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DISSENTING OPINION

DAVIDE, JR., C.J.:

I beg to dissent.

The pertinent facts as related by the Employees Compensation Commission (hereafter ECC) in its decision in ECC Case No. MG-7416-395 are as follows:

The service records revealed that the late Rosendo Gabriels public service commenced on September 16, 1959 as a Temporary Clerk at the office of the then Congressman Ramon V. Mitra. On September 1, 1960, he was appointed Legal Assistant at the Office of the Secretary. He later served as a Municipal Court Judge in Faire, Cagayan from May 20, 1965 to May 30, 1973, when he resigned from the service to run as a Sangguniang Panlalawigan Member of the Province of Cagayan, for which he was elected. After his term of office, he re-entered the service on August 18, 1981 as a Polcom Hearing Officer of the National Police Commission up to February 2, 1987 when he was appointed 4th Assistant City Fiscal at the Office in Quezon City. On July 1, 1989 he was designated Prosecutor II, a position he held up to the time of his death on January 11, 1995. He was 60 years old.

Medical records submitted in support of the instant claim showed that the decedents ailment started several years prior to his death as difficulty in swallowing of foods. He consulted a physician who advised him to undergo endoscopy. Findings showed malignant growth at the esophagus. No surgery was done, but he received [a] series of palliative and supportive treatments. Two months prior to his admission at the Chinese General Hospital, he complained of dyspnea, epigastric pain and loss of weight. This prompted him to seek confinement on January 8, 1995. However, he died five days later due to Esophageal Carcinoma.

As a result of his death, Gabriels spouse, private respondent Angelita Gabriel, filed, on 8 February 1995, a claim for compensation benefits under Presidential Decree (P.D.) No. 626, as amended. GSIS denied the claim on 18 February 1995, on the ground that cancers not listed as occupational diseases under Annex A of P.D. No. 626 were not compensable unless proof was shown that the risk of contracting the disease was increased by the nature of the claimants duties. Private respondent filed a motion for reconsideration of the decision, followed by a Supplemental Motion for Reconsideration dated 2 May 1995.

In the supplemental motion, private respondent admitted that esophageal carcinoma was not listed as an occupational disease, but there was sufficient basis to assume that the deceased contracted the illness during his employment as a prosecutor. Private respondent elaborated that the service car used by her husband to travel to work emitted toxic waste inhaled by her husband, as a result of which the latter often complained of severe chest pains, difficulty in breathing, dizziness, and discomfort every time he used the defective car. She added that her husband also suffered from hypertensive atherosclerotic heart disease, which was compensable since her husband contracted the ailment in the course of his employment. Private respondent stressed that the ECC should adopt a liberal attitude in favor of the employee in deciding claims for compensability and, therefore, should decide in her favor. The ECC, however, denied the motion.

Private respondent appealed to the Court of Appeals which docketed the appeal as CA-G.R. SP No. 40540. In its decision of 7 July 1997, the Court of Appeals gave much weight to private respondents supplemental motion and agreed with private respondents position therein. Citing Roldan v. Republic,¹ Tria v. ECC² and Diopenes v. GSIS,³ the Court of Appeals ruled that heart disease was a compensable illness entitling the heirs of the deceased Gabriel to compensation. Respondent court thus reversed and set aside the decision of the ECC, as follows:

The petitioner may have failed to submit proof that the working conditions of the job of the deceased husband had increased the risk of contracting the same, but in her supplemental motion for reconsiderat⁴ion she apprised the ECC of the fact that, on December 28, 1994 aside from Esophageal Carcinoma with Metastasis, her deceased husband was also found suffering from acute myocardial infraction with final diagnosis to be Esophagal CA, Hypertensive Atherosclorotic Heart Disease, per medical certificate of this attending physician, Dr. Joseph T. Villanueva.

The record of this case shows that the ECC ruled only as to the non-compensability of Esophageal Carcinoma with Metastasis suffered by the deceased, failing to resolve said supplemental motion.⁵

The Court of Appeals thus ordered the GSIS to grant private respondents claim under the Employees Compensation Act.

Hence, GSIS filed the instant petition, which we find to be impressed with merit.

GSIS contends that the Court of Appeals gravely erred in reversing the denial of private respondents claim, and that its decision was contrary to law and jurisprudence.

GSIS relies on Article 194 of the Labor Code, which provides:

Art. 194. Death (a) Under such regulations as the Commission may approve, the System shall pay to the primary beneficiary upon the death of the covered employees under this title...

and Section 1, Rule XIII of the Amended Rules on Employees Compensation, which states:

Sec. 1. Conditions to Entitlement (a) The beneficiaries of a deceased employee shall be entitled to an income benefit if all of the following conditions are satisfied:

(1) The employee has been duly reported to the System;

(2) He died as a result of an injury of sickness; and

(3) The system has been duly notified of his death as well as the injury or sickness which caused his death.

His employer shall be liable for the benefit if such death occurred before the employee is duly reported for coverage to the System.

Relevant to the above provisions is Article 167 (1) of the Labor Code, which defines sickness as:

any illness definitely accepted as an occupational disease listed by the [Employees Compensation] Commission, or any illness caused by employment subject to proof that the risk of contracting the same is increased by working conditions.

Considering the above provisions, GSIS argues that as private respondent failed to show that the death of her husband was caused by an occupational disease listed by the ECC or an illness caused by his employment, she could not claim death benefits. While GSIS admits that the deceaseds heart ailment could entitle him to reimbursement of medical/hospitalization expenses and/or disability benefits, such ailment should have been reported during the deceaseds lifetime within the prescribed period and after complying with all the requirements prescribed by law and the GSIS. These, private respondent failed to do. Moreover, the medical certificate and other documents submitted in support of private respondents claim for death benefits did not contain any finding of hypertensive atherosclerotic heart disease. Only on appeal to the ECC did private respondent allege that her husband suffered from heart ailment and hypertension. Only upon review by the Court of Appeals was this additional allegation considered which ultimately resulted in an award in favor of private respondent. GSIS objects to the sudden change in private respondents claim and asserts that the nature of an action cannot be changed on appeal to permit recovery on a cause of action not sued upon in the court below.⁶cräläwvirtualibräry

On the other hand, private respondent comments that the ECC denied her claim for death benefits because said Commission considered only the immediate cause of her husbands death, which was esophageal carcinoma, without considering the latters other illness such as acute myocardial infarction and hypertensive artherosclorotic heart disease with final diagnosis to be esophageal carcinoma. These other illnesses were alleged in private respondents supplemental motion for reconsideration before the ECC.

Private respondent emphasizes that her husband joined the government in good health and, due to work-related stress, contracted heart ailments which ultimately led to a very dismal condition of cancer. While private respondent admits that the causes of cancer are still unknown, she posits that the cancer may possibly have been contracted due to the pressures of work, as in the case of hypertension and heart disease.

Private respondent then resorts to the theory of increased risk, and asserts that in such a case, the claimant must show, by substantial evidence, that due to the nature of the employees work, he or she increased the risk of contracting a particular ailment. As to this burden, private respondent claims that the strict rules of evidence are not applicable, for to do so would negate the principle of liberality in evidence and the compassionate spirit of labor law.

Private respondent then concludes she was able to sufficiently prove that her husbands work increased his risk of acquiring his life-ending ailment, hence she is entitled to compensation for her husbands death.

The lone issue in this case is whether private respondent is entitled to compensation for her husbands death. According to the Amended Rules on Employees Compensation (Hereafter ECC Rules), for the sickness and the resulting death to be compensable, the sickness must be the result of an occupational disease listed under Annex A of the said Rules. Since the Labor Code defines sickness as any illness definitely accepted as an occupational disease listed by the Commission, or any illness caused by employment subject to proof that the risk of contracting the same is increased by working conditions, the provision on compensability of death simple means that it must be caused by an occupational disease recognized by the ECC. According to the death certificate, the subject deceaseds death was due to esophageal carcinoma, a non-compensable disease as it is not listed in Annex A of the ECC Rules.

In an effort to prove that the conditions of her husbands work increased his risk of contracting esophageal carcinoma, private respondent wrote Mr. Marcelino S. Alejo, Division II Chief, Employees Compensation Department, GSIS, thus:

Please consider this letter as a request for reconsideration of disapproval of my claim [for] Income Benefit as I believe the cause of my husbands death was due to his employment.

I [say] this because my husband used to complain about difficulties in breathing, chestpain and discomfort, everytime he was using the car. The car he was using was immitting [sic] inside smoked [sic] fumes most probably asbestos, which caused so much irritation to his throat. It was an irritating mechanism to the body, that in the long run had caused the esophagosh [sic] growth. Later he became malnurish [sic] in the process of not eating enough until such time dextrose had been his only food.⁷

Private respondent likewise alleged in her Supplemental Motion for Reconsideration filed with the ECC that her husbands physician, Dr. Hernando Cruz, concurred with her opinion. Dr. Cruz reportedly found as follows:

It is highly possible because of the history of a defective exhaust system and sticky brakes of his car contributing to a daily exposure and inhalation of gas fumes together with burnt asbestos emitting from the sticky brakes impregnated the mucusal lining of the nasopharyngal passages. The carcinogen impregnated mucus was subsequently swallowed and has implanted itself on the walls of the sophagus causing and contributing to the development of cancer of the esophagus.⁸

We find, however, that private respondent was not able to demonstrate by substantial evidence, which is such amount of relevant evidence that a reasonable mind might accept as adequate to justify a conclusion,⁹ that there was a connection between her husbands work and his esophageal carcinoma. Substantial evidence is necessary to establish a fact in cases filed before administrative or quasi-judicial bodies.¹⁰ The statements of private respondent and her husbands physician, neither of whom were shown to be experts in the field of cancerology, are inadequate to convince a reasonable mind that the deceaseds ailment was work-related.

Interestingly, before the Court of Appeals, the Solicitor General argued that private respondent was unable to establish a reasonable connection between her husbands illness and his work.¹¹ In all likelihood, it was this advocacy that prompted or swayed private respondent to abandon her theory of work-related esophageal carcinoma. As such, private respondents current theory is that her husbands heart ailment weakened his resistance to esophageal carcinoma. It appears then that in the hope of recovering compensation benefits, private respondent has attempted to establish a connection between her husbands heart ailment and cause of death. However, no such link was established as the medical evidence on record merely state:

IMPRESSION:

1. Coronary artery disease myocardial infarction

2. Esophageal Carcinoma

3. Pleural effusion, right

4. Tube thoracostomy, right¹²

(c) Diagnosis: Esophageal CA

Hypertensive Atherosclerotic Heart Disease¹³

Diagnosis: Esophageal CA

Hypertensive Atherosclerotic Heart Disease¹⁴

DIAGNOSIS : = Esophageal CA

= Hypertensive Atherosclerotic Heart Disease¹⁵

These findings merely indicate that the deceased suffered from both hypertensive atherosclerotic heart disease and esophageal carcinoma. There is no evidence of any link between the two diseases nor that the heart disease caused the deceaseds death. We reiterate that in a claim for death benefits under P.D. No. 626, compensability depends on the cause of death; specifically, if death was caused by an occupational disease or a work-related ailment, then the death is compensable, otherwise it is not. As such, the deceaseds heart ailment, although compensable under other circumstances,¹⁶ does not entitle his heirs to receive compensation, for the same was not the cause of his death.

In her appeal to the ECC, private respondent alleged further that her husband also suffered from hypertensive atherosclerotic heart disease, a compensable illness which would entitle private respondent to the payment of disability benefits. This allegation is a flagrant departure from the original claim that the deceased died as a result of esophageal carcinoma. Such a change of theory cannot be tolerated on appeal, not due to the strict application of procedural rules but as a matter of fairness. A change of theory on appeal is objectionable because it is contrary to the rules of fair play, justice and due process.¹⁷cräläwvirtualibräry

Aside from the blatant unfairness of private respondents deviation in theory, we also detect some irregularities in the evidence she presented on appeal. A Hospitalization Claim for Payment¹⁸ in favor of Rosendo Gabriel, Jr., dated 2 March 1995, indicated the physicians diagnosis as Esophageal CA, metastatic. There was no mention of any heart disease. A similar form¹⁹ accomplished on 7 January 1995 again indicated the physicians diagnosis as Esophageal CA, without stating any heart disease. A Certificate of Attending Physician²⁰ executed on 2 January 1995 stated the doctors diagnosis as Metastatic Esophageal CA; again, no mention of any heart ailment. In an undated Attending Physicians Certification,²¹ the diagnosis was stated as Esophageal CA = metastasis without any reference to heart disease. The reference to hypertensive atherosclerotic heart disease occurs in documents²² signed on 15 June 1995, and a medical Certificate²³ dated 23 January 1995.

In any case, it is irrelevant that the deceased also suffered from hypertensive atherosclerotic heart disease. Assuming that the deceased acquired such disease due to the nature of his work, the same did not cause his death, hence, his heirs are not entitled to death benefits simply because he had a heart ailment.

The instant case must be distinguished from Roldan and Diopenes²⁴ where the Court awarded benefits to workers who suffered from heart diseases. In those cases, the workers were claiming compensation for a sickness, not for death. To claim compensation for a sickness the same must be listed under Annex A of the ECC Rules 24.²⁵ In the stated cases the claimants suffered from cardiovascular ailments contracted in the course of their employment. Cardiovascular disease is among the compensable illnesses recognized by the ECC, hence, the claimants were clearly entitled to compensation.

On the other hand, for death to be compensable, the same must have been caused by a disease listed in said Annex A. Esophageal carcinoma, which caused the deceaseds death in this case, is not listed in Annex A. Thus the cases relied upon by private respondent and the Court of Appeals are not in point.

The inevitable conclusion is that private respondent cannot recover compensation for her husbands death, and not even the liberal construction of social justice legislation in favor of the working person may be validly invoked. In the first place, such liberality must be balanced by the equally vital interest of denying undeserving claims for compensation, as compassion for the victims of diseases not covered by the law ignores the need to show a greater concern for the trust fund to which the tens of millions of workers and their families look to for compensation whenever covered accidents, diseases and deaths occur.²⁶ Secondly, there is no doubt in the construction and interpretation of the applicable statutes, their meaning is clear and no obscurity has come into operation in this case. Consequently, we have no choice but to apply the statutes as they are written, with the result that private respondents claim must be denied.

WHEREFORE, I vote to GRANT the petition; to set aside the decision and subsequent resolution of the Court of Appeals, dated 7 July 1997 and 26 July 1997, respectively, rendered in CA-G.R. CV No. 40540 and to reinstate the decision of the Employees Compensation Commission in ECC Case No. MG-7416-395 dated 16 November 1995 upholding the decision of the Government Service Insurance System dated 18 February 1995, denying private respondents claim for compensation for her husbands death.

Endnotes:

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¹ 182 SCRA 230 [1990].

² 208 SCRA 834 [1992].

³ 205 SCRA 331 [1992].