Probability, not certainty

Published by reposted only Date posted on March 30, 2010

This is another case regarding compensability of permanent and total disability due to illness that is not listed as occupational disease but has been considered work related. This is the case of Lino.

On June 4, 2002 Lino was hired as Chief Engineer of a vessel owned by a Panama shipping company (WMP) through it local manning agent LNC Incorporated in his employment contract is the Standard Employment Contract (SEC) containing the “Standard Terms and Conditions Governing the Employment of Filipino Seafarers on Board Ocean Going Vessels” as prescribed by the POEA. At the time he signed the contract Lino was already 58 years old with a familial history of colon cancer. But prior to his deployment he underwent the required Pre-Employment Medical Examination (PEME) and was declared “Fit to Work”.

So on June 26, 2002, Lino was deployed in WMP’s vessel. But sometime in October, 2002 around 4 months after his deployment, Lino suffered intestinal bleeding and was given a blood transfusion. Thereafter he again felt weak, lost considerable weight and suffered intermittent intestinal pain. After consulting a physician in Germany, he was diagnosed to have colorectal cancer that has spread to the liver and lungs. He was advised hospital confinement and to undergo chemotherapy with continuous supportive treatment such as pain killers and blood transfusion.

As soon as he was deemed fit to travel he was repatriated and referred to a company designated local physician who opined that Lino’s condition “appears to be not work related” but suggested a disability grading of 1. When there was no noticeable improvement in Lino’s condition despite chemotherapy, he already filed before the Labor Arbiter of the NLRC a complaint against WMP and LNC for payment of permanent and total disability benefits.

After submission of the position papers, the LA found Lino’s illness to be permanent and total disability and thus compensable after determining that his dietary provisions while at sea increased his risk of contracting colon cancer because he had no choice but to eat the food provided on board consisting mainly of high-fat, high-cholesterol and low fiber foods. So the LA awarded him $60,000 or its Philippine Peso equivalent plus 10% attorney’s fees. This ruling was affirmed in toto by the NLRC.

WMP and LNC however questioned the decision of the LA and the NLRC. They contended that colon cancer is not among the occupational diseases listed in the POEA Standard Employment Contract (POEA-SEC) and that the risk of contracting the same was not increased by Lino’s working conditions during his deployment. They argued that Lino had familial history of colon cancer and that although dietary considerations may be taken, his diet might only be attributed to him because it was he who chose what he ate on board the vessel. They also cited the declaration of the company designated physician that his illness is not work related. Were WMP and LNC correct?

No. It is true that under Section 12-A of the POEA-SEC colon cancer is not listed as an occupational disease. But Section 20 of the same contract also states that those illnesses not listed are disputable presumed as work-related.

The Labor Arbiter and the NLRC decision granting permanent and total disability benefits in favor of Lino should be sustained as it was sufficiently shown that his having contracted colon cancer was, at the very least aggravated by his working conditions, taking into consideration his dietary provisions on board, his age and his job as Chief Engineer who was primarily in charge of the technical and mechanical operations of the vessels to ensure voyage safety.

To establish compensability of a non-occupational disease, reasonable proof of work connection and not direct causal relation is required. Probability, not the ultimate degree of certainty is the test of proof in compensation proceedings. Lino cited that the foods provided on board the vessels were mostly meat, high in fat and high in cholesterol. Noticeably WMP and LNC were silent when they argued that Lino’s affliction was brought about by diet and genetics. It was only when the LA issued his decision finding colon cancer to be compensable because the risk was increased by the victuals provided on board when they started claiming other foods are available. It is also worth mentioning that while the company designated physician declared that Lino’s cancer is not work related, she nevertheless suggested that Lino’s sickness be given a disability grading of 1 which under the POEA-SEC constitutes permanent and total disability (Leonis Navigation Co Inc. and World Marine Panama, S.A. vs. Villamater etc, and NLRC, G.R. 179169, March 3, 2010).

Note: Books containing compilation of my articles on Labor Law and Criminal Law (Vols. I and II) are now available. Call tel. 7249445. –Jose C. Sison (The Philippine Star)

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E-mail at: jcson@pldtdsl.net

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