Case Digest: Heirs of Deauna v. Fil-Star Maritime
G.R. No. 191563 : June 20, 2012
LEGAL HEIRS OF THE LATE EDWIN B. DEAUNA, represented by his wife, MRS. ARLINA DEAUNA,Petitioners, v. FIL-STAR MARITIME CORPORATION, GREGORIO ORTEGA, CAPT. VICTOR S. MILLALOS and GRANDSLAM ENTERPRISES CORPORATION,
Respondents.
REYES,J.:
FACTS:
Respondent Fil-Star Maritime Corporation (Fil-Star) is a local manning agency, with respondent Captain Victor S. Millalos (Capt. Millalos) as its general manager. Respondent Grandslam Enterprise Corporation (Grandslam) is among Fil-Star's foreign principals.Grandslam owns and manages the vessel M/V Sanko Stream (Sanko) which Edwin boarded on August 1, 2004 for a nine-month engagement as Chief Engineer.As such, he was responsible for the operations and maintenance of the entire vessel's engineering equipment.He also determined the requirements for fuel, lube oil and other consumables necessary for a voyage, conducted inventory of spare parts, prepared the engine room for inspection by marine and safety authorities, and took charge of the engine room during maneuvering and emergency situations.
Prior to Edwin's deployment, he underwent the customary Pre-employment Medical Examination (PEME) and was found as fit to work as was repeatedly the case in the past 30 years since his first deployment by Fil-Star in 1975.
Sometime in October 2004, Edwin experienced abdominal pains while on-board Sanko.He was promptly referred to a doctor inParanagua,Brazil.An ultrasound examination revealed that he had kidney stones for which he was administered oral medications.Thereafter, he resumed his work on-board Sanko.
On April 3, 2005 or more or less 8 months from deployment, Edwin was repatriated.There were, however, conflicting claims regarding the cause of his repatriation.The respondents claimed that Edwin requested for an early termination of his contract in order to attend his daughter's graduation ceremony.On the other hand, the petitioners averred that Edwin was repatriated due to the latter's body weakness and head heaviness.The petitioners likewise claimed that on April 4, 2005, they called Capt. Millalos to inform the latter that upon arrival at the airport, Edwin was very sick, weak, disoriented, and merely wanted to immediately go home to Daet, Camarines Norte.Edwin can neither physically report in Fil-Star's office nor board his next vessel of assignment.
Dr. Eduardo R. Mercado (Dr. Mercado), a neurosurgeon at theCardinalSantosMedicalCentercertified that he need a biopsy of his brain tumor for grading purposes.
The petitioners sent the respondents two letters requesting for the conduct of a medical examination and treatment of Edwin's brain tumor.The respondents averred that they provided Edwin with medical assistance for him to be able to promptly undergo a biopsy.
On May 4, 2005, Dr. Mercado found out from the pathology report that Edwin was suffering from Glioblastoma WHO Grade 4 (GBM), a malignant and aggressive form of brain cancer.According to Dr. Mercado, it is logical/safe to surmise that the tumor has been existent and progressively growing for a number of months.
On May 13, 2005, the company-designated physician, Dr. Nicomedes G. Cruz (Dr. Cruz), opined that the etiology of GBM is unknown.Further, Edwin's illness is work-related if he has history of exposure to radiation, vinyl products and the likes and working in near proximity of power line, otherwise, it is not, and that the tumor is already present even prior to embarkation but not detectable but ordinary PEME.
The respondents claimed that out of compassion and intent to avoid legal battles, they extended to Edwin an allowance of US$6,033.36.They also offered the payment of US$60,000.00 disability benefits despite having no obligation to do so on their part as GBM can only be considered as work-related if a person who suffers therefrom had exposures to radiation or vinyl products, or had worked in the vicinity of power lines. The respondents claimed that Edwin did not have such exposure while under their employ.
Two demand letters seeking disability benefits were thereafter sent by the petitioners to the respondents. The respondents replied that they had already aptly dealt with the illness under the respective employment agreement.Not long after, the petitioners again wrote the respondents informing the latter that Edwin's condition was already critical.Hence, the possibility that the claims for disability benefits would be converted to death benefits arose.The respondents denied the petitioners' demand.
In December 2005, a complaint for disability benefits, medical and transportation reimbursements, moral and exemplary damages and attorney's fees were filed before the National Labor Relations Commission (NLRC).Edwin died on April 13, 2006 during the pendency of the proceedings.He was substituted therein by the petitioners who sought the payment of death benefits.
After finding that there was an arbitration clause in the IBF/AMOSUP/IMMAJ CBA, the Labor Arbiter (LA) rendered a decision referring the complaint to voluntary arbitration.On October 28, 2008, Voluntary Arbitrator Rene Ofreneo (VA Ofreneo), invoking the provisions of the Philippine Overseas Employment Administration Standard Employment Contract (POEA SEC) and the IBF/AMOSUP/IMMAJ CBA, awarded death benefits to the petitioners.
The respondents filed with the CA a petition for review under Rule 43 of the Rules of Court to challenge VA Ofreneo's award.Before the CA could resolve the case, the petitioners filed a motion for execution which was granted by VA Ofreneo over the respondents' vehement opposition.Consequently, the respondents paid to the petitioners the sum ofP5,603,026but the former manifested that their act was without prejudice to the outcome of the proceedings then pending with the CA.
On July 15, 2009, the CA rendered the now assailed decision reversing VA Ofreneo's award. The CA thereafter issued the assailed resolution denying the petitioners' motion for reconsideration to the foregoing. Hence, the instant petition.
ISSUES:
LEGAL HEIRS OF THE LATE EDWIN B. DEAUNA, represented by his wife, MRS. ARLINA DEAUNA,Petitioners, v. FIL-STAR MARITIME CORPORATION, GREGORIO ORTEGA, CAPT. VICTOR S. MILLALOS and GRANDSLAM ENTERPRISES CORPORATION,
Respondents.
REYES,J.:
FACTS:
Respondent Fil-Star Maritime Corporation (Fil-Star) is a local manning agency, with respondent Captain Victor S. Millalos (Capt. Millalos) as its general manager. Respondent Grandslam Enterprise Corporation (Grandslam) is among Fil-Star's foreign principals.Grandslam owns and manages the vessel M/V Sanko Stream (Sanko) which Edwin boarded on August 1, 2004 for a nine-month engagement as Chief Engineer.As such, he was responsible for the operations and maintenance of the entire vessel's engineering equipment.He also determined the requirements for fuel, lube oil and other consumables necessary for a voyage, conducted inventory of spare parts, prepared the engine room for inspection by marine and safety authorities, and took charge of the engine room during maneuvering and emergency situations.
Prior to Edwin's deployment, he underwent the customary Pre-employment Medical Examination (PEME) and was found as fit to work as was repeatedly the case in the past 30 years since his first deployment by Fil-Star in 1975.
Sometime in October 2004, Edwin experienced abdominal pains while on-board Sanko.He was promptly referred to a doctor inParanagua,Brazil.An ultrasound examination revealed that he had kidney stones for which he was administered oral medications.Thereafter, he resumed his work on-board Sanko.
On April 3, 2005 or more or less 8 months from deployment, Edwin was repatriated.There were, however, conflicting claims regarding the cause of his repatriation.The respondents claimed that Edwin requested for an early termination of his contract in order to attend his daughter's graduation ceremony.On the other hand, the petitioners averred that Edwin was repatriated due to the latter's body weakness and head heaviness.The petitioners likewise claimed that on April 4, 2005, they called Capt. Millalos to inform the latter that upon arrival at the airport, Edwin was very sick, weak, disoriented, and merely wanted to immediately go home to Daet, Camarines Norte.Edwin can neither physically report in Fil-Star's office nor board his next vessel of assignment.
Dr. Eduardo R. Mercado (Dr. Mercado), a neurosurgeon at theCardinalSantosMedicalCentercertified that he need a biopsy of his brain tumor for grading purposes.
The petitioners sent the respondents two letters requesting for the conduct of a medical examination and treatment of Edwin's brain tumor.The respondents averred that they provided Edwin with medical assistance for him to be able to promptly undergo a biopsy.
On May 4, 2005, Dr. Mercado found out from the pathology report that Edwin was suffering from Glioblastoma WHO Grade 4 (GBM), a malignant and aggressive form of brain cancer.According to Dr. Mercado, it is logical/safe to surmise that the tumor has been existent and progressively growing for a number of months.
On May 13, 2005, the company-designated physician, Dr. Nicomedes G. Cruz (Dr. Cruz), opined that the etiology of GBM is unknown.Further, Edwin's illness is work-related if he has history of exposure to radiation, vinyl products and the likes and working in near proximity of power line, otherwise, it is not, and that the tumor is already present even prior to embarkation but not detectable but ordinary PEME.
The respondents claimed that out of compassion and intent to avoid legal battles, they extended to Edwin an allowance of US$6,033.36.They also offered the payment of US$60,000.00 disability benefits despite having no obligation to do so on their part as GBM can only be considered as work-related if a person who suffers therefrom had exposures to radiation or vinyl products, or had worked in the vicinity of power lines. The respondents claimed that Edwin did not have such exposure while under their employ.
Two demand letters seeking disability benefits were thereafter sent by the petitioners to the respondents. The respondents replied that they had already aptly dealt with the illness under the respective employment agreement.Not long after, the petitioners again wrote the respondents informing the latter that Edwin's condition was already critical.Hence, the possibility that the claims for disability benefits would be converted to death benefits arose.The respondents denied the petitioners' demand.
In December 2005, a complaint for disability benefits, medical and transportation reimbursements, moral and exemplary damages and attorney's fees were filed before the National Labor Relations Commission (NLRC).Edwin died on April 13, 2006 during the pendency of the proceedings.He was substituted therein by the petitioners who sought the payment of death benefits.
After finding that there was an arbitration clause in the IBF/AMOSUP/IMMAJ CBA, the Labor Arbiter (LA) rendered a decision referring the complaint to voluntary arbitration.On October 28, 2008, Voluntary Arbitrator Rene Ofreneo (VA Ofreneo), invoking the provisions of the Philippine Overseas Employment Administration Standard Employment Contract (POEA SEC) and the IBF/AMOSUP/IMMAJ CBA, awarded death benefits to the petitioners.
The respondents filed with the CA a petition for review under Rule 43 of the Rules of Court to challenge VA Ofreneo's award.Before the CA could resolve the case, the petitioners filed a motion for execution which was granted by VA Ofreneo over the respondents' vehement opposition.Consequently, the respondents paid to the petitioners the sum ofP5,603,026but the former manifested that their act was without prejudice to the outcome of the proceedings then pending with the CA.
On July 15, 2009, the CA rendered the now assailed decision reversing VA Ofreneo's award. The CA thereafter issued the assailed resolution denying the petitioners' motion for reconsideration to the foregoing. Hence, the instant petition.
ISSUES:
1) Whether the CBA should prevail; and
2) whether or not within the purview of the IBF/AMOSUP/IMMAJ CBA, Edwin's death on April 13, 2006, or more than a year from his repatriation, can be considered as one occurring while he was still in the employment of the respondents.
HELD: Anent the substantive arguments, we find the instant petition partially impressed with merit.
LABOR LAW:
HELD: Anent the substantive arguments, we find the instant petition partially impressed with merit.
LABOR LAW:
CBA provisions must prevail over the standard terms and benefits formulated by the POEA in its standard employment contract
The IBF/AMOSUP/IMMAJ CBA provisions govern the relations of the parties especially since the issue of the VA's jurisdiction was never challenged in the proceedings below.
It bears noting that the petitioners' complaint was initially filed with the NLRC which referred the same to the NCMB for voluntary arbitration.VA Ofreneo took cognizance and ruled on the complaint.Thereafter, the respondents assailed before the CA, through a petition for review under Rule 43 of the Rules of Court, the notice of award issued by VA Ofreneo.In the said petition, the parties never raised the issue of the VA's jurisdiction.In effect, it was an admission on the part of both the petitioners and the respondents that the controversy involves the interpretation of CBA provisions relative to the claims for death compensation benefits.Stated otherwise, in the proceedings below, the contending parties both impliedly acquiesced to the applicability of the CBA provisions and not of the POEA SEC over the claims of the petitioners.
More importantly, the special clauses on collective bargaining agreements must prevail over the standard terms and benefits formulated by the POEA in its Standard Employment Contract.A contract of labor is so impressed with public interest that the more beneficial conditions must be endeavored in favor of the laborer.This is in consonance with the avowed policy of the State to give maximum aid and full protection to labor as enshrined in Article XIII of the 1987 Constitution.
LABOR LAW
Under the IBF/AMOSUP/IMMAJ CBA provisions, Edwin's death a little more than a year from his repatriation can still be considered as one occurring while he was still under the respondents' employ.
Articles 22 (Termination of Employment), 25 (Medical), 26 (Sick Pay) and 29 (Loss of Life Death in Service) and Appendix 3 of the IBF/AMOSUP/IMMAJ CBA state in part:
22.1 The employment shall be terminated:
x x x x
(b) when signing off owing to sickness or injury, after medical examination in accordance with Article 25,but subject to the provision of Article 29.
x x x x
25.3 A seafarer repatriated to their port of engagement, unfit as a result of sickness or injury, shall be entitled to medical attention (including hospitalisation) at the Company's expense:
(a) in the case of sickness, for up to a minimum of sixty (60) days and a maximum of one hundred and thirty(130) days after repatriation, subject to thesubmission of satisfactory medical reports.
x x x x
26.1 When a seafarer is landed at any port because of sickness or injury, payment of their basic wages shall continue until they have been repatriated at the Company's expense.
26.2 Thereafter[,] the seafarers shall be entitled to sick pay at the rate equivalent to their basic wage while they remain sick up to a minimum of sixty (60) days and a maximum of one hundred and thirty (130) days.
x x x x
26.4Proof of continued entitlement to sick pay shall be by submission of satisfactory medical reports,endorsed where necessary, by a Company- appointed doctor.If a doctor appointed by or in behalf of the seafarer disagrees with the assessment, a third doctor may be nominated jointly between the Company and theUnionand the decision of this doctor shall be final and binding on both parties.
x x x x
29.1 If aSeafarer dies through any cause whilst in the employment of the Company including death from natural causesand death occurring whilst travelling to and from the vessel, or as a result of marine or other similar peril, but excluding death due to willful acts, the Company shall pay the sums specified in the attached APPENDIX 3 to a nominated beneficiary and to each dependent child up to a maximum of four (4) under 21 years of age.
x x x x
29.4 For the purpose of this clause, a seafarer shall be regarded as in the employment of the company for so long as the provisions of Articles 25 and 26 apply and provided the death is directly attributable to sickness or injury that caused the seafarer's employment to be terminated in accordance with Article 22.1(b).
Appendix 3
x x x x
Loss of Life Death in Service
Death in service benefits as provided in Article 29 of this Agreement shall, unless more favourable benefits are negotiated, be:
To the nominated beneficiary .............. US$75,000.00
To each dependent child (maximum four (4) under 21 years of age) .................................US$15,000.00
Article 22.1(b) considers an employment as terminated if a seafarer signs off from the vessel due to sickness, but subject to the provisions of Article 29.
Article 29.1 of the IBF/AMOSUP/IMMAJ CBA provides thatthe death of a seafarer, for any cause, is compensable when it occurs while he is in the employment of the company.Article 29.4, on the other hand, clarifies thatthe seafarer shall be considered as in the employment of the company for so long as the provisions of Articles 25 and 26 apply and provided the death is directly attributable to sickness or injury that caused the seafarer's employment to be terminated in accordance with Article 22.1(b).
Under Article 25.3, a seafarer repatriated to the port of his engagement, unfit as a result of sickness, shall be entitled to medical attention at the company's expense for up to a maximum period of 130 days after repatriation, subject to the submission of satisfactory medical reports.Article 26.2 further states that a seafarer shall likewise be entitled to sick pay at the rate equivalent to his basic wage while he remains sick up to a maximum of 130 days.Article 26.4 allows continued entitlement to sick pay beyond the 130 day period, reckoned from repatriation, provided satisfactory medical reports shall be submitted and endorsed where necessary, by a company-appointed doctor.
We now apply the provisions of the IBF/AMOSUP/IMMAJ CBA to the circumstances surrounding Edwin's death.
On August 22, 2005, or more or less 130 days from Edwin's arrival in the Philippines, the company-designated physician, Dr. Cruz, indicated in a medical reportaddressed to Capt. Millalos that Edwin's repatriation was due to body weakness and head heaviness since October 2004.Dr. Cruz also stated that upon Edwin's arrival at the airport on April 3, 2005, the latter was noted to be drowsy and disoriented.Dr. Cruz diagnosed Edwin to be suffering from GBM and submitted the monthly expenses for the latter's chemotherapy to Capt. Millalos.Edwin was advised to come back on September 23, 2005.Edwin eventually died of GBM on April 13, 2006.
We note that body weakness, head heaviness, drowsiness and disorientedness are among the symptoms associated with GBM.Dr. Cruz indicated that these symptoms were exhibited by Edwin since October 2004 while he was still on board Sanko and were notable even when the latter was repatriated on April 3, 2005.Prior to repatriation, Edwin had only been diagnosed inBrazilto be suffering from kidney stones, but no exhaustive examination was conducted on him and no finding was rendered declaring that he had GBM.Nonetheless, the symptoms previously referred to were the cause of Edwin's repatriation more or less than a month before his contract was about to expire.On May 4, 2005 or about a month after repatriation, Dr. Mercado found that Edwin was afflicted with GBM and that the tumor had been progressively growing for months.Further, the medical report, dated August 22, 2005, addressed to Capt. Millalos, submitting to him the monthly expenses for Edwin's chemotherapy and advising the latter to come back on September 23, 2005, was an implied admission on the part of Dr. Cruz that medical assistance and sick pay should indeed be extended to Edwin even beyond the 130-day period prescribed by Articles 25 and 26 of the IBF/AMOSUP/IMMAJ CBA.
From the foregoing, we can thus conclude that at the time of Edwin's death on April 13, 2006 due to GBM, he was still in the employment of the respondents.While it is true that Article 22.1 of the IBF/AMOSUP/IMMAJ CBA considers a seafarer as terminated when he signs off from the vessel due to sickness, the foregoing is subject to the provisions of Article 29.Under Article 29, a seafarer remains under the respondents' employ as long as the former is still entitled to medical assistance and sick pay, and provided that the death which eventually occurs is directly attributable to the sickness which caused the seafarer's employment to be terminated.As discussed above, the company-designated physician, Dr. Cruz, in effect admitted that Edwin was repatriated due to symptoms which a person suffering from GBM normally exhibits.Further, he recommended to Capt. Millalos Edwin's entitlement to medical assistance and sick pay for a period beyond 130 days from repatriation.Edwin subsequently died of GBM, the symptoms of which were the cause of his earlier repatriation.Hence, since Edwin's death is reasonably connected to the cause of his repatriation, within the purview of the IBF/AMOSUP/IMMAJ CBA, he indubitably died while under the respondents' employ, thus, entitling the petitioners to death benefits as provided for in Appendix 3 of the said CBA.
The petitioners are, however, not entitled to moral and exemplary damages and attorney's fees.
PARTIALLY GRANTED
The IBF/AMOSUP/IMMAJ CBA provisions govern the relations of the parties especially since the issue of the VA's jurisdiction was never challenged in the proceedings below.
It bears noting that the petitioners' complaint was initially filed with the NLRC which referred the same to the NCMB for voluntary arbitration.VA Ofreneo took cognizance and ruled on the complaint.Thereafter, the respondents assailed before the CA, through a petition for review under Rule 43 of the Rules of Court, the notice of award issued by VA Ofreneo.In the said petition, the parties never raised the issue of the VA's jurisdiction.In effect, it was an admission on the part of both the petitioners and the respondents that the controversy involves the interpretation of CBA provisions relative to the claims for death compensation benefits.Stated otherwise, in the proceedings below, the contending parties both impliedly acquiesced to the applicability of the CBA provisions and not of the POEA SEC over the claims of the petitioners.
More importantly, the special clauses on collective bargaining agreements must prevail over the standard terms and benefits formulated by the POEA in its Standard Employment Contract.A contract of labor is so impressed with public interest that the more beneficial conditions must be endeavored in favor of the laborer.This is in consonance with the avowed policy of the State to give maximum aid and full protection to labor as enshrined in Article XIII of the 1987 Constitution.
LABOR LAW
Under the IBF/AMOSUP/IMMAJ CBA provisions, Edwin's death a little more than a year from his repatriation can still be considered as one occurring while he was still under the respondents' employ.
Articles 22 (Termination of Employment), 25 (Medical), 26 (Sick Pay) and 29 (Loss of Life Death in Service) and Appendix 3 of the IBF/AMOSUP/IMMAJ CBA state in part:
22.1 The employment shall be terminated:
x x x x
(b) when signing off owing to sickness or injury, after medical examination in accordance with Article 25,but subject to the provision of Article 29.
x x x x
25.3 A seafarer repatriated to their port of engagement, unfit as a result of sickness or injury, shall be entitled to medical attention (including hospitalisation) at the Company's expense:
(a) in the case of sickness, for up to a minimum of sixty (60) days and a maximum of one hundred and thirty(130) days after repatriation, subject to thesubmission of satisfactory medical reports.
x x x x
26.1 When a seafarer is landed at any port because of sickness or injury, payment of their basic wages shall continue until they have been repatriated at the Company's expense.
26.2 Thereafter[,] the seafarers shall be entitled to sick pay at the rate equivalent to their basic wage while they remain sick up to a minimum of sixty (60) days and a maximum of one hundred and thirty (130) days.
x x x x
26.4Proof of continued entitlement to sick pay shall be by submission of satisfactory medical reports,endorsed where necessary, by a Company- appointed doctor.If a doctor appointed by or in behalf of the seafarer disagrees with the assessment, a third doctor may be nominated jointly between the Company and theUnionand the decision of this doctor shall be final and binding on both parties.
x x x x
29.1 If aSeafarer dies through any cause whilst in the employment of the Company including death from natural causesand death occurring whilst travelling to and from the vessel, or as a result of marine or other similar peril, but excluding death due to willful acts, the Company shall pay the sums specified in the attached APPENDIX 3 to a nominated beneficiary and to each dependent child up to a maximum of four (4) under 21 years of age.
x x x x
29.4 For the purpose of this clause, a seafarer shall be regarded as in the employment of the company for so long as the provisions of Articles 25 and 26 apply and provided the death is directly attributable to sickness or injury that caused the seafarer's employment to be terminated in accordance with Article 22.1(b).
Appendix 3
x x x x
Loss of Life Death in Service
Death in service benefits as provided in Article 29 of this Agreement shall, unless more favourable benefits are negotiated, be:
To the nominated beneficiary .............. US$75,000.00
To each dependent child (maximum four (4) under 21 years of age) .................................US$15,000.00
Article 22.1(b) considers an employment as terminated if a seafarer signs off from the vessel due to sickness, but subject to the provisions of Article 29.
Article 29.1 of the IBF/AMOSUP/IMMAJ CBA provides thatthe death of a seafarer, for any cause, is compensable when it occurs while he is in the employment of the company.Article 29.4, on the other hand, clarifies thatthe seafarer shall be considered as in the employment of the company for so long as the provisions of Articles 25 and 26 apply and provided the death is directly attributable to sickness or injury that caused the seafarer's employment to be terminated in accordance with Article 22.1(b).
Under Article 25.3, a seafarer repatriated to the port of his engagement, unfit as a result of sickness, shall be entitled to medical attention at the company's expense for up to a maximum period of 130 days after repatriation, subject to the submission of satisfactory medical reports.Article 26.2 further states that a seafarer shall likewise be entitled to sick pay at the rate equivalent to his basic wage while he remains sick up to a maximum of 130 days.Article 26.4 allows continued entitlement to sick pay beyond the 130 day period, reckoned from repatriation, provided satisfactory medical reports shall be submitted and endorsed where necessary, by a company-appointed doctor.
We now apply the provisions of the IBF/AMOSUP/IMMAJ CBA to the circumstances surrounding Edwin's death.
On August 22, 2005, or more or less 130 days from Edwin's arrival in the Philippines, the company-designated physician, Dr. Cruz, indicated in a medical reportaddressed to Capt. Millalos that Edwin's repatriation was due to body weakness and head heaviness since October 2004.Dr. Cruz also stated that upon Edwin's arrival at the airport on April 3, 2005, the latter was noted to be drowsy and disoriented.Dr. Cruz diagnosed Edwin to be suffering from GBM and submitted the monthly expenses for the latter's chemotherapy to Capt. Millalos.Edwin was advised to come back on September 23, 2005.Edwin eventually died of GBM on April 13, 2006.
We note that body weakness, head heaviness, drowsiness and disorientedness are among the symptoms associated with GBM.Dr. Cruz indicated that these symptoms were exhibited by Edwin since October 2004 while he was still on board Sanko and were notable even when the latter was repatriated on April 3, 2005.Prior to repatriation, Edwin had only been diagnosed inBrazilto be suffering from kidney stones, but no exhaustive examination was conducted on him and no finding was rendered declaring that he had GBM.Nonetheless, the symptoms previously referred to were the cause of Edwin's repatriation more or less than a month before his contract was about to expire.On May 4, 2005 or about a month after repatriation, Dr. Mercado found that Edwin was afflicted with GBM and that the tumor had been progressively growing for months.Further, the medical report, dated August 22, 2005, addressed to Capt. Millalos, submitting to him the monthly expenses for Edwin's chemotherapy and advising the latter to come back on September 23, 2005, was an implied admission on the part of Dr. Cruz that medical assistance and sick pay should indeed be extended to Edwin even beyond the 130-day period prescribed by Articles 25 and 26 of the IBF/AMOSUP/IMMAJ CBA.
From the foregoing, we can thus conclude that at the time of Edwin's death on April 13, 2006 due to GBM, he was still in the employment of the respondents.While it is true that Article 22.1 of the IBF/AMOSUP/IMMAJ CBA considers a seafarer as terminated when he signs off from the vessel due to sickness, the foregoing is subject to the provisions of Article 29.Under Article 29, a seafarer remains under the respondents' employ as long as the former is still entitled to medical assistance and sick pay, and provided that the death which eventually occurs is directly attributable to the sickness which caused the seafarer's employment to be terminated.As discussed above, the company-designated physician, Dr. Cruz, in effect admitted that Edwin was repatriated due to symptoms which a person suffering from GBM normally exhibits.Further, he recommended to Capt. Millalos Edwin's entitlement to medical assistance and sick pay for a period beyond 130 days from repatriation.Edwin subsequently died of GBM, the symptoms of which were the cause of his earlier repatriation.Hence, since Edwin's death is reasonably connected to the cause of his repatriation, within the purview of the IBF/AMOSUP/IMMAJ CBA, he indubitably died while under the respondents' employ, thus, entitling the petitioners to death benefits as provided for in Appendix 3 of the said CBA.
The petitioners are, however, not entitled to moral and exemplary damages and attorney's fees.
PARTIALLY GRANTED
