Republic of the Philippines

Department of Labor and Employment

NATIONAL LABOR RELATIONS COMMISSION
National Capital Region
Quezon City

NELSON LIBRE ESCONDE,

Complainant, NLRC CASE NO. NCR 06-06808-16
Hon. L.A. ALBERTO S. ABALAYAN
- versus –

ABOSTA SHIPMANAGEMENT,
CORP., ET. AL.,
Respondents.
x-------------------------------------------x

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.
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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
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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
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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
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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-
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1. Total Permanent Disability Pay = US$ 60,000.00 Dollars

2. Moral damages
3. Exemplary damages
4. Attorney’s Fees equivalent
to 10% of total award
= PhP 500,000.00 Pesos
= PhP 500,000.00 Pesos
= 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
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