“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.”
See –
JEBSENS MARITIME,
INC., ESTANISLAO SANTIAGO, and/or HAP
AG-LLOYD AKTIENGESELL SCHAFT vs. ELENO A. BABOL, G.R. No. 204076, Dec. 4, 2013.
