Judgment No. 528
Decision
THE COMPLAINT IS DISMISSED.
Consideration 5
Extract:
"Though the existence of such a risk [noise levels] is, in the Tribunal's view, a material point, it does not suffice to establish that the complainant's disability was service-incurred".
Keywords
evidence; working conditions; illness; service-incurred; elements
Consideration 4
Extract:
"It is for the employer to make proper arrangements for a comprehensive check-up of the applicant for employment. To expect him to prove that he is in perfect health would be to require him to disprove the existence of any impairment, and that is simply not feasible. [...] The burden is [however] on [the complainant] to satisfy the Tribunal with positive proof, that his impairment was service-incurred."
Keywords
complainant; organisation; burden of proof; appointment; illness; medical examination; service-incurred; medical fitness
Consideration 3
Extract:
The Administrative Circular to which reference is made "is subsequent both to the facts of the case and to the termination of the complainant's appointment, and neither party may rely on it."
Keywords
subsequent fact; administrative instruction
Consideration 5
Extract:
The specialists "do no more than concede the likelihood of a causal link between the complainant's impairment and the discharge of his duties." The Internal Appeals Board summed up in cautious wording that "is not such as to allow the Tribunal to declare that the conditions in the [material rules] are fulfilled in the complainant's case. The presumptions in his favour are, with regard to all the points at issue, neither sufficiently precise nor sufficiently concordant".
Keywords
evidence; lack of evidence; presumption of innocence; illness; service-incurred
Consideration 3
Extract:
"Although the complainant took over eleven years to file a claim, it will not be declared time-barred in the absence of an express time limit. The time bar extinguishes obligations, and its existence will not be presumed: it must be expressly prescribed. [...] The sole consequence of the delay in lodging the claim is that proof is more difficult; but the matter is one of fact, not of law."
Keywords
complaint; receivability of the complaint; time limit; time bar; no provision; illness; service-incurred; invalidity
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