Chapter V. Decisions of Administrative Tribunals of the United Nations and related intergovernmental organizations

1

DECISIONS OF ADMINISTRATIVE TRIBUNALS OF THE

UNITED NATIONS AND RELATED INTERGOVERNMENTAL ORGANIZATIONS

1. Decisions of the Administrative Tribunal of the United Nations2

   1. JUDGEMENT NO . 587 (15 JUNE 1993): DAVIDSON V. THE SECRETARY-GENERAL

      OF THE UNITED NATIONS3

      Claim for compensation for the death of a staff member submitted by his widow under appendix D to the Staff Rules—Tribunal's competence in the matter—Medical Board's competence does not extend to addressing legal questions—Question of whether the death of the staff member was attributable to the performance of official duties because of "special hazards " under article 2(b) (ii) of appendix D—A staff member does not assume the risks when consenting to an assignment in an area of special hazards

      The Applicant, the widow of a United Nations staff member, submitted a claim under appendix D to the Staff Rules for compensation in the death of her husband. She asserted that her husband's death was attributable to the performance of official duties on behalf of the Organization as it resulted from "chronic and acute stress . . . from the cumulative effect of documented excessive professional work and worry and unusual exertion preceding the death". She also invoked article 2(6)00 of appendix D of the Staff Rules on the grounds that her husband's duty station lacked the most elementary medical facilities and an adequate infrastructure and personnel for serious emergencies, such as heart attacks, thus constituting a "special health hazard". The relevant provision under appendix D provides:

      "Article 2, Principles of award

      "The following principles and definitions shall govern the operation of these rules:

      (b) . . . death .. . of a staff member shall be deemed to be attributable to the performance of official duties on behalf of the United Nations . . . when:

      (i) The death . . . resulted as a natural incident of performing official duties on behalf of the United Nations; or

      (ii) The death . . . was directly due to the presence of the staff member, in accordance with an assignment by the United Nations,

      in an area involving special hazards to the staff member's health or security, and occurred as the result of such hazards; ... "

      A medical board was convened, and based upon its findings the Applicant's claim was denied. The Tribunal, having no medical competence, stated that it had consistently held that it would not rescind decisions denying compensation which were based on Medical Board reports where there was no showing of procedural irregularity, mistake of fact or law, or of arbitrary or extraneous factors flawing the decision.

      The Tribunal, noting that the Medical Board lacked competence in addressing legal questions, was of the view that, in the present case, reliance on the Medical Board report by the Respondent was impermissible because of the Medical Board's preoccupation with legal issues. For example, the Medical Board had determined that the decedent's excessive workload might have constituted an additional factor to his alleged "pre-existing coronary atherosclerosis", but was not of sufficient weight for the "death to be deemed to have resulted as a natural incident of performing official duties within the meaning of article 2(i»)(i) of appendix D . . . " However, as the Tribunal pointed out, the Board's interpretation of article 2 constituted a legal, rather than a medical opinion.

      It was also the Tribunal's opinion that the Medical Board report was further flawed in that its finding lacked any medical evidentiary support that a preexisting condition of atherosclerosis existed outweighing the effect of the possible additional factor of an excessive workload combined with the work-related behavioural characteristics of the decedent.

      With respect to whether under article 2(6)(ii) of appendix D the death of the Applicant's husband could be deemed attributable to the performance of official duties, the Tribunal found that Bangui, Central African Republic, was an area involving special health hazards. The Tribunal, while noting that the Respondent evidently relied on the Medical Board's finding that the special hazard was not the "sole cause" of death, but an aggravating factor, was of the opinion that in cases of heart attack deaths it would be extremely difficult to establish with absolute certainty that a special hazard of the type involved in the present case, i.e., the unavailability of adequate facilities and personnel for dealing with cardiac emergencies, was the sole cause of death.

      Furthermore, the consent of the staff member to assignment to an area of special hazards provided no basis for a contention by the Respondent that the staff member thereby assumed the risks involved, nor should the risks be shifted to the staff member by establishing unreasonably restrictive standards for the application of article 2(fc)(ii). It was the Tribunal's view that if, as in the present case, a Medical Board found the existence of a special hazard, constituting an aggravating factor, which decreased the chances of survival, that was tantamount to a finding that the special hazard played enough of a role in the chain of causation to determine that death occurred as a result.

      Accordingly, the Tribunal concluded that the Respondent's decision must be rescinded and that compensation was to be paid in accordance with rule 106.4 and article 10 of appendix D to the Staff Rules.

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   2. JUDGEMENT NO . 595 (28 JUNE 1993): SAMPAIO V. THE SECRETARY-GENERAL

      OF THE UNITED NATIONS4

      Claim of a member of the United Nations Staff Mutual Insurance Society Against Sickness and Accident for reimbursement of medical expenses at the rate of exchange on the date of expenditure instead of on the date of refund—Question of whether the existence of an internal recourse procedure established by the Society precludes the memberfrom resorting to the appeals procedure under the United Nations Staff Regulations and Rules—The Society, which was established to protect the rights to health protection of its members, cannot take a decision or adopt a rule that has the effect of thwarting the fundamental pur-pose for which it was created

      During the Applicant's assignment in Geneva, she was a member of the Geneva United Nations Staff Mutual Insurance Society against Sickness and Accident, which was established under staff regulation 6.2 "to reimburse, within the limits laid down in the Society's Internal Rules, the expenses incurred by its members arising from sickness, accident or maternity". While on home leave in Brazil in 1989, the Applicant incurred medical expenses in the amount of Brazilian cruzados 35046.47, and on 21 February 1990 she was reimbursed by the Society, which converted Brazilian cruzados into Swiss francs, using the official United Nations rate of exchange prevailing on that date, as provided in annex II, article 2(a)(vii) of the Society's statute and Internal Rules. Notwithstanding this provision, the Applicant claimed that she should be reimbursed at the rate of exchange prevailing on the date of expenditure instead of on the date of reimbursement, and that failure to use the former date had resulted in a loss to her of approximately 9,012 Swiss francs, because of an extremely sharp devaluation of the Brazilian cruzado from the time when the medical expenses were paid in Brazil until the time when the Society reimbursed her.

      The Society refused to accept her view, and the Applicant filed an appeal. Subsequently, the Joint Appeals Board found that the proper procedure had not been observed and recommended that an exception be made to the Society's rules. However, the Secretary-General remanded the question to the Society for consideration by its Executive Committee in accordance with its Internal Rules, whereupon the Society refused to grant an exception in the Applicant's favour. On receipt of this refusal, the Respondent decided to reject the Joint Appeals Board report on the ground that it had no jurisdiction in the case, since the Society had its own appeals procedure.

      Even though the Respondent did not raise the issue of the JAB's competence before the Tribunal, the Tribunal considered that the Society, in spite of being a sui generis organization, could not be regarded as being independent of the United Nations, inasmuch as it had been established by the Secretary-General in accordance with article 6.2 of the United Nations Staff Regulations; its statute and Internal Rules were subject to the approval of United Nations officials; and its head, the Executive Secretary, was appointed by the Director-General of the United Nations Office at Geneva. Therefore, the Tribunal concluded that the United Nations Staff Rules and Regulations were applicable to the Society and that the establishment by the Society of an internal recourse procedure did not abrogate the right of any of its members to resort to the ap-peals procedure provided by the United Nations Staff Rules and Regulations.

      As to the merits of the case, the Tribunal, while noting that the Society had been established, in accordance with staff regulation 6.2, to protect the rights to health protection of its members, concluded that, consequently, the Society could not adopt a decision or introduce a rule that had the effect of thwarting the fundamental purpose for which it had been created. Additionally, the Tribunal considered that paragraph 2(a)(vii) of annex II to the Society's Internal Rules was somewhat arbitrary in that the Society had fixed the date of conversion at the date of payment by the Society, rather than at a proven date of payment of the medical expenses by the staff member. The Tribunal recognized that this may have been administratively convenient for the Society, but did not justify imposing on the member the risk of fluctuating currency rates under a health protection system. The Tribunal, therefore, held that the application of paragraph 2(a)(vii) of annex II had prevented the...