JUAN ISBERTO, PETITIONER, VS. REPUBLIC OF THE PHILIPPINES (BUREAU OF PUBLIC HIGHWAYS) AND WORKMEN’S COM­PENSATION COM­MISSION, RESPONDENTS.

A petition for review by certiorari from the decision of the
Workmen’s Compensation Com­mission reversing the decision of the Hearing
Officer, Department of Labor, Regional Office No. 1, Dagupan City,
awarding compensation bene­fits to the petitioner Juan Isberto
in the total amount of P5,250.00, including attorney’s
fees, dated July 17, 1962.

It appears that petitioner Juan Isberto
was first employed as Construction Foreman, emergency status, on August 1, 1951, in the Office of the
District Engineer of Pangasinan.  He, thereafter, occupied various positions in
an emer­gency capacity, and on February
1, 1957, he was ap­pointed Building Foreman with permanent status,
hav­ing a salary of P2,040.00 per annum or P170.00
monthly.  As building foreman, in-charge
of the 5th Congress­ional District of Pangasinan, his
duties consisted of supervision, investigation and completion of projects in
the entire 5th District which projects were for the construction and repair of
schools, markets and other public buildings. 
The nature of his work required him to take public conveyances, and when
the projects were in the barrios, he had to take animal drawn vehicles and
sometimes had to hike the distance if the place was not accessible by any means
of transportation.

On December 23, 1957,
petitioner filed sick leave of absence due to pains at his back, the history
and description of which according to Dr. Gudelia Nicu-Jose of the Eastern
Pangasinan Emergency
Hospital, were as follows:

“Started as intermittent recur­rent attacks of
severe pains at the lumbar region with tenderness of firm pressure over the
affected area and abnormal limitation of mobility.  Spasm of the lumbar muscles, de­crease of lumbrosacral flexibility, limitation of straight leg raising by pain.  See
G.S. Form No. 41, Medical Certificate, dated April 30, 1958.”

The patient was confined at the said
Hospital from De­cember 23, 1957
to April 30, 1958.  His sickness was diagnosed as
“Tuberculosis of the bones or Potts de­cease”.  During his confinement in the hospital, he was visited by his immediate supervisor, engineer Pa­dilla,
but neither medical nor hospital expenses have ever been extended to him by his
employer.  On June 15, 1961, he was pronounced to have
completely recovered.

In the meantime, on December
19, 1960, when the petitioner was already in progress of complete
recovery, he filed a Notice of Injury and Claim for compensation with the
Department of Labor, Regional Office No, 1 at Dagupan City.  After due hearing, the Hearing Officer
awarded compensation only to be reversed by the Workmen’s Compensation
Commission.  Re-consideration thereof was
sought by the petitioner but denied by the Commission en banc in
its resolution of April 3, 1964.  Hence this appeal.

Petitioner maintains that under the facts of the case, the law on
the issue involved, is Section 2 of Act 3428, which provides that when an
employee contracts tuberculosis or other illness directly caused by employment,
or either aggravated by or the result of the nature of such employment, his employer
shall pay compensation.

The respondents argue, on the other hand, that from the facts of
the case, there is no showing that claimant had any accidental injury during
the period of his employment that may have traumatized the spinal column which
localized the tuberculosis germs and be sick of Tuberculosis of the bones or Pott’s disease. 
Neither could the nature of his work be the direct cause of
claimant-petitioner’s illness since there is no evidence indicating or tending
to show that said illness was inherent in his work or occupation or the natural
result thereof.

There is no quarrel as to this sickness of the petitioner –
Tuberculosis of the bones or Pott’s di­sease.  It is admitted that petitioner was in perfect
health when he entered the service in 1951, until he began feeling pains in his
back sometime in September, 1957, only to be discovered that he was sick of
tuberculosis of the bones; and that he had continued per­forming same kind of
work throughout the period of his employment.

Time and again, it has been held by this Court, as in the case of
Justiniano vs. Workmen’s Compensa­tion Commission, G.R.
No. L-22774, November 21, 1966, that “the laborer is relieved from the
burden of proving causation once the disease is shown to have arisen in the
course of the employment.  The disease
having arisen in the course of employment, it is presumed by law that it arose
out of it.” It cannot be denied that petitioner as foreman in the whole
5th Congress­ional District of Pangasinan, the nature
of his work, requiring continuous or frequent traveling or hiking in the
different municipalities and barrios, is na­turally exposed to all kinds of
dust and dirt, and to the elements.  He
even sometimes missed his meals.

In another decision of this Court, it was
said:  “while it is true that ‘lobar
pneumonia’, is directly caused by the virus known as ‘pneumoccus‘,
and as such is not an occupational disease, where it appears that when he
contracted the sickness, he was well in the course of his employment as he was
doing then his usual daily chore, it is but fair that he can be com­pensated as
required by law.” (Manila Railroad Co. vs. WCC, et al., G.R.
No. L-19377, January 30, 1964)

Under the law, it is not required that the employment be the sole
factor in the growth, develop­ment or acceleration of his illness to entitle
peti­tioner to the benefits provided therein. 
It is enough if his employment had contributed, even in a small degree,
to the development or acceleration of the disease.  (Manila Railroad Co. vs.
Pineda, G.R. No. L-19773, May
30, 1964)

Another point raised by the petitioner is the failure of
respondents to comply with Sections 37 and 45 of Act 3428.  Section 37 requires the employers to submit
to the Commissioner a report of accident or sickness, whether fatal or not,
received by his em­ployee; and while Section 45 requires that before an
employer can be allowed the right to controvert an employee’s claim for
compensation, he shall either on or before the fourteenth day of disability or
within ten days after he has actual knowledge of the alleged accident
or sickness, file a notice with the Commis­sioner that compensation is not
being paid and the reason why the same is not being paid.  In the case at bar, it appears that no less
than his immediate supervisor Engineer Padilla learned of his illness, not only
as a matter of fact when he flied his sick leave of absence with pay, but also
because Engineer Padilla even visited him at his sick bed.

On the other hand, respondents maintain that since this defense
of failure to controvert was not raised either before the hearing officer or
before the Workmen’s Compensation Commission, petitioner cannot now, for the
first time raise this issue on appeal. 
Hence, the defense must be deemed waived and cannot be raised, as it is,
for the first time in petitioner’s brief.

This contention is devoid of merit.  The re­cords will bear it out that when the
respondents filed its motion for reconsideration from the ruling or decision of
the Hearing Officer, awarding compensation, one of its grounds was prescription
or the fil­ing of claim was out of time; and in the answer to the motion for
reconsideration filed by the petitioner, he categorically stated therein the
non-compliance by the respondent of Sections 37 and 45 of Act 3428.  And since the Hearing Officer denied the
motion for recon­sideration of the respondents, it is safe to assume that the
contention of the respondent was denied al­though “sub silencio“.  And, therefore, for failure to controvert,
compensation must be awarded.

And since there is no dispute regarding the total amount of P5,250.00 awarded by the Hearing Officer, the full
compensation for the same as given, is war­ranted.

WHEREFORE, judgment is rendered setting aside the decision
appealed from, and ordering the respondent to pay the petitioner the sum of P5,250.00.  No costs.

Concepcion, C.J., Reyes, Dizon, Makalintal, Zaldivar, Sanchez, Castro, Fernando, JJ., concur.