## Administrative Tribunal judgment — Ms. “K” (j2003-2) ## Source details **Canonical URL:** [Administrative Tribunal judgment — Ms. “K” (j2003-2)](https://www.imf.org/-/media/files/imfat/j2003-2.pdf) ## Other formats - [Markdown version](/-/media/files/imfat/j2003-2.pdf.md) - [Structured JSON version](/-/media/files/imfat/j2003-2.pdf.json) --- ### Tribunal convening and dispute - The Administrative Tribunal of the International Monetary Fund met on September 29 and 30, 2003, composed of Judge Stephen M. Schwebel, President, and Judges Nisuke Ando and Michel Gentot, Associate Judges, to adjudge the case brought against the International Monetary Fund by Ms. “K”. - Subject of the dispute: - Applicant contests the Administration Committee of the Staff Retirement Plan (“SRP” or “Plan”) decision denying her application for disability retirement. - Administration Committee conclusion: Applicant failed to establish that she is “totally and permanently incapacitated for any duty that the Fund might reasonably ask her to perform” as required by the Plan. - Applicant’s contentions included: error in interpretation and application of the disability standard; procedural irregularity in the Committee’s process. - Respondent’s position: Committee correctly applied the standard and followed fair and reasonable procedures. ### Procedural timeline and exhaustion of remedies - Key dates and filings: - Application filed with the Administrative Tribunal on August 15, 2002. - Application transmitted to Respondent on September 5, 2002; Registrar’s internal summary on September 9, 2002. - Respondent’s Answer on October 21, 2002; Applicant’s Reply on November 25, 2002; Respondent’s Rejoinder on December 27, 2002. - Applicant filed SRP Request for disability retirement on December 20, 1999; Administration Committee denied on March 14, 2001; Decision on Review communicated May 17, 2002. - Applicant filed an application for review with the Committee on June 16, 2001, appending a treating psychiatrist letter dated June 15, 2001. - Applicant filed Application with the Administrative Tribunal on August 15, 2002. - Oral proceedings: Neither party requested oral proceedings; Tribunal found them not required. ### Governing legal framework — SRP and Fund administrative orders - SRP Section 4.3 (Disability Retirement) (text preserved in full): - “4.3 Disability Retirement (a) 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.” - Relevant Fund administrative orders: - GAO No. 13, Rev. 5 (June 15, 1989), Annex I: procedures for separation at staff or Fund initiative and a tripartite medical panel mechanism (Sections 1, 2, 2.01.1, 2.01.2, 2.02.1, 2.03, 2.03.4, 2.04.1, 2.04.2). - GAO No. 16, Rev. 5 (July 10, 1990), Section 11: separation for permanent incapacity and SRP interplay; Section 11.02 (disability determination must precede implementation of medical separation) and Section 11.04 (Separation Benefits Fund payments: one and one-fourth months’ salary per year of service, maximum the smaller of (a) equivalent of 22-1/2 months’ salary and (b) salary payable between last day on duty and mandatory retirement age of 65). ### Employment and benefits chronology (factual background) - Employment history: - Hired on a contractual basis in 1985; became staff in December 1986; served as a Staff Assistant. - Beginning in 1993, intermittent illnesses and extended sick leave episodes. - August 1999: began extended sick leave at full pay for the condition underlying the disability request. - Extended sick leave expired March 30, 2000; April 1, 2000: placed on administrative leave with pay pending outcome of disability application. - SRP Administration Committee denied disability retirement on March 14, 2001; Ms. “K” subsequently separated under GAO No. 16, Rev. 5. - Received maximum 22_ months separation benefit, which expired June 7, 2003. - Applicant’s disability request and medical review chronology: - Request filed December 20, 1999. - Medical Advisor report to Administration Committee dated January 26, 2001; Medical Advisor final report dated April 25, 2002. - External reviewing psychiatrist conducted record reviews (initial review August 25, 2001) and an in-person psychiatric evaluation (September 5, 2001). - Treating psychiatrist’s letter dated June 15, 2001. - Infectious disease specialist summary considered (no written report available prior to Committee meeting); Medical Advisor concurred May 2, 2002. ### Medical evidence and expert opinions - Medical Advisor (January 26, 2001) findings and verbatim characterizations: - Diagnosis: “... ‘borderline personality’ with dissociative features.” - Characterization: “’Borderline Personality’ is a characterologic disorder hallmarked by a pervasive pattern of unstable and intense interpersonal relationships. It is characterized by alternating idealization and devaluation of relationships; associated with recurrent suicidal gestures or threats; marked reactivity of mood, such as irritability, and transient stress related paranoid ideation or disassociation.” - Functional assessment (verbatim): “This primary characterologic disorder impairs Mrs. [“K”]’s ability to successfully perform, on a sustained basis, collaborative tasks because it causes her to perceive the IMF as demanding and insensitive. Nevertheless, it does not totally incapacitate her from performing tasks that the IMF might reasonably ask of her. Her other medical conditions are not thought to be major contributors to [her] impairments. Her depression is in remission. Her breast cancer has not recurred. Although intensive therapy would be expected to lessen the negative consequences of her characterologic disorder; given her personality type, she is unlikely to substantially commit herself to long-term intensive psychotherapy. Under the circumstances, Mrs. [“K”] is unfit to perform satisfactorily her IMF job function because of the constellation of psychologic factors associated with her characterologic disorder.” - Recommendation (verbatim): “Mutually agreed upon separation because of unfitness.” - Reviewing psychiatrist (August 25, 2001 and September 5, 2001): - Initial view: three most plausible diagnoses “Borderline Personality Disorder, Recurrent Depression secondary to that, and/or an alternate form of Bipolar Disorder.” - Employability assessment (August 25, 2001): “Although technically she could do any job within the IMF, on a practical level it would be very difficult for her to work within a vocational context. ... She is technically not disabled, but both she and any organization would find it hard to work together.” - In-person evaluation (September 5, 2001): “This is not a consistently disabling condition and I do not believe at this time that she is disabled.” “The patient finds it intermittently difficult to work in groups and groups find it intermittently difficult to work with the patient, but that she is not totally disabled from her work.” - Psychological testing: “considerable psychological pathology which alters the way in which she perceives external stimuli” but “she is not disabled from her occupation or for any occupation for which she is trained or has reasonable experience.” - Treating psychiatrist (June 15, 2001) (verbatim functional conclusion): - Patient history since August 21, 2000; history of “major depressive episodes” over the preceding six years; chronic Lyme disease and history of breast cancer. - Opinion: conditions are “permanent in that they not only totally incapacitate her from performing tasks that the IMF might reasonably ask of her, but from performing a job anywhere else.” - Infectious disease specialist: summarized conclusion that past Lyme Disease was likely successfully treated; no evidence of persistent joint or central nervous system disease; Medical Advisor concurred May 2, 2002. ### Administration Committee deliberations and decisions - Initial Committee meeting March 1, 2001: - Minutes: Applicant had personality disorder; many workplace accommodations made; Applicant neither acutely depressed nor psychotic and could perform duties; unpredictable personality would cause interpersonal friction; “a return to the workplace was no longer a viable option because the person was reluctant to return to work and co-workers were fearful of her behavior.” - Work-at-home option considered and rejected due to anticipated “interpersonal friction.” - Committee concluded Applicant did not qualify for disability retirement. - March 14, 2001 Decision cited SRP Section 4.3(a)(i) and notified Applicant she did not meet the “totally incapacitated” requirement; decision gave no reasons or avenues of recourse, advising Applicant to contact an HRD official to “... discuss other options.” - Application for review and Committee review meeting May 9, 2002: - Secretary transmitted Medical Advisor’s reports, reviewing psychiatrist reports, treating psychiatrist letter, infectious disease summary, and Request materials on May 2, 2002. - May 9, 2002 Final Minutes reflected Committee concerns about “moral hazard” of granting disability for a treatable personality disorder, emphasis that condition could be controlled with medication, view that participant could perform Staff Assistant duties, and consensus that permanent and total disability had not been established. - Decision on Review communicated May 17, 2002, sustaining denial and advising Applicant of right to apply to the Administrative Tribunal. ### Parties’ principal contentions before the Tribunal - Applicant’s contentions (summary): - Total and permanent incapacity within SRP Section 4.3. - SRP Administration Committee erred by requiring continuous symptoms; intermittent but frequent/unpredictable symptoms can be “total” if they prevent functioning for indeterminate periods. - Unable to perform her job or any job; within her remaining working life she is totally and permanently disabled. - Committee’s process was procedurally defective: medical experts not jointly selected, hearsay summaries relied upon, exclusion of applicant’s information. - Relief sought: retroactive disability pension, recrediting of funds deducted from service accounts, legal costs. - Respondent’s contentions (summary): - Committee correctly applied SRP Section 4.3; intermittent incapacity is not “total.” - Applicant could perform Staff Assistant functions even if intermittently difficult to get along with colleagues. - Incapacity not likely to be permanent; condition is treatable and Applicant insufficiently committed to treatment. - Disability retirement intended for most extreme medical conditions; medical separation may be appropriate but not disability pension. - Committee appropriately relied on Medical Advisor and reviewing physicians; non-disclosure of sensitive underlying records was justified. - No credits were deducted from Applicant accounts. ### Tribunal standard of review and comparative case law - Applied standard (as adopted from WBAT precedents and IMFAT jurisprudence): 1. Did the SRP Administration Committee correctly interpret SRP Section 4.3 and soundly apply it to the facts, or was its 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 arbitrary, capricious, discriminatory or improperly motivated? - Noted WBAT precedents: - WBAT Decision No. 153 (Courtney (No. 2)) and subsequent reversals (Shenouda, A) demonstrate that an appellate tribunal can independently weigh physicians’ written opinions, give weight to the Medical Advisor, and review for “clear weight of the evidence.” ### Tribunal evidentiary analysis — inconsistencies, compliance, and permanence - Internal inconsistencies identified: - Medical Advisor’s reports contained apparently contradictory statements: that the Applicant is “unfit to perform satisfactorily her IMF job function” and elsewhere that the condition “does not totally incapacitate her from performing tasks that the IMF might reasonably ask of her.” - Reviewing psychiatrist distinguished “technical” competence from practical workplace functioning: “technically she could do any job within the IMF” but “not disabled” because of practical difficulties interacting with organizations. - Tribunal emphasized separating factual clinical observations from physicians’ ultimate opinions on disability. - Compliance with treatment: - Committee relied on impressions of noncompliance, frequent physician changes, and stopping medication. - Tribunal found the record lacks evidentiary support for findings of noncompliance: records show ongoing psychiatric care and prescribed medications; no explicit medical notations of noncompliance. - Tribunal observed that if noncompliance existed, it might be illness-related and reasonable given the nature of the disorder. - Permanency assessment: - Considerations included duration of illness, response to medication, feasibility of sustained psychotherapy, Applicant’s age (52 at Committee review) and remaining working life until mandatory retirement at 65 (approximately 13 years). - Tribunal found long-standing, intractable character of condition and treatment record supported conclusion that incapacity is “likely to be permanent” in relation to normal retirement age of 65 (SRP Section 4.3(f)). - Relevant medical summaries: - Treating psychiatrist: major depressive disorder recurrent, severe; chronic Lyme disease; opinion of total and permanent incapacity. - Reviewing psychiatrist: periodic impairment but not permanent disability. - Medical Advisor (final): medication controlled depressive aspects; condition impairs sustained collaborative tasks but earlier reported permanence regarding inability to return to IMF. - Tribunal conclusion on merits: - Applicant is totally incapacitated, mentally, to perform the duties in the Fund she might reasonably be called upon to perform (Staff Assistant duties), particularly because her mental condition renders her unable to collaborate constructively with co-workers. - Administration Committee’s denial that she was permanently incapacitated was contrary to the weight of the evidence. ### Procedural fairness and specific procedural concerns - Applicable rules and lapses: - SRP Administration Committee Rules: Rule VI (Proceedings), Rule VII (Decisions), Rule VIII (Review of Decisions), Rule X (Exhaustion of Administrative Review). - Rule VII, para. 1 requires written decisions stating reasons; Committee’s initial denial “did not set forth any reasons,” a lapse potentially violating Rule VII and denying meaningful opportunity to respond. - Rule VI.2 provides for summaries of confidential evidence; Rule VII, para. 3 allows Secretary to furnish non-confidential documents and summaries upon request. - Tribunal noted potential influence of external counsel’s unsolicited statement about other plans’ treatment of such conditions. - Tribunal elected to decide the application on substantive grounds and did not rule on Applicant’s procedural complaints, but offered guidance and recommendations to the Administration Committee on procedural practices. ### Tribunal recommendations to the Administration Committee (practice guidance) - Enable applicants to submit observations in a current and timely way upon any medical reports and opinions submitted to or rendered by the Medical Advisor (Paragraph 109). - Applicant is entitled to see and comment upon all medical reports and opinions submitted to or rendered by the Medical Advisor; Committee members should be entitled to review those medical reports to weigh treating and reviewing physicians’ views and evaluate the Medical Advisor’s conclusions (Paragraph 110). - Consider a Board of Medical Advisors rather than a single Medical Advisor, modeled on tripartite practices: - One member designated by the Applicant; - A second member designated by the Administration Committee; - A third member selected by agreement between the first two. (Paragraph 111) - Note: tripartite model already exists in GAO No. 13, Rev. 5, Annex I for medical separation panels (Paragraph 111, footnote 22). - Confine medical advisors’ advice to medical questions; the ultimate conclusion on total and permanent incapacity should be drawn by the Administration Committee (Paragraph 112). - Permit applicants to comment upon statements of Fund officers regarding the applicant’s capacity to perform particular duties the Fund might reasonably assign (Paragraph 113). ### Remedies, orders, and legal costs - Tribunal’s remedial authority cited: Article XIV of the Statute (full text preserved in the judgment). - In exercise of Article XIV authority the Tribunal: - Rescinded the Administration Committee’s decision denying a disability pension to Ms. “K” and ordered that a disability pension be granted retroactive to the date of Applicant’s retirement (Paragraph 116). - Declined to award separate compensation for procedural unfairness because the Tribunal did not pass upon procedural claims (Paragraph 117). - Ordered that the Fund pay Applicant the reasonable costs of her legal representation; amount to be assessed following submission of Applicant’s statement of costs and an opportunity for Fund comment (Paragraph 119). - Final judgment: 1. The Administration Committee’s decision denying Applicant a disability pension is rescinded and a disability pension is ordered to be granted to Ms. “K”, retroactive to the date of Applicant’s retirement. 2. The Fund shall pay Applicant the reasonable costs of her legal representation, amount to be assessed by the Tribunal following further submissions according to the schedule transmitted with the Judgment. - Judgment signed in Washington, D.C., September 30, 2003 by: - Stephen M. Schwebel, President - Nisuke Ando, Associate Judge - Michel Gentot, Associate Judge - Celia Goldman, Registrar *Administrative Tribunal of the International Monetary Fund — Judgment concerning Ms. “K” (September 30, 2003, case j2003-2).* ### Introduction ### Introduction ### Tribunal convening and dispute - The Administrative Tribunal of the International Monetary Fund met on September 29 and 30, 2003, composed of Judge Stephen M. Schwebel, President, and Judges Nisuke Ando and Michel Gentot, Associate Judges, to adjudge the case brought against the International Monetary Fund by Ms. “K”. - Subject of the dispute: Ms. “K” contests the decision of the Administration Committee of the Staff Retirement Plan (“SRP” or “Plan”) denying her application for disability retirement. - Administration Committee conclusion: Applicant 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’s contentions: Decision is erroneous, the Administration Committee improperly interpreted and applied the standard for disability retirement, and the decision was tainted by procedural irregularity. - Respondent’s position: Applicant has not established any factual or legal basis for overturning the Committee’s decision, which correctly applied the standard and was taken in accordance with fair and reasonable procedures. ### Procedure before the Tribunal - Filing and procedural timeline: - Ms. “K” filed an Application with the Administrative Tribunal on August 15, 2002. - Registrar advised Applicant under Rule VII, para. 6 that the Application did not fulfill requirements of para. 3 of that Rule; Applicant was given fifteen days to correct deficiencies. - Application was brought into compliance within the indicated period and is considered filed on the original date. - Application transmitted to Respondent on September 5, 2002. - Registrar issued a summary of the Application within the Fund on September 9, 2002, pursuant to Rule XIV, para. 4. - Respondent filed its Answer on October 21, 2002. - Applicant submitted her Reply on November 25, 2002. - Respondent’s Rejoinder filed on December 27, 2002. - Oral proceedings: Article XII of the Tribunal’s Statute and Rule XIII, para. 1 permit the Tribunal to decide whether oral proceedings are warranted. Neither party requested oral proceedings and the Tribunal did not find them required. ### Legal framework — SRP and Fund administrative orders - SRP Section 4.3 (Disability Retirement) key provisions: - 4.3(a): 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. - 4.3(b): Formula for disability pension: equal to the normal pension that would be payable if the normal retirement date had fallen on the date of disability retirement, but using highest average remuneration and eligible service at time of disability retirement; in no event less than the smaller of: - (i) 50 percent of such highest average gross remuneration; or - (ii) the normal pension the participant would have received if he had remained a participant until his normal retirement date without change in such highest average remuneration. - 4.3(c), (d), (e): Provide for periodic medical examination not more often than once a year, discontinuance or reduction of disability pension if incapacity wholly or partially ceases, restoration conditions, and deemed withdrawal from the Plan if pension discontinued and not restored within five years. - 4.3(f): Defines “normal retirement date” as 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. - Fund administrative rules on separation for medical reasons: - GAO No. 13, Rev. 5 (June 15, 1989), Annex I: - Section 1 (Separation at the Staff Member’s Initiative): Staff member may request separation on grounds of medical disability, address request in writing to the Director of Administration [now the Director of Human Resources], present medical evidence, and be willing to undergo examinations deemed necessary by the Fund’s medical advisors. - Section 2 (Separation at the Fund’s Initiative): For a staff member in sick leave status, separation may be effected 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.) - Section 2.01.2: If performance is impeded for medical reasons over a prolonged period and no suitable alternate position is found in accordance with GAO No. 11 (Salary Administration), Director of Administration shall seek advice of Health Services Department on prospects for improvement within a reasonable period; if opinion favors separation, procedures are initiated. - Section 2.02.1: 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 2.03: If staff member objects, a panel of medical experts (one designated by Administration, one by staff member, third selected by the other two) renders an opinion; “[n]ormally, the panel shall examine the staff member personally.” (Section 2.03.4.) - Section 2.04.1: Director of Administration decides based on the medical panel’s opinion whether sufficient grounds for medical separation exist. - Section 2.04.2: Interplay among GAO No. 13, GAO No. 16 and SRP Section 4.3: If Director decides on medical separation, procedures in GAO No. 16 shall be followed; for SRP participants, this will include determination of eligibility for a disability pension. - GAO No. 16, Rev. 5 (July 10, 1990), Section 11: Applies “[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. 16, Section 11.02: Separation of a staff member who is a participant in the SRP shall not be implemented until a determination under the Plan has been made as to whether the participant will receive a disability pension. - GAO No. 16, Section 11.04: If separated for medical reasons and does not receive a disability pension, staff member will be automatically granted a separation payment from the Separation Benefits Fund. Payment formula under GAO No. 16: - 4.06 Payments Under the Separation Benefits Fund: payment equivalent to 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. - Salary rate used: salary on the last day on duty; length of service computed to the nearest full month. ### Factual background — employment and benefits chronology - Employment history and leaves: - Ms. “K” served as a Staff Assistant; first hired on a contractual basis in 1985 and became a member of the staff in December 1986. - Beginning in 1993, experienced a series of illnesses resulting in intermittent absences and periods of extended sick leave. - In August 1999, began a period of extended sick leave (at full pay) for the condition underlying the disability retirement request. - Extended sick leave expired March 30, 2000; on April 1, 2000, placed on administrative leave with pay pending outcome of disability retirement application (filed December 20, 1999). - SRP Administration Committee denied disability retirement on March 14, 2001; thereafter, Ms. “K” was separated from the Fund pursuant to GAO No. 16, Rev. 5. - Received the maximum 22_ months separation benefit, which expired June 7, 2003. - Ms. “K”’s Request and Medical Advisor report: - Request for disability retirement filed with the Administration Committee on December 20, 1999. - Medical Advisor to the SRP Administration Committee delivered a report on January 26, 2001, reviewing medical history including treatment and surgeries for breast cancer, “depressive episodes resulting in suicide attempts,” and a diagnosis of “borderline personality.” - Medical Advisor observations: - Applicant had not undergone psychotherapy of “sufficient intensity and frequency” to treat the condition. - “Working at the IMF has heightened her feeling of vulnerability, which due to her personality structure [has] been transformed into persecutory feelings.” - “[A]lthough she has the cognitive capacity to work at a job similar to the one she performed at the IMF, she lacks the motivation to seek to return to work with the IMF or to seek employment elsewhere.” - Medical Advisor’s Opinion (verbatim excerpts preserved): - Diagnosis: “... ‘borderline personality’ with dissociative features.” - Characterization: “’Borderline Personality’ is a characterologic disorder hallmarked by a pervasive pattern of unstable and intense interpersonal relationships. It is characterized by alternating idealization and devaluation of relationships; associated with recurrent suicidal gestures or threats; marked reactivity of mood, such as irritability, and transient stress related paranoid ideation or disassociation.” - Treatment prospects: “Treatment may be difficult because a person with the disorder often adopts the attitudes and behaviors of others, giving the impression of being fairly well adjusted. Medication usually can control the depressive aspects of the condition. The problems with relationships may require that a person with the disorder to make an effort to change surroundings in order to bolster self-esteem.” - Functional assessment: “This primary characterologic disorder impairs Mrs. [“K”]’s ability to successfully perform, on a sustained basis, collaborative tasks because it causes her to perceive the IMF as demanding and insensitive. Nevertheless, it does not totally incapacitate her from performing tasks that the IMF might reasonably ask of her. Her other medical conditions are not thought to be major contributors to [her] impairments. Her depression is in remission. Her breast cancer has not recurred. Although intensive therapy would be expected to lessen the negative consequences of her characterologic disorder; given her personality type, she is unlikely to substantially commit herself to long-term intensive psychotherapy. Under the circumstances, Mrs. [“K”] is unfit to perform satisfactorily her IMF job function because of the constellation of psychologic factors associated with her characterologic disorder.” - Additional findings: “Although not totally incapacitating, her characterologic disorder causes her to have difficulty effectively collaborating with co-workers. This impairment becomes more problematic when she is experiencing other problems, such as anxiety associated with breast cancer therapy, or when it becomes associated with depression. Such co-existent factors aggravate her coping ability. Her limited personal adaptive capabilities perpetuate her unfitness to successfully perform her job. Furthermore, her capacity to satisfactorily perform her job function has been aggravated by her protracted absence from the IMF work environment. Her condition is permanent in that she will not be able to return to the IMF and perform satisfactorily.” - Medical Advisor Recommendation (verbatim): “Mutually agreed upon separation because of unfitness.” *Administrative Tribunal of the International Monetary Fund, Introduction (case brought by Ms. “K”), September 29–30, 2003.* ### 19. On March 1, 2001, the Administration Committee met to render a decision on ### 19. On March 1, 2001, the Administration Committee met to render a decision on Ms. “K”’s Request for disability retirement ### Case background and initial Committee decision - March 1, 2001: SRP Administration Committee met to decide Ms. “K”’s Request for disability retirement. - Committee Final Minutes summarized: - Applicant had a personality disorder; many workplace accommodations had been made. - Medical Advisor: external evaluator had done a thorough job assessing current condition; prior medical conditions were either in remission or under control. - Applicant was neither acutely depressed nor psychotic and could perform duties of her job. - Because of an unpredictable personality, interpersonal friction would likely occur if she returned to the workplace. - “A return to the workplace was no longer a viable option because the person was reluctant to return to work and co-workers were fearful of her behavior.” - Committee considered work-at-home option but concluded it would still require extensive contact with the workplace, resulting in “interpersonal friction.” - Committee conclusion: Ms. “K” did not qualify for disability retirement. - March 14, 2001: Committee Decision notified Ms. “K” that her case did not meet the requirement of Section 4.3 (a) (i) of the Staff Retirement Plan: “‘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.’” - Decision included no reasons for the determination or information as to avenues of recourse; it advised Applicant to contact a particular HRD official “... to discuss other options.” ### Channels of administrative review and procedural steps - 1999 Rules of Procedure by the SRP Administration Committee established channels of administrative review; Rule VIII and Rule X govern review and exhaustion: - Rule VIII (Review of Decisions): A Requestor may submit an Application for Review of a Decision to the Secretary within ninety (90) days after receipt of the Decision; Committee may review, notify parties, and must notify results within three months of receipt of Application. - Rule X (Exhaustion of Administrative Review): Administrative review is exhausted for filing with the Administrative Tribunal when (a) three months have elapsed since an Application for review was submitted and results not notified; or (b) Committee has notified Applicant of results or its decision to decline review; or (c) conditions in Article V, Section 3(c) of the Statute are met. - These are the second and third cases to reach the Administrative Tribunal through these channels and the first arising from denial of disability retirement requests. ### Applicant’s application for review and treating psychiatrist’s letter - June 16, 2001: Ms. “K” submitted an application for review of the Committee’s Decision, appending a letter from her treating psychiatrist dated June 15, 2001. - Treating psychiatrist’s letter (June 15, 2001) stated: - Ms. “K” had been a patient since August 21, 2000. - History of “major depressive episodes” over the preceding six years, precipitated by breast cancer and workplace difficulties. - Experienced “overwhelming persistent anxiety” and “paranoid behavior” related to the workplace. - Concern that a return to work would exacerbate symptoms. - Opinion: Ms. “K” is totally incapacitated from work: - “Based on her mental disorder, which is major depressive disorder recurrent, severe, in addition to chronic Lyme disease, which is manifested by mood swings, generalized fatigue, difficulty concentrating and arthritic problems; and history of breast cancer, which is fortunately currently in remission, Mrs. [“K”]’s conditions are permanent in that they not only totally incapacitate her from performing tasks that the IMF might reasonably ask of her, but from performing a job anywhere else.” ### Additional medical review by the Administration Committee - Committee engaged a psychiatrist specializing in neuropsychiatric medicine and occupational psychiatry to review records and conduct an in-person assessment. - Reviewing psychiatrist’s record review (initial review August 25, 2001): - Reviewed records dating back to 1998, including a March 30, 2000 note recommending disability retirement. - Noted life stressors: death of Ms. “K”’s husband, a head injury to her son, 1995 breast cancer and complications. - Three most plausible diagnoses: “Borderline Personality Disorder, Recurrent Depression secondary to that, and/or an alternate form of Bipolar Disorder.” - Employability view: periodically hampered from performing adequately in the workplace but not permanently; technically could do any IMF job but practically very difficult to work within a vocational context due to tendency to misinterpret, mistrust, and overreact; organization would find her difficult to work with. - Concluded: “She is technically not disabled, but both she and any organization would find it hard to work together.” - Reviewing psychiatrist’s psychiatric evaluation (September 5, 2001): - Interview and psychological testing; noted ongoing treatment including medication. - Conclusions summarized: - Multiple psychiatric problems; tendency towards paranoid ideation (suspiciousness with ideas of reference), possible bipolar disorder but no clear delineation. - Patient would have difficulty fitting into groups and working consistently without problems. - “This is not a consistently disabling condition and I do not believe at this time that she is disabled.” - “The patient finds it intermittently difficult to work in groups and groups find it intermittently difficult to work with the patient, but that she is not totally disabled from her work.” - “There is no suggestion that work contributed in any meaningful manner to this patient’s psychiatric difficulties.” - Additional record review of treating psychiatrist (notes reported November 11, 2001): - Treating psychiatrist diagnosed bipolar disorder. - Reviewing psychiatrist: treating psychiatrist felt she is totally disabled for all work, but reviewer did not. - Psychological testing review: - Testing revealed “considerable psychological pathology which alters the way in which she perceives external stimuli.” - Opinion: significant premorbid pathology that “does not formally disable her from work, but which would make it very difficult to work with her or for her to work with others. However, she is not disabled from her occupation or for any occupation for which she is trained or has reasonable experience.” ### Medical Advisor’s final report and infectious disease review - April 25, 2002: Medical Advisor final report to the SRP Administration Committee: - Reviewed reviewing psychiatrist, treating psychiatrist letter, and infectious disease specialist records. - Conclusions: - Had concluded Mrs. [“K”] had a “Borderline Personality” with dissociative features characterized by pervasive unstable interpersonal work relationships requiring her to change surroundings to bolster self-esteem and stress-related paranoid ideation. - Medication had controlled depressive aspects. - “Although not totally incapacitating, her characterologic disorder and her limited personal adaptive capabilities make it difficult for her to collaborate with co-workers; and therefore, to successfully perform the required tasks of her position. Intensive psychotherapy would be expected to lessen the negative consequences that her personality disorder has upon her workplace functioning.” - Infectious disease specialist review (summarized in a letter from external counsel because a written report could not be provided before the Committee meeting): - Conclusion summarized: Ms. “K” most likely had suffered from Lyme Disease in the past but had been successfully treated; no evidence of persistent disease of the joints or central nervous system. - Medical Advisor concurred with that assessment on May 2, 2002. ### Administration Committee review meeting and final determination on review - May 2, 2002: Secretary transmitted documentation to Committee members for review, including original Request, Medical Advisor’s opinion, Ms. “K”’s review application, reports of reviewing psychiatrist, infectious disease summary letter, and Medical Advisor’s final report. - Secretary’s covering memorandum noted extensive efforts to collect additional treating physicians’ records; reviewing physicians and Medical Advisor were of the opinion that the Applicant is not totally and permanently disabled, her condition is treatable, and there are Fund jobs she could be called upon to perform. - May 9, 2002: Administration Committee met to decide Ms. “K”’s application for review. Salient Final Minutes excerpts: - Members asked whether difficulties in working with others could make it impossible to do the job even though technically capable. - Legal Representative: underlying cause of difficulties must be considered. - Concern about “moral hazard” in granting disability pension for an apparent treatable personality disorder versus an incapacitating mental illness; Committee agreed. - Medical Advisor: participant frequently changes physicians and does not fully comply with prescribed medical regimes; diagnosed as borderline personality; treatment is difficult because participant can but does not comply. - Medical Advisor: condition can be controlled with medication for depression and anxiety. - Chair queried whether other Plans would consider this condition disabling; external counsel replied it would not be considered disabling. - Advisor: key is volitional impairment as in thought disorders; here thinking is not disordered and participant has choice to comply with treatment which could help her. - Noted Plan cannot require treatment but does not have to grant disability pension to a member who refuses treatment that will alleviate disability. - Consensus points: - Participant can perform the functions of her job; when not sustained long-term, not permanently and totally disabled. - Not appropriate to grant disability pension simply because a person cannot or does not want to work within the organization’s structure and deal with other staff. - Since jobs exist that the participant could perform and her condition can be controlled with prescription drugs despite expected recidivism, she is not permanently disabled. *Source: SRP Administration Committee / International Monetary Fund administrative records and medical assessments concerning Ms. “K”* ### 36. Accordingly, the Administration Committee decided unanimously to sustain its ### 36. Accordingly, the Administration Committee decided unanimously to sustain its original Decision and communicated to Applicant its Decision on Review by letter of May 17, 2002 ### Procedural history and Decision on Review - The Administration Committee decided unanimously to sustain its original Decision and communicated its Decision on Review by letter of May 17, 2002. - The decision letter set forth the standard for disability retirement and described the process of medical review undertaken in the Applicant’s case. - The Committee stated its conclusions: - “Since 1990, you have been given opportunities to work as a Staff Assistant in several different areas. ... The Committee concluded that it is within your capacity to perform the duties required of Staff Assistants. - Taking all of the circumstances into account, the Committee concluded that your condition is treatable and so is not a total and permanent disability as required by the Plan.” - The Decision on Review advised Ms. “K” of her right to contest the decision in the Administrative Tribunal. - On August 15, 2002, Ms. “K” filed her Application with the Administrative Tribunal. ### Applicant’s principal contentions (summarized) - Applicant is totally and permanently incapacitated within the meaning of SRP Section 4.3. - The SRP Administration Committee incorrectly interpreted the applicable Plan provision to require the symptoms of a psychiatric disorder to be continuous in order to be totally incapacitating. Applicant’s symptoms do not wax and wane in a predictable manner so as to allow the employer to accommodate their periodicity. - An incapacity is “permanent” within the meaning of SRP Section 4.3 when the symptoms arise at irregular intervals but with such frequency as to prevent the Applicant from functioning as an employee for indeterminate periods. - Applicant is unable to perform her job or any other job. - Within the context of Applicant’s remaining working life, she is totally and permanently disabled, although a younger person might not be so classified. - The Fund’s administration is in the best position to determine the effect of Applicant’s medical condition on her ability to perform her job or other work with the IMF. The physicians’ definitions of total incapacity are entitled to no more deference than are laymen’s in determining fitness for work. The administration has concluded that Ms. “K” is not a candidate for continued employment with the IMF, yet she is determined not to be totally incapacitated for purposes of disability retirement. - Applicant has attempted to alleviate her condition by undergoing psychotherapy and taking prescribed medications; she has cooperated with the treatment regimens of her treating physicians. - The medical evidence shows that a return to work would likely exacerbate Applicant’s symptoms. - The nature of borderline personality disorder should not be minimized, as the term “borderline” signifies the border between neurosis and psychosis, not between normalcy and mild neurosis. - The Administration Committee’s decision was procedurally defective because the medical experts were not jointly selected to be truly independent, the Committee considered a hearsay report of the findings of one of the reviewing physicians, and “[t]he information provided the Committee excluded applicant’s [i]nformation in its entirety.” - Applicant seeks as relief: - a) that the Tribunal order that Applicant be granted a disability pension retroactively; - b) that “all funds deducted from her service accounts be recredited;” and - c) legal costs. ### Respondent’s principal contentions (summarized) - The Administration Committee correctly applied the terms of the Plan to determine that Applicant is not totally and permanently incapacitated within the meaning of SRP Section 4.3. - Intermittent incapacity is not “total” incapacity under the SRP. As long as Applicant can perform her duties, even if not on a sustained basis, she is not totally and permanently incapacitated. - The Administration Committee properly determined that Applicant could perform the functions of a Staff Assistant even though her personality disorder could make it intermittently difficult for her to get along with colleagues. - Assuming that Applicant is currently totally incapacitated, this incapacity is not likely to be permanent. Applicant’s condition is treatable. - The record shows that Applicant has been insufficiently committed to a treatment program that would control her symptoms. Her thinking is not disordered, and she could choose to comply with such a program. - At age 52, Applicant has approximately 13 years of remaining working life until mandatory retirement. She has not established that this is insufficient time for treatment of her personality disorder. - Disability retirement, which entails a lifelong commitment on the part of the Fund, is intended for the most extreme medical conditions. A condition such as Applicant’s may be an appropriate case for medical separation but not for disability retirement. - The terms of the SRP clearly contemplate that the Administration Committee’s decision must be based on, and consistent with, the expert advice of its Medical Advisor. - The Administration Committee acted appropriately in considering the opinions of both reviewing and treating physicians. That the underlying records of the treating physicians are not provided to Committee members does not represent a failure of process because the records are of a sensitive nature and the members do not have the expertise to evaluate them. - Applicant has not shown any bias on the part of the reviewing physicians or that it was improper for the Committee to accept a summary by external counsel of the report of the infectious disease specialist. Applicant has not shown that the Committee failed to take into account any material information that would have affected its decision. - Respondent answered that no credits have been deducted from any accounts of Applicant and that Applicant has not elaborated what credits she believes should be restored. ### Consideration of the issues — The Administrative Tribunal’s standard of review for disability retirement cases - The Administrative Tribunal’s standard of review is governed by the second sentence of Article III of the Statute of the Administrative Tribunal: “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.” - The standard of review describes the relationship between the Administrative Tribunal and the decision maker and represents the degree of deference accorded by the Tribunal to the decision maker’s judgment. - The degree of deference may vary according to: - the nature of the decision under review; - the grounds upon which it is contested; and - the authority or expertise vested in the original decision maker. - The Administration Committee has a dual role: it takes the administrative act and supplies a channel of review for exhaustion of remedies when it reconsiders its own decision pursuant to Article VIII of its Rules of Procedure. Consequently, decisions of the SRP Administration Committee are necessarily subject to review by the Administrative Tribunal. - In reviewing the appropriate standard, the Tribunal looks to: - the text of Article III; - the published Commentary on the Statute (Report of the Executive Board); - the IMFAT’s jurisprudence; and - the jurisprudence of other international administrative tribunals. - The Tribunal’s case law acknowledges deference to managerial discretion; discretionary decisions can be overturned only if 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, p. 19). - The nature of the Administration Committee’s decision-making process may require heightened scrutiny because: - construing and applying Plan provisions to individual facts may more closely resemble a judicial act than managerial discretion; - decisions under the Plan are vested exclusively in the Administration Committee and are subject to direct appeal to the Administrative Tribunal (following reconsideration by the Committee), not to review by the Managing Director. - Prior IMFAT decisions (e.g., Mr. “P” (No. 2)) have applied a “soundness” review to SRP Committee decisions and have rescinded Committee decisions found to be in error. - International authorities recognize that quasi-judicial powers, though framed in discretionary terms, may be subject to de novo review by a tribunal acting “rather as a court of appeal than as a court of review.” The World Bank Administrative Tribunal has distinguished ordinary managerial discretion review from the broader appellate jurisdiction applicable to pension-plan disability decisions. *Administrative Tribunal judgment.* ### 30. Under the Staff Retirement Plan, Section 10.2 (f), the decision ### j2003-2 - 30. Under the Staff Retirement Plan, Section 10.2 (f), the decision ### Standard of review applied to PBAC/Administration Committee disability decisions - The World Bank Administrative Tribunal (WBAT) described its review under the Staff Retirement Plan as able to examine: - “(i) the existence of the facts, (ii) whether the conditions required by the Staff Retirement Plan for granting the benefits requested were met or not, (iii) whether the PBAC in taking the decision appealed has correctly interpreted the applicable law, and (iv) whether the requirements of due process have been observed.” (WBAT Decision No. 153 (1996), paras. 28-30). - The IMF Administrative Tribunal adopted a comparable standard for SRP Administration Committee decisions to deny disability retirement, set out in Ms. “J”: 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? ### Case-law precedents on reviewability and merit review - WBAT upheld PBAC denial in John Courtney (No. 2) v. IBRD, WBAT Decision No. 153 (1996), but described a review that is not purely deferential to executive discretion (paras. 28-30). - WBAT reversed PBAC denials in subsequent cases applying the identical standard: - Ahlam Shenouda v. IBRD, WBAT Decision No. 177 (1997): WBAT concluded applicant was entitled to disability retirement, finding the PBAC result “contrary to the clear weight of the evidence” and explaining that the Tribunal “can—giving some weight to the views of the Medical Advisor—review independently the written opinions of the physicians who examined or treated the Applicant” (paras. 22–24, 35). - A v. IBRD, WBAT Decision No. 182 (1997): WBAT held PBAC conclusions could not be sustained in light of medical evidence (para. 16). - WBAT statements emphasize the Tribunal’s broad power under pension-plan appeal provisions to examine “all elements of fact and law as well as of procedural fairness and transparency.” (A, para. 4) ### SRP Section 4.3(a): statutory requirements preserved exactly - SRP Section 4.3(a) in its entirety: - “4.3 Disability Retirement (a) 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.” ### Key legal and factual issues in Ms. “K” - Two essential statutory qualifications: - 1) 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 - 2) Incapacity is “likely to be permanent.” - Central factual-legal question: whether recurring or intermittent psychiatric incapacity can satisfy the SRP’s “totally incapacitated” requirement when symptoms are “irregular in time of appearance, but [which occur] with such frequency as to render the sufferer unable to function as an employee at irregular times for indeterminate durations.” - Parties’ positions: - Applicant: Administration Committee erred by requiring psychiatric symptoms to be “continuous”; asserts intermittent but frequent/unpredictable symptoms can render a person totally and permanently incapacitated. - Respondent: “Intermittent” incapacity is not “total” under the SRP; as long as Applicant can perform duties “even if not on a sustained basis,” she is not totally and permanently incapacitated. ### Relevant factual matrix and medical opinions in Ms. “K” - Administration Committee findings: - Initial Decision: a “return to the workplace was no longer a viable option because the person was reluctant to return to work and co-workers were fearful of her behavior.” - On review: Committee found “... it is within [Ms. ‘K’]’s capacity to perform the duties required of Staff Assistants.” Committee noted many workplace accommodations had been made and rejected work-at-home as a viable solution. (Administration Committee Final Minutes, March 1, 2001; Final Minutes, May 9, 2002.) - Medical opinions and characterizations: - Medical Advisor (January 26, 2001): described “erratic emotional storms” that caused workplace wariness; concluded the disorder “... impairs [her] ability to successfully perform, on a sustained basis, collaborative tasks. ...” but “does not totally incapacitate” her from performing tasks IMF might reasonably ask of her. - Reviewing psychiatrist (August 25 and September 5, 2001): opined the patient “would be periodically hampered from performing adequately in the workplace, but not permanently,” “this is not a consistently disabling condition,” and “in general, the patient seems to be able to do her work.” - Treating psychiatrist (June 15, 2001): opined Ms. “K”’s medical status “... not only totally incapacitate[s] her from performing tasks that the IMF might reasonably ask of her, but from performing a job anywhere else.” - Tribunal observation: medical evidence did not specify exact frequency or precise nature of intermittent impairments; opinions diverged on whether impairments were sufficiently frequent/severe/unpredictable to amount to total incapacity. ### Comparative analysis with other decisions - Courtney (No. 2) reasoning: - WBAT found a participant unfit to travel but capable of HQ duties was not “totally and permanently incapacitated” because he “could have still undertaken reasonable work assignments” (WBAT Decision No. 153, paras. 31–34). - WBAT later summarized Courtney as holding that inability to perform previous travel-related duties did not alone establish total disability if other assignments without travel remained feasible (A, para. 13). - Shenouda and A: show that findings of inability to perform job functions “on a sustained basis” by the Medical Advisor contributed to conclusions that incapacity was total; WBAT gave weight to treating physicians and reversed PBAC where consensus of medical opinion supported disability. ### Procedural and doctrinal implications highlighted - The Tribunal may give weight to separation-for-medical-reasons decisions under GAO No. 13, Rev. 5, Annex I and GAO No. 16, Rev. 5, but those separations do not legally determine SRP disability pension entitlement; SRP disability determinations must be made first (GAO No. 16, Section 11.02). - The Tribunal must resolve who decides incapacity under SRP Section 4.3(a), considering that the Plan requires retirement “on the recommendation of the Administration Committee and the certification of a physician or physicians designated by the Administration Committee.” Shenouda indicates an appellate tribunal is not strictly bound by the Medical Advisor’s conclusions and may independently weigh physicians’ written opinions, giving some weight to the Medical Advisor but reviewing the record for the “clear weight of the evidence.” *Source: IMF Administrative Tribunal decisions and referenced WBAT decisions as reproduced in the cited content.* ### 67. In reviewing the soundness of the Administration Committee’s decision to deny ### j2003-2 - 67. In reviewing the soundness of the Administration Committee’s decision to deny ### Review standard and evidentiary approach - The Tribunal must assess whether the Administration Committee’s denial of Ms. “K”’s application for disability retirement is supported by the weight of the evidence. - In that assessment the Tribunal should consider: - the internal consistency of physicians’ reports, separating observations of Applicant’s condition from their ultimate conclusions on incapacity; and - whether the Administration Committee drew reasonable conclusions from the evidence. ### Internal inconsistencies in medical evaluations - The Medical Advisor’s report of January 26, 2001 contains seemingly contradictory statements: - “... Ms. [“K”] is unfit to perform satisfactorily her IMF job function because of the constellation of psychologic factors associated with her characterologic disorder. ... Her condition is permanent in that she will not be able to return to the IMF and perform satisfactorily. Accordingly, Ms. [“K”] is unfit to successfully perform the tasks of her position.” - Yet elsewhere in the record the Medical Advisor opined that her inability to perform collaborative tasks “... does not totally incapacitate her from performing tasks that the IMF might reasonably ask of her” (emphasis supplied). - The reviewing psychiatrist (report of August 25, 2001) juxtaposed “technical” or “formal” competence with practical workplace functioning: - “Although technically she could do any job within the IMF, on a practical level it would be very difficult for her to work within a vocational context. ... and [it] would be very difficult for the organization to tolerate her behavior. ... She is technically not disabled, but both she and any organization would find it hard to work together.” - In a subsequent report: symptoms do not “... formally disable her from work, but ... make it very difficult to work with her and for her to work with others.” (Emphasis supplied.) - The Tribunal must separate factual clinical observations from physicians’ conclusions about disability, recognizing that “The views expressed on disability are opinions and not facts.” (Courtney (No. 2), para. 32; reviewing psychiatrist’s November 11, 2001 note distinguishing his view from treating psychiatrist: treating psychiatrist “feels that she is totally disabled for all work and I do not.”) ### Diagnosis, seriousness, and treatability - Diagnoses and clinical characterizations in the record: - Reviewing psychiatrist’s reports (August 25, 2001 and September 5, 2001): Ms. “K” “...is a person with multiple psychiatric problems.” Diagnosed with depression secondary to borderline personality disorder and possibly bipolar disorder. - Treating psychiatrist (report of June 15, 2001): mental disorder characterized as “major depressive disorder recurrent, severe,” with major depressive episodes over the preceding six years. - Medical Advisor (January 26, 2001): history of “depressive episodes resulting in suicide attempts,” but characterized recurrent depression as “in remission” based on earlier evaluator’s findings. - The reviewing psychiatrist opined that depression was “secondary to” borderline personality disorder (report of August 25, 2001). - The Medical Advisor (April 25, 2002) opined that “[m]edication had controlled the depressive aspects of this mental condition.” - NIH Publication No. 01-4928 (quotation): - Borderline personality disorder (BPD) described as “a serious mental illness characterized by pervasive instability in moods, interpersonal relationships, self-image, and behavior.” - Patients account for “20 percent of psychiatric hospitalizations.” - BPD “often occurs together with other psychiatric problems, particularly bipolar disorder, depression, anxiety disorders, substance abuse, and other personality disorders.” - Treatments: group and individual psychotherapy are “at least partially effective for many patients”; dialectical behavior therapy (DBT) noted as promising; pharmacological treatments used for target symptoms (antidepressant drugs, mood stabilizers, antipsychotic drugs). - The Medical Advisor earlier noted that treatment of borderline personality disorder “may be difficult” and that Ms. “K” “has never undergone long-term psychotherapy” of sufficient intensity and frequency (Medical Advisor’s report of January 26, 2001). He later reaffirmed that “intensive psychotherapy” would be expected to “lessen” negative workplace consequences (April 25, 2002). ### Administration Committee deliberations and emphasis - Final Minutes of the Administration Committee (May 9, 2002) reflect committee views that: - there was “a certain moral hazard in granting a disability pension to a person who had an apparent treatable personality disorder as opposed to an incapacitating mental illness.” (Emphasis supplied.) - the Medical Advisor described the condition as a “character disorder reflecting the participant’s difficulties in relating to other people.” - rhetorical questions were raised about whether inability to get along with others should qualify for a disability pension and that “it is not appropriate to grant a disability pension simply because a person cannot or does not want to work within the organization’s structure and deal with other staff.” - The Final Minutes record the Committee’s conclusion on treatment control as: “... her condition can be controlled with prescription drugs.” (May 9, 2002) - The Administration Committee on initial decision (Final Minutes, March 1, 2001) had viewed a return to the workplace as “no longer a viable option,” yet later denied disability on review. ### Compliance and permanency issues - Legal test: Disability must be total and “likely to be permanent” (SRP Section 4.3 (a) (ii); Courtney (No. 2), para. 33). - Factors from Shenouda guiding permanency determination include: extent of improvement over time, expected response to medication/exercise, and reasonable compliance with treatment regimens (para. 22). - Evidence and positions in record: - Medical Advisor (January 26, 2001): “... condition is permanent in that she will not be able to return to the IMF and perform satisfactorily.” - Administration Committee initial decision to deny was nevertheless accompanied by view that a return was “no longer a viable option” (Final Minutes, March 1, 2001). - Treating psychiatrist (June 15, 2001): conditions are “... permanent in that they not only incapacitate her from performing tasks that the IMF might reasonably ask of her, but from performing a job anywhere else.” - Reviewing psychiatrist (August 25, 2001): “... this patient would be periodically hampered from performing adequately in the workplace, but not permanently.” - Medical Advisor’s final report (April 25, 2002) did not explicitly opine on permanency; instead agreed with reviewing psychiatrist that Ms. “K” is “capable of performing her job functions” and hence not totally disabled. - Administration Committee on review relied in part on findings or impressions that Applicant was not compliant with prescribed treatment: - Final Minutes (May 9, 2002): “[The Medical Advisor] ... noted that the participant frequently changes physicians and does not fully comply with prescribed medical regimes. ... Treatment is difficult because the participant can but does not comply with the treatment regimes. ... It was not clear why the person stopped taking medication.” - Committee noted Plan cannot require a participant to take medication or undergo surgery but considered whether denial is appropriate where an individual “refuses treatment.” - Medical Advisor characterized the “key” as whether there is a volitional problem (e.g., thought disorder) that removes choice; he concluded that Ms. “K”’s thinking is not disordered and she “... do[es] have a choice to comply or not to comply with a treatment regime which could help her. ... She could follow a treatment regime by taking prescription drugs to control her behavior. There is no reason in the record why she cannot do so.” (Final Minutes, May 9, 2002) - Tribunal’s evidentiary observations on compliance: - The record appears to lack evidentiary support for findings that Ms. “K” was noncompliant, frequently changed physicians, or had stopped taking medication. - Reviewing psychiatrist’s record review suggested Ms. “K” had availed herself of treatment options; medical records show ongoing psychiatric care and numerous prescribed medications. - No notations in the medical records explicitly indicate noncompliance. - Reviewing psychiatrist’s November 11, 2001 review found Applicant had remained under treatment of a treating psychiatrist for more than a year. - Medical Advisor’s April 25, 2002 report stated “[m]edication had controlled the depressive aspects of this mental condition.” - The Medical Advisor’s January 26, 2001 observation that long-term psychotherapy had not been undertaken does not equate to a finding of noncompliance. ### Tribunal conclusions on incapacity and permanency - After reviewing the evidence before the Medical Advisor and the Administration Committee, the Administrative Tribunal concludes: - The Applicant is totally incapacitated, mentally, to perform the duties in the Fund that she might reasonably be called upon to perform, namely those of Staff Assistant, particularly because her mental condition renders her unable to collaborate constructively with co-workers. - The Administration Committee’s initial decision that Ms. “K” was not permanently incapacitated runs counter to the weight of the evidence. *Administrative Tribunal (decision text excerpt).* ### 88. An important question presented by this case is the extent to which Applicant’s ### j2003-2 - 88. An important question presented by this case is the extent to which Applicant’s ### Noncompliance versus illness-related incapacity - Medical Advisor characterized Applicant’s alleged failure to comply with treatment as volitional but also “further elaborated” that Ms. “K”’s “... condition reflected poor impulse control.” (Administration Committee Final Minutes, May 9, 2002.) - Medical Advisor’s initial report (January 26, 2001) stated: “Although intensive therapy would be expected to lessen the negative consequences of her characterologic disorder; given her personality type, she is unlikely to substantially commit herself to long-term intensive psychotherapy.” (Emphasis supplied.) - Reviewing psychiatrist observed Applicant’s cognitive state as “... probably overwhelmed at times by her moods and emotions.” (Reviewing psychiatrist’s report of August 25, 2001.) - Tribunal finding: there is insufficient support in the record to conclude noncompliance; if noncompliance existed, it may be “reasonable” given the nature of Applicant’s illness. ### Comparative jurisprudence: Shenouda and related WBAT decisions - Shenouda (WBAT): Bank’s contention that applicant’s failure to improve was due to “unreasonable failure to take recommended medications, exercise and therapy” was “clearly contradicted by the record.” (Paras. 25-27, 30.) - In Shenouda the WBAT found physical therapy unlikely to improve condition and medication nonuse attributable to adverse side effects; physician reports described the applicant’s impairment as “severe” and likely permanent. (Paras. 28-30.) - WBAT approach: assess likely permanence of disability in relation to normal retirement age under the relevant plan (Shenouda, para. 33). ### Age, remaining working life, and likelihood of permanence - Respondent’s contention: at age 52 (Applicant’s age at Administration Committee review), Applicant has approximately thirteen years of remaining working life until reaching the Fund’s mandatory retirement age of 65 and has not shown insufficiency of that period for treatment. - WBAT precedent: determination of whether total incapacity is “likely to be permanent” is to be made “in relation to the normal retirement age” (Shenouda, para. 33); in Shenouda the applicant was 57 and had been fully disabled for more than two and one-half years, and WBAT found no reasonable basis to conclude condition would improve in the following five years. - Note: For SRP purposes here, “normal retirement date” is age 65 (SRP Section 4.3(f)); for other purposes under the Fund’s Plan, “normal retirement date” is age 62 (SRP Section 1.1(k)). ### Chronicity, severity, treatment prospects, and Tribunal conclusion on permanence - Record evidence of long-standing condition: - Medical Advisor noted history of depressive episodes. - Treating psychiatrist dated these as extending over the preceding six years. - Applicant reported being depressed most of her life, “usually not ‘badly’.” - Reviewing psychiatrist (September 5, 2001) stated Applicant’s “... psychiatric symptoms emanate from biologic, developmental characterologic constructs endemic to her personality and neurochemistry.” - Administration Committee Final Minutes (May 9, 2002): Medical Advisor told Committee “... the records indicate that this condition existed at an early developmental period in the participant’s life and that ... the condition ... develops over a person’s life time.” - Medical Advisor faulted Applicant for not undertaking “intensive” psychotherapy but also noted limited efficacy: such therapy would be expected to “lessen” negative consequences. (Medical Advisor’s reports of January 26, 2001 and April 25, 2002.) - Tribunal’s decision: Applicant’s incapacity is “likely to be permanent” based on the long-standing, intractable character of the condition and the treatment record. ### Procedural fairness, due process standards, and applicable legal framework - IMFAT’s authority to review procedural fairness derives from Article III requirement to apply “the internal law of the Fund, including generally recognized principles of international administrative law concerning judicial review of administrative acts.” Statutory Commentary notes doctrinal acceptance of rights such as audi alteram partem (Report of the Executive Board, p. 18). - IMFAT precedent (Ms. “C”): awarded compensation for procedural deficiency where applicant lacked meaningful opportunity to rebut adverse evidence; characterized such absence as a “lapse in due process.” (Paras. 41-44.) - IMFAT reaffirmed that “...the Fund’s internal law favors legal decisions that are the result of adversary proceedings, in which reasonable notice and the opportunity to be heard are the essential elements.” (Mr. “P” (No. 2), para. 152.) ### Specific procedural issues raised by Applicant and Respondent’s positions - Applicant’s claims of procedural defect: - “The information provided the Committee excluded applicant’s [i]nformation in its entirety.” - Medical experts were not jointly selected to be truly “independent.” - Committee considered a hearsay report of the findings of one of the reviewing physicians. - Respondent’s defenses: - SRP contemplates Committee decision based on expert advice of its Medical Advisor. - Committee appropriately considered opinions of reviewing and treating physicians. - Non-disclosure of treating physicians’ underlying records justified by sensitivity and lack of Committee expertise to evaluate them. - No shown bias by reviewing physicians and accepting a summary by external counsel of an infectious disease specialist was proper. - Applicant has not shown omitted material information that would have affected the decision. ### Administration Committee Rules, their application, and identified procedural lapses - 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, and to decide attendance. Key provisions include: - Rule VI.1: Committee may rely on written submissions or convene an oral hearing; Secretary will provide the Requestor “with reasonable notice of the date of any proceeding...” - Rule VI.2: Confidential evidence may be recognized; if confidentiality prevents waiver, “the Requestor shall be given an opportunity to review and respond to a summary of that evidence which shall be prepared by the Secretary.” - Rule VI.3: Parties may be represented by counsel, each at their own expense. - Rule VI.4: Deliberations and minutes are treated as confidential and “shall not be made available to the Requestor” unless Committee decides otherwise. - 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.” - In Applicant’s case the Committee’s initial Decision denying disability retirement “did not set forth any reasons” and merely recited the standard and announced conclusion — a lapse that appears to violate Rule VII and denies meaningful opportunity for response. - Rule VII, para. 3 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.” - Applicant apparently did not request such materials; but prior cases demonstrate that post-decision summaries may afford only limited opportunity for rebuttal because they do not permit review and response prior to decision. - Concern about implementation of Rule VI and VII: room to question whether Applicant was afforded sufficient and timely opportunity for rebuttal and meaningful notice. ### Role of external counsel and potential procedural influence - Final Minutes record an instance: “The Chair asked if this condition would be considered disabling by the Plans of other organizations, to which external counsel replied that it would not be considered disabling.” - Tribunal notes the question whether such a generalization, offered without supplied basis, “may have improperly influenced the Committee’s decision-making process.” *Source: International Monetary Fund Administrative Tribunal judgment j2003-2.* ### 108. The Tribunal has decided Ms. “K”’s application in her favor on substantive grounds. ### j2003-2 - 108. The Tribunal has decided Ms. “K”’s application in her favor on substantive grounds ### Tribunal findings and procedural posture - The Tribunal decided Ms. “K”’s application in her favor on substantive grounds and found no need to pass upon her procedural complaints. - The Tribunal observed that the Administration Committee may wish to consider several points for future guidance, reflecting the importance of observance by an organization of its procedural rules. ### Recommendations to the Administration Committee regarding medical evaluation and participation - 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. (Paragraph 109) - The Tribunal considers that 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, and that members of the Administration Committee should be entitled to review those medical reports to weigh fully the views of both treating and reviewing physicians and evaluate the conclusions of the Medical Advisor. (Paragraph 110) - The Administration Committee might consider review of an Applicant’s condition and related opinions by a Board of Medical Advisors rather than a single Medical Advisor, modeled on practices in other international organizations such as the ILO and UNESCO. Under the suggested tripartite model: - One member would be designated by the Applicant; - A second member would be designated by the Administration Committee; - The third member would be selected by agreement between the first two. (Paragraph 111) - The Tribunal notes that the tripartite model is already 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: “2.03.1 A panel of medical experts shall be constituted in the following way: the Director of Administration and the staff member shall each appoint a panel member, and a third panel member shall be selected jointly by the first two members. ...”). (Paragraph 111, footnote 22) - 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 to perform; the drawing of that ultimate conclusion should be the function of the Administration Committee. (Paragraph 112) - 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. (Paragraph 113) ### Remedies: statutory authority and Tribunal orders - The Tribunal’s remedial authority is provided by Article XIV of the Statute, which states in full: - “ARTICLE XIV 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.” (Paragraph 115) - In exercise of Article XIV authority, the Tribunal: - Rescinded the Administration Committee’s decision denying a disability pension to Ms. “K” and ordered that the disability pension be granted. (Paragraph 116) - Declined to award separate compensation for procedural unfairness because the Tribunal did not pass upon the Applicant’s claim of procedural unfairness. (Paragraph 117) ### Legal costs and assessment procedure - The Tribunal noted Article XIV, Section 4 criteria for awarding reasonable legal costs where an application is “well-founded in whole or in part,” including consideration of “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.” (Paragraph 118) - The Tribunal found Ms. “K”’s Application on the merits to be well-founded and ordered that the Fund shall pay Applicant the reasonable costs of her legal representation. (Paragraph 119) - The Tribunal will assess the amount of compensable legal costs following: - Submission of a statement of costs by Applicant; and - An opportunity for comment by the Fund; - The assessment will follow a schedule to be transmitted with the Judgment. (Paragraph 119) ### Final decision (Judgment) - The Administrative Tribunal of the International Monetary Fund unanimously decided: 1. The decision of the Administration Committee denying Applicant a disability pension is rescinded and a disability pension is ordered to be granted to Ms. “K”, retroactive to the date of Applicant’s retirement. 2. The Fund shall pay Applicant the reasonable costs of her legal representation, in an amount to be assessed by the Tribunal following further submissions of the parties according to the schedule transmitted with the Judgment. - Judgment signed: - Stephen M. Schwebel, President - Nisuke Ando, Associate Judge - Michel Gentot, Associate Judge - Celia Goldman, Registrar - Washington, D.C., September 30, 2003 --- _Source: https://www.imf.org/-/media/files/imfat/j2003-2.pdf_