UNDT/2014/130, Karseboom
The Tribunal found that art. 17 does not refer to an evaluation by a medical practitioner selected by the Administration in cases of requests for reconsideration and that the Administration failed to follow the correct procedure when it did not convene a medical board. It further noted that the Administration could not, under art. 17, use an independent medical evaluation by a practitioner established in the framework of the initial assessment of a disability benefit under the Pension Fund Regulations. The Tribunal further stressed that the independent medical evaluation failed to address the issue of causation of the spine injury and that the Administration could not rely on the absence of evidence in that report to support a conclusion that the October 2006 accident had no impact on the Applicant’s back injury. The Tribunal considered that the case was an exceptional one under art. 10.5(b) of its Statute, justifying an award greater than two years’ net base salary. On the basis of probabilities that the ABCC would have reached a different conclusion had the proper procedure been followed, and since the medical issue of causation was at dispute, the Tribunal granted the Applicant USD150,104 as material damages, corresponding to 50% of the maximum amount he would have obtained under art. 11.3 of Appendix D for permanent loss of function. It further granted three months’ net base salary for moral damages.
The Applicant, a Security Guard at MONUC, had a bicycle accident while on leave in Spain in April 2006, and suffered an injury to his lower back diagnosed as lytic spondylolisthesis. He returned to full duty at MONUC in September 2006 with the advice to wear a back brace. The Applicant had a second accident while performing his duties in October 2006, when he fell in a grille covering a gutter up to his left leg hip. He suffered severe injuries to his left leg and did not return to his duties again. Upon his medical evacuation to Spain, in November 2006, he was prescribed to take an x-ray of his back, the results of which were inconclusive; hence, an MRI was requested and made after which he was ordered surgery to his back, which he underwent twice in 2008. The Applicant filed a claim for compensation under Appendix D, and the ABCC found that only the injury to his left leg and knee were service-incurred. The Applicant filed a request for reconsideration under art. 17 of Appendix D, to have his spinal injury (back) recognized as service-incurred and to be awarded compensation for permanent loss of function under art. 11.3(c) of Appendix D. The ABCC, upon the advice of the Medical Director, who, in turn, based his advice on the medical report of an independent practitioner established for the purpose of a disability benefit under the Regulations of the Pension Fund, recommended to the Secretary-General that the spine injury not be recognized as service-incurred and that the Applicant not receive compensation for permanent loss of function. The Secretary-General approved the decision.
Request for reconsideration under Appendix D: Even if a claimant does not explicitly request the convening of a medical board, if there are medical aspects to a request for reconsideration under art. 17, the Administration is obliged to convene a medical board. It cannot rely on an independent medical evaluation established by a practitioner for the purpose of the initial assessment of a disability benefit under the Pension Fund Regulations. Burden of proof in medical matters: In a challenge to a medical decision, the Applicant merely has to demonstrate that the process provided for in the relevant article was disregarded and it is for the Respondent to establish that the decision was based on well-founded evidence. For that purpose, the Administration cannot rely on the absence of evidence in an independent medical report to support its conclusion that a claimant’s injury was not service incurred. Abeyance to the rules: Neither party can alter the process prescribed by the rules unless there is clear agreement by both parties to do so. Remedies: While the Tribunal cannot make an award under Appendix D as this would involve making findings on medical matters which are not within its competence, it can award compensation for material damages resulting from a violation of a staff member’s rights and for moral damages for the impact of the breach on the Applicant. When there are no alternative means of assessing material damages under Appendix D, it is necessary to consider the likelihood that, but for the procedural errors, the ABCC would have reached a different conclusion about the cause of a claimant’s permanent injuries. This is not a medical assessment, but an evaluation of the claimant’s loss of opportunity. Where the medical evidence about causation is in dispute, the probability that a claimant would have succeeded in his claim for compensation can be estimated at 50%, which is the basis on which the material damage has to be assessed. Exceptional case under art. 10.5(b): The principles for exceptional circumstances in Mmata 2010-UNAT-092 were formulated in relation to procedural defects in wrongful dismissal cases, which is different from a case of loss of important compensation rights of staff members who have suffered injury by reason of their service to the UN. The purpose of compensation is to place a staff member in the same position he/she would have been in had the Organization complied with its contractual obligations. To deprive the Applicant of the appropriate level of compensation for loss of chance measured against the compensation he may have received under Appendix D and of any compensation for moral damages would be unjust and warrants a waiver of the two-year limit under art. 10.5(b).
Only financial compensation