FIRST DIVISION

SIMEON A. CAÑONERO petitioner,
vs.
WORKMEN'S COMPENSATION COMMISSION and REPUBLIC OF THE PHILIPPINES (Bureau of Public Schools), respondents.

Review of the January 5, 1976 decision of the respondent Commission reversing the September 15, 1976 award of the referee in WCU Case No. 18136 filed with the Department of Labor, Regional Office No. VII at Iloilo City.

Petitioner was employed by the respondent Republic of the Philippines (Bureau of Public Schools) from 1924 to 1968. At the time of his retirement on March 18, 1968, he was holding the position of Disturbing Officer of the Alimodian National Vocation High School.

On March 31, 1975, petitioner filed his notice and claim for compensation with the Workmen's Compensation Unit of the Department of Labor.

On April 7, 1975, a copy of the notice and claim was sent to the Solicitor General who receive it on May 5, 1975 (p. 72 WCC rec.) and to the Bureau of Public Schools, which received the same on May 8, 1975 (p. 71, WCC rec.)

On September 15, 1975, the referee rendered a decision finding petitioner;s compensation claim meritorious and thus ordered respondent Republic of the Philippines to pay:

A motion for reconsideration filed by the respondent Republic of the Philippines on the ground that the illness of claimant was not work-connected, was denied by the referee. But upon review of the aforesaid decision, the respondent Commission reversed it. It was the opinion of the respondent Commission that petitioner is not entitled to compensation because the record of the claim was bereft of proofs that he was incapacitated for labor before his retirement. It reasoned out its order of reversal as follows:

Hence, this petition.

I

The conclusion of the respondent Commission is totally unwarranted as it proceeds from the wrong premise that, under the obtaining facts, the petitioner has still the burden to show by substantial evidence that he was incapacitated from labor by reason of his illness. That is a patent distortion of the burden of proof applicable to cases where, as in this case, the presumption of contin had already set in. For WE have repeatedly ruled that once the illness subject matter of a compensation claim is shown to have supervened in the course of employment, as is the situation here, there arises in favor of claimant the rebuttable presumption that the said illness either arose out of, or at least was aggravated by, the nature of his employment; and that consequently, the burden to show by substantial evidence the cortrary lies with the employer. The ultimate result of that principle is that the presumption rebuttable in its conception becomes conclusive upon the failure of the employer to destroy the same (Santos vs. Workmen's Compensation Commission, 75 SCRA 365 370 [1977]). In the instant case, the record is bereft of any evidence presented by respondent employer to discharge the aforsaid burden. In fact, no evidence of whatever kind was presented by it (p. 13, WCC rec.). As the facts of the case stand, the petitioner was under no obligation to the referee or to the Commission to further present evidence to sustain his compensable claim. For as already stated, he enjoys the legal presumption of compensability. Respondent Commission therefore gravely abused its discretion in absolving respondent employer, instead of affirming the award of the referee.

Furthermore, petitioner's claim for compensation was not timely and effectively controverted. This finding of the referee was never questioned by the respondent employer in its September 17, 1975 motion for reconsideration (p. 14, WCC rec.) of the decision of the referee.

It is however now claimed by respondent employer, through its counsel, the Solicitor General, for the first time in this appeal that it had timely and properly controverted this compensftbility claim because ... (a)s borne out by the records, the notice of injury was received by the office of the Solicitor General on May 19, 1975 and the letter of controversion was sent by registered mail on May 21, 1976 (should be 1975). In ,other words, the claim was controverted three days after receipt of the notice of injury, well within the reglementary period prescribed by law" (pp 50, 62, rec.). Basic is the rule, however, that issues or questions not raised below cannot be raised for the first time on appeal (Buenaventura vs. WCC, 76 SCRA 485, 489 [1977]); because by that failure, respondent employer is deemed to have waived the same.

At any rate, WE find the Solicitor General's claim of having received the notice of injury only on May 19, 1976 to be patently false in the case of the documented facts of record that his office received the said notice of injury on May 5, 1975 (as evidenced by the improvided Registry Return Card attached to the record) [p. 52, WCC rec.]; and therefore, its controversion which it sent by registered mail on May 21, 1975 which was the 16th day from May 5,1975 and received by the Department of Labor on May 28, 1975 was clearly beyond the reglementary period for controversion. The inefficacy of that controversion becomes more patent when WE consider the fact that respondent employer failed to comply with Section 37 of the Workmen's compensation Act, as amended, on the filing of Employer's Report of Accident or Sickness with respect to petitioner's illness of which it was informed in writing as early as March, 1966 (see items 20 & 21, Notice of Injury and Claim for Compensation, p. 73, WCC rec.). WE have repeatedly ruled that such failure of respondent employer constitutes a renunciation of the right to controvert the claim unless it submits reasonable grounds therefor (Justo vs. WCC 75 SCRA 223 [1977]; DBP vs. WCC, 49 SCRA 365, 366, 375 [1973]; MRR vs. WCC, 20 SCRA 982-983 [1967]). The respondent employer, therefore, was, by its failure to effectively controvert the claim of petitioner, considered to have renounced all nonjurisdictional defenses, such as the non-compensability of the claim (Romero vs. WCC, 77 SCRA 482, 486-7 [1977]; Buenaventura vs. WCC, 76 SCRA 486-488 [1977]; Vda. de Galang vs. WCC, 76 SCRA 157-158 [1977]; Talip vs. WCC, 71 SCRA 218 [1976]; Dinero vs. WCC, 70 SCRA 292 [1976]; Abong vs. WCC, 54 SCRA 379 [1973]; DBP vs. WCC, 49 SCRA 375 [1973]; General Textiles, Inc. vs. Taay, 42 SCRA 375, 380 [1971]; NDC vs. Galamgam 38 SCRA 495, 498 [1971]; La Mallorca vs. Zuñiga & WCC, 30 SCRA 613, 619 [1969]; Republic vs. WCC, 7 SCRA 985, 988 [1963]).

Parenthetically, it must be pointed out that in none of the above-cited precedents, did WE inject the qualification that an uncontroverted compensation claim to directly stand must still be substantiated. For to do so, as was the view of the respondent Commission, would not only unduly or gratuitously relieve the respondent employer of the above-stated disastrous consequence on it for its failure to controvert but would likewise unreasonably deny to petitioner the benefit effects flowing from the unrebutted legal presumption of compensability of his illness (Buenaventura vs. WCC, 76 SCRA 485-488 [1977]). It is indeed lamentable that the respondent Commission chose to ignore the herein applicable principles of law and jurisprudence which were all neatly laid by the learned referee in this decision.

II

The approval of petitioner's optional retirement invigorates rather than weakens his claim for disability compensation for the reason that under Memorandum Circular No. 133 such optional retirement can only be ultimately allowed if the employee-applicant is below 65 years of age and is physically incapacitated to render further efficient service. Consequently, any doubt on the petitioner's state of health was laid to rest by the aforesaid approval of his optional retirement from the government service (Romero vs. WCC, 77 SCRA 490 [1977]; Despe vs. WCC, 75 SCRA 350,354 [1977]).

III

Finally, the contention of the respondent employer that the filing of the claim for compensation only after the lapse of more than seven (7) years from the time of disability or illness in violation of Section 24 of the Workmen's Compensation Act, as amended, was fatal to its success, is likewise without merit; firstly, because that issue was never raised below and therefore, is deemed waived and cannot be for the first time on appeal; and secondly, aside from the fact that such defense is barred by the failure to controvert the claim, WE have ruled that such defense is not jurisdictional and that the statutory right to compensation prescribes in ten (10) years (Romero vs. WCC, 77 SCRA 487 [1977]).

WHEREFORE, THE DECISION DATED JANUARY 5, 1976 OF THE RESPONDENT WORKMEN'S COMPENSATION COMMISSION IS HEREBY SET ASIDE AND RESPONDENT BUREAU OF PUBLIC SCHOOLS IS HEREBY ORDERED

I. TO PAY PETITIONER

II. TO PAY PETITIONER'S COUNSEL ATTORNEY'S FEES EQUIVALENT TO 10% OF THE TOTAL AMOUNT AWARDED;

III. TO PROVIDE PETITIONER WITH SUCH MEDICAL, SURGICAL AND HOSPITAL SERVICES AS WELL AS NECESSARY APPLIANCES AS REQUIRED BY THE NATURE OF HIS AILMENT; AND

IV. TO PAY THE SUM OF EIGHTY-THREE (P83.00) PESOS AS ADMINISTRATIVE FEE.

SOORDERED.