Compensability of a seafarer's pre-existing illness

A  pre-existing illness, or an ailment that was contracted prior to his employment,   will not   deprive a seafarer  of compensation benefits as long as it is diagnosed during the effectivity of his recent contract.

The Supreme Court recently considered colorectal cancer as a compensable  illness   in the recent case of Skippers United Pacific, Inc., vs Estelito Lagne (G.R. No. 217036 August 20, 2018).

 

The company argued that the seafarer is not entitled to any disability compensation since rectosigmoidadenocarcinoma, or colorectal cancer,  is not listed as one of the occupational diseases under Section 32-A ofthe POEA Standard Employment Contract . They insisted that the same is not connected with his duties as anoiler and, therefore, is not compensable under the provisions of the POEA contract.

For disability to be .compensable under Section 20(B)(4) of the POEA contract, two elements mustconcur: (I) the injury or illness must be work-related; and (2) the work-related injury or illness must have existedduring the term of the seafarer's employment contract.

The POEA contract defines a work-related injury as "injury(ies) resulting in disability or death arising outof and in the course of employment," and a work-related illness as "any sickness resulting to disability ordeath as a result of an occupational disease listed under Section 32-A of this Contract with the conditions settherein satisfied."

For illnesses not mentioned under Section 32, the POEA contract  creates a disputable presumption infavor of the seafarer that these illnesses are work­ related. However, notwithstanding the presumption, the Supreme Court have held that on due process grounds, the claimant-seafarer must still prove by substantialevidence that his work conditions caused or, at least, increased the risk of contracting the disease. This isbecause awards of compensation cannot rest entirely on bare assertions and presumptions. In  order toestablish compensability of a non-occupational disease, reasonable proof of work­ connection is sufficient -direct causal relation is not required. Thus, probability, not the ultimate degree of certainty, is the test of proofin compensation proceedings.

Under the POEA contract, an illness shall be considered as pre-existing if prior to the processing of the POEA contract, any of the following conditions are present (a)  the advice of a medical doctor on treatment was given for such continuing illness or condition; or (b) the seafarer had been diagnosed and has knowledge of such an illness or condition but failed to disclose the same during pre-employment medical examination (PEME), and such cannot be diagnosed during the PEME

            Despite its non-inclusion in the list of occupational illnesses, the Supreme Court held that the seafarer is entitled to compensation for his colorectal cancer  when it  utilized the aggravation principle wherein his work conditions caused or, at least, increased the risk of contracting the disease.

Even if colorectal cancer is considered as a pre-existing illness, the Supreme Court granted  the compensation as it noted that   what matters is that his work had contributed, even in a small degree, to the development of the disease. Neither  is it necessary, in order to recover compensation, that the seafarer  must have been in perfect health at the time he contracted the disease. A worker brings with him possible infirmities in the course of his employment, and while the employer is not the insurer of the health of the employees, he takes them as he finds them and assumes the risk of liability.

The Court took judicial notice of the seafarer’s  food provisions on a ship which are produced at one timefor long journeys across the oceans and seas. The food provided to seafarers are mostly frozen meat,canned goods and seldom are there vegetables which easily rot and wilt and, therefore, impracticable for long trips. These provisions undoubtedly contributed to the aggravation of seafarer's rectal illness.

Moreover, considering the manual and laborious job that the seafarer  does, the seafarer  was able to reasonably prove that his working conditions exposed him to factors that could have aggravated his medical condition. He felt pain on his anus whenever he carries heavy weights, chest pains and difficulty in  breathing during his work, and the increasing size of the protruding rectal mass.

(Atty. Gorecho heads the seafarers’ division of the  Sapalo Velez Bundang Bulilan  law offices. For comments, email info@sapalovelez.com, or call 09175025808 or 09088665786)

Leukemia as an occupational illness

For a disability claim to prosper, a seafarer suffering from luekemia  only needs to show that his work and contracted illness have a reasonable linkage that must lead a rational mind to conclude that the seafarer's  occupation may have contributed or aggravated the disease.

Seafarers are exposed to occupational risk factors, as well as environmental risk factors, as part of their normal everyday activities since they spend a large part of their lives at sea. Most seafarers live and work under extremely hazardous conditions that can cause serious short-term and long-term damage to their health. In some cases, they are exposed to conditions that can even be fatal.

The seafarer is required to prove that: (1) he suffered an illness; (2) he suffered this illness during the term of his employment contract; (3) he complied with the procedures prescribed under Section 20-B; (4) his illness is one of the enumerated occupational disease or that his illness or injury is otherwise work-related; and (5) he complied with the four conditions enumerated under Section 32-A for an occupational disease or a disputably-presumed work-related disease to be compensable.   

Under POEA Contract,  “acute myeloid leukemia” and chronic lymphocytic leukemia. are  listed as  occupational diseases  if these are  secondary to prolonged benzene exposure.  Benzene is a widely used chemical and is mainly used as a "starting material in making other chemicals, including plastics, lubricants, rubbers, dyes, detergents, drugs, and pesticides."

Leukemia is cancer of the body's blood-forming tissues, including the bone marrow and the lymphatic system.  The cancerous cells in the bone marrow spill out into the bloodstream. 

In granting the full permanent disability benefits, the Court noted in the recent case of Grieg Philippines vs. Michael John Gonzalez (July 26, 2017, G.R. No. 228296) that  the  functions as an Ordinary Seaman aboard the vessel ,  among others,  included removing rust accumulations and refinishing affected areas of the ship with chemicals and paint to retard the oxidation process. This meant that he was frequently exposed to harmful chemicals and cleaning aids which may have contained benzene. Furthermore, the vessel  transported chemicals, which could have also contributed to the seafarer's leukemia.

The company miserably failed to dispute the medical finding that the seafarer's leukemia is not hereditary, as his tests reveal no apparent chromosome abnormality. This undeniable circumstance,  plus the fact that he was declared fit for sea duty prior to boarding the vessel for two (2) consecutive employment contracts with the same company, all the more bolster the conclusion that the conditions set forth in Section 32-A regarding the work-relatedness of his leukemia are present in this case.

Settled is the rule that for illness to be compensable, it is not necessary that the nature of the employment be the sole and only reason for the illness suffered by the seafarer. It is sufficient that there is a reasonable linkage between the disease suffered by the employee and his work to lead a rational mind to conclude that his work may have contributed to the establishment or, at the very least, aggravation of any pre-existing condition he might have had.

Most court cases arise due to the fact that the only types of cancer on the occupational illnesses list are (a)  cancer of the epithelial lining of the bladder (papilloma of the bladder), (b) cancer, epithellomatous or ulceration of the skin or of the corneal surface of the eye due to tar, pitch, bitumen, mineral oil or paraffin, or compound product. (c) Acute myeloid leukemia and (d) chronic lymphocytic leukemia.  In reality, many seafarers suffer from other type of cancers like that affects the lungs, kidney, liver, pancreas, nasopharyngeal and many more that  are  not one of the occupational diseases listed in the POEA Contract. An illness not otherwise listed in Section 32-A is disputably presumed work-related.This presumption works in favor of a seafarer, because it then becomes incumbent upon the employer  to dispute or overturn this presumption

Cancer and Filipino seafarers

Seafarers are exposed to occupational risk factors, as well as environmental risk factors, as part of their normal everyday activities since they spend a large part of their lives at sea. Most seafarers live and work under extremely hazardous conditions that can cause serious short-term and long-term damage to their health. In some cases, they are exposed to conditions that can even be fatal.

Under the Philippine Overseas Employment Administration (POEA) standard employment contract, a work-related illness is defined as any sickness resulting to disability or death as a result of an occupational disease listed under Section 32-A of this contract with the conditions set therein satisfied. 

The only types of cancer on the list are (a)  cancer of the epithelial lining of the bladder (papilloma of the bladder), (b) cancer, epithellomatous or ulceration of the skin or of the corneal surface of the eye due to tar, pitch, bitumen, mineral oil or paraffin, or compound product. (c) Acute myeloid leukemia and (d) chronic lymphocytic leukemia.  In reality, many seafarers suffer from other type of cancers like that affects the lungs, kidney, liver, pancreas, nasopharyngeal and many more that  are  not one of the occupational diseases listed in the Standard Contract.

An illness not otherwise listed in Section 32-A is disputably presumed work-related.This presumption works in favor of a seafarer, because it then becomes incumbent upon the employer  to dispute or overturn this presumption.

 At most, there is only a disputable presumption that these types of cancer are  work-related. In determining whether an illness is indeed work-related, the Court usually uses the requisites laid down by Section 32-A of the Standard Contract, to wit:

1.      The seafarers work must involve the risks described herein;

2.     The disease was contracted as a result of the seafarers exposure to the described risks;

3.     The disease was contracted within a period of exposure and under such other factors necessary to contract it;

4.      There was no notorious negligence on the part of the seafarer.

 A maritime health    study  noted that  there has been a gradual rise in the number of cases of various types of cancers among seafarers. Cases of lung, renal, pancreatic cancers, as well as leukemia, mesothelioma and lymphoma are being identified on personnel employed on various types of vessels, as well as on the docks. These vessels include dry cargo ships, oil tankers, gas tankers, passenger vessels, and icebreakers. Increasing in number is the incidence of lung cancers among both engine crew, as well as deck officers. Maritime activities are found to be major contributors to toxic pollutants in the air, with focus on diesel exhaust, formaldehyde, benzene, as well as smoke, soot, dirt and dust, which, due to their microscopic particles, find easy access to the respiratory tract and lungs, leading to respiratory disease, asthma attacks, heart attacks, various types of cancers, birth defects, lung damage, immune system damage and nerve damage. Occupational hazards such as asbestos, benzene, and benzidines, have  been removed and/or substituted; however, new potential carcinogens are continuously being introduced into the work place. Moreover, there is the risk of cancer originating from sources other than exposures to chemicals, e.g. stress, radiation, virus, bacteria, night work and late-night shifts, physical inactivity 

In various cases, the Supreme Court acknowledged the fact that the working condition on board the vessel can aggravate the seafarer’s medical condition, regardless if the illness is listed or not as occupational diseases. The seafarer’s constant exposure to hazards such as chemicals and the varying temperature, coupled by stressful tasks in his employment may cause the aggravation of a seafarer’s medical condition. (Magsaysay vs. Laurel,  March 20, 2013 GR 195518)

However, the Supreme Court  ruled that claimants in compensation proceedings must show credible information that there is probably a relation between the illness and the work. Probability, and not mere possibility, is required; otherwise, the resulting conclusion would proceed from deficient proofs. (Sea Power Shipping Enterprises, Inc vs. Heirs of the late Armando L. Salazar G.R. No. 188595 August 28, 2013) The Court ruled that claimants must be able    to adduce evidence that the deceased’s work exposed him to the chemicals or other factors  suspected to increase the risks of acquiring cancer. They must  prove that his cancer was acquired during his employment. It said that one’s predisposition to develop cancer is affected not only by one’s work, but also by many factors outside of one’s working environment. In the absence of substantial evidence, the deceased’s working conditions cannot be assumed to have increased the risk of contracting cancer. (Balba vs. Tiwala Human Resources April 13, 2016 G.R. No. 184933, Klaveness Maritime Agency, Inc.  vs. Heirs of the late Anthony S. Allas, G.R. No. 168560             January 28, 2008)

Under the POEA contract, a seafarer afflicted with cancer during the term of his contract  can be entitled to total permanent disability benefits amounting to Sixty Thousand U.S. Dollars (US$60,000.00).  In the case of work-related death of the seafarer,  the employer shall pay his beneficiaries the Philippine Currency equivalent to the amount of Fifty Thousand US dollars (US$50,000) and an additional amount of Seven Thousand US dollars (US$7,000) to each child under the age of twenty-one (21) but not exceeding four (4) children, at the exchange rate prevailing during the time of payment.The amount usually is higher if the illness or death is covered by a Collective Bargaining Agreement (CBA).