
D. CHIN, JR., the Supreme Court said that:
While the Labor Arbiter can grant moral and exemplary
damages, the amounts he fixed in this case are quite excessive in
the absence of evidence to prove the degree of moral suffering or
injury that Chin suffered. It has been held that in order to arrive
at a judicious approximation of emotional or moral injury,
competent and substantial proof of the suffering experienced
must be laid before the court. It is worthy to stress that moral
damages are awarded as compensation for actual injury
suffered and not as a penalty. The Court believes that an award
of P30,000.00 as moral damages is commensurate to the anxiety
and inconvenience that Chin suffered.
As for exemplary damages, the award of P25,000.00 is already
sufficient to discourage petitioner Magsaysay from entering into
iniquitous agreements with its employees that violate their right
to collect the amounts to which they are entitled under the law.
Exemplary damages are imposed not to enrich one party or
impoverish another but to serve as a deterrent against or as a
negative incentive to curb socially deleterious actions.
(emphasis supplied)

III.

RESPONDENTS ARE LIABLE

FOR ATTORNEYS FEES

We respectfully disagree with respondents contention that

Mr. Magana is not entitled to a claim for Attorneys Fees equivalent
to 10% of any award due him. There is no dispute that he was
forced to litigate because the respondents doctor had declared him
as being fit to work despite the fact that he was disabled and was
therefore unable to work anymore as a seaman. This was
eventually confirmed by no less than the third doctor appointed by
the parties.
Hence, it will be unjust if not immoral to deny him of his
right to claim for the payment of attorneys fees after knowing that
9 | REPLY: Magana v. Multinational Shipping

the respondents were not willing at first to pay him anything.

In fact, the amount they offered (US$7,465.00) during the last
mandatory conference was obviously prompted by the numerical
grading given by the third doctor. As such, we cannot even
consider it as something done in good faith.
Curiously though, the Position Paper of the respondents
never mentioned how much they are willing to pay. Instead, they
prayed for the dismissal of the instant complaint for utter lack of
merit.
Yet, they insist, that Mr. Magana, in asserting his claim,
should not be given any award for attorneys fees at all.
Again, we have to respectfully disagree.
In Lambert Pawnbrokers, et al v. Binamira5, the Supreme
Court said:
the award of attorneys fee is warranted pursuant to Article 111
of the Labor Code. Ten (10%) percent of the total award is usually
the reasonable amount of attorneys fees awarded. It is settled that
where an employee was forced to litigate and, thus, incur expenses
to protect his rights and interest, the award of attorneys fees is
legally and morally justifiable.

Further, we reiterate, one case which finds application in this

instant claim, the Supreme Court, speaking through then
Associate Justice Reynato C. Puno, It ruled that:
Under Article 2208 of the New Civil Code, attorney's fees can be
recovered in actions for the recovery of wages of laborers and
actions for indemnity under employer's liability laws. Attorney's
fees are also recoverable when the defendant's act or omission has
compelled the plaintiff to incur expenses to protect his interest6.

In the instant case, respondents refusal to give complainants

disability benefit has compelled him to secure the services of the
undersigned counsel for a fee in order to protect his right. The

5 G.R. No. 170464, July 12, 2010

6 Remigio vs. NLRC, G.R. No. 159887, April 12, 2006

10 | REPLY: Magana v. Multinational Shipping

Labor Code allows a maximum of ten percent (10%) of the

monetary award as a fair amount of Attorneys Fees.

PRAYER
WHEREFORE, premises considered, it is hereby respectfully
PRAYED that a judgment be rendered finding for the complainant
and ordering respondents to jointly and severally pay the former
the following:
1)

US$60,000.00 at its peso equivalent at the

time of payment, representing disability
benefits corresponding to Total Permanent;

2)

Php100,000.00
and
Php50,000.00
in
MORAL
and
EXEMPLARY
DAMAGES,
respectively; and

3)

Attorneys fees equivalent to 10% of the

amount adjudged against the respondents.
Other reliefs which are just and equitable are
likewise prayed for.

RESPECTFULLY SUBMITTED.
Las Pinas City for Quezon City, this 20th day July 2016.
NARAG LAW OFFICE
Counsel for the Complainant
7-C Crispina Ave., Las Pias Village,
Pamplona III, 1740 Las Pias City
E-mail: narag.law@gmail.com
Mobile: 09189295137
Website: www.naraglawoffice.com
By:

11 | REPLY: Magana v. Multinational Shipping

MARIO P. NARAG, JR.

Roll No. 56274
PTR No. 10999105-J/01-04-2016
IBP No. 1017158/01-04-2016
MCLE Compliance No. V-0020347
dated April 11, 2016
Copy Furnished:
ATTY. CARLOS PAULO M. VILLARUZ
Esguerra & Blanco
Counsel for Respondents
4th floor, S & L Building,
Dela Rosa corner Esteban Streets
Legaspi Village, Makati City 1229

12 | REPLY: Magana v. Multinational Shipping