5:08 am Thursday, May 25, 2017
By: Atty. Dennis R. Gorecho
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 cancer of the epithelial lining of the bladder (papilloma of the bladder), and 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. 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:
- The seafarers work must involve the risks described herein;
- The disease was contracted as a result of the seafarers exposure to the described risks;
- The disease was contracted within a period of exposure and under such other factors necessary to contract it;
- 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).