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Republic of the Philippines
Department of Labor and Employment
NATI ONAL LABOR RELATI ONS COMMI SSI ON
National Capital Region
Quezon City


THI RD DI VI SI ON



CONCEPCION S. ZABATE LAC NO. (OFW-M ) 0 5 -0 0 0 5 3 3 -1 3
(f or/ on behal f of her deceased NLRC CASE NO. NCR 0 3 -0 5 0 0 7 -1 2
husband NARCISO G. ZABATE),
Complainant-Appellee,

- versus

DOLPHIN SHIP MANAGEMENT, INC.,
UNITED OCEAN SHIP MANAGEMENT
PTE, LTD., and DANTE C. MORALDE,
Respondents-Appellants.
x---------------------------------------x


COMPLAINANTS MOST ARDENT

MOTION FOR
RECONSIDERATION



COMPLAINANT-APPELLEE CONCEPCION S. ZABATE, ON
BEHALF OF/AND IN FAITHFUL REGARD TO THE MEMORY OF
HER DECEASED HUSBAND, NARCISO G. ZABATE, by counsel,
most respectfully and ardently moves for reconsideration of the
Decision of this Honorable Commission in the above-captioned
case, dated 31 July 2013 and received by undersigned counsel on
16 August 2013. In support hereof, complainant-appellee
respectfully states as follows

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TI MELI NESS OF FI LI NG THI S
MOTI ON FOR RECONSI DERATI ON

Undersigned counsel received on 16 August 2013 the
above-mentioned Decision dated 31 July 2013. Complainant-
Appellee therefore ordinarily had until 26 August 2013 within
which to file this Motion For Reconsideration. However, the 26
th

of August 2013 happened to be a non-working holiday. Hence,
complainant-appellee had until the next working day or on 27
August 2013 to file this motion for reconsideration. This motion
is therefore timely filed as it is hereby filed and served today 27
August 2013, by registered mail due to distance and
unavailability of delivery personnel.

PREFATORY STATEMENT

Complainant-Appellee Zabate therefore respectfully and
timely asks this Honorable Court to once more scrutinize the
record and read the evidence to see that:

(1). THERE IS NOTHING IN THE EVIDENCE WHICH STATES THAT
THE DECEASED MR. ZABATE S ILLNESS WAS NOT WORK
RELATED. And as a matter of law, IN THE ABSENCE OF SUCH
DECLARATION BY THE COMPANY-DESIGNATED PHYSICIAN
THAT THE ILLNESS WAS NOT WORK-RELATED, THE LEGAL
PRESUMPTION IS THAT IT IS WORK-RELATED. This legal
precept is supported by applicable jurisprudence in relation
to the POEA Standard Employment Contract for Seafarers.

(2). A PERUSAL OF THE ALLEGED DECLARATION OF FIT TO WORK
WOULD SHOW THAT IT WAS ACTUALLY A DECLARATION OF
FITNESS TO STOP CLINICAL VISITS AND COMMENCE SELF-
MEDICATION; MOREOVER, IT ACTUALLY CAME LATE AFTER
MORE THAN 120 DAYS FROM THE ONSET OF MR. ZABATE S
ILLNESS SUSTAINED ON 9 FEBRUARY 2011 WHILE WORKING
ON-BOARD.

(3). COMPLAINANT-APPELLEE MAINTAINS THAT THE AWARD BY
THE LABOR ARBITER OF ATTORNEYS FEES IS JUSTIFIED.


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LEGAL AND FACTUAL GROUNDS I N SEEKI NG
RECONSI DERATI ON OF THE DECI SI ON

I .

PRI VATE RESPONENTS OWN EVI DENCE DO NOT STATE
OR I NDI CATE THAT THE I LLNESS OF THE DECEASED
MR. ZABATE WAS NOT WORK RELATED.

1. NOWHERE IN RESPONDENTS-APPELLANTS OWN
DOCUMENTARY EVIDENCE in the proceedings before the
Labor Arbiter (ALL OF RESPONDENTS-APPELLANTS
DOCUMENTARY ANNEXES in their Position Paper) DOES IT
STATE OR INDICATE THAT THE ILLNESS OF THE DECEASED
MR. ZABATE WAS [ALLEGEDLY] NOT WORK RELATED.

PRIVATE RESPONDENTS-APPELLANTS ARGUMENTS ARE
THEREFORE MERE OPINIONS OF THEIR COUNSELS FOR
BEING NOT SUBSTANTIATED BY THEIR OWN EVIDENCE.

2. It was only respondents-appellants through their counsels
who said that the illness of the deceased Mr. Zabate was
not work-related. NEITHER THEIR DOCUMENTARY
EVIDENCE NOR THEIR APPOINTED DOCTORS SAY OR
INDICATE THAT THE ILLNESS OF COMPLAINANT-APPELLEE-
COMPLAINANT WAS NOT WORK-RELATED. Opinions of
parties and their counsels are not the equivalent of
evidence. Hence, respondents-appellants position must not
be sustained. Of course, respondents-appellants can no
longer introduce additional evidence at this point in time
and at this stage of the proceedings. If they do so, that will
be highly irregular and will be tainted with suspicion.

I N THE ABSENCE OF A DECLARATI ON BY THE
COMPANY-DESI GNATED PHYSI CI AN THAT THE
I LLNESS WAS NOT WORK-RELATED, THE LEGAL
PRESUMPTI ON I S THAT I T I S WORK-RELATED.


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3. In J ESSI E DAVI D vs. OSG SHI PMANAGEMENT
MANI LA I NC.; (G.R. No. 197205; September 26 2012), the
Supreme Court held that Section 20(B)(4) of the POEA
Standard Employment Contract established a presumption
of compensability of an illness suffered by a seafarer. This
disputable presumption is pursuant to the mandate under
Executive Order No. 247 series of 1987, under which the
POEA contract was created "to secure the best terms and
conditions of employment of Filipino contract workers and
ensure compliance therewith" and "to protect the well-
being of Filipino workers overseas". Hence, unless contrary
evidence is presented by the seafarer's employers, this
disputable presumption stands.

4. No less than the SUPREME COURT (i n t he c i t ed c ase)
NOTED THAT THE MEDI CAL OPI NI ON OF THE
COMPANY-DESI GNATED DOCTOR DI D NOT
CATEGORI CALLY STATE THAT THE I LLNESS WAS
NOT WORK RELATED. As such, the imprecise and
ambivalent medical opinion regarding whether
the illness was work related was construed in favor of the
seaman.

5. In the said case of In J ESSIE DAVID vs. OSG
SHIPMANAGEMENT MANILA INC., (G.R. No. 197205;
September 26, 2012) the clear and categorically ruling of
the High Court states that

Deemed read and incorporated into the
Contract of Employment between David and
respondents-appellants are the provisions of the
2000 Philippine Overseas Employment Agency
Standard Employment Contract (POEA-SEC).
Section 20(B) of the POEA-SEC reads:

SECTION 20. COMPENSATION AND
BENEFITS.


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B. COMPENSATION AND BENEFITS FOR
INJURY OR ILLNESSES

The liabilities of the employer when the
seafarer suffers work-related injury or illness
during the term of his contract are as follows:

x x x x x x x x

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, but in no case
shall this period exceed one hundred twenty
(120) days.

x x x x x x x x

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

In this case, David suffered from
malignant fibrous histiocytoma (MFH) in his left
thigh. MFH is not one of the diseases
enumerated under Sec. 32 of the POEA-SEC.
However, Sec. 20(B)(4) of the POEA-SEC clearly
established a disputable presumption in favor of
the compensability of an illness suffered by a
seafarer during the term of his contract. This
disputable presumption works in favor of the
employee pursuant to the mandate under
Executive Order No. (EO) 247 dated July 21, 1987
under which the POEA-SEC was created: "to
secure the best terms and conditions of
employment of Filipino contract workers and

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ensure compliance therewith" and "to promote
and protect the well-being of Filipino workers
overseas." Henc e, unl ess c ont r ar y evi denc e
i s pr esent ed by t he seaf ar er s empl oyer /s,
t hi s di sput abl e pr esumpt i on st ands.
(Underscoring and Bold-font supplied.)

x x x x x x x x

A review of the documentary evidence
submitted by parties will readily show that there
is no such "opi ni on of t he company physi ci an
conf i rmi ng absence of work-rel at i on," much l ess
an expl i ci t st at ement that David had "no
documented exposure" to the etiology cited by
Dr. Pea in his letter to the company-designated
physician, Dr. Lim. There is only an imprecise and
ambivalent medical opinion regarding the work-
relation of the MFH/UPS suffered by David that
can be construed in favor of the employee.
(Underscoring supplied.)

6. In the instant case THE DECLARATIONS MADE BY THE
COMPANY-DESIGNATED PHYSICIAN DID NOT STATE THAT
THE ILLNESS OF COMPLAINANT-APPELLEE ZABATE WAS
NOT WORK-RELATED. HENCE, BASED ON THE ABOVE-
CITED RULING IN JESSIE DAVID VS. OSG
SHIPMANAGEMENT, THE PRESUMPTION OF COMPENSABI-
LITY OF HIS ILLNESS MUST BE UPHELD.

7. With striking similarity to the above-cited case of Jessie
David vs. OSG Shipmanagement, in this case, complainant-
appellee Zabate not only relies on the above-discussed
disputable presumption of the compensability of his illness
but further proved before the Labor Arbiter that the
conditions provided in Sec. 32-A of the POEA Standard
Employment Contract have all been satisfied, to wit: [a].
The seafarers work must involve the risks describe herein;
[b]. The disease was contracted as a result of the seafarers
exposure to the described risks; [c]. The disease was

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contracted within a period of exposure and under such
other factors necessary to contract it; and [d]. 4. There was
no notorious negligence on the part of the seafarer.

8. In other words, based on evidence, complainant established
a factual milieu that the circumstances of the now deceased
Mr. Zabates employment showed a reasonable causal
connection with the occurrence of his illness. The work-
related circumstances which immediately preceded the
occurrence of the illness of the deceased Mr. Zabate were
clearly enunciated under oath in complainant-appellees
Position Paper.

9. Likewise, pursuant to the ruling in the above-cited case of
Jessie David vs. OSG Shipmanagement, it is noted that the
respondents-appellants at the onset of Mr. Zabates
disabling illness, were deemed to have recognized the
work-related nature thereof. In this connection, the
Supreme declared as follows:

This conclusion is corroborated by
respondents contemporaneous act of extending
to David sickness allowance under Sec. 20(B) of
the POEA-SEC, since an employer is liable for the
payment of sickness allowance only "when the
seafarer suffers work-related injury or illness
during the term of his contract." Surely, an
illness that has been recognized at the outset by
the employer as work-related cannot evolve to
an illness not connected to the seafarers
employment. [G.R. 197205; 26 Sept. 2012]

I I .

A PERUSAL OF THE ALLEGED DECLARATI ON OF FI T TO
WORK WOULD SHOW THAT I T WAS ACTUALLY A
DECLARATI ON OF FI TNESS TO STOP CLI NI CAL VI SI TS
AND COMMENCE SELF-MEDI CATI ON; MOREOVER, I T
ACTUALLY CAME LATE AFTER MORE THAN 120 DAYS

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FROM THE ONSET OF MR. ZABATES I LLNESS
SUSTAI NED ON 9 FEBRUARY 2011 WHI LE WORKI NG
ON-BOARD.

10. As it was found by this Honorable Commission on page 6 of
its decision, Mr. Zabate has been sick since 09 February
2011 on-board the vessel MV Ocean Alliance where he was
then working. On 25 March 2011, he was medically
examined in Kaohsiung, Taiwan where the Varicocoele and
the Scrotal Tumor were initially detected. He was
repatriated to the Philippines for medical reasons on 12
April 2011.

11. These however were the facts overlooked by this Honorable
Commission, to wit: [a]. From the time the illness was
contracted until February 2012 or one month before Mr.
Zabate died, a period of twelve (12) months or 365 days
already elapsed; [b]. From the date of Mr. Zabates initial
medical examination in Taiwan until February 2012 or one
month before Mr. Zabate died, eleven (11) months or
approximately 333 days already elapsed; [c]. From the time
of Mr. Zabates repatriation on 12 April 2011 until February
2012 or one month before Mr. Zabate died, ten (10) months
or approximately 305 days already elapsed. WHAT WAS
THE SIGNIFICANCE OF THESE PERIODS? CONTRARY TO THE
ALLEGED FIT TO WORK DECLARATION, ALL THOSE TIMES
UNTIL HIS UNTIMELY DEATH SOMETIME ON MARCH 2012,
MR. ZABATE HAD BEEN UNABLE TO WORK AS A SEAFARER
AFTER SUSTAINING THE ILLNESS WHICH HE CONTRACTED
WHILE WORKING IN THE VESSEL OF RESPONDENTS.

12. THEREFORE, BEFORE MR. ZABATE DIED HE WAS ALREADY
ENTITLED TO TOTAL AND PERMANENT DISABILITY
BENEFITS. It has been consistently held and affirmed in
numerous cases that a seafarer (or any other worker for
that matter) who has been unable to work for a period of at
least 120 days as a result of an illness or injury contracted in
the course of duty, is considered as totally and permanently
unfit; hence entitled to total and permanent disability
benefits. Recently in the case of Wallem Maritime Services,

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Inc., vs. Ernesto C. Tanawan (G.R. No. 160444; 29 August
2012), the Supreme Court reaffirmed the 120 days rule
when it held that

Disability should be understood more on
the loss of earning capacity rather than on the
medical significance of the disability. Even in the
absence of an official finding by the company-
designated physician to the effect that the
seafarer suffers a disability and is unfit for sea
duty, the seafarer may still be declared to be
suffering from a permanent disability if he is
unable to work for more than 120 days. What
clearly determines the seafarers entitlement to
permanent disability benefits is his inability to
work for more than 120 days. Although the
company-designated physician already declared
the seafarer fit to work, the seafarers disability
is still considered permanent and total if such
declaration is made belatedly.

RELI EF SOUGHT

WHEREFORE, premises considered, it is respectfully asked
of this Honorable Commission that its Decision in the above-
captioned case, dated 31 July 2013 and received by undersigned
counsel on 16 July 2013, be RECONSIDERED and SET-ASIDE; that
the APPEAL OF RESPONDENTS-APPELLANTS BE DENIED for lack
of merit; and that the DECISION OF THE HONORABLE LABOR
ARBITER BE AFFIRMED in toto.

Other reliefs just and equitable are respectfully sought.

RESPECTFULLY SUBMITTED.

Santa Cruz, Laguna for Quezon City, 27 August 2013.



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At t y. EMMANUEL E. SANDI CHO
Counsel for Complainant-Appellee
G/Floor Hilario Bldg., National Highway
Sambat, Labuin, Santa Cruz, Laguna 4009
IBP No. 848920, 01.06.2012, Manila-IV
PTR No. 8163771, 02.05.2012, Laguna
Roll No. 42246 admitted on 9 May 1997
MCLE Compliance Period No. IV-0012117


Copy furnished, with the explanation that
this was served by registered mail due to
distance and unavailability of messenger :

To :
Our Esteemed Colleagues @
RETORI ANO & OLALI A- RETORI ANO LAW OFFI CES
Counsels for the Respondents-Appellants
305 Medecor Building, Ortigas Avenue
Greenhills, San Juan City, Metro Manila

Per : Registry Receipt No. ___________________
Posted at Santa Cruz, Lag. Post Office
Posted on 27 August 2013

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