COLON CANCER THAT IS AGGRAVATED BY POOR DIETARY PROVISIONS IN THE VESSEL IS WORK-RELATED

In Leonis Navigation Co., Inc. vs. Villamater, it was ruled that the dietary provisions which were high m fat and cholesterol given to the seaman while on duty increased or aggravated the seaman’s risk of colon cancer.

Accordingly, the SC held that colon cancer as a compensable work-related disease and granted full disability benefits to the seaman.

Thus, in the case of Alcibar below, the SC held that:

Jebsens Maritime, Inc., vs. Alcibar
G.R. No. 221117, February 20, 2019

Post-employment examination (POME); Failure of the company to conduct POME shall be deemed waiver of the right to conduct such examination; Work-related illness; An illness that is aggravated by the conditions in the vessel is considered as work-related illness; Colon cancer aggravated by poor dietary provisions in the vessel is work-related; Section 11 of Rule 8 of the Rules of Court; Rules of Court supplements the NLRC Rules; Allegation which was not specifically denied is deemed admitted

Facts:

Petitioner Jebsens Maritime, Inc., on behalf of principal Aboitiz Jebsens Bulk Transport Corporation (Jebsens, et al.), hired Jessie D. Alcibar (Alcibar) as an ordinary seaman.

Prior to his deployment, Alcibar underwent a comprehensive pre-employment medical examination and was declared physically fit to assume his duties as an ordinary seaman. Alcibar was deployed aboard ocean-going vessel M/V Maritime Victory. While on board the vessel, Alcibar alleged that most of the meals that were served to him were high in fat and cholesterol. Alcibar alleged that the assigned cook would directly cook chilled meat without waiting for the meat to unfreeze.

Subsequently, Alcibar felt severe pain in his anal region and noticed blood in his stool. He told the senior officers of the vessel about his condition but according to him he was ignored by the said officers. Alcibar alleged that his condition worsened because no medicine was given to him by the clinic inside the vessel.

Finally, while the vessel was docked in New Westminster, Canada, Alcibar was referred to a medical clinic where he was diagnosed by the doctor on duty with an internal hemorrhoid at the two o’clock position. After his medical examination, Alcibar still resumed his duties as an ordinary seaman. Alcibar claimed that his condition worsened and he requested to be sent back to the Philippines. However, the officers of the vessel told Alcibar that he could only return to the Philippines once his replacement was available.

On 5 April 2011, Alcibar was repatriated to the Philippines. In Manila, Alcibar immediately reported his deteriorating health to Jebsens, et al.. Jebsens, et al., however, told Alcibar that his request for medical assistance must first be approved by management. Jebsens, et al. then told Alcibar that they would call him as soon as the request for a post-employment medical examination was approved.

Alcibar then informed Jebsens, et al. that he needed to go back to his province to attend the interment of his mother. Alcibar then flew to Camiguin where his health deteriorated. While in the province, Alcibar claimed he did not receive any phone call from Jebsens, et al. for his medical examination.

Alcibar went to Associated Marine Officers and Seamen’s Union of the Philippines (AMOSUP) Seamen’s Hospital in Cebu to have himself physically examined. The private doctor at AMOSUP Seamen’s Hospital diagnosed him to have suffered rectal cancer (colon cancer). Alcibar underwent a Laparoscopic Abdomino-percenal Resection. Alcibar was confined in AMOSUP Seamen’s Hospital.

Alcibar filed a Complaint for permanent disability compensation, sickness allowance, damages, and attorney’s fees. Alcibar sought disability compensation and sickness allowance since he claimed that the cause of his illness was the dietary provisions given to him by Jebsens, et al. while at sea. Alcibar claimed that the dietary provisions on board the vessel increased his risk of contracting colon cancer.

For their defense, Jebsens, et al. claimed that Alcibar was repatriated because his contract had already expired and not because Alcibar had an illness. According to Jebsens, et al., colon cancer is not work-related and is not compensable under the collective bargaining agreement (CBA) because the illness did not result from an accident on board the vessel.

LA Ruling:

The Labor Arbiter ruled in favor of Alcibar.

The Labor Arbiter found that Alcibar’s illness was compensable. The Labor Arbiter held that the dietary provisions given to Alcibar while on board the vessel increased the risk of Alcibar of contracting colon cancer. The Labor Arbiter held that there was a strong presumption that Alcibar’s colon cancer was work-related and was not existing at the time he boarded the vessel.

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The Labor Arbiter held that in the determination of the compensability of an illness, reasonable, and not direct, work-connection is sufficient. What matters is that the employee’s work had contributed, even in a small degree, to the aggravation of the illness.

NLRC Ruling:

The National Labor Relations Commission (NLRC) reversed the Decision of the Labor Arbiter.

The NLRC held that Alcibar was not entitled to disability compensation because colon cancer could not be considered work-related. The NLRC ruled that there is no showing that colon cancer could have developed within a year Alcibar boarded the vessel of Jebsens, et al.

Alcibar also did not comply with the requirements of the law because Alcibar was not medically examined within three days after signing off from the vessel. Hence, Alcibar could not file a claim since the company-designated physician’s findings form the basis of any disability claim of the seafarer.

Alcibar filed a motion for reconsideration which was denied.

CA Ruling:

The CA granted Alcibar’s petition for certiorari which reversed the Decision of the NLRC and reinstated the Decision of the Labor Arbiter.

The CA held that under prevailing jurisprudence colon cancer is disputably presumed to be work-related. The extended employment of Alcibar coupled with the poor provisions given to Alcibar while at sea by the Jebsens, et al. aggravated the risk of colon cancer.

The CA ruled that Alcibar substantially complied with the requirement of a post-employment medical examination because he immediately reported to the office of Jebsens, et al. his poor state of health. The CA held that it was Jebsens, et al. who were grossly negligent because they ignored Alcibar’s request for a medical examination when they fully knew that Alcibar had a pre-existing condition while on board the vessel.

Jebsens, et al. filed a Motion for Reconsideration which was denied. Hence, the petition before the Supreme Court.

Issue/s:

Whether or not a seafarer who was diagnosed with colon cancer after his contract had already expired is entitled to disability benefits

Whether or not colon cancer is a work-related illness

Whether or not a company can be deemed to have waived the right to conduct post-employment examination for failure to perform examination when requested by the seafarer

SC Ruling:

The SC denied the petition.

According to the SC, Alcibar complied with the requirements of the 2000 Philippine Overseas Employment Administration Amended Standard Terms and Conditions Governing the Employment of Filipino Seafarers on Board Ocean-Going Vessels (POEA Standard Employment Contract) and the CBA. Alcibar willingly submitted himself to a post-employment medical examination by Jebsens, et al.’s company-designated physician when he arrived in the Philippines.

However, it was Jebsens, et al. which waived their right to examine Alcibar since Jebsens, et al. did not schedule Alcibar for a post-employment medical examination after Alcibar’s request upon his repatriation. The SC held that under the recent decisions of the Court, colon cancer is a compensable work-related disease. Alcibar’s colon cancer is work-related has been established by substantial evidence.

Section 20(B) of the POEA Standard Employment Contract requires a post-employment medical   examination to prove a seafarer’s claim to disability benefits. The seafarer shall submit himself to a post-employment medical examination by a company-designated physician within three working days upon his return.

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In addition, the CBA executed between Alcibar and Jebsens, et al. provides for the evidence required to prove entitlement to sickness pay and disability compensation. The disability suffered by the seafarer shall be determined by a doctor appointed by the Company.

In the present case, Alcibar immediately reported to Jebsens, et al.’s main office in Manila within three days upon his repatriation. In fact, Alcibar, who was already diagnosed as having internal hemorrhoids while on-duty at Jebsens, et al.’s vessel, voluntary submitted himself for a post-employment medical examination in Jebsens, et al.’s office. However, Jebsens, et al. told Alcibar that they would just contact him once his request for a post-employment medical examination had been approved by management.

After Alcibar went back to the province, Jebsens, et al. no longer called Alcibar to schedule his medical examination. In Jebsens Maritime, Inc. vs. Undag, this Court explained that the rationale for the post-employment medical examination is for the company-designated physician to accurately determine whether the illness sustained by the disability claimant was work-related. The employer, through its company-designated physician, is given the first opportunity to examine the seaman seeking disability claims and make a determination whether the illness was caused by the seaman’s duties at sea.

It was Jebsens, et al.’ss fault that there was no declaration on the part of Jebsens, et al.’s company-designated physician regarding Alcibar’s illness. Notably, by failing to schedule Alcibar for a post-employment medical examination, Jebsens, et al. waived their right to use the declaration of their designated physician as basis for rejecting Alcibar’s disability claim.

Therefore, the defense of the absence of a post-employment medical examination on the part of Alcibar is not a defense available to Jebsens, et al. because it was through Jebsens, et al.’s fault that the provisions of the POEA Standard Employment Contract and the CBA were not observed. Accordingly, the CA is correct when it held that Alcibar substantially complied with the requirements of both the POEA Standard Employment Contract and the CBA.

In Leonis Navigation Co., Inc. vs. Villamater, this Court held that under Section 32-A of the POEA Standard Employment Contract, colon cancer is considered a work-related disease. This Court explained that the seaman is entitled to disability benefits if the seaman proves that the conditions inside the vessel increased or aggravated the risk of the seaman of colon cancer. Diets high in fat are believed to predispose humans to colorectal cancer. In countries with high colorectal cancer rates, the fat intake by the population is much higher than in countries with low cancer rates. It is believed that the breakdown products of fat metabolism lead to the formation of cancer-causing chemicals (carcinogens).

In Villamater, this Court ruled that the dietary provisions which were high m fat and cholesterol given to the seaman while on duty increased or aggravated the seaman’s risk of colon cancer. Accordingly, this Court considered colon cancer as a compensable work-related disease and granted full disability benefits to the seaman.

Likewise, in Dohle-Pilman Manning Agency, Inc. v. Heirs of Andres G. Gazzingan, this Court granted full disability benefits to a seaman who proved that the conditions on board the vessel aggravated his illness. Illnesses which are either: (1) acquired by the seaman on board the vessel; or (2) resulting from a pre-existing condition of the seaman which is aggravated by the conditions on board the vessel are compensable work-related diseases.

In a recent case, in Talosig vs. United Philippine Lines, Inc., this Court reiterated the ruling in Villamater, and held that, following Section 32-A of the POEA Standard Employment Contract, the seaman must prove through substantial evidence the presence of the conditions that aggravated the seaman’s risk of colon cancer. Accordingly, we disagree with Jebsens, et al. that colon cancer is not a compensable work-related disease. Clearly, the POEA Standard Employment Contract only requires that the conditions mentioned in Section 32-A thereof be established to prove that the occupational disease is work-related.

Illnesses like colon cancer, acquired or aggravated while on duty on board the vessel, which were caused by the conditions on board the vessel, are also considered work-related if the acquisition or aggravation of the illnesses is proven by the seaman through substantial evidence.

In Magsaysay Maritime Corporation vs. National Labor Relations Commission, this Court explained that the seafarer must prove with substantial evidence that there is a causal connection between his illness and the work for which he had been contracted. It must also be shown that there is a causal connection between the seafarer’s illness or injury and the work for which he had been contracted.

Notably, in the records of the present case, Jebsens, et al. did not specifically deny in any of their pleadings, including their position paper submitted to the Labor Arbiter, pleadings before the NLRC and CA, and the petition filed before this Court, Alcibar’s allegation that Jebsens, et al. were continuously serving him poor dietary provisions which were high in fat and cholesterol, and low in fiber. Following Section 11 of Rule 8 of the Rules of Court, which supplements the NLRC Rules, this particular allegation of Alcibar against Jebsens, et al. which was not specifically denied by Jebsens, et al. is deemed admitted that during the performance of his duties as a seaman, he was suffering from internal hemorrhoids, a disease aggravated by the poor dietary provisions given to him while on board Jebsens, et al.’s vessel. In fact, a resident doctor in Westminster, Canada, who examined Alcibar, diagnosed Alcibar as having internal hemorrhoids and recommended that Alcibar eat proper food with low fat, low cholesterol, and high in fiber.

In sum, the conditions while at sea contributed to Alcibar’s colon cancer. Following the ruling of this Court in Villamater, the poor dietary provisions given to Alcibar while at sea aggravated, at the very least, Alcibar’s risk of colon cancer. This Court agrees with the CA that Alcibar was able to prove through substantial evidence his disability and sickness pay claim.

To reiterate, the absence of the post-employment medical examination requirement, having been waived by Jebsens, et al. by failing to schedule Alcibar for a medical examination, will not bar the disability claim of Alcibar who has established that his colon cancer, or the aggravation thereof, was work-related. Accordingly, we sustain the ruling of the CA granting disability benefits and sickness pay to Alcibar.