seafarer's diet and colon/ colorectal cancer

The interplay of dietary factors, age and  working environment  while at sea contribute to the development of    colon cancer among seafarers.

The Supreme Court ruled in the case of Skippers vs. Lagne ( G.R. No. 217036 August 20, 2018 ) that  rectal illness is compensable for permanent and total disability due to his dietary provisions.

Colon cancer, also known as colorectal cancer or large bowel cancer, includes cancerous growths in the colon, rectum and appendix. Colorectal cancer can invade and damage adjacent tissues and organs. Cancer cells can also break away and spread to other parts of the body (such as liver and lung) where new tumors form.

Companies usually deny liability for payment of disability or death benefits since there only three  types of cancers  listed as occupational diseases under the POEA Standard Employment Contract– (1) Cancer of the epithelial lining of the bladder (papilloma of the bladder); (2) cancer, epithellematous or ulceration of the skin or of the corneal surface of the eye due to tar, pitch, bitumen, mineral oil or paraffin, or compound products or residues of these substances and (3) acute myeloid leukemia and chronic lymphocytic leukemia.  

 Jurisprudence provides that 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.

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.

The  Supreme Court stressed that the seafarer  acquired or developed his illness during the term of his contract due to the  strenuous nature of his  job, his advanced age at the time of hiring combined with his poor diet which consists of mostly carbohydrates, high-fat, high­ cholesterol, and low-fiber foods.

His dietary provisions while at sea increased his risk of contracting colon cancer because he had no choice of what to eat on board.

Being a seafarer, the food provisions on a ship  are designed for long journeys across the oceans and seas. The food provided are mostly frozen or processed meat, and  canned goods. Seldom are there vegetables which easily rot and wilt and, therefore, impracticable for long trips.

These provisions undoubtedly contribute to the aggravation of the seafarer's rectal illness.

While there is no specific cause of colorectal cancer, the Supreme Court noted that  certain factors can increase risk of developing the disease, including diet, age and health. Diets high  in fat, red meat, total calories, and alcohol are significantly associated with the formation of cancer-causing chemicals known as carcinogens which predisposes humans to contracting the disease.

 

The compensability of colorectal cancer has also been ruled upon in the case of Leonis Navigation v. Heirs of the late Catalina V. Villamater  (G.R. No. 179169               March 3, 2010) wherein the Supreme Court noted that factors that increase a person's risk of colorectal cancer include high fat intake.  

Diets high in fat are believed to predispose humans to colorectal cancer. It is believed that the breakdown products  of fat metabolism lead to the formation of cancer-causing chemicals (carcinogens). Diets high in vegetables and high-fiber foods may rid the bowel of these carcinogens and help reduce the risk of cancer.

Living in typically confined environments on board vessels for prolonged periods of time leaves seafarers exposed to various ongoing health problems including obesity and vitamin deficiency, as they choose convenience foods heavy in sugar and salt and low in protein.  Poor diet has even been found to be a key factor in altering physiological and psychological functions, which can have a devastating impact not only on the individual but also on the smooth running of daily operations.

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.

 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

sickness allowance

A medically repatriated   seafarer would normally result in depriving him of compensation income due to his inability to perform his sea duties.

Away from his family and working on board vessels sailing non-stop for weeks or months the world’s oceans, the Filipino seafarer is physically, mentally and emotionally stressed. Constantly exposed to fluctuating temperatures caused by variant weather changes of extreme hot and cold as the ships cross ocean boundaries, not to mention harsh weather conditions, the risks of his getting killed, injured or ill are high.

The employer  is liable for  three separate and distinct  kinds of liabilities under the  Philippine Overseas Employment Administration Standard Employment Contract (POEA-SEC) for any work-related illness or injury that the seafarer may have suffered during the term of the contract. Employers must: (1) provide   medical treatment to  the seafarer at their cost; (b) pay the seafarer sickness allowance equivalent to his basic wage  and (2) compensate the seafarer for his permanent total or partial disability as finally determined by the company-designated physician.

The employer is liable for the full wage, while the seafarer is still on board, and the cost of medical treatment in foreign ports. The employer also has  to bear the cost of repatriation and treatment, and the seafarer is entitled to an additional sickness allowance.

To address the contingency of his  repatriation  to undergo treatment,   the POEA contract  imposes on the employer the obligation to provide the seafarer with sickness allowance that is equivalent to his basic wage until the seafarer is declared fit to work or the degree of his permanent disability is determined by the company-designated physician. The period for the declaration should be made within the period of 120 days or 240 days, as the case may be. The number of days under medication is a significant element in determining the disability benefits of  a seafarer who was a medically repatriated.  

The amount of sickness allowance is the basic wage of the seafarer, counting from the day he signed off from the ship until the time he is declared fit to work or disability grading assessed by the company-designated physician.

The company is liable for the sickness allowance at the time when he is under treatment and waiting for the company-designated doctor to decide if the injury or illness is work-related.

 If the seafarer is declared fit for duty after the medical treatment, the sickness allowance is the only benefit he could get. If the seafarer is further assessed disability  grading due to irreperable  physical damage, he could receive the said sickness allowance plus  the disability benefits  based  on the  grading system.

 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)

2017: Twenty Second National Seafarers Day

The   Twenty Second  National Seafarers' Day was celebrated on  September 24, 2017    with the theme "MARINONG FILIPINO: NAG-UUGNAY SA MUNDO" . The Manila celebration was held at the Cuneta Astrodome. 

Former president Fidel V. Ramos earlier issued on July 9, 1996 Proclamation No. 828 declaring August 18 as National Seafarers Day wherein  the Apostleship of the Sea (AOS) was tasked to coordinate with the public and private sector in   activities related to the celebration of said event. The purpose of the Proclamation is to give due recognition to the vital role of Filipino seafarers towards the development of the Philippines as a maritime country. Later,  Proclamation No.1094 was issued in 1997 by President Ramos which moved NSD    to every  last Sunday of September every year. 

The #NSD22 #NSD2017 activities nationwide led by the #ApostleshipoftheSea ( #AOS ) include the Memorial at Sea, High Mass, Oratorical/ Art/ Photo Contest, Harana by the Bay, Boodlefight, Karaoke challenge, and the Search for Top Ten Outstanding Maritime Students. One of the highlights is the Grand Parade participated in by more than 4000 stakeholders from maritime schools, government agencies, manning agencies, training centers, maritime organizations, unions, families and private institutions

    The high mass was celebrated by  Cubao Bishop Honesto Ongtioco while MARINA administrator Marcial Amaro III  was the guest  speaker.  

The  seventh    batch of   recipients for the Ten Outstanding Maritime Students of the Philippines (TOMSP) search (in line with the National Seafarers Day) were awarded on that day.  It  gave recognition to students for being academically excellent, highly competent in practice, in good moral standing and active in their respective communities. 

Dionel Alfaro of Asian Institute of Maritime Studies (AIMS) Pasay 

Ronald Christ Capindo of John B Lacson Colleges Foundation  Bacolod

Nelyvette Claire Dela Cruz of Maritime Academy of Asia and the Pacific (MAAP) Bataan

Janine Elican of John B Lacson Colleges Foundation  Bacolod

Eugene Mark Genilsa of John B Lacson Colleges Foundation  Molo

John Michael Ibanez University of Cebu  Lapulapu and Mandaue

Loren Negapatan of MAAP Bataan

Patrick Allan Peralta of MAAP Bataan

Karl Japeth Rosal of MAAP Bataan

Honey Grace Ysulan of Philippine Merchant Marine Academy (PMMA)

Pre -Employment Medical Examination (PEME) rules

In some instances, seafarers are made to pay the expenses for the  Pre -Employment Medical Examination (PEME) once he failed the exam or his deployment did not push through. 

POEA rules states  that seafarer  applicant  shall be required  to undergo medical/health examination with a DOH-accredited medical clinic only (a)  after the licensed manning agency has interviewed the seafarer, and  (b) and that there is a reasonable certainty that the seafarer shall be hired and deployed to a ship of its principal/employer. (Section 68 of the 2016 .Revised POEA Rules and Regulations  governing  the  recruitment and employment of Filipino seafarers). 

Seafarers are not required to pay for the PEME expenses since these are considered as processing fees required for deployment.chargeable to principal/employer.  However, in case of seafarer’s failure or unjustified refusal to join ship after all processing fees have been incurred by the principal/employer, the said fees shall be refunded by the seafarer within thirty (30) days from demand. 

Under pertinent  rules and laws,  some of the recruitment offenses related to PEME  include (a) charging or accepting directly or indirectly any amount of money, goods or services, or any fee or bond for any purpose from an applicant seafarer; 

(b) Collecting any amount as payment for processing, or documentation costs not prescribed by the rules, or an amount greater than the actual documentation costs, as covered by official receipts issued by entities where payments were made; 

(c) Failure to reimburse expenses incurred by the seafarer in connection with his documentation and processing for purposes of deployment, where deployment does not take place without the seafarer's fault and

(d) withholding or denying travel or other pertinent documents from an applicant seafarer for monetary or financial considerations, or for any other reasons, other than those authorized.

For offenses (a) and (b),   the penalty include cancellation of License plus refund of fee or bond collected. On the other hand, penalties for  the  less serious offenses in  letter (c) and (d) may vary based on the frequency of violations:

              1st Offense — Suspension of License (2 to 6 Months) 

              2nd Offense — Suspension of License (6 Months and 1 day to 1 year) 

              3rd Offense — Suspension of License (1 year and 1 day to 2  years) 

              4th Offense — Cancellation of License 

Money claims arising from recruitment violation may be awarded in addition to the administrative penalties imposed. In lieu of the penalty of suspension of license, the POEA may impose the penalty of fine which shall be computed at Fifty Thousand Pesos (P50,000.00) for every month of suspension. 

 

The penalty of cancellation of license shall be imposed by the POEA upon a respondent found liable for committing an offense, regardless of the number or nature of charges, against five (5) or more workers in a single case. This provision shall not apply to consolidated cases unless there are five (5) or more complainants in any of the consolidated cases. 

 

Prescription: All cases  shall be barred if not commenced or filed within three (3) years after such cause of action accrued.

The revised rules was passed in accordance with the POEA's policy,   among others, to uphold the dignity and fundamental human rights of Filipino seafarers navigating foreign seas, and promote full employment and equality of employment opportunities for all;

 

 

Sleeping on post while on duty as ground for dismissal

Seafaring is a job with  an inherently stressful environment.  As the technical and specialized nature of the maritime  industry requires constant alertness and intense concentration from its workers,  sleeping on post while on duty can be detrimental, which  may even lead to a maritime disaster.

The Supreme Court ruled that sleeping on the job as a valid ground for dismissal for jobs whose duty necessitates that they be awake and watchful at all times inasmuch as their functions  is "to protect the company from pilferage or loss ( Luzon Stevedoring Corp. v. Court of Industrial Relations (15 SCRA 660, 674(1965) Sleeping on the job  reflect a regrettable lack of concern for the employer. (Tomada vs. RFM Corp. G.R. No. 163270, September 11, 2009)  or an evidence of lack of cooperation and  lack of interest in the job. (Electroluck Asia vs. Meris et al G.R. No. 147031. July 27, 2004)

Sleeping on post while on duty  is one of  the twenty one (21) offenses which are considered valid grounds for dismissal under the Philippine Overseas Employment Administration- Standard Employment Contract (POEA-SEC)

When a seafarer commits such act, he may be penalized by the master of the vessel with dismissal and be made to pay the cost of repatriation and his replacement. Additionally, an administrative complaint or disciplinary action against the seafarer may be filed before the POEA, who,  after due investigation, may  impose penalties ranging from suspension  to  delisting, depending on the frequency of the violation(s).

Before a seafarer can be dismissed and discharged from the vessel, it is required that he be given a written notice regarding the charges against him and that he be afforded a formal investigation where he could defend himself personally. In case of an  illegal dismissal,  a seafarer is  entitled to receive from his employers His salaries for the unexpired portion of his employment contract not merely  his salaries for three (3) months for every year of the unexpired term.

The effects of fatigue are particularly dangerous in the shipping industry as the technical and specialized nature of this industry requires constant alertness and intense concentration from its workers (International Maritime Organization, 2001). The human element, in particular fatigue, is widely perceived as a contributing factor in marine casualties

When working at sea, sleep disruption is inevitable due to the 24-hour nature of the job. Seafarers usually complain about the fact that they lack proper sleep which makes them feel tired, more stressful and unable to concentrate. Not getting enough sleep leads to (a) feeling sleepier (b) difficulty staying alert (c) getting irritable (d) slower reaction (e) poorer co-ordination (f) slower thinking (g) getting fixated on part of a problem and losing the big picture (h) less creative problem-solving (i) lower standard of performance becoming acceptable and (j) performance becoming increasingly inconsistent.

To address this issue of proper rest hours, the   Maritime Labor Convention 2006 (MLC2006)   of the International Labor Organization (ILO) states that, number of ship working hours should be:

·      Eight hours a day, under normal circumstances, with one day as rest day

·      A maximum of 14 hours in any 24 hour period

·      A maximum of 72 hours in any seven day period

·      Provided with a minimum of 10 hours of rest in any 24 hours period

 The minimum hours of rest, as per the ILO maritime convention should be:

·      A minimum of ten hours in any 24 hour period

·      A minimum of 77 hours in any seven day period

The hours of rest can be divided in a maximum of two periods, one of which should be at least six hours in length. Two such consecutive periods should not be separated by more than 14 hours. A seafarer must be granted a compensatory rest period in case he/she is required to be on call during rest hours.

Operations like lifeboat drills, fire fighting drills, and drills prescribed by national laws and regulations should be conducted in a manner to ensure minimum disruption of rest period. However, an exception can be made to all the above mentioned clauses in case the master of the ship deems it necessary to require services of a seafarer in lieu of maintain safety of ship, especially on emergency basis.

Pre -Employment Medical Examination (PEME) and pre-existing illnesses

According to the International Labor Organization (ILO),  the aim of the  Pre -Employment Medical Examination (PEME)  is to ensure that the seafarer being examined is medically fit to perform his or her routine and emergency duties at sea and is not suffering from any medical condition likely to be aggravated by service at sea, to render him or her unfit for service or to endanger the health of other persons on board. The medical certificate is neither a certificate of general health nor a certification of the absence of illness. It is a confirmation that the seafarer is expected to be able to meet the minimum requirements for performing the routine and emergency duties specific to their post at sea safely and effectively during the period of validity of the medical certificate. 

The Philippine Overseas Employment Administration (POEA) contract states that a seafarer who knowingly conceals a pre-existing illness or condition in the PEME shall be liable for misrepresentation and shall be disqualified from any compensation and benefits. This is likewise a just cause for termination of employment and imposition of appropriate administrative sanctions..

At the bottom portion of the PEME, one can find the following sentence " I hereby certify that the personal declaration above is true to the best of my knowledge and I fully understand the above results of my medical examination as explained to me by the examining/authorized physician." 

The Supreme Court pointed out that the PEME is not exploratory and does not allow the employer to discover any and all pre-existing medical condition with which the seafarer is suffering and for which he may bepresently taking medication. The PEME is nothing more than a summary examination of the seafarer’s physiological condition (DOHLE-PHILMAN Manning Agency, Inc. v. Cabanban, 702 SCRA 467). it merely determines whether one is "fit to work" at sea or "fit for sea service" and it does not state the real state of health of an applicant. The "fit to work" declaration in the PEME cannot be a conclusive proof to show that he was free from any ailment prior to his deployment.(Magsaysay Maritime Corporation v. NLRC, 616 SCRA 362, 378-379.

Nevertheless, the Supreme Court noted that neither is it necessary, in order to recover compensation, that the seafarer  must have been in perfect condition or health at the time he contracted the disease. Every workingman brings with him to his employment certain infirmities and while the employer is not the insurer of health of the seafarers, he takes them as he finds them and assumes the risk of liability. If the disease is the proximate cause of the seafarer’s death for which compensation is sought, the previous physical condition of the seafarer  is unimportant and recovery may be had therefore independent of any pre-existing disease But even assuming that the ailment was contracted prior to his employment on board the vessel  this is not a drawback to the compensability of the disease. It is not required that the employment be the sole factor in the growth, development or acceleration of the illness to entitle the claimant to the benefits provided therefor. It is enough that the employment had contributed, even in a small degree, to the development of the disease and in bringing about his death(Wallem Maritime Services Inc vs. NLRC, 318 SCRA 623) 

Even so, a seafarer's illnesses  could have been easily detected by standard/routine tests included in the PEME, i.e., blood pressure test, electrocardiogram, chest x-ray, and/or blood chemistry. (C.F. SHARP CREW MANAGEMENT, INC vs. HEIRS OF THE LATE GODOFREDO REPISO, G.R. No. 190534, February 10, 2016)

Seafarers are not required to pay for the PEME expenses since these are considered as processing fees required for deployment.chargeable to principal/employer.  However, in case of seafarer’s failure or unjustified refusal to join ship after all processing fees have been incurred by the principal/employer, the said fees shall be refunded by the seafarer within thirty (30) days from demand. 

Under pertinent  rules and laws,  some of the recruitment offenses include (a)  charging or accepting directly or indirectly any amount of money, goods or services, or any fee or bond for any purpose from an applicant seafarer (b) Collecting any amount as payment for processing, or documentation costs not prescribed by the rules, or an amount greater than the actual documentation costs, as covered by official receipts issued by entities where payments were made; (c) Failure to reimburse expenses incurred by the seafarer in connection with his documentation and processing for purposes of deployment, where deployment does not take place without the seafarer's fault and (d) withholding or denying travel or other pertinent documents from an applicant seafarer for monetary or financial considerations, or for any other reasons, other than those authorized 

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).