Judgment No. 4464
Decision
1. The Director-General’s decision of 16 January 2020 is set aside.
2. The case is remitted to the WTO so that a properly constituted medical board of three medical practitioners can make a new determination as to whether the illness from which the complainant submits that he suffers is service-incurred.
3. The WTO shall pay the complainant moral damages in the amount of 3,000 Swiss francs.
4. It shall also pay him costs in the amount of 750 Swiss francs.
5. All other claims are dismissed.
Summary
The complainant challenges the WTO’s refusal to recognise the illness from which he states he suffers as service-incurred.
Judgment keywords
Keywords
complaint allowed; case sent back to organisation; medical board; service-incurred
Consideration 2
Extract:
The complainant requests that oral proceedings be held. However, the Tribunal notes that the parties have presented sufficiently extensive and detailed submissions and documents to allow the Tribunal to be properly informed of their arguments and the evidence. That application is therefore dismissed.
Keywords
oral proceedings
Consideration 3
Extract:
In his rejoinder, the complainant expressly requests the Tribunal to disregard paragraphs 2.2 to 2.6 and paragraph 2.8 of the reply, as well as annexes [...] thereto. He submits that these passages of the reply and these annexes, which concern the circumstances surrounding his separation from service, are irrelevant to the question which the Tribunal is required to decide in these proceedings.
Considering that it is primarily for the parties to determine whether or not the production of a document in support of its pleadings is relevant, the Tribunal finds that there is no reason to grant the complainant’s request in this case.
Keywords
reply
Consideration 7
Extract:
The Tribunal considers that the presence of this fourth medical practitioner at the meeting is sufficient to establish a breach of Article 38 of Annex 3 to the Staff Rules. Article 38 makes clear that the medical board convened to decide on the state of health of a member of staff is to consist of three medical practitioners appointed in the manner specified therein. This article does not in itself prevent other medical practitioners from being interviewed by the medical board, for example as experts, as long as it is clear from the procedure followed before the board that they were never considered, and could never have been objectively considered by the staff member concerned, to be members of the board.
Keywords
medical board
Consideration 7
Extract:
[T]he Tribunal reiterates that according to consistent precedent, it may not replace the medical findings of medical experts with its own assessment, but it is required to say whether there was due process (see, for example, Judgment 3994, consideration 5). It must therefore satisfy itself that a medical board was properly constituted and followed due process.
Reference(s)
Jugement(s) TAOIT: 3994
Keywords
medical board; medical opinion; role of the tribunal
Consideration 13
Extract:
[T]he Tribunal has no jurisdiction to order national authorities to exempt from national taxation sums paid by an organisation pursuant to an award by the Tribunal.
Keywords
national taxation of the tribunal's award
Considerations 9-10
Extract:
In the light of all these circumstances, the Tribunal finds the board’s composition and functioning were tainted by a substantial flaw owing to the role played by a medical practitioner who was not a member.
This flaw is a sufficient basis to find not only that the medical board’s conclusions in the report of 22 July 2019 are invalid, but also that the Director-General’s final decision of 16 January 2020 must be set aside.
Keywords
medical board; medical opinion; procedural flaw
Consideration 10
Extract:
[T]here is no reason to set aside the board’s report, which is merely a preparatory step that does not in itself cause injury (see, for example, Judgment 4118, consideration 2).
Reference(s)
Jugement(s) TAOIT: 4118
Keywords
internal procedure; step in the procedure
| 
