JUDGMENT OF THE COURT OF FIRST INSTANCE (Fifth Chamber)

21 May 1996

Case T-148/95

W

v

Commission of the European Communities

‛Officials — Partial permanent invalidity — Surgical operation’

Full text in French II-645

Application for:

first, annulment of the Commission decision of 25 October 1994 fixing the applicant's rate of partial permanent invalidity as 0% for so long as he refuses to undergo surgery and, secondly, for an order that the Commission pay the fees of the applicant's doctors and 1 ECU as symbolic compensation for the nonmaterial damage which he claims to have suffered.

Decision:

Application dismissed.

Abstract of the Judgment

The applicant, a Commission official in Grade B 2, suffered pain in the inguinal cavity following a road accident in which he was involved on 10 August 1982.

Following a medical report drawn up on 19 February 1987, the doctor appointed by the Commission concluded that he was unable to give any decision as to any partial permanent invalidity (PPI) afflicting the applicant until such time as he agreed to undergo remedial surgery.

A medical committee was constituted on 14 August 1991.

In its report of 15 November 1991, the medical committee concluded:

‘The clinical examination disclosed an external oblique inguinal hernia on the right side. Examination of the left inguinal ring disclosed in that area too a constitutional weakness of both walls of the inguinal canal. The injury on the right is sensitive when the lungs are under extreme pressure. It is about 3 cm in diameter.

As things stand, the patient does not wish to undergo an operation for personal reasons and is unable to say when he will be willing to do so.

He does not however object to remedial surgery in due course, when the reasons which compel him to refuse it at present cease to exist.

The present situation derives both from the accident and from a clear congenital predisposition, since the same weakness is apparent on the left wall even though there is no hernia in that area.

In the circumstances, we consider that, having regard to the observation made above, the rate of Mr W's invalidity is 4%.

In the event of surgery and provided that there are no particular complications, that rate of invalidity could be reduced to 0%.

If no operation is undertaken, it will be advisable for a hernia support to continue to be worn.’

In a supplementary report of 22 June 1993, the medical committee recorded the following finding:

‘Surgery to remedy the inguinal hernia may be regarded, within the classification of surgical operations, as involving only a minor risk. We say minor rather than nonexistent, such distinction being common to all surgical interventions.

...

According to present statistics, completely favourable results are achieved in 98% of cases.

As far as excessive suffering is concerned, it is considered that, in view of current progress in therapeutic pain relief, it is reduced to a very tolerable threshold.’

On 25 October 1994, the appointing authority notified the applicant that, having regard to the supplementary reports from the medical committee, it had decided to determine a PPI of 0% and to require him to bear, pursuant to the third subparagraph of Article 23(2) of the Rules on the insurance of officials of the European Communities against the risk of accident and occupational disease (hereinafter ‘the Rules’), the fees and incidental expenses of the doctor appointed by him and half the fees and incidental expenses of the third doctor.

By memorandum of 7 November 1994, the doctor representing the applicant criticized the Commission's decision of 25 October 1994, stating as follows:

‘* It is established that Mr W is subject at present to PPI of 4%.

* There are two possibilities: (a) no operation at present and, since the situation has consolidated, the rate of 4% should be recognized; (b) an operation is carried out and the expenses are to be borne by the Commission. About six months later, a reassessment: (1) cure; (2) continuing PPI at a different rate, to be evaluated.

* In any event, the victim cannot be compelled to undergo treatment since that involves an operation.

* I cannot accept the argument that, since he is not having an operation, he must be regarded as cured (0% PPI).’

By letter of 30 March 1995, the Commission again asked the medical committee to meet. It held a meeting on 23 June 1995 and on the same day drew up a report determining that the 4% invalidity attributable to the inguinal hernia was only temporary. That report was not signed by the doctor representing the applicant.

The claim for annulment of the decision of 25 October 1994

Tiie plea in law alleging a manifest error of assessment

Article 73(2)(c) of the Staff Regulations confers on an official who is subject to PPI the right to a benefit calculated by reference to a scale laid down in the Rules. That benefit, which is classified as a social security benefit, constitutes a flat-rate award, assessed on the basis of the lasting effects of the accident (paragraph 35).

See: 156/80 Morbelli v Commission [1981] ECR 1357, para. 34; T-8/90 Cotmant v Commission [1992] ECR II-469, paras 28 and 29

Article 20 of the Rules provides that the decision defining the degree of invalidity is not to be taken until the official's injuries have consolidated. It follows that entitlement to the payment referred to in Article 73(2)(c) of the Staff Regulations does not arise until the date on which the official's injuries have consolidated. However, consolidation represents the condition of a victim whose bodily injuries have become definite and do not therefore appear capable of cure or improvement and no further treatment is, in principle, indicated unless it is to avoid aggravation.

Whilst it may be true that the notion of consolidation involves legal consequences in that it is a precondition for the inception of entitlement to the payment referred to in Article 73 of the Staff Regulations, the Court of First Instance nevertheless considers that the appraisal, case by case, of the consolidation of a bodily injury having regard to its development and the existence of therapeutic treatment capable of curing or alleviating the injury in question, and also appraisal of the therapeutical treatment envisaged, if appropriate, are purely medical matters, the review of which is not within the purview of the Community judicature (paragraph 37).

According to settled case-law of the Court of Justice and the Court of First Instance, an institution is required to respect the findings of a medical nature made by the medical committee: it cannot substitute its own assessments and must confine itself to assessing the legal consequences to be draw from those findings (paragraph 38).

See: 76/84 Rienzi v Commission [1987] ECR 315, para. 11; T-64/94 Benecos v Commission [1995] ECRSC II-769, para. 42

Consequently, it is not for the Court to adjudicate on the appraisal of the applicant's injuries made by the medical committee. Only if the opinions of the medical committee did not establish a comprehensible link between the medical findings which they incorporate and the conclusion at which they arrive would the Court be prompted to criticize the decision of the appointing authority based on those opinions (paragraph 39).

See: T-7/90 Kobor v Commission [1990] ECR II-721 ; T-165/89 Plug v Commission [1992] ECR II-367, para. 75; T-94/92 X v Commission [1994] ECRSC II-481, paras 40 and 41; T-47/93 C v Commission [1994] ECRSC II-743

The claim for compensation

The Court of First Instance considers that, even though the medical committee met on several occasions and, as a result, the procedure was protracted, that was justified by the circumstances of the case. Examination of the various reports of the medical committee shows that it was because of the applicant's disagreement with the medical committee's assessment as to the permanence or otherwise of his invalidity that the appointing authority was obliged, on several occasions, to ask the medical committee to give its views as to the nature and permanence of the injury in question and as to the nature of the surgical operation envisaged by the medical committee (paragraph 53).

Pursuant to the third subparagraph of Article 23(2) of the Rules, where the opinion of the medical committee is in accordance with the draft decision of the appointing authority notified to the official, the latter is to pay the fees and incidental expenses of the doctor chosen by him and half of the fee and incidental expenses of the third doctor, the remainder being paid by the institution, unless the accident in question occurred in the course of or in conjunction with the performance by the official of his duties or on his way to or from work (paragraph 54).

Operative part:

The application is dismissed.