Tuesday, January 21, 2014

Disability benefits; Principle of Work-Aggravation.

The Principle of Work-Aggravation

Assuming for the sake of argument that the presumption of work-relation was refuted by petitioners, compensability may still be  established on the basis of the theory of work aggravation if by substantial evidence,21 it can be demonstrated that the working conditions aggravated or at least contributed in the advancement of respondent's cancer. 22 As held in Rosario v. Denklav Marine,23 "the burden is on the beneficiaries to show a reasonable employment disability" connection between the causative circumstances of the deceased employee and his death or permanent total disability.

To determine if indeed respondent sufficiently established the link between his cancer and the working conditions on board MY Glasgow Express, understanding the disease is of utmost importance.

Respondent's cancer is by far, the most common malignant tumor of the nasopharynx.24 Risk factors for this cancer, as derived from the position paper filed by the petitioners and consistent with many medical literatures25 on the matter, include (I) salt-cured foods; (2) preserved meats, (3) Epstein Barr virus, and ( 4) family history. 26 In every detail, it is clear that the dietary factor plays a vital role in increasing the risk of acquiring the disease. For medical purposes, salt-cured fish and preserved meat can, thus, be considered as high risk food that can contribute in the growth of this type of cancer.

Respondent is of the theory that such high risk dietary factor persisted on board the vessel, thus, increasing the probability that the disease was aggravated by his working conditions:

... On the food he took while on board, Complainant is exposed to the risk of contracting his illness. The Supreme Court has taken judicial notice of the fact that seamen are required to stay on board their vessel by the very nature of their duties. It is also of common knowledge that while on board, seamen have no choice but to eat the food prepared by the kitchen staff of the vessel. They are also not at liberty to prepare/cook their own food to suit their health needs.

Their day-to-day "diet" therefore depends on the kind of food served on the vessel for the consumption of the entire crew. Thus, the long voyage on the high seas, the vessel's menu is limited to salt- cured foods (such as salted fish, dried fish, anchovies, dried meat, salted eggs, etc.), frozen meat, processed meat, canned goods, and other preserved foods, thus the diet is mostly salt-cured foods, hence, the increased risk of contracting nasopharyngeal cancer.

Complainant had no other alternative or option but to eat whatever is served at the mess hall, and considering further that his "diet" or sustenance while on board the vessel had presumably contributed to, if not caused by, his present health condition, there is good reason to conclude that his ailment or affliction is work related or, otherwise stated, reasonably connected/aggravated by his work. 27

The above assertions of respondent do not constitute as substantial evidence that a reasonable mind might accept as adequate to support the conclusion that there is a causal relationship between his illness and the working conditions on board the petitioners' vessel. Although the Court has recognized as sufficient that work conditions are proven to have contributed even to a small degree,28 such must, however, be reasonable, and anchored on credible information. 29 The claimant must, therefore, prove a convincing proposition other than by his mere allegations. 30 This he failed to do.

The Court refuses to take judicial notice of said assertions on the basis of an allegation of mere common knowledge. This is in light of the changing global landscape affecting international maritime labor practices. The Court notes the acceptance, albeit steadily, of the minimum standards governing food and catering on board ocean-going vessels as provided in the 2006 Maritime Labor Convention of which the Philippines31 and MY Glasgow's flag country Germany32 have signed, to wit:

(a) food and drinking water supplies, having regard to the number of seafarers on board, their religious requirements and cultural practices as they pertain to food, and the duration and nature of the voyage, shall be suitable in respect of quantity, nutritional value, quality and variety;
(b) the organization and equipment of the catering department shall be such as to permit the provision to the seafarers of adequate, varied and nutritious meals prepared and served in hygienic conditions; and
(c) catering staff shall be properly trained or instructed for their positions.33

Although not yet fully implemented, this International Labor Organization (!LO) Convention merely underscores that food on board an ocean-going vessel may not necessarily be limited as alleged by respondent.

In this respect, the petitioners submitted documents34 showing that  fresh and varied provisions were provided on board. Respondent, on the other hand, countered that even if there were such provisions, salt-cured fish and diet such as bagoong dilis, bagoong alamang, anchovies, etc.35 were still included as victuals. The Court treats both submissions as equal in their respects and, thus, cannot be the sole determinant of whether respondent is entitled to his claims.”

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