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Judgment No. 3854

Decision

1. The impugned decision of 13 November 2015 is set aside.
2. The case is remitted to the OPCW for consideration by the ABCC solely on the basis of a new medical report, in accordance with consideration 12, above.
3. The OPCW, in agreement with the complainant, shall appoint a medical expert with a specialisation in psychiatry within sixty days from the date of the public delivery of this judgment, in accordance with consideration 12, above. The medical expert shall:
(a) assess whether the complainant incurred a work-related disability, which is distinguishable from any previous existing conditions or disabilities, specifically as a result of his treatment by the OPCW during the arbitration process (in the time period between 4 July 2008 and 18 November 2009);
(b) examine the complainant, take into consideration all the evidence in the file submitted to the Tribunal in these proceedings and the judgments of the Tribunal dealing with the complainant’s first to sixth complaints, and may ask the parties for any pertinent information, while respecting the adversarial principle;
(c) submit her or his report to the OPCW, which shall forward it to the ABCC for consideration.
4. In the event that that parties do not agree on the appointment of the medical expert, the OPCW shall notify the President of the Tribunal, who will then appoint a medical expert by her or his own order and notify the parties accordingly.
5. The expert’s fees and the costs of the examination shall be paid by the OPCW.
6. The ABCC, as a matter of urgency, and having given the parties the opportunity to comment on the new medical report, shall make a recommendation to the Director-General on the basis of that report and the Director-General shall take a new decision.
7. The OPCW shall pay the complainant moral damages in the amount of 10,000 euros.
8. It shall also pay the complainant 6,000 euros in costs.
9. All other claims are dismissed.

Summary

The complainant challenges the decision not award him compensation for a service-incurred disability.

Judgment keywords

Keywords

complaint allowed; decision quashed; case sent back to organisation; service-incurred

Consideration 9

Extract:

For a decision maker (or an advisory body) to say they place “limited weight” on a document or testimony can beg the question of the true reliance placed on that document or testimony. Obviously it involves placing some weight on the document or testimony.

Keywords

evidence

Consideration 10

Extract:

Diagnosis based on a patient’s account of past events is entirely orthodox and particularly so if the patient’s account of past events is not challenged.

Keywords

medical opinion

Consideration 12

Extract:

The litigation between the complainant and the OPCW has lasted several years and it is desirable in the interests of the parties and the public interest to bring it to an end. Accordingly, the OPCW will be ordered, in agreement with the complainant, to appoint a medical expert with a specialisation in psychiatry within sixty days from the date of the public delivery of this judgment. The medical expert will assess whether the complainant incurred a work-related disability, which is distinguishable from any previous existing conditions or disabilities, specifically as a result of his treatment by the OPCW during the arbitration process [...]. In order to make this assessment the medical expert will examine the complainant, take into consideration all the evidence in the file submitted to the Tribunal in these proceedings and the judgments of the Tribunal dealing with the complainant’s first to sixth complaints. The expert may ask the parties for any pertinent information, while respecting the adversarial principle. The expert will submit her or his report to the OPCW, which will forward it to the ABCC for consideration. The OPCW will notify the President of the Tribunal in the event that the parties do not agree on the appointment of the medical expert. Upon receiving such notification, the President of the Tribunal will appoint a medical expert by her or his own order and notify the parties accordingly. The OPCW will be ordered to pay the expert’s fees and the costs of the examination. The ABCC, as a matter of urgency, and having given the parties the opportunity to comment on the new medical report, will make a recommendation to the Director-General on the basis of that report and the Director-General will take a new decision.

Keywords

case sent back to organisation



 
Dernière mise à jour: 11.06.2020 ^ haut