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G.R. No. 197205 : Jessie V. David, represented by his wife, Ma. Theresa S. David, and chinldren, Katherine and Kristina David v. OSG Shipmanagement Manila, Inc. and/or Michaelmar Shipping Services

G.R. No. 197205 : Jessie V. David, represented by his wife, Ma. Theresa S. David, and chinldren, Katherine and Kristina David v. OSG Shipmanagement Manila, Inc. and/or Michaelmar Shipping Services

PHILIPPINE SUPREME COURT DECISIONS

THIRD DIVISION

G.R. No. 197205 : September 26, 2012

JESSIE V. DAVID, represented by his wife, MA. THERESA S. DAVID, and children, KATHERINE and KRISTINA DAVID, Petitioners, v. OSG SHIP MANAGEMENT MANILA, INC., and/or MICHAELMAR SHIPPING SERVICES, Respondents.

D E C I S I O N

VELASCO, J.:

Before Us in a Petition for Review on Certiorari under Rule 45 assailing and seeking to set aside the Decision1ςrνll and Resolution2ςrνll dated March 11, 2011 and June 1, 2011, respectively, of the Court of Appeals (CA) in CA-G.R. SP No. 114616, overturning the January 22, 2010 and March 30, 2010 Resolutions3ςrνll of the National Labor Relations Commission (NLRC), Second Division in NLRC NCR OFW Case No. (M)09-10261-07.

The facts are not disputed. On May 10, 2006, petitioner Jessie David (David) entered into a six-month Contract of Employment4ςrνll with respondent OSG Shipmanagement Manila, Inc. (OSG Manila), for and in behalf of its principal Michaelmar Shipping Services, Inc., as a Third Officer of the crude tanker M/T Raphael. The engagement was the third contract of employment between David and OSG Manila. OSG Manila previously hired and deployed David to work aboard crude tankers since December 2004.5ςrνll

Prior to his embarkation, David underwent a pre-employment medical examination (PEME) and was declared "fit for further sea duty."6ςrνll David then boarded the ship M/T Raphael on May 23, 2006.7ςrνll Barely six months into his employment or in November 2006, David complained of an intolerable pain on his left foot so that he consulted a doctor at the port of Rotterdam. The doctor diagnosed him as suffering from "lipoma on the left upper leg"8ςrνll and a possible "calcaneus spur of the left foot."9ςrνll Although found to be fit for work, David was nonetheless advised to undergo further treatment upon repatriation to the Philippines.10ςrνll

Immediately after his return to the country on December 4, 2006, OSG Manila referred David to the company-designated physician, Dr. Robert Lim (Dr. Lim) of the Metropolitan Medical Center (MMC), who referred him to the Cardinal Santos Medical Center for a Magnetic Resonance Imaging (MRI), which reflected the following impressions:chanroblesvirtuallawlibrary

Large soft tissue mass of the anterior left thigh, as described. Considerations include neoplasm such as benign/malignant nerve sheath tumor, hemangioma, soft tissue sarcoma or inflammatory process such as intramuscular abscess.11ςrνll

The Pathology Report of the MMC also showed the following: "Left anterior thigh mass excision: Malignant fibrous histiocytoma, myxoid type. Margins of resection negative for tumor."12ςrνll

On February 27, 2007, OSG Manila certified Davids entitlement "to sickness allowance from the company or principal equivalent to basic salary of member."13ςrνll

On March 2, 2007, Dr. Christopher Co Pe (Dr Pe), also of MMC, wrote Dr. Lim, informing the latter of the etiology of soft tissue sarcoma, viz:

The following are the etiology of soft tissue sarcoma:

1. Ionizing radiation

2. Genetic predisposition

3. Chemical exposure Phenoxyacetic acid, cholorophenols, thorotrast, vinyl chloride, arsenic

4. Chronic lymphedema

Whether work-related or not will depend on the exposure of the above mentioned factors.14ςrνll

On March 5, 2007, the Marine Medical Services of MMC certified that David had undergone medical and surgical evaluation treatment at its establishment from December 21, 2006 due to "malignant fibrous histiocytoma, left thigh calcaneal spur, left; s/p with excision of mass left thigh."15ςrνll

Apparently as a result of another inquiry regarding Davids illness and its relation to his work, Dr. Pe again addressed a letter to Dr. Lim stating:chanroblesvirtuallawlibrary

Dear Dr. Lim,

This is with regards to Mr. Jessie David, diagnosed case of Malignant Fibrous Histiocytoma last February 2007. S/P Resection. Etiology has already been mentioned in my previous letter dated March 2, 2007. It is difficult to determine exactly whether his work history would have bearing as etiology is multifactorial. Unless there is documented exposure to the previously mentioned chemicals.16ςrνll

Despite the non-conclusive findings of the company designated physician and Dr. Pe, respondents issued on June 28, 2007 a Certification stating that David has been given a "permanent disability Grade One (1)"17ςrνll by the Marine Medical Services, viz:

C E R T I F I C A T I O N

TO WHOM IT MAY CONCERN:chanroblesvirtuallawlibrary

This is to certify that MR. JESSIE V. DAVID, a resident of Block 3 Lot 4, NWSA Compound Tondo, Manila, has been given a permanent disability Grade of One (1) by Marine Medical Services.

This certification is being issued 28th day of June 2007 for whatever legal purpose it may serve him best.

Very truly yours,

OSG SHIPMANAGEMENT MANILA INC.

As Agent Only, acting for and in behalf of the Owners

(SGD.) MS. MA. CRISTINA G. PARAS
President

Due to his condition, David underwent chemotherapy per the advice of the company-designated physician. However, despite several requests, respondents refused to shoulder Davids expenses and medication. Hence, after an unsuccessful grievance proceeding, David filed on September 17, 2007 a complaint against respondents for total and permanent disability benefits, medical and transportation expenses, moral and exemplary damages, and attorneys fees.18ςrνll

In his Decision of March 31, 2008 finding for David, Labor Arbiter (LA) Legerio V. Ancheta noted that there was no categorical denial on the part of respondents that Davids disability was not work-related. Instead, respondent OSG Manila, through its President, issued a certification that David has a Grade I disability. According to LA Ancheta, this certification should bind the respondents.19ςrνll Hence, LA Ancheta declared David to be permanently and totally disabled, entitled to be paid his total disability compensation, plus damages and attorneys fees in the total amount of USD 115,500 and PhP 426,645.69.20ςrνll

The NLRC affirmed the Decision of the LA in toto holding that the respondents, by certifying Davids Grade I disability and by paying his sickness allowance, are estopped from impugning the work-related nature of Davids illness.21ςrνll

Undaunted, respondents elevated the case to the CA. In its Decision dated March 11, 2011, the appellate court ruled against Davids entitlement to the benefits he claimed, and accordingly nullified the resolutions of the NLRC.22ςrνll The CA ratiocinated, thus:chanroblesvirtuallawlibrary

In the case at bar, there is no question that private respondent (David) reported to the company-designated physician for treatment immediately upon arriving in the Philippines. Problems arose, however, when private respondent was diagnosed to be suffering from malignant fibrous histiocytoma and while his condition was given a grade I disability rating, Dr. Chrisopher Co Pe who diagnosed private respondents condition opined that it is difficult to determine whether work history would have a bearing to his illness as etiology is multifactorial. Dr. Pe was short of declaring private respondents illness as non-work related. It is noted, however, that aside from the certification by the president of petitioner OSG stating that the Marine Medical Services, the record is bereft of the actual medical certificate coming from the Marine Medical Services itself which shows that indeed it issued a Grade I disability rating for private respondents illness.

x x x x

Malignant Fibrous Histiocytoma is not listed as an occupational disease under Section 32-A thereof. Nonetheless, Section 20(B), paragraph (4) provides that "those illnesses not listed in Section 32 of this Contract are disputably presumed as work-related." The burden is, therefore, placed upon private respondent to present substantial evidence x x x. Private respondent, however, failed to do this. Private respondent did not, by way of a contrary medical finding, assail the diagnosis arrived at by the company-designated physician x x x.

x x x x

As to the issue that there was an admission on the part of petitioner OSG that private respondent was already assessed to have a grade I disability, the same only shows that indeed private respondent is suffering from a disability. But going back to the provisions of the POEA Standard Employment Contract, such disability must have a causal relation to the work of private respondent to be compensable.23ςrνll

In due time, David filed a Motion for Reconsideration of the CAs March 11, 2011 Decision.24ςrνll Pending the resolution of his motion, David succumbed and died on April 9, 201125ςrνll and was substituted in the case by his wife and children.26ςrνll On June 14, 2011, the CA issued a resolution denying the motion for reconsideration.

Hence, this petition.27ςrνll

Petitioners argue that the appellate court grievously erred in overturning the NLRC and the LAs decisions considering that it is presumed that Davids illness was work-related and it behooves the respondents to present substantial evidence to overcome this presumption.To petitioners, respondents have failed to discharge this burden. On the contrary, respondents admitted that David was suffering from a Grade I disability. Petitioners further add that there is a reasonable causal connection between Davids illness and the duties he performed as a Third Officer on board respondents crude tanker.

In their comment, respondents counter that the appellate courts denial action was correct since "convenient presumption regarding work-relation will not suffice to justify an award of disability benefits"28ςrνll and David failed to submit any real and substantial evidence "to dispute the opinion of the company physician confirming [the] absence of work-relation."29ςrνllRespondents posit that if David was indeed convinced that his illness was work-related, he should have procured supporting opinion from his various doctors.30ςrνll

The petition has merit.

Deemed read and incorporated into the Contract of Employment between David and respondents are the provisions of the 2000 Philippine Overseas Employment Agency Standard Employment Contract (POEA-SEC). Section 20(B) of the POEA-SEC reads:chanroblesvirtuallawlibrary

SECTION 20. COMPENSATION AND BENEFITS. ---

B. COMPENSATION AND BENEFITS FOR INJURY OR ILLNESSES

The liabilities of the employer when the seafarer suffers work-related injury or illness during the term of his contract are as follows:

1. x x x x

2. x x x x

3. Upon sign-off from the vessel for medical treatment, the seafarer is entitled to sickness allowance equivalent to his basic wage until he is declared fit to work, or the degree of permanent disability has been assessed by the company-designated physician, but in no case shall this period exceed one hundred twenty (120) days.

x x x x

4. Those illnesses not listed in Section 32 of this Contract are disputably presumed as work related.31ςrνll (Emphasis supplied.)

In this case, David suffered from malignant fibrous histiocytoma (MFH) in his left thigh. MFH is not one of the diseases enumerated under Sec. 32 of the POEA-SEC. However, Sec. 20(B)(4) of the POEA-SEC clearly established a disputable presumption in favor of the compensability of an illness suffered by a seafarer during the term of his contract. This disputable presumption works in favor of the employee pursuant to the mandate under Executive Order No. (EO) 247 dated July 21, 1987 under which the POEA-SEC was created: "to secure the best terms and conditions of employment of Filipino contract workers and ensure compliance therewith"32ςrνll and "to promote and protect the well-being of Filipino workers overseas."33ςrνll Hence, unless contrary evidence is presented by the seafarers employer/s, this disputable presumption stands.34ςrνll

In this case, David not only relies on this disputable presumption of the compensability of his illness but further alleges that the following conditions provided in Sec. 32-A of the POEA-SEC have all been satisfied:chanroblesvirtuallawlibrary

SECTION 32-A OCCUPATIONAL DISEASES

For an occupational disease and the resulting disability or death to be compensable, all of the following conditions must be satisfied:

1. The seafarers work must involve the risks describe 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.

David showed that part of his duties as a Third Officer of the crude tanker M/T Raphael involved "overseeing the loading, stowage, securing and unloading of cargoes."35ςrνll As a necessary corollary, David was frequently exposed to the crude oil that M/T Raphael was carrying.36ςrνll The chemical components of crude oil include, among others, sulphur, vanadium and arsenic compounds.37ςrνll Hydrogen sulphide and carbon monoxide may also be encountered,38ςrνll while benzene is a naturally occurring chemical in crude oil.39ςrνll It has been regarded that these hazardous chemicals can possibly contribute to the formation of cancerous masses.40ςrνll

In this case, David was diagnosed with MFH (now known as undifferentiated pleomorphic sarcoma [UPS]),41ςrνll which is a class of soft-tissue sarcoma or an illness that account for approximately 1% of the known malignant tumors.42ςrνll As stated by Dr. Pe of the MMC, who was consulted by the company-designated physician, the etiology of soft tissue sarcomas are multifactorial.43ςrνll However, some factors are associated with a higher risk.44ςrνll These factors include exposure to chemical carcinogens45ςrνll like some of the chemical components of crude oil. Clearly, David has provided more than a reasonable nexus between the nature of his job and the disease that manifested itself on the sixth month of his last contract with respondents. 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.46ςrνll

This reasonable connection has not been convincingly refuted by respondents. On the contrary, respondents do not deny the functions performed by David on board M/T Raphael or the cargo transported by the tanker in which he was assigned. At best, respondents have cited contrary researches suggesting that the chemicals in crude oil do not induce the kind of disease contracted by Davida soft tissue sarcoma, which can supposedly occur to anybody regardless of the nature of their employment.47ςrνll

Furthermore, respondents harp on the alleged "opinion of the company physician confirming absence of work-relation"48ςrνll that "explicitly stated that there is no documented exposure to previously cited etiology."49ςrνll

A review of the documentary evidence submitted by parties will readily show that there is no such "opinion of the company physician confirming absence of work-relation," much less an explicit statement that David had "no documented exposure" to the etiology cited by Dr. Pe in his letter to the company-designated physician, Dr. Lim.50ςrνll There is only an imprecise and ambivalent medical opinion regarding the work-relation of the MFH/UPS suffered by David that can be construed in favor of the employee.

With more reason, such construal in favor of David and the relation of his illness to the nature of his work must be sustained considering that the employers, through respondent OSG Manila, admitted that David had suffered a Grade I disability. Notably, respondents have not denied the authenticity and genuineness of the Certification dated June 28, 2007 wherein the admission was made.51ςrνll Instead, respondents whimsically argue that the admission merely pertains to the gravity of the ailment suffered by David but not its nature. This hair-splitting argument presented by respondents, and accepted by the appellate court, does not persuade. It ignores the fact that employers do not have the business of certifying the gravity of an illness suffered by an employee unless it is in relation to the latters employment. Hence, the certification issued by OSG Manila regarding the classification/grading of Davids illness can only be taken as a strong validation of the relation between Davids illness and his employment as a seafarer with the respondents.

It is significant to note that OSG Manila issued the June 28, 2007 Certification after the issuance of the letters/certifications regarding the possible etiology of Davids illness, where it was tacitly suggested by the MMC doctors that Davids illness could be work-related provided there is a documented exposure to carcinogenic chemicals. It can be easily deduced, therefore, that the certification impliedly fills in the information required by Dr. Pe in his last letter to the company-designated physician regarding the nature of the work performed by David and his exposure to chemical carcinogens that could have led to his illness. After all, respondents, as Davids employers, have knowledge regarding the functions of a Third Officer on board a crude tanker and the nature of the cargo transported in their vessels. Without a doubt, the certification issued by OSG Manila encompasses not only the gravity of Davids illness but also its nature and relation to the employment undertaken by David in their crude tankers.

This conclusion is corroborated by respondents contemporaneous act of extending to David sickness allowance under Sec. 20(B) of the POEA-SEC, since an employer is liable for the payment of sickness allowance only "when the seafarer suffers work-related injury or illness during the term of his contract." Surely, an illness that has been recognized at the outset by the employer as work-related cannot evolve to an illness not connected to the seafarers employment.

The quantom of evidence required in labor cases to determine the liability of an employer for the illness suffered by an employee under the POEA-SEC is not proof beyond reasonable doubt but mere substantial evidence or "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion."52ςrνll In this case, in accordance with the foregoing disquisitions, We find that there is substantial evidence to support the decision of the LA and the NLRC.ςηαοblενιrυαllαωlιbrαr

WHEREFORE, the petition is GRANTED. The March 11, 2011 Decision of the CA and its June 1, 2011 Resolution are hereby REVERSED and SET ASIDE, and the January 22, 2010 and March 30, 2010 Resolutions of the NLRC are REINSTATED.ςrαlαωlιbrαr

SO ORDERED.

Endnotes:


* Additional member per Special Order No. 1311 dated September 21, 2012.

** Additional member per Special Order No. 1299 dated August 28, 2012.

*** Additional member per Special Order No. 1320 dated September 21, 2012.

1ςrνll Rollo, pp. 49-62. Penned by Associate Justice Franchito N. Diamante and concurred in by Associate Justices Josefina Guevara-Salonga and Mariflor P. Punzalan Castillo.

2ςrνll Id. at 86-87.

3ςrνll CA rollo, pp. 56-78. Penned by NLRC Commissioner Teresita Castillon-Lora and concurred in by Presiding Commissioner Raul T. Aquino, Commissioner Napoleon M. Menese took no part.

4ςrνll Id. at 121.

5ςrνll Prior to the May 2006 contract, David had been working on board two other crude tankers of the respondents since December 2004. (Certification dated January 11, 2007; id. at 144.)

6ςrνll Id. at 122, Medical Examination Records.

7ςrνll Id. at 12.

8ςrνll Id. at 123, Medical Report dated November 9, 2006.

9ςrνll Id.

10ςrνll Id.

11ςrνll Id. at 145; rollo, p. 107, MRI of the Left Thigh with and without Contrast dated January 15, 2007.

12ςrνll Id. at 146; rollo, p. 108, Pathology Report dated February 14, 2007.

13ςrνll Id. at 147; rollo, p. 109.

14ςrνll Id. at 124. The contents of the letter were reiterated in a letter/certification dated April 23, 2007.

15ςrνll Id. at 148; rollo, p. 110.

16ςrνll Id. at 125.

17ςrνll Id. at 149; rollo, p. 111.

18ςrνll Id. at 90-92.

19ςrνll Id. at 86.

20ςrνll Id. at 88-89. The dispositive portion of LA Anchetas Decision dated March 31, 2008 provides:

WHEREFORE, the foregoing premises considered, judgment is hereby rendered finding and

ORDERING all the respondents jointly and severally liable to pay complainant JESSIE V. DAVID the following:

1. Disability BenefitsUS$105,000.00
2. Reimbursement of Medical ExpensesPhP 187,859.72
3. Moral DamagesPhP 100,000.00
4. Exemplary DamagesPhP 100,000.00
5. Attorneys Fees 10% of the above awardsUS$10,500.00 + PhP 38,785.97
GRAND TOTAL:US$115,500.00 + PhP 426,645.69

21ςrνll Id. at 58-78.

22ςrνll Rollo, pp. 49-62.

23ςrνll Id. at 59-61.

24ςrνll Id. at 63-83.

25ςrνll Id. at 14.

26ςrνll Id. at 10-15; CA rollo, pp. 600-605.

27ςrνll Id. at 18-47.

28ςrνll Id. at 127.

29ςrνll Id.

30ςrνll Id. at 130-131.

31ςrνll The foregoing provisions are reiterated in the Collective Bargaining Agreement between respondents and Davids union, which pertinently states:

20.1.4 Compensation for Disability

20.1.4.1 A seafarer who suffers permanent disability as a result of work-related illness or from an injury as a result of an accident, regardless of fault but excluding injuries caused by a seafarers willful act, whilst serving on board including accidents and work related illness occurring whilst traveling to or from the ship, and whose ability to work is reduced as a result thereof, shall in addition to sick pay, be entitled to compensation according to the provisions of this Agreement. In determining work related illness, reference shall be made to the Philippine Employees Compensation Law and/or Social Security Law.

32ςrνll EO 247, Sec. 3(i).

33ςrνll Id., Sec. 3(j); Fil-Star Maritime Corporation v. Rosete, G.R. No. 192686, November 23, 2011, 661 SCRA 247, 254.

34ςrνll Fil-Star Maritime Corporation v. Rosete, supra note 33, at 255.

35ςrνll Rollo, p. 31.

36ςrνll Id.

37ςrνll Labour Administration Training Material: Labour Inspection Skills in the Petroleum Industry (Bangkok: International Labour Organisation, 1991), p. 18.

38ςrνll Rollo, p. 32; see <http://www.cancer.org/Cancer/CancerCauses/OtherCarcinogens/IntheWorkplace/benzene> (visited July 31, 2011).

39ςrνll Jahn, Frank, Cook, Mark, and Graham, Mark, HYDROCARBON EXPLORATION AND PRODUCTION 112 (2nd ed., 2008).

40ςrνll Id. See also Fontham, Elizabeth T.H. and Trapido, Edward, Oil and Water. Environ Health Perspect. 2010 October; 118(10): A422A423 <http://www.ncbi.nlm.nih.gov/pmc/articles/PMC2957937/> (visited July 31, 2011).

41ςrνll Per the new classification of adopted by the World Health Organization in 2002 Kransdorf, Mark. J. and Murphey, Mark. D., IMAGING OF SOFT TISSUE TUMORS 1 (2nd ed., 2006).

42ςrνll M. van Vliet, M. Kliffen, G. P. Krestin and C. F. van Dijke, SOFT TISSUE SARCOMAS AT A GLANCE: CLINICAL, HISTIOLOGICAL, AND IMAGING FEATURES OF MALIGNANT EXTREMITY SOFT TISSUE TUMORS. EUROPEAN RADIOLOGY, Volume 19, Number 6 (2009), 1499-1511.

43ςrνll CA rollo, p. 125.

44ςrνll M. van Vliet, et al., supra note 42.

45ςrνll Id.

46ςrνll Nisda v. Sea Serve Maritime Agency, G.R. No. 179177, July 23, 2009, 593 SCRA 668, 699;

NYK-Fil Ship Management v. Talavera, G.R. No. 175894, November 14, 2008, 571 SCRA 183.

47ςrνll Rollo, p. 136.

48ςrνll Id. at 130.

49ςrνll Id. at 129.

50ςrνll CA rollo, p. 124.

51ςrνll Rollo, pp. 138-140.

52ςrνll Government Service Insurance System v. Besitan, G.R. No. 178901, November 23, 2011, 661 SCRA 186, 195.

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