MARTINA LAMBINO, FOR HERSELF AND ON BEHALF OF HER CHILDREN, ERLINDA AND ALEJANDRA, BOTH SURNAMED MERCADO, PETITIONERS, VS. N. BAENS DEL ROSARIO, CHAIRMAN, WORKMEN’S COMPENSATION…

This is a petition to review on certiorari the decision of respondent N.
Baens del Rosario (as Chairman, Workmen’s Compensation Commission), and affirmed
by the Commission en banc, dismissing the compensation claim of
petitioner Martina Lambino de Mercado (for herself and in behalf of her children
Erlinda and Alejandra Mercado) against respondent City of Manila, for the death
of her husband Juan Mercado, a laborer of said city.

The facts of the case, which are undisputed are succinctly stated in the
decision of respondent WCC Chairman, to wit:

“It appears that deceased Juan Mercado was employed as laborer of the City of
Manila, as early as 1919, interrupted by the World War of 1941, and resumed
working in 1946, until he was bedridden in April, 1952 and died on May 7, 1953.
It was alleged that sometime in November, 1952, deceased contracted rheumatism,
which had worsened, due to his daily work as sweeper, for having been exposed to
heat and cold in the open air. At the same time, he was assigned to work in the
construction of the International Fair grounds, where he was often overtaken by
rain, wetting him all over, and constantly exposed to the heat of the sun. In
April, 1952, he fell ill, and was found to be afflicted with pulmonary
tuberculosis, far advanced. On May 7, 1953, he died of tuberculosis, and a claim
for death compensation was filed by Martina Lambino, widow of deceased Juan
Mercado, which was denied for failure to present evidence to support said claim.
Claimant moved for the reopening of the case and presented evidence, which was
properly entertained, but found to be wanting by the Commission. Another motion
for reconsideration was filed this time, based on alleged newly-discovered
evidence, which again failed to satisfy the requirements for the establishment
of her claim, as the alleged newlyr discovered evidences relied upon, where the
same as those previously presented.”

On the basis of these facts, respondent WCC Chairman rendered the decision
above adverted to, stating as follows:

“The main issue in this case is whether or not the said claim falls under
Section 2, Act No. 3428, as amended.

“A careful study of the records shows that the alleged newlydiscovered
evidences of the claimant do not conform with the essential requirements of
newly-discovered evidence, as contemplated in the Rules of Court * * *.

“The allegation that the illness was contracted in the course of his
(deceased’s) employment or aggravated by the nature of his work, cannot also be
accepted, inasmuch as no strenuous or extraordinary force was exerted in the
performance of deceased’s work as laborer. Although it is of common knowledge
the Filipinos are hosts of tubercle bacilli in the dormant stage, it is highly
inconceivable to believe that, without the attendant of other circumstances
aside from his (deceased’s) mental work, the said illness will flare up. If it
were ever contracted, it was not due te his employment, but to circumstances
foreign to his job. It was established that deceased’s work was in the open air,
which proves more healthful and has an invigorating effect on the health of the
individual under normal conditions than in noisy and dusty sweat shops. It was
also alleged that claimant fell ill and was taken home, but aside from this, no
other extraordinary happening occurred to him, to support the theory that his
illness was workconnected. His daily routine, did not present any urgency to
compel him to continue working even under inclement weather. The nature of his
work, did not require him to exert unusual force that may lead to a weakening of
his body resistance. To hold respondent liable for the death of Juan Mercado due
to tuberculosis, would mean making respondent the insurer of the life of its
(his) employee. Nothing was mentioned concerning any injury for the setting in
of said illness, nor the aggravation of the same, granting that deceased was
really sick of tuberculosis.

* * * * * * *

“In view of the above permise, there is no established connection between the
alleged tuberculosis of deceased (Juan Mercado) and that of the nature of his
work. Neither can claimant contend that deceased was exposed to sudden changes
in temperature, inasmuch as the nature of his work required him to stay in the
open, as free as the birds of the air. He worked at will, without any close
supervision and, as such, he could avoid rain or sunshine, by arranging his work
hours.”

Her motion for reconsideration of said decision, having been denied by
resolution of the WCC en banc, petitioner filed with us the present
petition for review.

It is not disputed that the deceased Juan Mercado was, since 1919 to the time
of his death in 1953, (except during the past war) employed by the City of
Manila as laborer (street cleaner or sweeper). In April, 1952, he became ill and
was, on medical examination, found to be afflicted with pulmonary tuberculosis,
far advanced. Laid off from his work, he was nevertheless on November 1, 1952,
reinstated thereto and assigned to work at the construction of the International
Fair Grounds, where “he was often overtaken by rain, wetting him all over, and
constantly exposed to the heat of the sun”. On May 7, 1953, he died of pulmonary
tuberculosis.

In denying appellant’s claim for compensation, the WCC concluded that the
pulmonary tuberculosis which caused the deceased’s death was neither contracted,
in the course of his employment nor aggravated by the nature of his work,
considering that he exerted “no strenuous or extraordinary force” in the
performance of his work as laborer (street cleaner or sweeper); and his daily
routine, did not present any urgency to compel him to continue working even
under inclement weather. The WCC further observed that the deceased’s work,
which was in the open air, was healthful and had an invigorating effect on his
health. In fine, the WCC was of the opinion that the deceased’s illness was not
service-connected, as to be compensable under Section 2 of Act No. 3428
(Workmen’s Compensation Law).

We disagree with the conclusion of the WCC. It does not appear that when the
deceased entered the employ of the City of Manila in 1919 as laborer he was
already suffering from tuberculosis. The records, however, disclose that when he
fell ill in April, 1952 during his employment and was medically examined, he was
found to be suffering from advanced pulmonary tuberculosis. Despite said
illness, however, he was reinstated to his work in November, 1952 and assigned
to the construction of the International Fair Grounds.

As laborer (street cleaner or sweeper) from 1919 to 1952, (except the period
1941-1946) the deceased was naturally exposed to all kinds of dust and dirt on
the city streets and to the elements. To conclude that because the deceased
worked in the open air his employment was healthful and had invigorating effect
on his health, without taking into account the particular job he was doing is,
to say the least, unjustified. So also is the holding unwarranted that there was
no urgency in the performance of his duties as street sweeper or cleaner and
therefore could have so arranged his work-hours to avoid exposing himself to
rain or sunshine. This holding is unreasonably harsh on the laborer who
conscientiously performs his duties, specially considering the undeniable fact
that on occasions for days and sometimes weeks rain continuously falls in this
city flooding the streets and accumulating thereon garbage, mud and filth which
must be removed and disposed of by the street cleaners as the deceased. A
situation and condition of work more conducive to pulmonary tuberculosis is hard
to imagine. And finally the fact that the city reinstated the deceased in
November, 1952, in spite of his advanced tuberculosis found upon his medical
examination in April of the same year, and assigned him to the construction work
at the International Fair Grounds wherein because of lack of shelter he was
constantly exposed to rain and the heat of the sun, undoubtedly aggravated his
ailment to such an extent that months later or on May 7, 1953, he finally
succumbed and died.

In the circumstances, we are of the opinion and so hold that the deceased
Mercado’s illness (pulmonary tuberculosis) of which he died, was caused by the
nature of his work as laborer-street cleaner or sweeper, or at least aggravated
by it, and therefore, compensable under Section 2 of Act No. 3428. (See the case
of Manila Railroad Company vs. Ferrer, et al., 109 Phil., 716; 60 Off. Gaz.
6590).

Wherefore, the decision and resolution of the WCC appealed from are hereby
set aside. Respondent WCC Chairman is ordered to compute and award the
compensation to which appellant is entitled under the provisions of Act No.
3428. Without costs. It is so ordered.

Bautista Angelo, Labrador, Concepcion, Reyes, J. B. L., Paredes, Dizon,
Regala, and Makalintal, JJ., concur.