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 Seafarer’s cancer and the ‘disputable presumption’ principle 

By: ATTY. DENNIS R. GORECHO - Columnist/CDN Digital | May 19,2020 - 07:00 AM

The month of May has three significant dates for us: Mothers’ day, Mama’s birthday and her death anniversary.

My mother, fondly called Mama Linda, died on May 17, 2002 due to pericarditis and lymphoma three days after she celebrated her 61st birthday on May 14. One year and a half later, Papa joined Mama.

Lymphoma is a cancer of the lymphatic system, which is part of the body’s germ-fighting network.

The lymphatic system includes the lymph nodes (lymph glands), spleen, thymus gland and bone marrow. Lymphoma can affect all those areas as well as other organs throughout the body.

No ailment has sustained as strong of a negative stigma as cancer.

The tension and uncertainty of a cancer diagnosis can create extreme disruption to one’s general sense of security and orderliness in life.

The effects on the  emotional, social, physical, and spiritual well-being of patients and their family members may include anger, resentment, guilt, adjustment pain, and may or may not lead to the acceptance of the disease.

Cancer may also  lead to an alteration in the  economic situation  of the sick person and his family.

Although seafarers go through a strict medical test before joining a vessel,  their  life is constantly at risk while out at sea.

Seafarers are exposed to occupational and  environmental risk factors  as part of their normal everyday activities since they spend a large part of their lives at sea.

Seafarers who are afflicted with cancer, in some instances, end up pursuing a legal battle due to the issue of compensability.

Companies usually deny liability for payment of disability or death benefits on questions whether or not the illness is work-connected under the Philippine Overseas Employment Administration Standard Employment Contract.

They argue that there are only three types of cancers under the contract listed as occupational diseases:

(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

(3) acute myeloid leukemia and chronic lymphocytic leukemia

However, compensability is not limited to Section 32-A’s listed occupational diseases. For as long as seafarers are able to show by substantial evidence that they suffered disabilities occasioned by a disease contracted on account of or aggravated by working conditions, compensation is availing.

This disputable presumption is made in the law to signify that the non inclusion in the list of compensable illnesses does not translate to an absolute exclusion from disability benefits, in view of  the provision in the POEA contract which states that “(t)hose illnesses not listed in Section 32 of this Contract are disputably presumed as work-related.” (Manansala vs.  Marlow Navigation Phils.  G.R. No. 208314, August 23, 2017).

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 reasonable linkage between the disease suffered 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. (Sea Power Shipping  vs. Salazar G.R. No. 188595 August 28, 2013)

Marineinsight.com noted that that there has been a gradual increase in various cases of cancers, the most common among them being lung cancer, renal cancer, leukaemia and lymphoma.

It noted that even though occupational hazardous such as asbestos, benzene, benzidines are being removed or substituted on ships, new potential carcinogens such as beryllium (used on product tankers), cadmium, and lead have been introduced in to the work place.

Personnel working on oil, chemical and product tankers fall prey to this deadly disease due to continuous exposure to such toxic substances. Other factors such as smoking, exposure to UV radiation, and lack of sleep also aggravate conditions leading to cancer.

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.

Exposure to transported substances such as benzene, petrol, styrene, paints, pigments, cutting oils and vinyl chloride during loading, unloading, and tank cleaning operations on tankers can be a possible cause of leukaemia, renal cancer, liver cancer, and bladder cancer.

The interplay of dietary factors, age and working environment while at sea contribute to the development of colon cancer among seafarers. (Skippers vs Lagne G.R. No. 217036 Aug. 20, 2018)

 

Atty. Dennis R. Gorecho heads the seafarers’ division of the Sapalo Velez Bundang Bulilan law offices. For comments, send email  at [email protected], or call 09175025808 or 09088665786)

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