Judgment No. 3910
Decision
1. The Director General’s decision of 22 April 2014 and his earlier decision of 24 October 2012 are set aside. 2. The matter is remitted to the IAEA for the JABCC’s reconsideration after having obtained a copy of Dr S.’s report. 3. The IAEA shall pay the complainant moral damages in the amount of 7,500 euros. 4. The IAEA shall pay the complainant costs in the amount of 5,000 euros. 5. All other claims are dismissed.
Summary
The complainant challenges the IAEA’s refusal to recognise his illness as service-incurred.
Judgment keywords
Keywords
complaint allowed; decision quashed; case sent back to organisation; illness; service-incurred
Considerations 10 and 12
Extract:
The determinative issue is whether the failure to provide Dr S.'s report to the JABCC constitutes a reviewable error. The IAEA submits that there is no provision in Appendix D that, in case of disagreement, the minority member is entitled to submit a minority report. The IAEA adds that, in any event, the fact that Dr S. did so does not prejudice the validity of the official Medical Board report submitted to the JABCC. At the outset, it is observed that it is not a matter of the "minority member [being] entitled to submit a minority report" or whether Appendix D contemplates a minority report. It is implicit in the composition of the three-member Medical Board provided in Article 41 that there may be a dissenting view. In the performance of its role to make recommendations to the Director General, it is essential that the JABCC have both the majority and dissenting opinions. In the end, it is for the Director General to make the final determination in light of all available information. The Agency's failure to provide the JABCC with Dr S.'s opinion compromises the benefits of having a three-member Board and impairs the JABCC's ability to properly perform its function. [...] In the circumstances, the Director General's decision of 22 April 2014 and his earlier decision of 24 October 2012 will be set aside. The matter will be remitted to the IAEA for the JABCC's reconsideration after having obtained a copy of Dr S.'s report.
Keywords
case sent back to organisation
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