NATIONAL SHIPYARDS AND STEEL CORPORATION, PETITIONER, VS. SALVADOR ASUNCION, ET AL., RESPONDENTS.

On March 31, 1955, Referee Erudito Luna of the Workmen’s Compensation
Commission rendered decision ordering the petitioner to pay to respondent
Salvador Asuncion compensation, fees and costs. On April 26, 1955, the
petitioner filed a motion for new trial on the ground of newly discovered
evidence, all documentary and allegedly not discovered at the opportune time.
Finding no error in the referee’s decision, the Chief of the Referee Division
elevated the case to respondent Commissioner for review. The latter did not
consider the evidence presented in support of the motion for new trial as newly
discovered within legal contemplation, and accordingly affirmed the decision of
the referee. The petitioner has appealed by certiorari.

Respondent Asuncion was first employed by the petitioner on January 27, 1950,
was laid off on April 30, 1950 due to lack of funds, and was reinstated on
January 22, 1951. He worked as rigger and his assignment was to carry steel and
other materials from the landing barges to the bodegas. On December 6, 1951,
while shoveling gravel and sand, he vomited blood and was given first aid
treatment at petitioner’s infirmary. He was physically examinated and referred
to the San Lazaro Hospital for X-ray examination. Found to have pulmonary
tuberculosis in a moderately advanced stage, and upon advice of the doctor, he
was confined in the Quezon Institute from December 17, 1951 until July 11, 1952,
when he was discharged as clinically and radiologically improved. He sought
reinstatement, but allegedly for lack of funs, he was not re-employed by the
petitioner.

The petitioner now contends that had respondent Com- missioner taken into
consideration the newly discovered evidence, Annex “G”, which shows that
respondent Asuncion had already been afflicted with and was suffering from the
pulmonary tuberculosis as early as January, 1946 (while he was not yet employed
by the petitioner), the decision complained of would have been greatly changed.
In this connection, however, it is noteworthy that respondent Asuncion underwent
the pre-employment physical examinations prescribed by the petitioner (one
before his original employment and another upon his reinstatement), and on both
occasions he was found by the company physician to be physically fit. With full
opportunity and adequate means for checking, the petitioner cannot now have any
reason either to complain about or to reopen the matter.

The petitioner’s motion for new trial was based on newly discovered evidence
showing that respondent Asuncion, after confinement in Quezon Institute
beginning December 17, 1951, was released as cured on July 11, 1952, and that
the physical examination made by petitioner’s medical officer showed that said
respondent was physically fit for work. Accordingly, it is urged that no
compensation and medical expenses after July 11, 1952 should have been awarded
in his favor.

The respondent Commissioner did not err in declaring that the alleged newly
discovered evidence could have been produced at the trial if the petitioner had
exercised due diligence, because the records referring to respondent Asuncion
had always been in petitioner’s possession. Moreover, the medical finding that
respondent Asuncion on July 11, 1952 as clinically and radiologically improved,
was explained by the attending physician in Quezon Institute as merely meaning
improvement in the physical condition. Indeed, Annex “I” of the motion for new
trial shows that as of July 3, 1952, prior uo his official discharge on July 11,
1952, said respondent was still positive with pulmonary tuberculosis. We agree,
therefore, with respondent Commissioner in his observation that, unless a
miracle played an important part, it is highly inconceivable for said illness to
have been completely arrested or cured within ihe short span of two weeks.

Wherefore, the decision appealed from is hereby affirmed with costs against
the petitioner. So ordered.

Bengzon, Padilla, Montemayor, Reyes, A., Bautista Angelo, Labrador,
Concepcion, Reyes, J.B.L., Endencia and Felix, JJ.,
concur.