## Administrative Tribunal of the International Monetary Fund — Introduction to the case of Ms. “J”, September 29–30, 2003

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### Case overview and procedural chronology
- On September 29 and 30, 2003 the Administrative Tribunal of the International Monetary Fund, composed of Judge Stephen M. Schwebel, President, and Judges Nisuke Ando and Michel Gentot, Associate Judges, met to adjudge the case brought by Ms. “J”, a former staff member, contesting the Administration Committee of the Staff Retirement Plan’s denial of her application for disability retirement.
- Key procedural dates and actions:
  - August 20, 2002: Ms. “J” filed an Application with the Administrative Tribunal.
  - August 26, 2002: Application transmitted to Respondent.
  - October 10, 2002: Respondent filed its Answer.
  - November 25, 2002: Applicant submitted her Reply.
  - December 27, 2002: Fund’s Rejoinder filed.
  - March 17, 2003: Respondent filed comments on Applicant’s statement of legal costs following a President’s request.
- Document production and evidentiary rulings:
  - Applicant requested production of records concerning Personnel Officers’ discussions about suitable positions and records supporting Respondent’s claim it sought alternative placements.
  - October 18, 2002: President of the Tribunal granted those disputed requests under Rule XVII, finding they were not “clearly irrelevant” to whether the Administration Committee properly interpreted and applied SRP Section 4.3(a).
- Oral proceedings:
  - Tribunal determined disputed testimonial conflicts were not necessary for disposition; oral proceedings were not held.
- Amicus Curiae:
  - Staff Association Committee applied and was permitted to file an Amicus Curiae brief; its views were taken into full consideration.

### Legal framework for disability retirement under the Staff Retirement Plan (SRP)
- SRP Section 4.3 governs disability retirement.
- SRP Section 4.3(a) criteria (quoted verbatim in the record):
  - A participant in contributory service shall be retired on a disability pension before his normal retirement date on the first day of a calendar month not less than 30 nor more than 120 days immediately following receipt by the Administration Committee of written application therefor by the participant or the Employer; on the condition that the Pension Committee must find, on the recommendation of the Administration Committee and the certification of a physician or physicians designated by the Administration Committee, that:
    - (i) such participant, while in contributory service, became totally incapacitated, mentally or physically, for the performance of any duty with the Employer that he might reasonably be called upon to perform;
    - (ii) such incapacity is likely to be permanent; and
    - (iii) such participant should be retired.
- SRP Section 4.3(b) pension formula preserved exactly:
  - A disability pension shall become effective upon retirement and shall be equal to the normal pension that would be payable to the participant if his normal retirement date had fallen on the date of his disability retirement, but using for such computation his highest average remuneration and eligible service at the time of his disability retirement. In no event, however, shall such pension be less than the smaller of:
    - (i) 50 percent of such highest average gross remuneration; or
    - (ii) the normal pension that the participant would have received if he had remained a participant until his normal retirement date without change in such highest average remuneration.
- SRP Section 4.3(f) definition of “normal retirement date”:
  - “normal retirement date shall mean the first day of the calendar month next following the 65th anniversary of his date of birth, or the date of such anniversary if it shall fall on the first day of a calendar month.”

### Interplay with Fund GAOs and separation/compensation regimes
- GAO No. 13, Rev. 5 (June 15, 1989) Annex I distinguishes medical separation from disability pension and prescribes procedures for separation at staff or Fund initiative.
- GAO No. 16, Rev. 5 (July 10, 1990) Section 11 requires that separation of an SRP participant not be implemented until a determination under the Plan as to disability pension is made; if no disability pension is awarded, Section 11.04 grants automatic separation payment from the Separation Benefits Fund.
- Key separation payment formula (GAO No. 16, Section 4.06):
  - Payment equals one and one-fourth months’ salary for each year of service, subject to a maximum that is the smaller of:
    - (a) the equivalent of 22-1/2 months’ salary; and
    - (b) the amount of salary that would otherwise have been payable to the staff member between the last day on duty and his mandatory retirement age of 65.
- GAO No. 20, Rev. 3 (November 1, 1982) workers’ compensation highlights:
  - Section 5.01.1 Permanent Total Disability: annuity equivalent to 66–2/3 percent of final pensionable remuneration.
  - Section 6.01: annual compensation payments for permanent total disability must be reduced by the amount of all non-lump sum benefits paid under the SRP for the same illness or injury.
  - Section 10.02: a staff member may appeal the Claim Administrator’s finding to the Grievance Committee under GAO No. 31 procedures.

### Factual background specific to Ms. “J”
- Employment and injury:
  - Employed by the Fund from July 24, 1995; participant in SRP from that date; role: Verbatim Reporting Officer (“VRO”) using stenographic and computer keyboards almost exclusively.
  - Injury onset: approximately September 8, 1999 with sudden symptoms at “approximately 4 pm on September 8, 1999,” producing shooting pains, electric-shock sensations, burning, aches, and substantial loss of dexterity and strength in both hands and arms.
- Medical evaluations and vocational assessments:
  - Multiple specialist evaluations (rheumatology, orthopedics, pain and rehabilitation medicine, psychiatry, occupational medicine) and vocational rehabilitation reports indicating severe limitation for frequent hand use and few alternative job options not requiring frequent hand use.
  - Medical Advisor (August 29, 2000) noted diagnoses including “overuse syndrome” and “wrist flex tendonitis” and OPINION: “Ms. [‘J’] lacks the residual functional capacity to perform, on a sustained basis, intensive repetitive arm and hand functions as a result of ‘chronic pain syndrome.’ ... It is doubtful that her work performance incapacity is likely to be permanent.” RECOMMENDATION: independent evaluations by a Pain Specialist and a Psychologist/Psychiatrist and formal vocational assessment.
  - Medical Advisor Addendum (February 16, 2001): diagnosed tendonitis and myofascial pain syndrome, noted she “... could return to work with modifications, but not as a verbatim reporter,” and opined a “psychophysiologic reaction”/“conversion reaction” such that she “is not totally or permanently incapacitated from performing tasks that the IMF might reasonably as[k] of her.”
- Administrative actions:
  - September 9, 1999: placed on paid workers’ compensation leave; brief return in February 2000 unsuccessful; workers’ compensation leave into October 2000.
  - June 8, 2000: filed Request for disability retirement with SRP Administration Committee.
  - March 1, 2001: Administration Committee initially found she did not meet SRP Section 4.3(a)(i) and asked whether alternative duties could be found.
  - March 14, 2001: Committee Decision communicated without reasons; Applicant advised to discuss other options with HRD.
  - May 18, 2001: Director of HRD notified Applicant Fund would separate her for medical reasons effective July 21, 2001 under GAO No. 16; financial terms to become effective March 4, 2002; Applicant signed resignation form effective March 4, 2002.
  - June 15, 2001: Applicant applied for Committee review; March 5, 2002: placed on administrative leave without pay pending review outcome.
  - May 9 and May 17, 2002: Administration Committee reviewed and sustained its initial decision; Decision on Review concluded Fund had duties the Applicant could reasonably be asked to perform with reasonable accommodation or additional training and that her condition was likely to be permanent but not totally incapacitating.
  - August 20, 2002: Applicant filed with the Administrative Tribunal.

### Parties’ principal contentions summarized
- Applicant’s principal contentions included:
  - She is totally and permanently disabled within SRP meaning; disability must be judged relative to work normally performed; skills not transferable; Committee erred and denied due process; seek relief including disability pension retroactive to March 5, 2002, two years net salary for mental suffering, and legal costs.
- Respondent’s principal contentions included:
  - Committee correctly applied SRP criteria; disability not required to be judged solely by reference to current position; Applicant not totally/permanently incapacitated; Committee properly relied on Medical Advisor and independent evaluators; judicial review should be deferential to managerial judgment; Tribunal lacks jurisdiction over separation claims for failure to exhaust remedies.

### Amicus Curiae (Staff Association) views
- Argued Tribunal should apply Article III of its Statute standard of review; disability to be judged in relation to duties the participant performed at time incapacity arose; SRP to be interpreted in light most favorable to participants; due process requires Committee review of treating physicians’ records.

### Tribunal’s preliminary jurisdictional and review framing
- Tribunal confined its consideration principally to Applicant’s challenge to the SRP Administration Committee’s denial of disability retirement, noting Applicant had accepted the financial benefit of separation and had not exhausted Grievance Committee remedies for medical separation.
- Standard of review clarifications:
  - Tribunal applies Article III of the Statute and generally recognized principles of international administrative law.
  - Distinction drawn between “standard of review” (degree of deference) and “scope of review” (Tribunal’s de novo authority to make findings of fact and law).
  - For SRP Administration Committee decisions the Tribunal concluded the matter “more closely resembles a judicial act,” warranting closer scrutiny than ordinary managerial discretion, because:
    - The Committee must construe Plan provisions and apply them to facts; and
    - The Committee’s decisions are statutorily vested and subject to direct appeal to the Administrative Tribunal under SRP Section 7.2.

### Standard of review established by the Tribunal for SRP disability denials
- The Tribunal prescribes the following standard when reviewing a denial by the SRP Administration Committee of disability retirement:
  1. Did the SRP Administration Committee correctly interpret the requirements of SRP Section 4.3 and soundly apply them to the facts of the case, or was the Committee’s decision based on an error of law or fact?
  2. Was the Committee’s decision taken in accordance with fair and reasonable procedures?
  3. Was the Committee’s decision in any respect arbitrary, capricious, discriminatory or improperly motivated?

### Tribunal’s factual and medical findings regarding Ms. “J”
- Medical evidence and findings preserved exactly:
  - Treating physicians’ notes indicate intensive medication and therapies; Applicant remained unable for years after September 1999 to use hands and arms in repetitive motion required for verbatim reporting.
  - Medical Advisor’s consistent conclusion: “...currently lacks the residual functional capacity to perform, on a sustained basis, intensive repetitive arm and hand functions.” Simultaneously the Medical Advisor concluded Ms. “J” “does not permanently lack the residual functional capacity to perform tasks consistent with her education, training and experience.”
  - Reviewing specialists’ reports: rheumatologist, orthopedist, and psychiatrist provided divergent assessments; reviewing rheumatologist and orthopedist found no evidence of carpal tunnel syndrome and limited but present capacity for non-repetitive duties; reviewing psychiatrist diagnosed an undifferentiated Somatoform Disorder/possible Conversion Disorder and did not believe the patient permanently disabled if treated.
- Tribunal’s analysis of alternative positions and qualifications:
  - Compensation and Benefits Policy Division listed positions the Fund asserted the Applicant could perform with reasonable training/accommodation: Editorial Officer; Executive Board and Member Services Officer; Public Affairs Officer; Information Officer; Translation Editorial Officer; Publications Officer.
  - Tribunal compared job qualifications and concluded it would not be reasonable to expect Ms. “J” to perform duties of the listed positions given her highly specialized but limited training and experience as a Verbatim Reporting Officer; the record did not substantiate that she could qualify for these jobs with a reasonable amount of additional training or that the Fund would provide such training or accommodation.
  - Specific grade/qualification observations preserved exactly (for context): Editorial Officer (Grade A9) typically requires advanced university degree; Public Affairs Officer (Grade A9) requires advanced degree in economics, political science, international relations, or related field; Executive Board and Member Services Officer (Grade A9) typically requires advanced university degree or three years of experience at Grade A8; Information Officer re-graded to A11/A12/A13.
  - Tribunal noted HRD’s May 1, 2002 memorandum stating Applicant “had no other skills, not requiring the use of the computer or her hands, that would have made it possible to accommodate in [sic] her in another position.”

### Tribunal’s conclusions on entitlement to disability retirement
- On total incapacity:
  - Tribunal found that Ms. “J”, while in contributory service, became totally incapacitated in the sense that she is "incapable of performing any duty that the Fund may reasonably call upon her to perform." (Para. 148)
  - Tribunal concluded there is no reasonable prospect the Fund will call upon Ms. “J” to perform any of the listed positions or her former VRO function; therefore she is totally incapacitated “in respect of the performance of any such duty.” (Para. 148)
- On likely permanence:
  - Tribunal applied SRP Section 4.3(a)(ii) and concluded Ms. “J”’s condition is “likely to be permanent” in the sense she will remain unable to be appointed to a position in the Fund; evidence showed persistent impairment of repetitive hand use since 1999 and uncertainty about recovery. (Paras. 149–157)
  - Tribunal observed SRP Section 4.3(d) allows discontinuance if incapacity “has wholly ceased” or earning capacity is regained, and that partial recuperation permits reduction.
- On the weight of medical opinion:
  - Tribunal noted Medical Advisor and reviewing psychiatrists expected improvement with psychotherapy/medication for a psychophysiologic condition, but found no record evidence to distinguish differential responsiveness to treatment were the impairment psychophysiological versus purely physical; Plan treats physical and mental incapacity identically for eligibility. (Para. 153)
- On procedural fairness:
  - Tribunal emphasized procedural fairness and the right to be heard; found an elevated need for procedural protection given the joint-insurance nature of SRP and participants’ contributions.
  - Tribunal noted procedural lapses by the Administration Committee: initial Decision of March 14, 2001 stated conclusion without reasons (contrary to Rule VII, para. 1 requiring each Decision be in writing stating reasons), raising questions of denial of meaningful opportunity to rebut adverse evidence.
  - Tribunal gave forward guidance (non-decisional suggestions) for Committee practice: ensure applicants can see and comment upon all medical reports/opinions submitted to Medical Advisor; permit Committee members to review treating and reviewing physicians’ reports; consider a tripartite Board of Medical Advisors; confine Medical Advisor advice to medical questions and reserve ultimate legal conclusion of total/permanent incapacity to the Committee; permit applicants to comment on Fund officers’ statements regarding ability to perform duties.

### Remedies, orders and costs
- Tribunal’s operative decisions (unanimous):
  1. Rescinded the Administration Committee’s decision denying Applicant a disability pension and ordered that a disability pension be granted to Ms. “J”, retroactive to the date of Applicant’s retirement.
  2. Denied Applicant’s request for two years’ salary as compensation for alleged unfair treatment.
  3. Ordered the Fund to pay the reasonable costs of Applicant’s legal representation, with the amount to be assessed by the Tribunal following further submissions according to the schedule transmitted with the Judgment.
- Tribunal declined to award separate compensation for procedural unfairness because it resolved the application on substantive grounds.

### Procedural/statutory authorities explicitly referenced (exact language preserved)
- Article III of the Tribunal’s Statute: Tribunal shall apply the internal law of the Fund, including generally recognized principles of international administrative law concerning judicial review of administrative acts.
- Article XIV of the Statute (remedial authority) quoted in full, including limits on compensation not to exceed three hundred percent (300%) of last annual salary except in exceptional cases.
- SRP Section 7.2 delegations quoted regarding Administration Committee powers and exclusive right to interpret the Plan, determine entitlement, and that its decisions are conclusive and binding subject to appeal to the Administrative Tribunal.

*Administrative Tribunal of the International Monetary Fund — Judgment in the case of Ms. “J”, Washington, D.C., September 30, 2003.*

### Introduction

### Introduction

### Case overview
- On September 29 and 30, 2003, the Administrative Tribunal of the International Monetary Fund, composed of Judge Stephen M. Schwebel, President, and Judges Nisuke Ando and Michel Gentot, Associate Judges, met to adjudge the case brought against the International Monetary Fund by Ms. “J”, a former staff member of the Fund.
- Ms. “J” contests the decision of the Administration Committee of the Staff Retirement Plan (“SRP” or “Plan”) denying her application for disability retirement.
- The Administration Committee concluded that Ms. “J” had failed to establish, as required by the terms of the Plan, that she is totally and permanently incapacitated for any duty that the Fund might reasonably ask her to perform.
- Applicant contends the decision is in error, that the Administration Committee improperly interpreted and applied the standard for disability retirement, and that the decision was tainted by procedural irregularity.
- Respondent maintains that the decision of the Administration Committee should be sustained on the ground that it is not arbitrary, capricious or procedurally defective, and that Applicant has not established any factual or legal basis for overturning it.
- The duly authorized representatives of the Staff Association were accorded the opportunity to communicate their views on the case as Amicus Curiae.

### Procedure — Exchange of pleadings and schedule
- August 20, 2002: Ms. “J” filed an Application with the Administrative Tribunal.
- Registrar advised Applicant that her Application did not fulfill the requirements of paras. 1 and 3 of Rule VII; Applicant was given fifteen days to correct deficiencies. The Application, having been brought into compliance within the indicated period, is considered filed on the original date.
- August 26, 2002: Application transmitted to Respondent.
- September 5, 2002: Registrar issued a summary of the Application within the Fund pursuant to Rule XIV, para. 4.
- October 10, 2002: Respondent filed its Answer to Ms. “J”’s Application.
- October 25, 2002: Applicant requested an extension of time to file the Reply based on delayed document availability; the President, pursuant to Rule IX, para. 1 and Rule XXI, paras. 2 and 3, concluded an extension was reasonable and granted it.
- November 25, 2002: Applicant submitted her Reply.
- December 27, 2002: Fund’s Rejoinder filed.
- December 18, 2002: Applicant submitted a statement of her legal costs.
- March 5, 2003: President of the Administrative Tribunal afforded Respondent a fifteen-day period to submit comments on the statement of costs; Respondent filed comments on March 17, 2003.

### Request for production of documents
- Applicant made multiple requests for production of documents under Rule XVII.
- Respondent stated the majority of requested documents had been provided or would be provided, but disputed two requests:
  - (a) All records of discussions Applicant had with Personnel Officers concerning a suitable position;
  - (b) All records supporting Respondent’s claim that it sought to identify another suitable position for applicant and any efforts to place her in such a position.
- Respondent objected to those requests as irrelevant to the decision being challenged (denial of a disability pension).
- October 18, 2002: The President of the Tribunal granted the disputed document requests, reasoning that Rule XVII imposes a broad standard for production and that requests should be denied only if the documents are “clearly irrelevant” (or unduly burdensome or infringe privacy—grounds not raised by the Fund in this case).
- The President concluded the disputed documents could not be said to be “clearly irrelevant” to whether the Administration Committee properly interpreted and applied SRP Section 4.3(a) in Ms. “J”’s case.

### Oral proceedings
- Applicant did not expressly request oral proceedings but noted potential need for hearings in her Reply and in Comments on the Staff Association’s Amicus Curiae Brief, citing a conflict in testimony between Applicant and two staff who gave statements.
- Article XII of the Tribunal’s Statute provides that the Tribunal shall “... decide in each case whether oral proceedings are warranted.”
- Rule XIII, para. 1 provides that oral proceedings shall be held “... if the Tribunal decides that such proceedings are necessary for the disposition of the case.”
- The Tribunal determined that the disputed “conflict in testimony”—concerning whether Applicant evidenced interest in being placed in an alternative position within the Fund following her injury—was not necessary to the disposition of the case; accordingly, oral proceedings were not held.

### Application of Staff Association Committee to file Amicus Curiae brief
- October 29, 2002: Staff Association Committee (“SAC”) filed an application under Rule XV to communicate its views as Amicus Curiae, asserting it sought to address “systemic issues” relating to SRP Administration Committee procedures and construction of SRP provisions.
- Rule XV provides: “The Tribunal may, at its discretion, permit any persons, including the duly authorized representatives of the Staff Association, to communicate their views to the Tribunal.”
- October 31, 2002: President, under Rule XXI, para. 3, transmitted the SAC’s application to Applicant and Respondent, inviting views on whether to grant the request and whether confidential pleadings should be opened to the SAC; both parties were given thirty days to respond.
- November 20, 2002: Applicant consented to the SAC’s request and to opening the pleadings to SAC representatives.
- December 2, 2002: Respondent reserved its position on whether SAC had identified any systemic issue and objected to opening the pleadings on the ground they contain confidential medical information.
- December 9, 2002: The Tribunal granted the SAC’s request to file an amicus curiae brief and, after receipt of Respondent’s Rejoinder, transmitted the entire dossier to SAC representatives, giving them thirty days to file their brief.
- January 29, 2003: SAC submitted its brief; Applicant and Respondent were each given twenty days to offer observations on the Amicus Curiae views, which they submitted on February 20 and 21, 2003.
- The Tribunal noted the distinction between an amicus curiae (not entitled to participate as a party) and an intervenor (entitled to participate as a party).
- The Tribunal found the SAC’s Amicus Curiae statement “discerning and constructive” and took the SAC’s views into full consideration.

### Legal framework — Disability retirement under the IMF Staff Retirement Plan
- Disability retirement is governed by SRP Section 4.3.
- SRP Section 4.3(a) sets the criteria for granting a disability pension:
  - A participant in contributory service shall be retired on a disability pension before his normal retirement date on the first day of a calendar month not less than 30 nor more than 120 days immediately following receipt by the Administration Committee of written application therefor by the participant or the Employer; on the condition that the Pension Committee must find, on the recommendation of the Administration Committee and the certification of a physician or physicians designated by the Administration Committee, that:
    - (i) such participant, while in contributory service, became totally incapacitated, mentally or physically, for the performance of any duty with the Employer that he might reasonably be called upon to perform;
    - (ii) such incapacity is likely to be permanent; and
    - (iii) such participant should be retired.
- SRP Section 4.3(b) — formula for calculation of the disability pension:
  - A disability pension shall become effective upon retirement and shall be equal to the normal pension that would be payable to the participant if his normal retirement date had fallen on the date of his disability retirement, but using for such computation his highest average remuneration and eligible service at the time of his disability retirement. In no event, however, shall such pension be less than the smaller of:
    - (i) 50 percent of such highest average gross remuneration; or
    - (ii) the normal pension that the participant would have received if he had remained a participant until his normal retirement date without change in such highest average remuneration.
- SRP Sections 4.3(c), (d) and (e) provide for periodic medical examination and for discontinuance or reduction of the disability pension if incapacity has wholly or partially ceased, including:
  - Examinations not more often than once a year by physicians designated by the Administration Committee, at the home of the retired participant unless agreed otherwise;
  - Failure to permit examination may lead to discontinuance, and, if not permitted within one year of request, the incapacity may be deemed to have wholly ceased and the participant deemed to have withdrawn from the Plan as of the date his disability pension was discontinued, with eligible service accrued to the date of disability retirement.
  - If incapacity has wholly ceased or earning capacity regained, disability pension shall cease; if incapacity has partly ceased, pension shall be reduced in a reasonable amount. If discontinued and later restored within five years because of the same incapacity, pension shall be restored subject to subsection (e).
  - If a disability pension is discontinued pursuant to (c) or (d) and not restored within five years, and the retired participant does not again become a participant within that period, he shall be deemed to have withdrawn from the Plan as of the date his disability pension was discontinued, with eligible service accrued to the date of his disability retirement, and shall be entitled to benefits provided in Section 4.2 or Section 4.5(a), (b), or (c), whichever is applicable.
- SRP Section 4.3(f) — definition of “normal retirement date” for purposes of Section 4.3:
  - “normal retirement date shall mean the first day of the calendar month next following the 65th anniversary of his date of birth, or the date of such anniversary if it shall fall on the first day of a calendar month.”

*Administrative Tribunal of the International Monetary Fund — Introduction to the case of Ms. “J”, September 29–30, 2003.*

### 23.      Separation of a staff member in the case of medical disability - as distinguished from

### j2003-1 - 23.      Separation of a staff member in the case of medical disability - as distinguished from

### Legal and regulatory framework for medical separation and disability pension
- GAO No. 13, Rev. 5 (June 15, 1989) Annex I provides for separation of a staff member in the case of medical disability, distinguishing separation from the granting of a disability pension.
- Separation may be at the staff member’s initiative or at the Fund’s initiative.
- GAO No. 16, Rev. 5 (July 10, 1990) Section 11 governs procedures “[i]n case of permanent incapacity, when a determination has been made in accordance with the provisions of Annex I to General Administrative Order No. 13 that a staff member shall be separated for medical reasons. ...”
- GAO No. 20, Rev. 3 (November 1, 1982) sets out workers’ compensation benefits for illness, accidental injury or death “arising out of, and in the course of, their employment.” (Section 1.01.)

### Separation at the staff member’s initiative (GAO No. 13 Annex I, Section 1)
- A staff member may request separation on grounds of medical disability by addressing a written request to the Director of Administration [now the Director of Human Resources].
- The staff member must be ready to present medical evidence in support of the request and must be willing to undergo any examinations the Fund’s medical advisors deem necessary.

### Separation at the Fund’s initiative (GAO No. 13 Annex I, Section 2)
- Separation may be effected for a staff member in sick leave status if “... on the basis of medical advice the Director of Administration has formed the opinion that the staff member will not be able to return to duty in the foreseeable future.” (Section 2.01.1.)
- Separation may also be initiated when “... over a prolonged period the staff member has been prevented, for medical reasons, from performing the duties assigned to him in an acceptable manner, and if another position suitable for the staff member is not found in accordance with the provisions of GAO No. 11 (Salary Administration) ...” (Section 2.01.2.)
- GAO No. 11, Rev. 3 (January 14, 1999) provides that, if unable to perform duties and no same-grade vacancy is available, a staff member may be assigned to a vacant position at a lower grade as an alternative to separation (Section 6.04 and 6.04.1).

### Procedures and rights of the staff member (GAO No. 13 Annex I, Sections 2.02–2.04)
- The Director of Administration must communicate in writing the opinion that a staff member should be separated for medical reasons, stating reasons and specifying the last date by which any objection must be received. (Section 2.02.1.)
- If no objection is notified, procedures of GAO No. 16 take effect. (Section 2.02.2.)
- If the staff member objects, a panel of medical experts (one designated by the Administration, one by the staff member, and the third selected by the other two) shall render an opinion as to the staff member’s condition in the context of work demands. “[N]ormally, the panel shall examine the staff member personally.” (Section 2.03 and 2.03.4.)
- The Director of Administration decides whether there are sufficient grounds for medical separation based on the panel’s medical opinion. (Section 2.04.1.)
- If the Director decides on separation for medical reasons, “the procedures in GAO No. 16 shall be followed. In the case of participants in the Staff Retirement Plan, this will also include a determination of eligibility for a disability pension.” (Section 2.04.2.)

### Interaction with the Staff Retirement Plan (SRP) and Separation Benefits Fund (GAO No. 16)
- GAO No. 16, Section 11.02 requires that separation of a staff member who is a participant in the SRP shall not be implemented until a determination has been made under the Plan as to whether the participant will receive a disability pension.
- If the staff member separated for medical reasons does not receive a disability pension, GAO No. 16, Section 11.04 provides that he will be automatically granted a separation payment from the Separation Benefits Fund.

Key separation payment formula (GAO No. 16, Section 4.06):
- Payment equals one and one-fourth months’ salary for each year of service, subject to a maximum that is the smaller of:
  - (a) the equivalent of 22-1/2 months’ salary; and
  - (b) the amount of salary that would otherwise have been payable to the staff member between the last day on duty and his mandatory retirement age of 65.
- The salary rate used is the salary on the last day on duty; length of service computed to the nearest full month served.

### Workers’ compensation: benefits and procedures (GAO No. 20, Rev. 3)
- Section 5.01.1 Permanent Total Disability: annuity equivalent to 66–2/3 percent of final pensionable remuneration, commencing immediately upon date of separation and continuing for the duration of such total disability; determination by the Claim Administrator in accordance with SRP procedures.
- Section 5.01.2 Permanent Partial Disability: lump sum determined in accordance with the Schedule and principles in the Annex to GAO No. 20; schedule adjusted annually for cost-of-living increases (subsection 7.02).
- Section 6.01: annual compensation payments for permanent total disability under workers’ compensation must be reduced by the amount of all non-lump sum benefits paid under the SRP for the same illness or injury.
- Section 8.01: the Fund shall pay all reasonable medical, hospital and directly related costs for illness, accidental injury or death arising out of, and in the course of, Fund employment.
- GAO No. 13, Rev. 5 (June 15, 1989), Section 4.07 extends “special sick leave” to a staff member in the case of an illness or injury covered under workers’ compensation.
- GAO No. 20 is administered by a Claim Administrator (an outside company) (Sections 2.01.5 and 10.01).
- Section 10.02: a staff member may appeal the Claim Administrator’s finding to the Grievance Committee under the procedures in subsection 4.01 of General Administrative Order No. 31, Rev. 1.

### Case factual background: Applicant “Ms. J”
- Employment and role:
  - Ms. “J” began employment with the Fund on July 24, 1995, and began participating in the Staff Retirement Plan on that date.
  - She served as a Verbatim Reporting Officer (“VRO”), performing stenographic transcriptions and using stenographic and computer keyboards almost exclusively.
  - Ms. “J” was 25 years old when she began working for the Fund in 1995.
- Injury onset and symptoms:
  - On approximately September 8, 1999, Ms. “J” experienced a repetitive use injury causing pain and discomfort in both hands and arms arising from her verbatim reporting work.
  - She described sudden onset at “approximately 4 pm on September 8, 1999” with shooting pains, electric-shock sensations, burning, aches, and substantial loss of dexterity and strength.
- Medical evaluations and therapies:
  - Evaluations by specialists in rheumatology, orthopedics, pain and rehabilitation medicine, psychiatry, occupational medicine, and by a vocational rehabilitation specialist.
  - Therapies included medication, physical therapy, chiropractic manipulation and psychiatric counseling.
  - Applicant stated in late 2002 that although the injury occurred more than three years earlier, “I am still affected by it. I hope every day that my hands will improve, but the reality is that they might stay the same or even worsen.”
- Leave and administrative actions:
  - On September 9, 1999, Respondent placed Ms. “J” on paid workers’ compensation leave; she continued on that status into October of 2000, with an unsuccessful brief return to work in February 2000.
  - May 25, 2000: an occupational health physician with the Bank/Fund Health Services Department concluded it was “... highly unlikely that Ms. [“J”] will be able to perform her current job in the foreseeable future,” and communicated this to Human Resources Department officials.
  - June 7, 2000: Applicant was advised to apply for a disability pension because the Fund concluded she could not return to her former position and no other suitable position was available.
- Applicant’s SRP disability application:
  - On June 8, 2000, Ms. “J” filed a Request for disability retirement with the Administration Committee of the SRP, asserting incapacity to operate her shorthand machine and perform VRO functions, severe limitations in activities involving the use of her hands, and that medical consensus rendered her incapable of earning a livelihood as a verbatim reporter.
- Medical Advisor and ancillary reports:
  - August 29, 2000: the Medical Advisor to the SRP Administration Committee noted diagnoses including “overuse syndrome” and “wrist flex tendonitis” and that tests showed “... no evidence of Carpal Tunnel Syndrome, peripheral neuropathy or cervical radiculopathy.”
  - Medical Advisor OPINION (August 29, 2000): “Ms. [‘J’] lacks the residual functional capacity to perform, on a sustained basis, intensive repetitive arm and hand functions as a result of ‘chronic pain syndrome.’ ... It is doubtful that her work performance incapacity is likely to be permanent.”
  - Medical Advisor RECOMMENDATION (August 29, 2000): “Consider an independent medical evaluation by a Pain Specialist; Consider an independent medical evaluation by a Psychologist/Psychiatrist; Consider a formal assessment of her vocational status and capacity.”
  - October 23, 2000: upon expiration of workers’ compensation leave, Ms. “J” was placed on administrative leave with pay pending review of medical records; this leave continued until July 25, 2001.
  - Vocational rehabilitation reports (fall 2000 and early 2001) indicated “There are very few options open to the client that do not require frequent use of the hands. Often these jobs are menial in nature and it [is] difficult to identify an employer who will take a person with severe hand limitations.” These reports were transmitted to the Joint Bank/Fund Health Services Department on January 5, 2001.
  - January 7, 2001: Human Resources Department confirmation: “The Staff Development Division of the Human Resources Department could not identify any other suitable opening in the Fund for Ms. [‘J’] when she was no longer able to perform verbatim reporting work for which she had been hired.” HRD noted her skills “are not transferable anywhere else, so she cannot be moved.”
  - February 16, 2001: Medical Advisor Addendum noted diagnoses of tendonitis and myofascial pain syndrome, that Ms. “J” “... could return to work with modifications, but not as a verbatim reporter.” The Addendum emphasized findings of an “independent medical evaluation by a psychiatrist experienced in evaluating psychophysiologic disorders.”
  - Medical Advisor OPINION (Addendum): concluded Ms. “J” had a “psychophysiologic reaction” and a “conversion reaction” rendering her unable to perform repetitive functions, but that she “has the requisite skills to perform tasks at the same or even higher level than her current position” and “is not totally or permanently incapacitated from performing tasks that the IMF might reasonably as[k] of her.”
  - Applicant vigorously rebutted the Medical Advisor’s psychophysiologic hypothesis in a Memorandum to the Administration Committee of March 8, 2002.

### Procedural posture and interplay of remedies
- If the Director of Administration decides on medical separation, GAO No. 16 procedures apply and SRP eligibility for a disability pension must be determined before implementing separation for SRP participants.
- If no disability pension is awarded, automatic separation payment from the Separation Benefits Fund follows under GAO No. 16.
- Workers’ compensation benefits and SRP benefits interact: annual workers’ compensation payments for permanent total disability are reduced by non-lump sum SRP benefits for the same illness or injury.
- The Claim Administrator’s findings on workers’ compensation are appealable to the Fund’s Grievance Committee.

*Source: j2003-1 (IMF).*

### 45.      On February 22, 2001, in preparation for the upcoming meeting of the SRP

### j2003-1 - 45.      On February 22, 2001, in preparation for the upcoming meeting of the SRP

### Administrative chronology and Committee decision
- February 22, 2001: Secretary of the SRP Administration Committee transmitted Ms. “J”’s Request for disability retirement, a brief summary of her employment history prepared by HRD, and the Medical Advisor’s Addendum to Committee members. (The Medical Advisor’s August 29, 2000 report does not appear to have been included, although the members were advised that additional documentation was available upon request.)
- March 1, 2001: SRP Administration Committee met to render a decision on Ms. “J”’s Request for disability retirement. The Committee’s Final Minutes summarize:
  - “This case involved carpal tunnel syndrome and severe tendonitis complicated by a psychological reaction to the condition. The Fund’s workers’ compensation administrator was involved with this case and had recommended possible retraining as a proofreader. A rehabilitation specialist indicated that the person has capabilities to work in other fields and wishes to do so but she could not return to her former job. The Committee agreed with the Medical Advisor that the person clearly did not meet the criteria
  for a disability pension. The Committee asked if the person could be found another job while she underwent retraining for another position or career either within or outside the Fund.”
- March 14, 2001: Committee’s Decision issued to Ms. “J”:
  - “It has been found that your case does not meet the requirement of Section 4.3 (a) (i) of the Staff Retirement Plan, which states ‘such participant, while in contributory service, became totally incapacitated, mentally or physically for the performance of any duty with the Employer that he might reasonably be called upon to perform.’”
  - The Decision included no reasons for the Committee’s determination or any information as to avenues of recourse, and advised Applicant to contact a particular official of HRD “... to discuss other options.”

### Medical separation and separation benefits process
- Applicant account: upon contacting HRD she was informed that medical separation was the only option as she had no transferable skills.
- Fund account: maintains it had discussed with Ms. “J” the possibility of alternate placement within the Fund but that she had indicated she preferred to retrain for employment elsewhere.
- HRD notes (March 26, 2001): “[Ms. “J”] informed [HRD official] that she realizes she has no other skills apart from verbatim reporting – ideally she would like to continue her education and develop other skills so eventually she can work.”
- May 18, 2001: Director of HRD notified Applicant by letter:
  - “I regret to inform you that the Fund will be separating you for medical reasons effective July 21, 2001 under General Administrative Order 16 (GAO), Revision 5, which sets out the terms of separation for staff members for whom it has been determined that no disability pension is payable.”
  - The letter described financial terms of separation (to become effective March 4, 2002), as prescribed by GAO No. 16. Ms. “J” acknowledged reading the letter by signature dated May 29, 2001.
- A second letter of the same date from Director of HRD:
  - Described issues to consider if requesting reconsideration of the SRP Administration Committee’s denial and included a copy of the Administration Committee’s Rules of Procedure.
  - Explained that if the Committee’s Decision were reversed while Ms. “J” was receiving separation benefits, those benefits would cease in favor of the disability pension.
  - Noted that neither entitlement to separation benefits nor a request for reconsideration would have any effect on her workers’ compensation claim, which would remain open.
- Ms. “J” signed the appended resignation form, effective March 4, 2002.
- June 15, 2001: Ms. “J” submitted an application for review of the Committee’s Decision to the SRP Administration Committee.
- March 5, 2002: Upon expiration of separation leave, Applicant was placed on administrative leave without pay pending outcome of the review.

### Channels of administrative review (Rules excerpted)
- The SRP Administration Committee’s Rules of Procedure allow a Requestor to file an Application for Review within ninety (90) days after receipt of the Decision (Rule VIII).
- Rule X specifies exhaustion of administrative review for filing with the Administrative Tribunal when:
  - three months have elapsed since an Application for review was submitted and results of the review have not been notified to the Applicant; or
  - the Committee has notified the Applicant of the results of any review; or
  - conditions in Article V, Section 3(c) of the Statute have been met.
- Decisions within competence of the Administration or Pension Committees of the Plan are expressly excluded from the jurisdiction of the Fund’s Grievance Committee (GAO No. 31, Rev. 3).

### Applicant’s submissions and treating physicians’ opinions (attached to June 15, 2001 application)
- Treating rheumatologist (letter dated May 30, 2001):
  - Under care since October 1999 for bilateral wrist and forearm tendonitis, carpal tunnel syndrome and fibromyalgia.
  - “It is my medical opinion that Ms. [“J”] will never be able to return to Verbatim Reporting. ... I am hopeful that she will be able to return to some basic typing in a limited capacity when resolution of her current condition occurs. The time of that resolution is indeterminate.”
- Pain specialist (letter dated May 30, 2001):
  - Persistent pain in forearms and hands, with symptoms “...present[ing] a picture of fibromyalgia syndrome.”
  - “Despite medical treatment, she still suffers from a substantial amount of pain when she engages in even light to moderate activity requiring repetitive usage of her wrists and hands. ... As such, there is no way she could continue work as a verbatim reporter. Any keyboard work whatsoever would have to be severely limited.”
- Treating psychiatrist (letter dated May 31, 2001):
  - Reports anxiety, depressive thoughts, tearfulness, helplessness, dysphoric mood and a constant preoccupation about professional and personal future.
  - Concludes Ms. “J” was responding successfully to psychiatric treatment.
- Applicant also attached a functional capacity evaluation assessing her impairment.

### Additional medical review commissioned by the Administration Committee
- Committee engaged three reviewing physicians: a rheumatologist, an orthopedist, and a psychiatrist specializing in neuropsychiatric medicine and occupational psychiatry; the reviewing psychiatrist conducted an in-person assessment.
- Reviewing rheumatologist (report dated November 4, 2001):
  - Characterized disagreement: “One camp believes that Ms. [“J”] has acute-onset carpal tunnel syndrome, overuse syndrome, and secondary fibromyalgia. The other group believes that Ms. [“J”] has psychogenic rheumatism with a component of conversion reaction.”
  - Opined that based on test results Ms. “J” “... does not have evidence of carpal tunnel syndrome.”
  - Concluded diagnosis of fibromyalgia is equivocal; at most myofascial pain syndrome; had evidence of overuse syndrome associated with tendonitis.
  - Functional assessment: “Her disability continues in regard to the use of her hands. Any attempts to use a computer have resulted in an exacerbation of her symptoms. ... She can do non-repetitive activities with her hands. Her lifting capability is limited to light objects. She can travel to and from a work environment without difficulty.”
- Reviewing orthopedist (report dated February 5, 2002):
  - Expressed that diagnostic studies do not show carpal tunnel syndrome.
  - Functional assessment: “She is clearly capable of working, especially in occupations that do not require repetitive use of her hands. She could certainly do such things as communicate over the phone, personal interaction, limited writing, and minimal keyboard work, etc. She is certainly employable, but perhaps not in the same kind of occupation which requires extensive keyboard and repetitive use of her hands.”
- Reviewing psychiatrist (initial report September 4, 2001; detailed report March 21, 2002):
  - Initially: diagnosis of fibromyalgia “not tenable,” presentation suggests “a psychogenic origin to her pain symptoms.”
  - After psychophysiologic evaluation (psychological testing and physical examination) concluded:
    - No objective findings of myofascial disorder or carpal tunnel syndrome.
    - “... While this is a difficult case to typify, it appears as if the patient had an initial episode of overuse and then became fixed in a somatoform way upon her hands as being incapacitated. ... Putting all the physical testing and positive psychological testing together, I believe yields a diagnosis of undifferentiated Somatoform Disorder, possible Conversion Disorder as the most logical diagnosis.
    ...
    I do not believe the patient is permanently disabled, as I believe that continued psychotherapy and the use of psychotropic medication may well ameliorate her condition to the point where she is able to once again resume a productive career as a verbatim reporter.”

### Applicant’s response to the Medical Advisor’s earlier opinion
- Applicant reviewed and responded to the Medical Advisor’s Addendum of February 16, 2001 by Memorandum of March 8, 2002 addressing specific statements.
- Key points of Applicant’s response:
  - Denied feeling “overworked.”
  - Affirmed avoidance of using hands in pronation is because “it hurt,” not because of a “phobia.”
  - Challenged characterization that she sought “more challenging/interesting type of work,” stating verbatim reporting was “extremely challenging” and that “due to my work-related injury, I am permanently unable to return to verbatim reporting.”
  - Asserted she had “...expressed keen interest in doing whatever was necessary to fill another position in the Fund,” but that it was determined she “could not perform any other task in the IMF.”
  - Emphasized permanency uncertainty: “My main concern is that I do not know whether my condition will remain stable, continue to improve, or deteriorate. Only time will tell. Therefore, in my appeal letter, I requested access to a disability pension until I was able to support myself. I am optimistic that this day will come, but I cannot see it in my short-term future. Another fear is that, even with qualifications, I will not be able to secure a position because of my existing condition.”

*IMF Administrative Tribunal materials concerning Ms. “J”, paragraphs 45–59.*

### 60.      On April 25, 2002, the Medical Advisor delivered his final report to the SRP

### On April 25, 2002, the Medical Advisor delivered his final report to the SRP

### Medical Advisor findings and conclusions
- The Medical Advisor delivered his final report to the SRP Administration Committee on April 25, 2002, commenting on Ms. “J”’s March 8, 2002 memorandum and summarizing his findings.
- He stated: “In rendering my opinion based on multifaceted medical sources, I accredited some of the submitted information differently. ... In particular, I accredited the experience, objectivity and clarity of expression of the physician reviewers in evaluating this complex case. ... In formulating my opinion, I accredited the two independent psychiatric examiners more than other practitioner’s conclusionary statements regarding the cause of [Ms. “J”]’s impairments.”
- The report includes brief summaries of the findings of the two reviewing psychiatrists and the reviewing rheumatologist; “Neither the views of the reviewing orthopedist nor those of Ms. ‘J’’s treating physicians are mentioned.”
- The Medical Advisor’s conclusion:
  - “A psychophysiologic reaction to her work as a verbatim transcriptionist culminated in a patterned avoidance response to pronating her hands, rendering her unable to perform repetitive functions.
  - Although her hand use is presently impaired, she has the requisite skills to perform tasks at the same level as her current position.
  - She does not permanently lack the residual functional capacity to perform tasks consistent with her education, training and experience.
  - She is not totally or permanently incapacitated from performing tasks that the IMF might reasonably ask of her.
  - Repetitive hand use at this time, without directed psychotherapy, would likely exacerbate her hand symptoms. Therefore, she currently lacks the residual functional capacity to perform, on a sustained basis, intensive repetitive arm and hand functions.”

### Additional HRD memorandum (May 1, 2002)
- An HRD official wrote to the Secretary of the SRP Administration Committee on May 1, 2002, stating:
  - “This note is to confirm that Staff Development Division was not able to identify any other suitable positions in the Fund for Ms. [‘J’] when her carpal tunnel syndrome made it impossible for her to continue work as a Verbatim Reporter. She had no other skills, not requiring the use of the computer or her hands, that would have made it possible to accommodate in [sic] her in another position.”
- The memorandum:
  - Noted that the possibility of using voice recognition software had been explored with Ms. “J”’s former department and had received a negative response with respect to its use in the function of verbatim reporting.
  - Observed that the “state of voice recognition” was “borne out” by Ms. “J”’s observation that it is a poor substitute for the freedom of manually typing and editing on screen, and that it is not readily used by other employers.
  - Commented that Ms. “J” “... realized she had no other skills apart from verbatim reporting, and that ideally she would like to continue her education and develop other skills so she could eventually work.”

### Administration Committee’s Decision on Review (May 2002)
- Documentation transmitted to Committee members on May 2, 2002, included:
  - (a) Ms. “J”’s original Request for disability retirement, the Medical Advisor’s original opinion, Ms. “J”’s response and application for review;
  - (b) documentation from the Staff Development Division on efforts regarding alternate jobs;
  - (c) a list of jobs developed by the Compensation and Benefits Policy Division;
  - (d) reports of the vocational counselor retained by the workers’ compensation Claim Administrator;
  - (e) reports of the reviewing rheumatologist, orthopedist and psychiatrist;
  - (f) the Medical Advisor’s final report.
- An undated list prepared by the Compensation and Benefits Policy Division stated: “The Human Resources Department has determined that Ms. [‘J’] would be considered qualified to perform the following jobs with a reasonable amount of training and accommodation, including the use of voice activated software, and that she would be eligible to apply for any such vacancies were they to occur.” The listed jobs were: Editorial Officer; Executive Board and Member Services Officer; Public Affairs Officer; Information Officer; Translation Editorial Officer; and Publications Officer.
- The Secretary’s covering memorandum asserted that the relevant test is “... whether there are duties that the Fund could ask the employee to perform, taking into account his/her education and reasonable accommodation or additional training, rather than whether vacancies exist,” and concluded: “[c]onsequently, the Fund does have jobs that Ms. [‘J’] could perform.” The Secretary also stated that “Ms. ‘J’ has a valid workers’ compensation claim” and that settlement of that claim had been suspended pending the SRP Administration Committee’s decision on “permanent and total incapacitated” status under the Staff Retirement Plan.
- At the Committee meeting on May 9, 2002:
  - Discussion noted discrepancies among treating and reviewing physicians and reviewed the job list from the Compensation and Benefits Policy Division.
  - A representative of the Division asserted reasonable accommodation could be made and voice recognition software would be obtained for the jobs identified, which were of the same grade level as Applicant’s former position and required minimal use of the hands in repetitive motion.
  - The Legal Representative noted that if a vacancy arose, Applicant would have to compete through the regular vacancy application process but could not be disqualified solely because she required reasonable accommodation.
  - The Legal Representative and the Medical Advisor regarded Ms. “J”’s enrollment in community college classes as relevant to her ability to perform duties the Fund might ask of her; a Committee member suggested attending school was not consistent with withdrawal from the labor market because of disability.
  - The Medical Advisor indicated “... the expectation was that she could improve over time,” that there was “no objective finding of physical incapacity,” that Applicant suffered from “tendonitis but nothing more severe,” and that her psychosomatic condition should respond to treatment.
- The Administration Committee decided unanimously to sustain its original Decision; the Decision on Review letter (dated May 17, 2002) set forth the Committee’s medical review process and assessment of alternative duties, asserting the “relevant test”:
  - “... whether there are duties that the Fund could reasonably ask the employee to perform, taking into account his/her education and reasonable accommodations or additional training. The test is not whether vacant positions exist, but whether the participant has the capacity to perform duties that she might reasonably be called upon to perform.”
- The decision letter further stated:
  - “... there were a number of positions (see Attachment) which would require little use of the computer and where voice activated software could be employed. This software is currently available in the Fund. Consequently, the Committee concluded that the Fund does have positions in which you could perform the required duties in your condition.”
- The Committee’s conclusion:
  - “Taking all of the circumstances into account, the Committee concluded that while your condition is likely to be permanent, it is not disabling to the extent that you are totally incapacitated from performing any duties that the Fund might call upon you to perform. Your condition is treatable and could be accommodated by the Fund if you were assigned duties such as those required in the positions listed in the attachment.”
- The Decision on Review advised Applicant of the right to contest the decision in the Administrative Tribunal and noted Applicant had a workers’ compensation claim determined by the Claim Administrator to be compensable as a “permanent, partial impairment,” with lump-sum settlement negotiations suspended pending the appeal process regarding “permanent, total disability” under the SRP.
- Ms. “J” filed her Application with the Administrative Tribunal on August 20, 2002.

### Applicant’s principal contentions (summary)
- Applicant’s central arguments include:
  1. Applicant is, within the meaning of the SRP, totally and permanently disabled; the Administration Committee’s decision is in error and an abuse of discretion.
  2. A disability must be determined in relation to the work normally performed by the employee.
  3. The medical evidence fully supports that Applicant’s disability deprives her of the use of her hands for the specific functions for which she was trained and employed, and for all similar functions available with the employer.
  4. It has been admitted or not denied that Applicant’s skills are not readily transferable to other work that the Fund has available.
  5. Respondent induced error by claiming positions she could fill without sound analysis or factual data; no actual matching of Applicant’s education and skills to the positions was performed.
  6. The Plan’s requirement that a disability must be “likely to be permanent” should mean there is a reasonable medical certainty that the disability is continuing and no improvement can be expected.
  7. Applicant was denied due process: the Medical Advisor did not examine Applicant, was not required to give oral testimony or be cross-examined, and his opinion was not given to Applicant until after the Committee’s decision; the Committee acted on an incomplete record, did not state reasons, delayed the Decision nearly a year, and was improperly influenced by conflicts of interest.
  8. Applicant was denied rights under the Fund’s medical separation policy because no other suitable position was sought and she was not notified of the right to object to proposed medical separation; the Tribunal has jurisdiction over medical separation.
  9. Applicant’s workers’ compensation claim is not yet ripe for adjudication as no final determination has been made by the Claim Administrator.
  10. The Amicus Curiae Brief correctly observes GAO No. 31 is not the applicable standard; Article III of the Statute of the Administrative Tribunal provides the appropriate standard.
  11. The Amicus Curiae Brief accurately suggests disability is to be judged in relation to earning capacity, referencing SRP Section 4.3(d).
  12. Relief sought:
     - a. that the Tribunal order that Applicant be granted a disability pension retroactive to March 5, 2002;
     - b. two years net salary as compensation for mental suffering caused by “Respondent’s repeated instances of unfair treatment”;
     - c. legal costs.

### Respondent’s principal contentions (summary)
- Respondent’s principal arguments include:
  1. The SRP Administration Committee correctly applied the criteria for disability retirement; its decision was not arbitrary or capricious.
  2. The SRP does not require disability be determined by reference to the employee’s current position; the reasonableness standard must be interpreted in light of the Applicant’s education and abilities and does not require vacancies to be available.
  3. The unequivocal weight of the medical evidence was that Applicant suffered a repetitive use injury likely preventing her future duties as a Verbatim Reporting Officer, but she was not totally or permanently incapacitated.
  4. Disability retirement entails a life-long commitment and is intended for the most extreme medical conditions; Applicant does not meet that standard. Applicant is attending college and performing functions similar to work with accommodations.
  5. Applicant was not denied due process; the Committee acted in accordance with its Rules of Procedure and is not required to hold oral hearings or directly review treating physicians’ underlying records.
  6. The Committee properly relied on its Medical Advisor; the Committee must defer to the Medical Advisor absent indication of arbitrary or improper conclusion. The Committee also considered three independent medical evaluators.
  7. The Tribunal lacks jurisdiction over challenges to medical separation because Applicant failed to exhaust administrative review and, in any event, the separation decision was not adverse as Applicant requested medical separation.
  8. The Amicus Curiae Brief confuses the Tribunal’s “scope of review” (de novo) with its “standard of review” in Article III of the Statute.
  9. The Committee’s determination on eligibility for disability retirement is a discretionary judgment warranting deference absent arbitrariness, capriciousness, discrimination, improper motive, error of law or fact, or procedural defect.
  10. The Amicus Curiae interpretation of SRP Section 4.3(a) is inconsistent with the Plan’s language and intent; the provision does not require incapacity to be assessed only with respect to duties for which the applicant was trained or was performing at the time of incapacity.

### Views of the Amicus Curiae (Staff Association)
- Principal views presented:
  1. The Tribunal should apply Article III of its Statute as the standard of review, not an “arbitrary or capricious” test.
  2. Different standards apply to Grievance Committee employment disputes and SRP disability retirement denials.
  3. The dispute lends itself to de novo review by the Tribunal because legal questions and factual issues are reflected in a written record accessible to the Tribunal.
  4. SRP, as part of the employment contract, should be interpreted in the light most favorable to participants.
  5. The reasonableness standard of SRP Section 4.3(a) must be interpreted in relation to duties the participant was performing at the time incapacity occurred, not duties available after rehabilitation or training.
  6. SRP Section 4.3(d) (discontinuance when participant “... has regained the earning capacity which he had before such incapacity...”) supports disability being determined in relation to duties at time incapacity arose.
  7. Due process requires the Administration Committee review records of treating physicians to determine whether the Medical Advisor acted improperly or arbitrarily.

### Tribunal’s preliminary consideration of issues
- The Tribunal must determine as a preliminary matter what administrative act(s) it properly has been called upon to review.
- Applicant identifies two contested decisions on her Form of Application: the denial of disability retirement and “involuntary separation on medical grounds.”
- The denial of disability retirement predominates Applicant’s pleadings and relief requests; Applicant also presses a due process claim regarding medical separation and contends the Fund failed to justify the separation while arguing there are functions within the organization she can perform.
- Applicant’s pleadings discuss a workers’ compensation claim but concede it is “not yet ripe for adjudication” pending a final determination by the Claim Administrator or appeal to the Fund’s Grievance Committee.
- Respondent requests dismissal as irreceivable of issues relating to medical separation and workers’ compensation on the ground of Applicant’s failure to exhaust administrative remedies.

*Source: IMF Administrative Tribunal case record (j2003-1).*

### 77.       The dispute between the parties as to Applicant’s medical separation may be

### j2003-1 - 77.       The dispute between the parties as to Applicant’s medical separation may be

### Summary of the parties’ positions on medical separation
- Applicant contends the Fund did not satisfy the conditions precedent to invocation of the medical separation procedures of GAO No. 16, which include either a request by the staff member for separation or a Fund-initiated finding (with procedural safeguards) that the individual should be separated.
- Applicant asserts her case falls within the Fund-initiated category and, under Section 2 of GAO No. 13, Annex I, she should have been:
  - notified and given the opportunity to object to the proposed medical separation, and
  - referred to a panel of medical experts for determination.
- Applicant further contends the Fund should have ascertained that no other suitable position could be found in accordance with GAO No. 11.
- Applicant alleges the Fund did not comply, notifying her in May 2001 following the SRP Administration Committee’s initial Decision denying her Request for disability retirement that “... regret[s] to inform you that the Fund will be separating you for medical reasons. ...”
- Respondent maintains the separation was at Applicant’s own initiative: she chose not to pursue alternative work with the Fund and instead retrained for another career when she could no longer work as a verbatim reporter.
- Respondent asserts the cited procedures were therefore not required, but that the Fund nonetheless sought alternative placement and that it was “agreed” Applicant would be separated pursuant to GAO No. 13, Annex I and GAO No. 16.
- Respondent argues Applicant’s simultaneous pursuit of disability retirement and challenge to medical separation is inconsistent because an application for disability retirement subsumes a request for medical separation based on total and permanent inability to work.
- Applicant replies she was told her skills were not transferable and, as an SRP participant, was required to exhaust the disability retirement application process as a prerequisite to concluding medical separation.

### Procedural posture and Tribunal’s jurisdictional question
- Applicant already received the full financial benefit of medical separation under GAO No. 16 and does not seek reinstatement.
- Central legal question: whether Applicant’s complaint of procedural unfairness with respect to the separation is properly before the Tribunal for review.
- Applicant argues the Tribunal has jurisdiction over both medical separation and denial of disability retirement because they are “all one ball of wax.”
- Respondent argues determinations on disability retirement and medical separation are separate administrative acts by separate decision makers with separate channels of review; only the disability retirement channel has been exhausted.

### Exhaustion of administrative remedies and precedents
- Article II, Section 1 of the Tribunal’s Statute confines jurisdiction ratione materiæ to challenges to the legality of an administrative act of the Fund, or of an administrative act arising under a benefit plan maintained by the Fund, adversely affecting the applicant.
- Article V, Section 1 requires exhaustion of all available channels of administrative review before filing with the Tribunal when the Fund has established channels of administrative review.
- Relevant Tribunal precedents discussed:
  - Ms. “Y”, IMFAT Judgment No. 1998-1 (December 18, 1998): Tribunal granted Fund’s Motion for Summary Dismissal for failure to exhaust Article V remedies; held exhaustion of Grievance Committee remedies is statutorily required where they exist and produced the advantage of a detailed factual and legal record.
  - Ms. “Y” (No. 2), IMFAT Judgment No. 2002-2 (March 5, 2002): Tribunal emphasized identification of which administrative act(s) had been subject to prior administrative review is necessary to determine scope of matters under review; rejected treating underlying claims as if timely pursued through GAO No. 31 where they were not.
  - Estate of Mr. “D”, IMFAT Judgment No. 2001-1 (March 30, 2001): Tribunal found exceptional circumstances could excuse failure to initiate GAO No. 31 procedures in unique circumstances (non-staff successor in interest, lack of presumable knowledge of procedures, Fund’s communications creating impression no further recourse available) but cautioned that exceptional circumstances should not be lightly found.
- In the present case:
  - No indication Applicant took steps required for review of medical separation pursuant to GAO No. 31, culminating in Grievance Committee consideration; Applicant concedes this.
  - Fund contends GAO No. 13, Annex I, Section 2.02.1 did not apply and that Applicant could have contested separation after notice by the Director of Human Resources.
  - Tribunal notes sympathy for Applicant’s difficulty navigating intersecting procedures (medical separation, workers’ compensation, disability pension) and cites the Ombudsperson’s statement describing a “jumble of GAOs (some out of date), Staff Bulletins and Administrative Circulars” and absence of a single source for disability-related policies.
  - Despite that sympathy, because Applicant accepted the financial benefits of separation and did not exhaust Grievance Committee remedies, it is difficult to see a material interest in challenging separation procedures now.
  - Tribunal confines its consideration to Applicant’s challenge to the SRP Administration Committee’s denial of disability retirement.

### Tribunal’s standard of review and its clarification
- Relevant legal provision: second sentence of Article III of the Tribunal’s Statute: “In deciding on an application, the Tribunal shall apply the internal law of the Fund, including generally recognized principles of international administrative law concerning judicial review of administrative acts.”
- Key clarifications:
  - GAO No. 31 (Grievance Committee constitutive instrument) provides the standard of review to be applied by the Grievance Committee (see Section 5, including Sections 5.01 and 5.02), but GAO No. 31 does not govern the Tribunal’s standard of review.
  - The Tribunal’s standard of review is governed by Article III of the Tribunal’s Statute, not by the Grievance Committee’s standard.
  - Distinction between:
    - “standard of review” (relationship between the Tribunal and the contested administrative act), and
    - the Tribunal’s authority to make findings of fact and conclusions of law (“scope of review” or de novo review) relative to channels of administrative review.
  - The Tribunal makes independent findings of fact and law and does not function merely as an appellate body from the Grievance Committee; it decides cases de novo and is not bound by the Grievance Committee’s reasoning or recommendations (citing Mr. M. D’Aoust, IMFAT Judgment No. 1996-1 (April 2, 1996) and Mr. “V”, IMFAT Judgment No. 1999-2 (August 13, 1999)).

*Judgment of the Administrative Tribunal.*

### 96.      At the same time, while the Administrative Tribunal’s review authority fully

### j2003-1 - 96. At the same time, while the Administrative Tribunal’s review authority fully

### Administrative Tribunal’s reliance on administrative review records
- The Tribunal “...authorized to weigh the record generated by the Grievance Committee as an element of the evidence before it,” (D’Aoust, para. 17).
- The Tribunal draws upon the record assembled through review procedures when making findings and conclusions (see Ms. “Y”, para. 42; Estate of Mr. “D”, paras. 66-68).
- The Tribunal may independently decide whether an applicant satisfied administrative review procedures antecedent to Grievance Committee review, thereby determining exhaustion under Article V of the Statute (Estate of Mr. “D”, paras. 85-94).

### Distinction: Grievance Committee vs. SRP Administration Committee
- A decision of the Grievance Committee is not an “administrative act” of the Fund under Article II of the Statute and therefore is not itself subject to review by the Administrative Tribunal (D’Aoust, para. 17).
- The Grievance Committee “is empowered only to make recommendations to the Managing Director,” who takes the final administrative decision (D’Aoust, para. 17).
- The SRP Administration Committee plays a dual role:
  - It takes the administrative act that may be contested in the Administrative Tribunal.
  - It supplies a channel of review for exhaustion of remedies under Article V when it reconsiders its own decision pursuant to Article VIII of its Rules of Procedure.
- Accordingly, whereas Grievance Committee decisions are not directly reviewable, a decision of the SRP Administration Committee necessarily will be subject to Tribunal review.
- The question posed: the appropriate standard of review when the Tribunal considers a challenge to the legality of an SRP Administration Committee decision denying disability retirement.

### The IMFAT’s conception of “standard of review”
- The standard of review defines the degree of deference the Tribunal accords to the decision maker’s judgment; it limits improper exercise of power and allocates risk of erroneous judgment.
- Degree of deference may vary according to:
  - Nature of the decision under review.
  - Grounds on which it is contested.
  - Authority or expertise vested in the original decision maker.
- Central dispute in the case:
  - Respondent emphasizes an “arbitrary or capricious” standard for individual discretionary managerial decisions.
  - Amicus Curiae argues for deeper scrutiny of Administration Committee disability-retirement decisions because:
    - Interpretation and application of the Staff Retirement Plan involve legal questions; and
    - Committee proceedings did not include credibility determinations based on oral testimony, reducing need to defer to fact-finding.
  - Applicant proposes differentiating standards for substantive vs. procedural error: substantive claims (abuse of power, error, violation of contract) vs. procedural claims (arbitrary, capricious, abuse of discretion).

### Sources the Tribunal consults in selecting the standard of review
- The Tribunal looks to:
  - a) Text of Article III requiring application of “... generally recognized principles of international administrative law concerning judicial review of administrative acts,”
  - b) Published Commentary on the Statute (Report of the Executive Board proposing adoption),
  - c) IMFAT jurisprudence,
  - d) Jurisprudence of other international administrative tribunals.

### Legislative Commentary on limits and standards of review
- The Commentary emphasizes:
  - Tribunal must adhere to generally recognized principles and not go beyond standards applied by other tribunals.
  - Deference to managerial discretion; tribunal will not substitute its judgment for competent organs.
  - For regulatory decisions, review scope is narrow; for individual managerial decisions, discretionary decisions “cannot be overturned unless they are shown to be arbitrary, capricious, discriminatory, improperly motivated, based on an error of law or fact, or carried out in violation of fair and reasonable procedures.” (Report of the Executive Board, pp. 17, 19.)
  - Determination of professional qualifications is a managerial, not judicial, responsibility (Report of the Executive Board, p. 19).

### IMFAT jurisprudence applying the Commentary
- IMFAT has repeatedly acknowledged and deferred to managerial discretion (e.g., Mr. “R”, IMFAT Judgment No. 2002-1, para 65).
- Deference is greatest for regulatory decisions and policy decisions of the Executive Board (e.g., Ms. “G” and Mr. “H”, IMFAT Judgment No. 2002-3, para. 80).
- For individual managerial decisions, IMFAT applies the Commentary’s standard: overturn only if arbitrary, capricious, discriminatory, improperly motivated, based on error of law or fact, or procedurally unfair (Report of the Executive Board, p. 19).
- The Commentary’s standard comprises multiple factors and may emphasize different factors depending on the contested decision and grounds of attack (para. 107).

### Illustrative IMFAT applications of the standard
- Ms. “C” (IMFAT Judgment No. 1997-1):
  - Tribunal examined whether non-conversion was an error of law (retaliation claim) and found it was not (paras. 21, 28, 41).
  - Tribunal considered abuse of discretion regarding performance-based non-conversion and deferred to management’s assessment in light of performance evidence (paras. 36, 38, 41).
  - Tribunal found procedural irregularities and awarded partial compensation (paras. 41-44).
- When reviewing whether an act is “arbitrary or capricious,” IMFAT applies its least rigorous scrutiny and requires that conclusions be “reasonably supported by evidence” (Ms. “Y” (No. 2), para. 63).
- In Mr. “V”, the Tribunal found it reasonable managerial discretion to classify a report and limit its distribution where the Fund had “explained and documented its rationale” (para. 96).

### Role of the nature of the decision-making process in setting review depth
- The depth of review depends on the nature of the process under review:
  - Informal procedures and lack of contemporaneous record reduce the Tribunal’s depth of review (Ms. “Y” (No. 2), para. 65).
  - Where processes are informal and intended as alternatives to legal proceedings, the Tribunal’s review is limited and distinct from appellate review of trial proceedings.
- The Tribunal will consider the formality of procedures, availability of evidence, and presence/absence of oral testimony and credibility determinations when deciding how much deference to afford.

*IMF Administrative Tribunal (excerpts of Tribunal reasoning and jurisprudence).*

### 111.      Respondent characterizes the decision of the SRP Administration Committee under

### 111.      Respondent characterizes the decision of the SRP Administration Committee under review in this case as “quintessentially a discretionary judgment.”

### Nature of the decision and Respondent’s position
- The Fund states that “...the Committee is required to exercise its considerable discretionary judgment in applying the criteria set out in the Plan to the facts and circumstances of the case.”
- The Fund emphasizes that the Committee must “...inquire into the circumstances and make an[] assessment as to whether a condition exists, whether it is reasonable to expect an employee to perform certain functions, or whether a disability is likely to be permanent or not.” (Emphasis in original.)
- The Fund therefore asserts that the applicable standard of review is that applied to review of individual decisions taken in the exercise of managerial discretion.

### Administrative Tribunal’s characterization of the Committee’s process
- The Administrative Tribunal finds that construing the applicable terms of the Staff Retirement Plan and applying them to the facts of a particular case to determine entitlement to disability retirement “more closely resembles a judicial act than one typically taken pursuant to managerial authority.” (Para. 112.)
- The Tribunal distinguishes eligibility decisions from managerial acts such as:
  - transfer of a staff member (Ms. “C”, para. 16);
  - classification of a confidential report (Mr. “V”, para. 96);
  - decisions on classification and grading (D’Aoust, para. 25). (Para. 112.)

### Statutory vesting and appellate channel
- The Tribunal notes that individual SRP decisions are “exclusively vested in the Administration Committee, subject only to direct appeal (following reconsideration by the Committee) to the Administrative Tribunal.” (Para. 113.)
- SRP Section 7.2 provides that the Administration Committee shall have the exclusive right to:
  - “interpret the Plan;”
  - “determine whether any person is or was a staff member, participant, or retired participant;”
  - “direct the employer to make disbursements from the Retirement Fund in payment of benefits under the Plan;”
  - “determine whether any person has a right to any benefit hereunder and, if so, the amount thereof; and”
  - “determine any question arising hereunder in connection with the administration of the Plan or its application to any person claiming any rights or benefits hereunder, and its decision or action in respect thereof shall be conclusive and binding upon all persons interested, subject to appeal in accordance with the procedures of the Administrative Tribunal....” (SRP Section 7.2(b), quoted in Para. 113.)

### Appellate practice and precedent (Mr. “P” (No. 2) and others)
- In Mr. “P” (No. 2), IMFAT Judgment No. 2001-2 (November 20, 2001), the Tribunal recognized the unique appellate authority under SRP Section 7.2 and Article II of the Tribunal’s Statute, observing that without the Tribunal’s appellate role “the Applicant and the Intervenor could find themselves without third party remedy.” (Para. 114.)
- In Mr. “P” (No. 2) the Tribunal framed the challenge as: “Did the Administration Committee properly apply SRP Section 11.3 and the Rules thereunder in the circumstances of the case?” and reviewed the “soundness” of the Committee’s decision, concluding the Committee’s decision was “understandable,” but “in error and must be rescinded.” (Paras. 115–116.)
- The Tribunal contrasts that merits review with cases addressing policy or managerial discretion, e.g. Ms. “G” where the Tribunal did not “ratify the correctness of the Fund’s policy decision” but concluded the Fund’s visa-criterion choice was “reasonable” and could not be overridden by the Tribunal when “rationally related to the mission and objectives of the Fund.” (Para. 116.)

### Tribunal’s conclusion on proper characterization and review
- Two factors lead the Tribunal to distinguish SRP Administration Committee disability-retirement decisions from managerial discretion (Para. 117):
  - Functionally, the decision is “quasi-judicial,” requiring the Committee to construe Plan provisions and apply them to specific facts.
  - Institutionally, the Committee is vested to take such decisions without review by the Managing Director; instead, decisions are subject to direct appeal (after Committee reconsideration) to the Administrative Tribunal.

### International administrative jurisprudence relevant to standard of review
- Respondent cites ILOAT In re Duran, Judgment No. 375 (1979), for the proposition that “The question whether a staff member is incapacitated from work is in a case of this sort a matter of judgment. The Tribunal will not substitute its judgment for that of the Director [of the Joint Medical Service] or the expert Advisors on whom he relies: it will intervene only if on the evidence the judgment appears to it to be wholly unreasonable or based on clearly mistaken conclusions.” (Para. 119.)
- The Tribunal observes that Duran involved a detailed examination of the material before the Director and asked whether “...on the whole of the material known to the Director ... it was reasonable for him, first to terminate the complainant’s sick leave and, secondly, to assign her to Brasilia.” (Para. 120.)
- Doctrinal authorities and other international tribunals recognize an exceptional “quasi-judicial” category of administrative power subject to “total judicial control,” in which the tribunal may examine the decision de novo and act “rather as a court of appeal than as a court of review.” (C.F. Amerasinghe, quoted in Para. 121.)

### UNAT and WBAT authorities on quasi-judicial review and pension committee appeals
- UNAT in Kiwanuka v. Secretary General of the United Nations, UNAT Judgment No. 941 (1999), recognized that disciplinary (quasi-judicial) discretion requires a particular form of review, and articulated review elements used in such matters, including:
  - whether the facts were established;
  - whether established facts legally amount to misconduct;
  - whether there was substantive or procedural irregularity;
  - whether there was improper motive or abuse of purpose;
  - whether the sanction was legal and proportionate; and
  - whether there was arbitrariness. (Paras. 122–123.)
- Commentators note that when an administrative body exercises a quasi-judicial function (including pension committee decisions), tribunals undertake stricter review and may examine whether conditions required by the Staff Retirement Plan were met and whether the committee correctly interpreted the law. (Orrego Vicuña, quoted in Para. 124.)

### World Bank Administrative Tribunal practice as closest analogue
- WBAT has treated appeals from the Bank’s Pension Benefits Administration Committee (“PBAC”) under the Staff Retirement Plan as falling within an exceptional “special appellate jurisdiction” that is broader than ordinary review of managerial discretion. (Courtney (No. 2), WBAT Decision No. 153 (1996), quoted in Para. 125.)
- The WBAT described its review in PBAC appeals to include examination of:
  - (i) the existence of the facts;
  - (ii) whether the conditions required by the Staff Retirement Plan for granting the benefits were met or not;
  - (iii) whether the PBAC correctly interpreted the applicable law; and
  - (iv) whether the requirements of due process have been observed. (Courtney (No. 2), para. 30, quoted in Para. 125.)
- WBAT outcomes vary: in Courtney (No. 2) the PBAC denial was upheld; in Ahlam Shenouda, WBAT Decision No. 177 (1997), the Tribunal found the PBAC’s conclusion “contrary to the clear weight of the evidence” and awarded disability retirement while noting some weight could be given to the views of the Committee’s Medical Advisor. (Para. 126.)

*Source: Administrative Tribunal analysis and related international administrative jurisprudence as set out in paragraphs 111–126 of the cited IMFAT document.*

### conclusion as the PBAC.

### conclusion as the PBAC.

### Standard of Review for Disability Retirement Cases
- The Administrative Tribunal prescribes the following standard when reviewing a denial by the SRP Administration Committee of disability retirement:
  1. Did the SRP Administration Committee correctly interpret the requirements of SRP Section 4.3 and soundly apply them to the facts of the case, or was the Committee’s decision based on an error of law or fact?
  2. Was the Committee’s decision taken in accordance with fair and reasonable procedures?
  3. Was the Committee’s decision in any respect arbitrary, capricious, discriminatory or improperly motivated?

- SRP Section 4.3(a) (quoted in full in the record) sets out three certification elements for disability retirement:
  - (i) such participant, while in contributory service, became totally incapacitated, mentally or physically, for the performance of any duty with the Employer that he might reasonably be called upon to perform;
  - (ii) such incapacity is likely to be permanent; and
  - (iii) such participant should be retired.

- The Tribunal frames the legal question as whether, under SRP Section 4.3(a), Applicant is:
  - "totally incapacitated, mentally or physically, for the performance of any duty with the Employer that [s]he might reasonably be called upon to perform"; and
  - whether that incapacity is "likely to be permanent."

### Factual and Medical Findings Regarding Ms. "J"
- Medical evidence summary:
  - Treating physicians’ notes (including rheumatologist notes for October 1999-May 2000 and pain specialist notes for June-July 2000) indicate intensive medication and therapies while Ms. "J" continued to report severe pain in her hands and arms.
  - It is undisputed that for years following the initial injury in September 1999, Ms. "J" remained unable to use her hands and arms in repetitive motion required for the functions of a verbatim reporter.
  - The SRP Administration Committee’s Medical Advisor concluded:
    - Ms. "J" "...currently lacks the residual functional capacity to perform, on a sustained basis, intensive repetitive arm and hand functions."
    - Simultaneously, the Medical Advisor concluded that Ms. "J" "does not permanently lack the residual functional capacity to perform tasks consistent with her education, training and experience."

- Respondent’s position:
  - Argues Applicant’s education and cognitive abilities could be utilized elsewhere in the Fund with a reasonable amount of additional training and accommodation and thus does not meet the SRP’s total incapacity standard.

### Legal Issues and Questions Identified
- Key legal and factual questions the Tribunal identifies for resolution:
  - What relationship must any alternative duties have to those the staff member performed at the time the incapacity arose?
  - May the duties require additional training or accommodation?
  - If additional training is permissible, how much training is “reasonable” and who must provide it?
  - Is a current vacancy necessary for the Fund to reasonably call upon the applicant to perform the alternative duties?
  - Are the specific positions identified by the Fund positions which Applicant may reasonably be called upon to perform?
  - What weight should the finding under GAO No. 16 (that Applicant had no transferable skills) and Applicant’s separation for medical reasons be given in the SRP analysis?

### Precedent and Interpretive Guidance
- World Bank Administrative Tribunal (WBAT) jurisprudence cited:
  - Courtney (No. 2): The WBAT upheld denial where staff member was unfit to travel but capable of HQ duties compatible with experience and the Bank’s needs; the standard of reasonableness does not require exact same duties as before.
  - A (WBAT Decision No. 182, 1997): The WBAT reversed a denial where medical record evidenced that the applicant "cannot perform any duty comparable to those of her former position with the Employer," concluding total incapacity likely permanent.
- The WBAT approach indicates:
  - An applicant need not be able to perform exactly the same functions previously performed, but alternative duties must be similar or comparable and compatible with the staff member’s experience and the organization’s needs.
  - The WBAT has not expressly resolved whether duties requiring additional training fall within duties the employer may reasonably require.

### Tribunal's Analysis and Conclusions Regarding Ms. "J"
- On whether the Fund could reasonably expect Ms. "J" to perform identified alternative positions:
  - The Tribunal concludes that, given Ms. "J"’s highly specialized but limited training and experience as a Verbatim Reporting Officer, it would not be reasonable to expect the Fund to ask her to perform the duties of the positions identified by CBD/HRD: Editorial Officer, Executive Board and Member Services Officer, Public Affairs Officer, Information Officer, Translation Editorial Officer, or Publications Officer.
  - It is not clear that Ms. "J" would be qualified to perform any of these jobs with a reasonable amount of additional training and accommodation, and it is unclear whether the Fund contemplated providing the requisite training or what accommodation could be made.

- Job-qualification comparisons highlighting incompatibility:
  - Verbatim Reporting Officer: a college degree is not required for the VRO position.
  - Editorial Officer (Grade A9): "educational development typically acquired through the completion of an advanced university degree ... A university degree in economics or equivalent experience is desirable." Required knowledge includes Fund editing standards, specialized writing and editing skills, and may require a written test.
  - Public Affairs Officer (Grade A9): "educational development, including and/or supplemented by work experience, typically acquired through the completion of an advanced university degree program in economics, political science, international relations, or related field, is required." Required knowledge includes the legislative process in the U.S. Congress and ability to synthesize reports.
  - Executive Board and Member Services Officer (Grade A9): typically requires an advanced university degree in business administration, economics, information technology, public administration and government, or related field, or alternatively a minimum of three years of experience in a related position at Grade A8.
  - Information Officer has been re-graded to A11/A12/A13; Publications Officer listings reflect similar advanced-degree expectations.

- Specific anomalies and contradictions noted:
  - Translation Editorial Officer was listed as a possible alternative despite Administration Committee minutes noting Applicant would not be qualified for positions requiring facility in foreign languages.
  - HRD memorandum of May 1, 2002 found Applicant "had no other skills, not requiring the use of the computer or her hands, that would have made it possible to accommodate...her in another position," a finding the Tribunal may weigh in reviewing the SRP decision.

- On separation for medical reasons versus SRP disability retirement:
  - Respondent differentiates standards: disability pension for the most severe cases of total and permanent disability; separation for medical reasons where the staff member is incapacitated and will not be able to perform duties in the foreseeable future but does not meet the SRP total and permanent standard.
  - GAO No. 16 contemplates participants separated on medical grounds who will not qualify for disability retirement; Section 11.02 of GAO No. 16 requires that separation not be implemented until a determination on disability retirement has been made under the SRP.
  - The Tribunal notes separation for medical reasons cannot determine entitlement to a disability pension under the Fund’s internal law, but the factual circumstances of separation may be given weight in reviewing the soundness of the Administration Committee’s decision.

### Key Findings
- Two essential qualifications for SRP disability retirement (preserved exactly from SRP Section 4.3(a)):
  - Applicant is "...totally incapacitated, mentally or physically, for the performance of any duty with the Employer that he might reasonably be called upon to perform," and
  - the incapacity is "likely to be permanent."
- Tribunal finds that the Fund’s identification of alternative positions does not demonstrate that Ms. "J" could reasonably be called upon to perform duties compatible with her experience and qualifications.
- The Tribunal views the Fund’s position that additional training and accommodation would make Applicant fit for alternative duties as insufficiently substantiated in the record.

*Administrative Tribunal — conclusion as the PBAC.*

### 148.      The answer of the Administrative Tribunal to that question is that Ms. “J”, while in

### j2003-1 - 148.      The answer of the Administrative Tribunal to that question is that Ms. “J”, while in

### Tribunal's finding on total incapacity
- The Administrative Tribunal found that Ms. “J”, while in contributory service, became totally incapacitated in the sense that she is "incapable of performing any duty that the Fund may reasonably call upon her to perform." (Para. 148)
- The Tribunal concluded there is no reasonable prospect that the Fund will call upon Ms. “J” to perform any of the listed positions or her particular function of Verbatim Reporting Officer. (Para. 148)
- As a result, "in respect of the performance of any such duty, Ms. 'J' is totally incapacitated." (Para. 148)

### Question whether the incapacity is "likely to be permanent"
- The Tribunal applied the Staff Retirement Plan test that disability must be first total and secondly "likely to be permanent (that is, not transitory) and both elements are related to any duty that the participant might reasonably be called upon to perform." (Para. 149; citing SRP Section 4.3 (a) (ii) and Courtney (No. 2), para. 33)
- The Administration Committee, while holding that Ms. “J” was not totally incapacitated, nonetheless concluded her medical condition was "likely to be permanent" but "not disabling to the extent that you are totally incapacitated from performing any duties that the Fund might call upon you to perform." The Committee also expressed the view that the condition was "treatable." (Para. 150; emphasis in original)
- The Tribunal noted consistency between the Committee’s "likely to be permanent" finding and other Fund instruments: GAO No. 16, Section 11 applies "[i]n case of permanent incapacity" (Section 11.01), and GAO No. 20, Section 5 provides compensation in the event of "permanent disability" with the dispute over whether that permanent disability is "total"(Section 5.01.1) or "partial"(Section 5.01.2). (Para. 151)

### Medical opinions and evidentiary record
- Respondent argued medical evidence before the Administration Committee showed Ms. “J” is neither totally nor permanently incapacitated; the Medical Advisor repeatedly stated she was not totally or permanently incapacitated. (Para. 152)
- The Medical Advisor's final report of April 25, 2002 stated: "She is not totally or permanently incapacitated from performing tasks that the IMF might reasonably ask of her." (Para. 152)
- The Medical Advisor credited a reviewing psychiatrist who opined: "I do not believe the patient is permanently disabled, as I believe that continued psychotherapy and the use of psychotropic medication may well ameliorate her condition to the point where she is able to once again resume a productive career as a verbatim reporter." (Para. 153)
- The Medical Advisor confirmed that "the expectation was that she could improve over time," based on a theory that the condition was primarily psychosomatic. (Para. 153)
- The Tribunal observed no record evidence on differential responsiveness to treatment if the impairment were psycho-physiological versus purely physical; the Plan treats physical and mental incapacity identically for eligibility. (Para. 153)
- Treating rheumatologist (May 30, 2001) expressed hope of limited return to "some basic typing in a limited capacity when resolution of her current condition occurs," but stated "The time of that resolution is indeterminate." (Para. 154)
- Applicant's self-evaluation (March 2002): main concern that she did not know whether her condition "will remain stable, continue to improve, or deteriorate"; pain levels "have become more manageable" but "regular activities such as bathing, dressing, and cleaning the house can cause an instant flare-up of my condition," and "there was no time when she was not aware that something was wrong with her hands." (Para. 154)
- WBAT precedent in A: long-standing severe condition supported finding that incapacity was "likely to be permanent" even where Medical Advisor expected benefit from treatment. The WBAT emphasized SRP language requiring only that incapacity be "likely" to be permanent and that termination of disability pension is permitted if incapacity has "wholly ceased" or earning capacity regained. (Paras. 155–156)

### Tribunal's assessment of permanency in this case
- The evidence shows Ms. “J”’s condition, impairing repetitive use of her hands, persisted following injury in 1999; some improvement occurred but the Fund concedes the impairment prevents performance as Verbatim Reporting Officer. (Para. 157)
- The Tribunal considered whether Applicant's pursuit of community college studies aided by voice-activated software affects the "likely to be permanent" determination and concluded it is likely Ms. “J”’s condition will be permanent in the sense that she will remain unable to be appointed to a position in the Fund. (Para. 157)
- The Tribunal noted SRP Section 4.3(d): if a retired participant's incapacity "has wholly ceased or that he has regained the earning capacity which he had before such incapacity, his disability pension shall cease," and partial recuperation may lead to proportionate reduction of the disability pension. (Para. 157)

### Procedural fairness and due process issues
- Procedural fairness is an element of the standard of review for SRP Administration Committee disability retirement decisions; the IMFAT applies "the internal law of the Fund, including generally recognized principles of international administrative law concerning judicial review of administrative acts," including the right to be heard (audi alteram partem). (Paras. 158–159)
- The Tribunal has previously awarded compensation for procedural deficiency while sustaining the contested decision where there was a "lapse in due process" due to denial of meaningful opportunity to rebut adverse evidence; adequate warning and notice are prerequisites to defense and rebuttal. (Para. 160)
- The applicant's stake in SRP outcomes justifies a high level of procedural protection because the Plan is a joint insurance scheme and participants make regular contributions; the Administration Committee represents Plan stakeholders and the Fund's interest in protecting Plan assets. (Para. 162)
- WBAT observations relevant to procedural fairness in disability decisions include concerns that: the advisory medical opinion is not usually made available to the applicant before deliberations; applicants' representatives are not entitled to participate; decision-making is excessively tied to the Medical Advisor's opinion; reluctance to use independent medical experts; and uncertainty as to the meaning of "disability to do Bank-related work." These elements can interfere with due process and transparency. (Para. 163)

### Parties' procedural arguments and Rules of Procedure
- Applicant's procedural complaints:
  - Denied due process because the Administration Committee acted on the opinion of its Medical Advisor who did not examine her, was not subject to oral testimony or cross-examination, and whose opinion was not provided to Applicant until after decision. (Para. 164)
  - The Committee acted on an incomplete record; its Decision did not state reasons; Decision was not taken until almost a year after application, contrary to its Rules of Procedure; decision-making improperly influenced by conflicts of interest. (Para. 164)
- Amicus Curiae view: due process requires the Committee review records of treating physicians to determine whether the Medical Advisor acted improperly or arbitrarily. (Para. 165)
- Respondent's position: Applicant was not denied due process; the Committee acted in accordance with its Rules of Procedure; it is not required to hold oral hearings or directly review treating physicians' records but may do so; Committee may suspend deadlines to seek additional information; decision-making was not affected by conflicts of interest; Committee properly relied on expert advice of the Medical Advisor and had no grounds to disregard it absent evidence of arbitrariness; Committee considered findings of three independent medical evaluators. (Para. 166)

### Specific Rules of Procedure at issue
- Rule VI (Proceedings) grants the Committee discretion to "inquire about all information it needs for an equitable consideration of a Request," to rely on written submissions or convene oral hearings, decide attendance, provide reasonable notice, confine evidence as confidential with summaries provided to Requestor if waiver cannot be obtained, permit representation by counsel, and treat deliberations as confidential. (Full text reproduced in Para. 167)
- The Tribunal observed there is room to question whether the Committee's implementation of Rule VI in Ms. “J”’s case afforded her sufficient and timely opportunity for rebuttal. (Para. 167)
- Rule VII, para. 1 requires: "Each Decision shall be in writing, stating the reasons on which it is based and any action that the Committee may take or recommend." (Para. 168)
- The Committee’s initial Decision denying Ms. “J”’s application did not set forth any reasons but merely recited the standard and announced the conclusion she did not meet that standard; the Tribunal characterized this as a lapse in process appearing to violate the Rule and denying Applicant an opportunity for meaningful response. (Para. 168)

*Source: Administrative Tribunal, paras. 148–168.*

### 169.      It may be further noted that para. 3 of the same Rule provides:

### j2003-1 - 169

### Procedural background and issues raised by Applicant
- Para. 3 of the relevant Rule provides: “Upon request, the Secretary of the Committee will furnish to the Requestor copies of any non-confidential documents and a summary, prepared by the Secretary, of confidential evidence that it considered in making its decision.”
- Ms. “J” availed herself of that provision and, during the pendency of her request for review with the Administration Committee, had the opportunity to examine and respond to the Medical Advisor’s report that the Committee had before it when it rendered its initial Decision denying disability retirement.
- Additional medical evaluation was undertaken by the Committee during the pendency of Ms. “J”’s application for review; Applicant did not have the opportunity to respond to this additional medical assessment.
- The Tribunal noted the question whether the Administration Committee’s procedures in her case afforded Applicant reasonable notice and opportunity to be heard.
- Applicant raised an additional procedural issue: whether the Administration Committee’s decision was improperly influenced by information formally communicated to it by its Secretary that the workers’ compensation Claim Administrator had made a finding of partial rather than total loss of function.

### Tribunal’s handling of procedural complaints and forward guidance
- The Administrative Tribunal of the International Monetary Fund decided Ms. “J”’s application in her favor on substantive grounds and therefore found no need to pass upon her procedural complaints.
- The Tribunal observed for the future guidance of the Administration Committee the following points:
  - The Administration Committee may consider enabling an applicant to submit observations in a current and timely way upon any medical reports and opinions submitted to or rendered by the Medical Advisor in the case.
  - The applicant is entitled to see and comment upon all medical reports and opinions submitted to or rendered by the Medical Advisor in the case.
  - Members of the Administration Committee should themselves be entitled to review those medical reports, with the object of weighing fully the views of both treating and reviewing physicians and evaluating the conclusions of the Medical Advisor.
  - The Administration Committee might consider review of an Applicant’s condition, and opinions relating to it, not by a single Medical Advisor but by a Board of Medical Advisors (tripartite model), as in other international organizations such as the ILO and UNESCO:
    - One member designated by the Applicant.
    - One member designated by the Administration Committee.
    - A third member selected by agreement between the two so designated.
    - The Tribunal observed that this tripartite model already is embodied in the Fund’s internal law in cases of medical separation at the Fund’s initiative (GAO No. 13, Rev. 5 (June 15, 1989), Annex I, quoted in the Judgment).
  - The advice of the Medical Advisor (or of any Board of Medical Advisors) should be confined to medical questions and should not extend to the ultimate conclusion of whether the applicant is, or is not, totally and permanently incapacitated for the performance of any duty which the Fund may reasonably call upon him or her to perform; that ultimate conclusion should be the function of the Administration Committee.
  - The applicant should be permitted to comment upon any statements of Fund officers regarding the applicant’s capacity to perform any particular duty that the Fund might maintain that he or she might reasonably be called upon to perform.

### Remedies sought by Applicant and statutory remedial authority
- Applicant requested as relief:
  - a) disability retirement retroactive to March 5, 2001;
  - b) two years net salary as compensation for alleged mental suffering caused by unfair treatment;
  - c) legal costs.
- The Tribunal’s remedial authority is provided by Article XIV of the Statute, which states in its entirety:
  1. If the Tribunal concludes that an application challenging the legality of an individual decision is well-founded, it shall prescribe the rescission of such decision and all other measures, whether involving the payment of money or otherwise, required to correct the effects of that decision.
  2. When prescribing measures under Section 1 other than the payment of money, the Tribunal shall fix an amount of compensation to be paid to the applicant should the Managing Director, within one month of the notification of the judgment, decide, in the interest of the Fund, that such measures shall not be implemented. The amount of such compensation shall not exceed the equivalent of three hundred percent (300%) of the current or, as the case may be, last annual salary of such person from the Fund. The Tribunal may, however, in exceptional cases, when it considers it justified, order the payment of a higher compensation; a statement of the specific reasons for such an order shall be made.
  3. If the Tribunal concludes that an application challenging the legality of a regulatory decision is well-founded, it shall annul such decision. Any individual decision adversely affecting a staff member taken before or after the annulment and on the basis of such regulatory decision shall be null and void.
  4. If the Tribunal concludes that an application is well-founded in whole or in part, it may order that the reasonable costs incurred by the applicant in the case, including the cost of applicant's counsel, be totally or partially borne by the Fund, taking into account the nature and complexity of the case, the nature and quality of the work performed, and the amount of the fees in relation to prevailing rates.
  5. When a procedure prescribed in the rules of the Fund for the taking of a decision has not been observed, the Tribunal may, at the request of the Managing Director, adjourn the proceedings for institution of the required procedure or for adoption of appropriate corrective measures, for which the Tribunal shall establish a time certain.

### Tribunal’s decisions and orders
- The Tribunal concluded Ms. “J”’s Application on the merits was well-founded and, in exercise of its authority under Article XIV:
  - Rescinded the decision of the Administration Committee denying a disability pension to Ms. “J”.
  - Ordered that a disability pension be granted to Ms. “J”.
- On compensation for alleged procedural unfairness:
  - The Tribunal found it unnecessary to pass upon Applicant’s claim of procedural unfairness and awarded no separate compensation to the Applicant in this regard.
- On legal costs:
  - The Tribunal found the Application to be well-founded and, pursuant to Article XIV, Section 4, ordered that the Fund shall pay Applicant the reasonable costs of her legal representation.
  - The Tribunal will assess the amount of such compensable legal costs following the submission of further observations by Respondent and an opportunity for response by Applicant, according to a schedule to be transmitted with the Judgment.

### Formal Decision (unanimous) and concluding details
- The Administrative Tribunal of the International Monetary Fund unanimously decides:
  1. The decision of the Administration Committee denying Applicant a disability pension is rescinded and it is ordered that a disability pension be granted to Ms. “J”, retroactive to the date of Applicant’s retirement.
  2. The request of Applicant for two years salary to compensate for alleged unfair treatment is denied.
  3. The Fund shall pay Applicant the reasonable costs of her legal representation, in an amount to be assessed by the Tribunal following the further submissions of the parties according to the schedule transmitted with this Judgment.
- Tribunal officers and date:
  - Stephen M. Schwebel, President
  - Nisuke Ando, Associate Judge
  - Michel Gentot, Associate Judge
  - Celia Goldman, Registrar
  - Washington, D.C. — September 30, 2003

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_Source: https://www.imf.org/-/media/files/imfat/j2003-1.pdf_