UNDT/2018/115, Applicant
The parties were at odds as to the procedure for establishing a medical board under art. 17 of Appendix D. The Applicant’s case was that the ABCC failed to adhere to art. 17(b) of former Appendix D because it failed to establish a medical board to consider and report on the medical aspects of his claim. The Respondent submitted that the onus was on the Applicant to request the establishment of a medical board and to nominate a medical practitioner to represent him on the medical board. The Tribunal rejected the Respondent’s submission that the Applicant was obliged to request a medical board when art. 17 does not include such a requirement. The Tribunal did not find that the Respondent failed to live up to his responsibility in art. 17(b) when the Applicant opted to file an application with the Tribunal instead of returning to the ABCC with a request for reconsideration. In other words, the Respondent could not establish a medical board under art. 17(b), to consider and report on the medical aspects of the Applicant’s claim when the Applicant decided not to trigger said process by following the directives in art. 17(a). Instead, he chose to exercise his right to come before the Tribunal for a determination. The evidence on which the ABCC based its determination of 11 June was inadequate because the medical advice from the Medical Director of the United Nations Medical Service Division (MD/MSD) was vague and not based on well-founded evidence. There were medical aspects to the case that should have been dealt with by medical professionals. While the Applicant was weary of waiting for resolution of a claim that he had filed in 2011, with all the ambiguities raised by the MD/MSD and the Applicant’s physician, it would have been a miscarriage of justice for the Tribunal to merely award damages consistent with the failure of the Administration to apply its own rules and regulations with respect to former Appendix D as was requested by the Applicant. Since there were lingering medical issues that the Tribunal was not competent to make pronouncements on, the best remedy was for the matter to be remanded to the ABCC.
The Applicant challenged the decision of the Secretary -General to refuse his claim for compensation submitted in accordance with Appendix D of the United Nations Staff Regulations and Rules.
The scope of the Tribunal’s review in compensation claims cases is limited to determining whether “the ABCC correctly followed the procedure applicable to medical claims, whether it properly directed its mind to the relevant issues, whether the evidence on which it based its determination was adequate or flawed.†The Tribunal’s review does not include interfering with an expert decision based on well-founded evidence or substitution of the views of the medical service with its own. Pursuant to Judgment No. 2017-UNAT-725, a staff member is not required to submit a request for reconsideration under art. 17 prior to the filing of their application to the Dispute Tribunal for judicial review of the Secretary-General’s decision. The Appeals Tribunal held that the request for reconsideration under art. 17 is an option afforded to a staff member who wishes to bring his/her case before a medical board. Article 17(a) only mandates a staff member seeking reconsideration of a claim that has been denied on medical grounds to include, in his/her request, the name of a medical practitioner to represent him/her on the medical board. Once the staff member complies with art. 17(a), the burden shifts to the Administration to convene a medical board that is competent to determine the nature of the staff member’s injuries, illness or disability and its correlation to his/her official duties.
Remanded to the ABCC. Compensation to the Applicant for delay.