## j2007-5 — Administrative Tribunal Judgment (Shinberg) ## Source details **Canonical URL:** [j2007-5 — Administrative Tribunal Judgment (Shinberg)](https://www.imf.org/-/media/files/imfat/j2007-5.pdf) ## Other formats - [Markdown version](/-/media/files/imfat/j2007-5.pdf.md) - [Structured JSON version](/-/media/files/imfat/j2007-5.pdf.json) --- ### Tribunal session, parties, and procedural chronology - Tribunal composition: Judge Stephen M. Schwebel, President; Judges Nisuke Ando and Michel Gentot, Associate Judges. Sessions held November 14 and 16, 2007. - Applicant: Ms. Vivian Shinberg, Fund staff member. - Respondent: International Monetary Fund. - Key filing and docket dates: - Application filed January 25, 2006; transmitted to Respondent February 16, 2006. - Respondent Answer filed April 3, 2006; Applicant Reply May 8, 2006; Respondent Rejoinder June 12, 2006. - Additional documents supplied August–September 2007 at Registrar’s request. - Registrar rulings: deficiencies corrected within fifteen-day period; Application treated as filed on original date. - Oral proceedings: none held (neither party requested them and Tribunal found them unnecessary). ### Core claims, positions, and relief sought - Applicant’s principal claims and requests: - Reimbursement of attorney’s fees incurred in pursuing a successful Workers’ Compensation claim and in preventing separation for medical reasons. - Contends GAO No. 20, Rev. 3 is silent on attorney’s fees so D.C. Workers’ Compensation law applies, entitling reimbursement of reasonable attorney’s fees up to 20 percent of benefits secured. - Alleges retaliation for asserting Workers’ Compensation claims and seeks two years’ salary for moral injury. - Seeks attorneys’ fees and costs for Tribunal proceedings and any other relief deemed fair and just. - Respondent’s principal positions: - GAO No. 20 incorporates Fund internal review (Grievance Committee) and thereby GAO No. 31, Rev. 3 attorney-fee provisions; D.C. law does not govern. - Applicant did not prevail in Grievance Committee proceedings; thus not entitled to fees under internal law. - Alternatively, even if D.C. law applied, it would not entitle Applicant to reimbursement in these circumstances. - Retaliation claim should be rejected for failure to exhaust administrative review and on the merits. ### Factual background and relevant chronology of employment and claims - Employment and separation: - Employed by Fund since 1976; became Staff Assistant Grade A5 in 1990; began separation leave for medical reasons in 2006; separation leave concludes end-May 2008; eligible to draw Fund pension at that time. - Second Application to the Tribunal arising from work-related injuries (see Shinberg I). - Work-related injuries and benefits chronology: - May 28, 1987: file-cabinet injury; medical expenses covered per GAO No. 20, Section 8.01; part-time work July 1987–February 1988 with full-time compensation via sick leave and extended sick leave. - August 7, 1997: slip and fall in Fund cafeteria; awarded Workers’ Compensation benefits and “special sick leave” under GAO No. 13, Rev. 5, Section 4.07. - Events central to attorney’s-fees dispute: - May 9–18, 1999: IME concluded no objective residual impairment; Claim Administrator terminated Workers’ Compensation coverage effective 5/9/99; absences to be charged to regular sick leave. - January 3, 2000: initial Grievance filed (did not include termination allegation but requested “reimbursement of my attorney fees”). - July 10, 2000: Revised Grievance raised continued medical problems related to original back injury and sought payment of legal costs (including $5,041.00 alleged legal costs). - January 2, 2001: new Workers’ Compensation claim filed alleging continuity from May 1999 and seeking coverage for “fibromyalgia/cervical problems”; initially claimant declined an unrestricted medical release; authorization later provided. - February 6, 2002: Claim Administrator accepted myofascial pain syndrome causally related to 5/28/87 and 8/7/97 injuries, rendering Applicant capable only of regular part-time work; restored medical benefits retroactive to May 1999; denied fibromyalgia claim as not causally related. - March 19, 2002: Fund calculated $20,121.20 in salary and benefits owing for May 10, 2001–March 13, 2002; additional $12,940 in education allowances later included; Fund considered Workers’ Compensation resolution to render Grievance moot. - Separation and fitness-for-duty history: - May 1999 fitness-for-duty: fit for part-time only; procedures initiated that led to separation proceedings in 2002–2003; Medical Panel (November 3, 2003) found Applicant able to work part-time in a “stable environment.” - Extended administrative leave and part-time assignments followed; separation leave began August 1, 2006 with 22.5 months of separation leave, bridged to Fund pension end-May 2008. ### Document production requests and Tribunal rulings prior to merits - Applicant sought full statement of all Workers’ Compensation benefits since 1999 and documentation of attempts to separate her on medical grounds. - Fund provided a list of leave and medical benefits paid under GAO No. 20 for August 1987–December 2004. - Tribunal rulings (November 8, 2007): - Denied request for documents relating to separation on medical grounds for lack of evidence that further responsive documents existed beyond those provided. - Deferred decision on full accounting of Workers’ Compensation benefits until judgment on the merits; accounting would be material only if Applicant prevailed on the question that attorney’s fees should be reimbursed under D.C. law (up to 20 percent of benefits secured). ### Legal issue framed by Tribunal - Threshold legal question: Does GAO No. 20, Section 10.01 require application of District of Columbia Workers’ Compensation law (including D.C. attorney-fee provisions), or does Section 10.02 and the incorporation of the Grievance Committee’s “normal procedures” (GAO No. 31) specify otherwise so as to govern attorney’s fees under Fund internal law? - Relevant texts and evolution: - GAO No. 20, Rev. 3, Section 10.01: Claim Administrator disposes of claims first on the basis of this Order and next, when not specified otherwise in this Order, in accordance with established procedures for disposition of claims under the District of Columbia Workers’ Compensation Regulations. - GAO No. 20, Rev. 3, Section 10.02: appeal to the Grievance Committee under GAO No. 31 procedures. - GAO No. 31, Rev. 3 (November 1, 1995), Section 7.05: at conclusion of case, Grievance Committee may recommend reimbursement of reasonable costs, including legal fees, if grievance is well-founded in whole or in part. - D.C. statute cited by Applicant appears as § 32-1530 (2001) (formerly § 36-330 (1981)) regarding attorney’s fees. ### Tribunal analysis of compatibility and incorporation - Historical and structural findings: - GAO No. 20, Rev. 3 (1982) refashioned the Fund’s Workers’ Compensation system to place disposition and review within the Fund’s internal procedures by designating a Claim Administrator and providing a Grievance Committee appeal route. - The Tribunal applied principles on incorporation by reference and evolution of “normal procedures,” concluding that “normal procedures” are to be assessed as they evolve and that internal developments in the Fund’s dispute settlement structure must be taken into account. - Compatibility issues with D.C. law: - Fund internal procedures differ materially from D.C. Workers’ Compensation procedures; application of D.C. attorney-fee rules is problematic because the Fund’s system centralizes decision and review internally (Claim Administrator acting as Fund’s agent), so conditions triggering D.C. fee awards (e.g., employer failing to follow a governmental agency decision) may never arise within the Fund’s internal framework. - Tribunal found that by bringing disputes within the Fund’s internal dispute resolution system in 1982, the Fund created an internal law system in which certain elements of the D.C. regime (including fee-shifting mechanics) are incompatible with Fund procedures. ### Tribunal findings on applicable law and fee entitlement - Legal conclusion: - GAO No. 20, Section 10.01 “specified otherwise” insofar as it provides a right of review in the Grievance Committee; the Grievance Committee’s “normal procedures” (GAO No. 31, Rev. 3) apply, bringing the Grievance Committee’s authority to recommend payment of attorney’s fees under Fund internal law into play. - Application to Applicant’s case: - The Claim Administrator’s February 6, 2002 decision accepted myofascial pain syndrome causally related to 5/28/87 and 8/7/97 injuries and restored medical benefits retroactive to May 1999, effectively reversing the May 1999 termination. - The Fund treated the Revised Grievance as moot when the Claim Administrator resolved the subsequent claim in Applicant’s favor; thus the Grievance Committee did not rule on Applicant’s appeal under GAO No. 20, Section 10.02 and GAO No. 31. - Tribunal considered it inequitable to deny attorney’s fees for February 2000–February 2002 on the basis that the Grievance Committee did not uphold her claim when the Claim Administrator’s decision vindicated the Applicant and rendered the Grievance moot. ### Tribunal findings on retaliation claim and exhaustion - Admissibility: - Tribunal requires exhaustion of available administrative review channels; Applicant did not exhaust administrative review for the retaliation claim because the claim had not been given any measure of review through Fund procedures. - Retaliation claim therefore inadmissible. - Merits (alternative consideration): - Even if considered on merits, Tribunal found no substantiation of retaliation. Tribunal’s prior judgment (Shinberg I) documented accommodations and compliance by the Fund inconsistent with retaliatory discharge; Applicant offered no evidence of animus. ### Remedies, awards, and decision summary - Legal authority for remedies: Article XIV, Section 1 of the Tribunal’s Statute permits rescission of individual decisions and measures “involving the payment of money or otherwise, required to correct the effects of that decision.” - Awards granted by the Tribunal: - Award of $12,838.90 in attorney’s fees and costs for counsel’s efforts covering the period from Applicant’s first consultation on the Workers’ Compensation issue in February 2000 through resolution of the third Workers’ Compensation claim by the Claim Administrator and related consultation in February 2002. - Award of $5,512.86 for reasonable costs of Applicant’s legal representation before the Administrative Tribunal (equal to 90 percent of the fees and costs requested for Tribunal representation). - Denials and limitations: - Tribunal denied Applicant’s retaliation claim. - Award of Workers’ Compensation attorney’s fees limited to the February 2000–February 2002 period; Tribunal noted some interwoven work outside that scope and excluded fees for the Grievance Committee and for work not sufficiently tied to the Workers’ Compensation issues resolved in February 2002. - Final decision points (unanimous): 1. Grant in part Applicant’s claim that the Fund wrongfully denied an award of attorney’s fees incurred in maintaining Workers’ Compensation coverage; award $12,838.90 to Applicant. 2. Deny Applicant’s contention that the Fund retaliated against her for asserting Workers’ Compensation claims. 3. Award Applicant reasonable costs of legal representation before the Tribunal in the sum of $5,512.86. *Administrative Tribunal of the International Monetary Fund, Judgment (Washington, D.C., November 16, 2007).* ### Introduction ### j2007-5 - Introduction ### Tribunal session and parties - The Administrative Tribunal of the International Monetary Fund met on November 14 and 16, 2007, composed of Judge Stephen M. Schwebel, President, and Judges Nisuke Ando and Michel Gentot, Associate Judges. - Applicant: Ms. Vivian Shinberg, a staff member of the Fund. - Respondent: International Monetary Fund. ### Core claims and positions - Applicant’s claims: - Challenges the Fund’s denial of reimbursement of attorney’s fees incurred in pursuing a successful claim for Workers’ Compensation benefits and in forestalling attempts to separate her from the Fund for medical reasons, thereby maintaining those benefits. - Argues that, under the Workers’ Compensation law of the District of Columbia (“D.C.”), she is entitled to reimbursement of attorney’s fees incurred in restoring and maintaining her benefits. - Relies on the Fund’s internal Workers’ Compensation policy, GAO No. 20, Rev. 3 (November 1, 1982), citing: “The Claim Administrator will dispose of claims first on the basis of the provisions of this Order and next, when not specified otherwise in this Order, in accordance with established procedures for disposition of claims under the District of Columbia Workers’ Compensation Regulations.” - Asserts that GAO No. 20 is silent on attorney’s fees and that D.C. law therefore applies; seeks compensation for alleged retaliation for asserting her Workers’ Compensation claims. - Respondent’s positions: - Maintains that GAO No. 20 is not silent and, by providing a right to review by the Grievance Committee, incorporates the attorney’s fees provision of GAO No. 31, Rev. 3 (November 1, 1995) (Grievance Committee). - Asserts that D.C. law therefore does not govern Applicant’s claim and that Applicant did not prevail in Grievance Committee proceedings; thus she is not entitled to attorney’s fees. - Alternatively argues that, if D.C. law applied, it would not entitle Applicant to reimbursement in the circumstances of her case. - Urges the Tribunal to reject the retaliation claim on grounds of failure to exhaust administrative review and on the merits. ### Procedure and docket chronology - Application filing and processing: - Ms. Shinberg filed an Application with the Administrative Tribunal on January 25, 2006. - Registrar advised of deficiencies under Rule VII, para. 6; Applicant corrected deficiencies within the fifteen-day period and the Application is considered filed on the original date. - Application transmitted to Respondent on February 16, 2006. - Registrar circulated a notice summarizing issues raised in the Application within the Fund on February 22, 2006 pursuant to Rule IV, para. (f). - Respondent filed its Answer on April 3, 2006. - Applicant filed a Reply on May 8, 2006. - Respondent filed a Rejoinder on June 12, 2006. - Additional documentation was supplied by the parties in August and September 2007 at the Registrar’s request to clarify the record. ### Requests for production of documents and related rulings - Applicant’s document requests: - Sought a complete statement of all Workers’ Compensation benefits received since 1999, including salary and any other benefits, and a statement of benefits she would be entitled to in the future, asserting prior partial information prevented calculation of attorney’s fees. - Requested “... any and all documents and/or correspondence evidencing any and all reasons or explanations for attempts to separate Applicant on medical grounds provided to or among HR and/or Departmental staff where Applicant had worked from 2000 until the filing of this Application.” - Fund’s responses and materials provided: - Provided Applicant with a list of leave and medical benefits paid under the Workers’ Compensation policy for the period August 1987 through December 2004; this listing is attached to Respondent’s Answer. - Noted that the tabulation includes benefits that pre-date those beginning in May 1999 which Applicant contends were secured or restored through attorney efforts. - Tribunal determinations (November 8, 2007): - Denied Applicant’s request for documentation relating to the Fund’s attempts to separate her for medical reasons on the ground that Applicant did not proffer evidence suggesting the Fund had responsive documents beyond those already made available to her (citing precedent: Mr. “F”, Applicant v. International Monetary Fund, IMFAT Judgment No. 2005-1 (March 18, 2005), para. 9). - Deferred decision on Applicant’s request for production of a full accounting of her Workers’ Compensation benefits relevant to the claim for attorney’s fees until judgment on the merits. - Relevance and scope: - The accounting sought would be material only if Applicant prevails on the merits that attorney’s fees should be reimbursed pursuant to D.C. Workers’ Compensation law, up to 20 percent of the benefits secured. - Respondent contends that requests for documents relating to separation are irrelevant because Applicant has not exhausted administrative review channels for alleged wrongful attempts to terminate her employment; Respondent also asserts Applicant has had access to and been provided copies of all personnel records requested. ### Oral proceedings - The Tribunal decided not to hold oral proceedings, noting neither party requested them and they were not deemed useful to disposition of the case. ### Factual background — employment and benefits chronology - Employment overview: - Applicant began employment with the Fund in 1976 as a clerk/typist at the equivalent of Grade A2. - After promotions and title changes, in 1990 Applicant became a Staff Assistant at Grade A5 and served in that grade until beginning separation leave for medical reasons in 2006. - Applicant’s separation leave concludes at the end of May 2008, at which time she will become eligible to draw a Fund pension. - Prior Tribunal proceedings: - This is Ms. Shinberg’s second Application to the Administrative Tribunal arising from work-related injuries; her work history is detailed in Shinberg I (IMFAT Judgment No. 2007-2 (March 5, 2007), paras. 16-34). - Work-related injuries and benefits: - May 1987 injury: a file cabinet fell from a dolly and struck her back. - As a result, Applicant received benefits under GAO No. 20, Rev. 3 (November 1, 1982), including coverage of medical expenses per GAO No. 20, Section 8.01: “[i]n the event of an illness, accidental injury or death of a staff member arising out of, and in the course of, Fund employment, the Fund shall pay all reasonable medical, hospital and directly related costs.” - To accommodate medical restrictions, Applicant worked part-time from July 1987 until February 1988 while receiving full-time compensation through sick leave and extended sick leave. - August 1997 injury: slipped and fell on the Fund cafeteria floor, injuring back and knee. - Awarded Workers’ Compensation benefits reimbursing medical expenses and covering injury-related absences through “special sick leave” per GAO No. 13, Rev. 5 (June 15, 1989), Section 4.07. - Workers’ Compensation Claim Administrator’s February 17, 1998 letter confirmed treatment for the 1987 injury that is reasonable, necessary, and causally related is covered under the 1987 claim. - Events of May 1999 and subsequent developments central to attorney’s fees claim: - Cessation of Workers’ Compensation benefits in May 1999, and restoration of benefits following a third Workers’ Compensation claim filed January 2001 for a medical condition arising out of the 1987 and 1997 injuries, are central issues. - January 2000: Applicant filed a Grievance, revised in July 2000 to challenge inter alia the May 1999 termination of Workers’ Compensation benefits. - Revised Grievance was not fully resolved until October 2005. - February 2002: Workers’ Compensation Claim Administrator granted Applicant’s third claim, restoring medical benefits retroactive to May 1999; the portion of the Grievance challenging termination of benefits was deemed resolved. - Applicant sought attorney’s fees via the Grievance Committee process and directly from the Claim Administrator; these requests were denied when the Fund acted on the Grievance Chairman’s Order and the Claim Administrator declined action pending Tribunal disposition. - Fitness-for-duty and separation process: - May 1999 fitness-for-duty evaluation found Applicant fit for duty only on a part-time basis, initiating a process that ultimately led to separation for medical reasons. - In 2002 Applicant was advised of potential separation based on (a) medical condition, (b) time limitations on Workers’ Compensation benefits, and (c) limited part-time employment possibilities. - In 2003 the Fund decided to proceed with separation; process halted when Applicant invoked the medical panel review in GAO No. 13, Rev. 5, Annex I and was again found fit for part-time work. - In 2006 Applicant began separation leave for medical reasons. *Source: Administrative Tribunal of the International Monetary Fund, Introduction to Application filed January 25, 2006 (case brought by Ms. Vivian Shinberg).* ### 2.04 Decision ### 2.04 Decision ### Decision authority and procedure - The Director of Administration shall decide whether there are sufficient grounds for having the staff member separated for medical reasons on the basis of the medical opinion rendered by the panel of experts. - The same provisions are found at GAO No. 13, Rev. 6 (September 29, 2006), Annex I. ### May 1999 termination of Workers’ Compensation benefits - By letter of May 18, 1999, the Fund’s Workers’ Compensation Claim Administrator notified Applicant that her Workers’ Compensation benefits were being terminated because an independent medical examiner (“IME”) concluded: - “...‘there is no objective evidence of any residual or permanent impairment on [an] anatomical basis’ as related to your work-related injuries, and no limitation on your physical capacity as a result of any anatomical abnormalities that occurred in these work injuries. Based on the job function evaluation, the doctor believes that you have the physical capacity to perform the type of activity required on a full time basis as a Staff Assistant.” - The Claim Administrator concluded that “... effective 5/9/99, any absences from work due to your back will be considered as non-industrial in nature and not chargeable to Workers’ Compensation ....” (Letter from Claim Administrator to Applicant, May 18, 1999.) - On May 20, 1999 an HRD official informed Ms. Shinberg by email that her absences would no longer be covered by Workers’ Compensation leave but by regular sick leave supported by a doctor’s certificate, and requested a fitness for duty examination by the Health Services Division. ### Applicant’s immediate response, counsel engagement, and initial grievance actions - May 20, 1999: Applicant’s husband wrote to HRD disputing the IME report and the termination, stating they “intend to appeal it” and would forward the IME report to Applicant’s doctors. - Later in 1999 Applicant retained counsel; record correspondence does not show that 1999 counsel contested the May 1999 termination. - January 3, 2000 Grievance did not include an allegation regarding termination of Workers’ Compensation benefits; it did request “reimbursement of my attorney fees.” ### February–March 2000 correspondence with Staff Benefits Division - February 23, 2000: Applicant requested immediate reinstatement of Workers’ Compensation benefits, reimbursement for medical expenses, and restoration of sick leave, asserting that a Hopkins specialist found she “was indeed sick” and that “my condition was likely triggered by my work-related injury, and work situation, since Fibromyalgia is often the result of physical trauma and stress.” She stated she was “... pursuing administrative remedies under General Administrative Order No. 31.” - March 8, 2000: Fund official responded that Applicant’s request for review of the May 18, 1999 decision was not timely under GAO No. 31, Section 6.03, which requires requests for review of staff benefits decisions to be filed within three months of the contested decision. - The Fund official advised that any request for workers’ compensation coverage for a current medical condition “would need to be reviewed by the claims administrator” and asked Applicant to complete and sign a claim form and medical records release authorization. - Regarding alleged breach of medical-record confidentiality, the Fund official stated: “Under DC workers’ compensation law, a claimant who puts her medical condition into issue by filing a claim automatically waives the confidentiality of the medical records relevant to that claim, and medical records may be disclosed to the employer... to review or defend the claim, or to enable supervisors and managers to take appropriate decisions regarding assignment of work in light of the medical condition at issue....” (Fund’s Memorandum to Applicant, March 8, 2000.) ### Engagement of new counsel and July 2000 Revised Grievance - Applicant’s new counsel provided ongoing consultation from February 24, 2000 through July 6, 2005 (invoice for attorney’s fees shows nearly monthly consultations). - July 10, 2000 Revised Grievance raised four principal issues, including “continued medical problems which Grievant relates to her original back injury covered by Worker’s Compensation.” - The Revised Grievance alleged the withdrawal of Workers’ Compensation coverage was an abuse of discretion and asserted intent to file a new Workers’ Compensation claim for Fibromyalgia and back pain. - The Revised Grievance sought “payment of all her legal costs, i.e. $5,041.00 paid to [her 1999 counsel] and such other costs as may be incurred in pursuing this Grievance.” ### Suspension and update of Grievance proceedings - After filing the July 2000 Revised Grievance, proceedings were suspended “to allow the parties an opportunity to try to resolve the workers’ compensation issue, and to attempt to reach settlement on the other elements of the grievance.” Proceedings remained suspended following a July 3, 2001 pre-hearing conference until 2005. ### January 2001 updated Workers’ Compensation claim - January 2, 2001 claim form dated January 2, 2001 gave May 1999 as the “accident/illness date” and sought coverage for “fibromyalgia/cervical problems,” stating: “Claimant was injured in 1987 and [the] condition has been chronic and exacerbated by stress leading to fibromyalgia.” - Claim attributed cause to: “Accident on the job (already accepted by Worker’s Compensation) and stress from hostile working environment.” - Initially Applicant declined to execute an unrestricted medical release; Claim Administrator advised no action could be taken until authorization was submitted. - May 24, 2001: Fund’s counsel confirmed an authorization for release of medical records had been submitted and indicated the Grievance should continue to be held in abeyance pending completion of the workers’ compensation review. ### 2002 decision on the January 2, 2001 claim - February 6, 2002: Workers’ Compensation Claim Administrator decision concluded: - “It is accepted that the Claimant sustained myofascial pain syndrome associated with low back and neck pain as a result of her traumatic injuries of 5/28/87 and 8/7/97. It is further accepted that this myofascial pain syndrome associated with low back and neck pain has rendered her capable of working only on a regular part-time basis.” - The Claim Administrator denied coverage for fibromyalgia as not causally related to the earlier injuries or to an alleged hostile working environment, and denied that the myofascial pain syndrome was caused by stress from a hostile working environment. - The Claim Administrator requested documentation of covered expenses and any claim for disability benefits attributable to reduced hours caused by myofascial pain syndrome, specifying submission of dates when the claimant was able to work only reduced hours and the wage loss claimed. - The Claim Administrator advised Applicant of appeal rights under Section 10.02 of General Administrative Order No. 20, Rev. 3. ### Implementation of 2002 decision and effect on Grievance - March 19, 2002: Fund’s counsel communicated implementation steps: - Ms. Shinberg’s absences from work resulting from the myofascial pain syndrome are covered by, and calculated in accordance with, her entitlement to special sick leave under Section 4.07 of GAO No. 13, Rev. 5. - Any medical expenses causally related to her myofascial pain syndrome that are reasonable and necessary will be handled by the Workers’ Compensation Claims Administrator as subject to GAO 20. - An attached memorandum calculated a total of $20,121.20 in salary and benefits owing to Ms. Shinberg from May 10, 2001 through March 13, 2002; an additional sum of $12,940 owing in education allowances was later included. - March 19, 2002 letter concluded: “The Fund considers that the resolution of Ms. Shinberg’s Workers’ Compensation claim renders moot the grievance [in respect of the Workers’ Compensation issue] pending with the Grievance Committee.” ### Fitness for duty evaluations and potential medical separation - March 25, 1999: Senior Administration official requested a medical assessment of Ms. Shinberg’s ability to perform duties of an administrative assistant. - May 1999: Applicant placed on administrative leave with pay and underwent a fitness-for-duty evaluation by the Joint Bank-Fund Health Services Department (“HSD”). - September 30, 1999: Assistant Director of HRD informed Applicant that administrative leave would end as of October 1, 1999 because she was found fit for duty with continuing medical restrictions, in particular part-time work in a stable environment; Applicant returned to part-time work in late 1999. - July 2001: Applicant suffered a new illness (not contended as work related) resulting in further sick leave. - November 5, 2001 memorandum noted: “HSD approved staff member’s return to work on 10/01/01 with the following restriction: low stress, stable position (preferably continuance in library).” - March 19, 2002 letter advising of benefits additionally warned of potential separation, explaining: - “As you will see from the attached memorandum, Ms. Shinberg’s special sick leave entitlement is for a maximum of two years. Therefore, her part-time absences from work that are attributable to myofascial pain syndrome will be covered by special sick leave until such leave is exhausted, or until a part-time position is no longer available for Ms. Shinberg, whichever is earlier. At that point, if it is determined that Ms. Shinberg is unable to return to work full-time, and an ongoing part-time position cannot be found for her in the Fund, she will be separated from the Fund for medical reasons in accordance with Section 4.07.3 of GAO 13. Similarly, if a part-time position is no longer available before her special sick leave is exhausted, Ms. Shinberg will have to be separated from the Fund for medical reasons.” *Source: Fund administrative record (2.04 Decision).* ### 41. In August 2002, Applicant again was placed on sick leave and then administrative leave ### j2007-5 - 41. In August 2002, Applicant again was placed on sick leave and then administrative leave ### Medical leave and fitness-for-duty evaluations - In August 2002, Applicant was placed on sick leave and then administrative leave until January 2003; her assignment in the Joint Bank-Fund Library ended during this period. - In the fall of 2002, another fitness-for-duty evaluation was undertaken after Applicant requested to work off-site to accommodate her medical condition. - In November 2002, HSD advised that Applicant could work on a limited part-time basis with a flexible schedule. ### Vacancy notification and part-time positions - In December 2002, a Human Resources Officer transmitted to Applicant a vacancy announcement for a part-time Staff Assistant/Document Assistant in one of the Fund’s departments. - It is not disputed that Applicant did not apply for the vacancy. - HRD determined in 2002, after surveying all Fund departments, that there were no part-time positions to which Applicant could be assigned. (Shinberg I, paras. 31 - 33.) ### 2003 separation proceedings and medical panel review - By letter of January 15, 2003, the Fund notified Applicant via counsel that the Fund was proceeding with separation for medical reasons in accordance with GAO 16, Revision 5, Section 11, because the recent fitness-for-duty evaluation had determined she would not be able to return to work on a full-time basis in the foreseeable future and efforts to identify suitable part-time positions had not been successful. - A follow-up letter of February 28, 2003 confirmed proceedings to separate Applicant on medical grounds and advised Applicant of her right to object under Annex I of GAO No. 16. - Applicant exercised her right to review by a medical panel pursuant to GAO No. 13, Rev. 5, Annex I (June 15, 1989). - On November 3, 2003, the Medical Panel issued its report, concluding that Applicant was able to work on a part-time basis in a “stable environment” with certain restrictions. (See Shinberg I, para. 33.) ### Conclusion of Applicant’s employment with the Fund - Applicant was on an extended period of administrative leave with full pay commencing January 2003. - In July 2004, the Fund proposed and Applicant accepted a part-time assignment in one of the Fund’s departments; the medical separation proceedings were suspended. - In April 2005, Applicant requested termination of that assignment; later in 2005 she was assigned to perform part-time functions in another Fund department. - In 2006, when that latter assignment ended, the Fund proceeded with medical separation. - On March 9, 2006, Applicant signed confirmation of administrative arrangements for separation. - Applicant was placed on separation leave beginning August 1, 2006, receiving the maximum 22.5 months of separation leave based upon her years of service and bridged to a Fund pension as of the end of May 2008. (Letter from HRD Associate Director to Applicant, March 7, 2006.) ### Channels of administrative review and workers’ compensation fee dispute - Applicant first filed a Grievance, and later a Revised Grievance, in 2000. Formal Grievance Committee proceedings were suspended after a pre-hearing conference of July 3, 2001, and resumed in 2005. - Neither the January 2000 Grievance nor the July 2000 Revised Grievance sought attorney’s fees pursuant to D.C. Workers’ Compensation law. - On July 7, 2005, Applicant’s counsel submitted to the Fund’s Workers’ Compensation Claim Administrator an itemized invoice totaling $31,461.40 for the period February 24, 2000 through July 6, 2005, seeking reimbursement of attorney’s fees and costs. - On October 26, 2005, the Grievance Committee Chairman issued an Order denying Applicant’s request for reimbursement of attorney’s fees “with respect to this grievance and with respect to her workers’ compensation claims,” reasoning that legal fees arise only at the conclusion of the Committee’s considerations and that GAO No. 31’s provisions on fees apply. - The Grievance Order also concluded there was “no basis for the granting of legal fees under either of the claims for attorney’s fees,” and treated Applicant’s workers’ compensation claim as having been held in abeyance pending submission of required medical authorization. - Applicant’s counsel on October 27, 2005 and November 2, 2005 sought reconsideration and invoked D.C. Code 32-1530 (2001); the Fund’s Staff Benefits Chief referred the correspondence to the Fund’s Legal Department on November 2, 2005. - On November 10, 2005, Fund counsel declined the request for reimbursement of attorney’s fees in light of the Grievance Committee’s October 26, 2005 Order. - On November 18, 2005, the Workers’ Compensation Claim Administrator informed Applicant’s counsel that he had been instructed by the International Monetary Fund to advise counsel to contact the Fund directly regarding the legal bill of $31,461.40. - On March 29, 2006, subsequent to Applicant’s Application to the Administrative Tribunal, the Claim Administrator responded that the matter was under litigation before the IMF Administrative Tribunal and that it would be inappropriate to act on the fee request pending final resolution. ### Procedural posture: Application to Administrative Tribunal - Applicant filed her Application with the Administrative Tribunal on January 25, 2006. - Applicant seeks: - attorneys’ fees and costs pursuant to GAO No. 20 and D.C. Workers’ Compensation law, i.e. payment of all fees and costs up to 20 percent of the benefits secured; - attorney’s fees and costs incurred in pursuing the claim before the Administrative Tribunal; - two years’ salary for moral injury “due to the retaliatory actions (wrongful attempts to separate on medical grounds) taken by Respondent;” and - any other relief deemed fair and just by the Tribunal. ### Parties’ principal contentions (summarized) - Applicant’s contentions include: - GAO No. 20 is silent on payment of attorney’s fees, so D.C. Workers’ Compensation law applies. - Under D.C. law, Applicant is entitled to reimbursement of reasonable attorney’s fees and costs incurred in securing, reinstating, protecting and maintaining Workers’ Compensation benefits, and fees incurred in defending the fee claim, not to exceed 20 percent of benefits secured. - The Fund wrongfully terminated Applicant’s Workers’ Compensation benefits in 1999 and wrongfully attempted to separate her on medical grounds in 2002 and 2003; attorneys intervened to restore or maintain benefits. - The attorney’s fees issue is a separate element of a Workers’ Compensation claim that should have been decided by the Claim Administrator and Grievance Committee pursuant to GAO No. 20 and D.C. law. - D.C. law prohibits employer retaliation for claiming Workers’ Compensation benefits; Applicant alleges retaliatory separation attempts and seeks compensation for wrongful attempts to separate her after filing her Workers’ Compensation claim. - Respondent’s contentions include: - GAO No. 20 incorporates GAO No. 31 provisions addressing attorney’s fees; GAO No. 31 governs awards of attorney’s fees for Workers’ Compensation claims. - The Grievance Committee’s consideration of attorney’s fees can only follow its determination of the validity of a Grievance. - The attorney’s fees provisions of D.C. law apply within a D.C. procedural system that lacks jurisdiction over Fund disputes. - Even if D.C. law applied, the Fund did not refuse to pay the third Workers’ Compensation claim but held it in abeyance pending medical authorization. - Applicant’s retaliation claim is not properly before the Tribunal due to lack of exhaustion of administrative review channels. - Applicant was properly separated under the Fund’s policy on medical separation. ### Tribunal’s threshold legal issue - The Tribunal must decide whether GAO No. 20, Section 10.01 requires the Fund to apply District of Columbia law regarding Workers’ Compensation attorney’s fees, or whether Section 10.02 (which provides a right of appeal to the Grievance Committee and states that the “normal procedures” of that Committee shall apply) specifies otherwise so as to incorporate GAO No. 31’s attorney’s fees provisions and preclude applicability of the D.C. statute. - GAO No. 20, Rev. 3 (Workers’ Compensation Policy), Section 10.01 provides: “The Claim Administrator will dispose of claims first on the basis of the provisions of this Order and next, when not specified otherwise in this Order, in accordance with established procedures for disposition of claims under the District of Columbia Workers’ Compensation Regulations.” - The Tribunal’s determination of whether the Order “specified otherwise” will control which legal regime governs the availability and procedure for attorney’s fees in relation to the Fund’s Workers’ Compensation policy. *Source: Administrative Tribunal case document j2007-5, International Monetary Fund.* ### 60. In the event that the Tribunal were to conclude that D.C. law governs in the ### Tribunal consideration of applicability of D.C. law and attorney’s fees ### Whether D.C. law governs and whether attorney’s fees are recoverable - The Tribunal poses two linked questions: whether D.C. law governs Applicant’s case; and if so, whether Applicant has met the requirements for an award of attorney’s fees pursuant to the applicable D.C. Code provisions. - Alternatively, if D.C. law is held not to govern, the Tribunal asks whether Applicant has a tenable claim for attorney’s fees pursuant to the Fund’s internal law. ### Scope and history of the Fund’s Workers’ Compensation policy (GAO No. 20) - GAO No. 20, Rev. 3 (November 1, 1982), Section 1: the Fund’s Workers’ Compensation policy provides, without regard to considerations of fault, staff members with benefits and compensation in the event of illness, accidental injury or death arising out of, and in the course of, their employment. - The Fund has provided Workers’ Compensation coverage since at least 1950 when GAO No. 20 was first issued under the title “Workmen’s Compensation Insurance.” - Earlier iterations (GAO No. 20; Rev. 1 (October 29, 1959); Rev. 2 (November 1, 1969)) stated the policy “provide[d] benefits consistent with the terms of the District of Columbia Workmen’s Compensation Act” and treated the GAO as “for information purposes only and in no way confer[ring] any rights on staff members.” - Under Rev. 1 and Rev. 2, claims were forwarded to an insurance company for settlement and, if denied, the staff member could contest the denial through administrative procedures before the Deputy Commissioner with final appeal to the courts (GAO No. 20, Rev. 1 and Rev. 2, Section 7). ### 1982 revision (Rev. 3) and internal dispute resolution - GAO No. 20, Rev. 3 (1982) substantially refashioned the Fund’s system by: - Defining a “Claim Administrator” as “the company which has been engaged to administer the provisions of this Order” (GAO No. 20, Section 2.01.5). - Providing that claims “will be forwarded by the Staff Benefits Division to the Claim Administrator for disposition” and that the Claim Administrator will dispose of claims first under the Order and next, when not specified otherwise in the Order, “in accordance with established procedures for disposition of claims under the District of Columbia Workers’ Compensation Regulations” (Section 10.01). - Providing that if the Administrator finds no liability, “the staff member will be so informed by the Staff Benefits Division” and that a staff member “may appeal the Claim Administrator’s finding to the Grievance Committee under the procedures set forth in subsection 4.01 of General Administrative Order No. 31, Rev. 1” (Section 10.02). - Revision 3 thus placed dispute resolution for Workers’ Compensation claims within the Fund’s internal dispute resolution system as it existed in 1982 (Grievance Committee established in 1980; Administrative Tribunal established in 1994). ### Evolution of Grievance Committee procedures and fee-shifting - Under GAO No. 31, Rev. 1 (December 1, 1981), assistance of counsel before the Grievance Committee was contemplated only in “exceptional circumstances,” and the Committee could “determine the proportion of costs involved which are to be borne by the Fund” (GAO No. 31, Rev. 1, 5.02). - GAO No. 31, Rev. 3 (November 1, 1995) introduced a clear fee-shifting provision: - “7.05 Assistance of Counsel or Others. ... At the conclusion of the case, if the Committee concludes that a grievance is well-founded in whole or in part, it may recommend that the Fund reimburse the grievant for some or all of the reasonable costs, including legal fees, incurred by the grievant in pursuing the grievance. In deciding whether to recommend reimbursement, the Committee shall take into account the nature and complexity of the case, the nature and quality of the work performed, and the reasonableness of the fees charged in relation to prevailing rates.” - The D.C. Workers’ Compensation Act already included an attorney’s fees provision when GAO No. 20, Rev. 3 was issued in 1982; the statute provision appears as § 32-1530 (2001) and was formerly codified as § 36-330 (1981). ### Tribunal interpretation: incorporation by reference and “normal procedures” - The Tribunal recognizes the general rule that when a statute adopts another statute by specific and descriptive reference, the adoption takes the statute “as it exists at that time, and does not include subsequent additions or modifications ... where it is not expressly declared by the adopting statute.” (73 Am. Jur. 2d Statutes § 17 at pp. 242-43 (2001)). - The Tribunal considers whether GAO No. 20, Rev. 3’s phrase “The normal procedures of the Grievance Committee shall apply” implies that the “normal procedures” apply as they evolve over time. - The Tribunal’s view: “normal procedures” are to be assessed as they evolve; developments in the Fund’s dispute settlement structure (Grievance Committee and Administrative Tribunal) “must be taken into account.” ### Compatibility issues between Fund procedures and D.C. attorney’s fees provisions - GAO No. 20, Rev. 3, Section 10.01 expressly references “procedures for disposition of claims under the District of Columbia Workers’ Compensation Regulations,” but the Tribunal notes that the Fund’s procedures and the District of Columbia’s Workers’ Compensation procedures are dissimilar. - The Fund contends that the D.C. attorney’s fees provisions are not applicable within the Fund because their application would be “illogical from a jurisdictional standpoint” and are intended to apply only within the D.C. procedural system, which lacks jurisdiction over Fund claims. - An essential difficulty in applying the D.C. attorney’s fees provisions arises because the private Claim Administrator “essentially acts as the Fund’s agent” and the Fund implements the Claim Administrator’s decision; only the claimant may contest a decision through the Fund’s internal dispute resolution procedure. - Because of the identity between the Claim Administrator and the Fund in resolving claims, the D.C. requirement (as interpreted by the D.C. Court of Appeals) that the employer either fails to follow a decision by the D.C. governmental agency or denies liability for a claim that is later found compensable may never be met by the Fund. - By revising GAO No. 20 in 1982 to bring disputes within the Fund’s internal dispute resolution process, the Fund created a system within its internal law that makes the application of some elements of the D.C. Workers’ Compensation system (including attorney’s fees) incompatible with the D.C. system. *The Tribunal’s analysis of GAO No. 20, Rev. 3; GAO No. 31 revisions; and the D.C. Workers’ Compensation Act.* ### 74. Moreover, in interpreting the meaning of GAO No. 20, Section 10.01, the Fund’s internal ### Shinberg — Administrative Tribunal Judgment (Washington, D.C., November 16, 2007) ### Interpretation of GAO No. 20 and scope of internal law - GAO No. 20, Section 10.01 provides that Workers’ Compensation claims are to be disposed of “first on the basis of the provisions of this Order.” - The Fund’s internal law is held to be paramount; inconsistencies must be reconciled in favor of the Fund’s own law. - The Tribunal interprets GAO No. 20 (Rev. 3) and the Order’s reference to the Grievance Committee as sufficient to bring into play the Grievance Committee’s authority to recommend payment of attorney’s fees under the Fund’s internal law, even though attorney’s fees are not specifically addressed in GAO No. 20, Rev. 3. - The “normal procedures” of the Grievance Committee include its authority to recommend an award of attorney’s fees when a Grievance is “well-founded in whole or in part.” (GAO No. 31, Rev. 3, Section 7.05.) ### Facts and procedural history relevant to fees - Applicant filed a Revised Grievance in July 2000 contesting the May 1999 termination of Workers’ Compensation benefits, appealing pursuant to GAO No. 20, Section 10.02 and GAO No. 31. - In January 2001, Applicant filed a new Workers’ Compensation claim seeking continuity of coverage from the date of the 1999 termination, alleging a continuing illness from work-related injuries of 1987 and 1997. - The Fund suggested submission of the new claim for a “current medical condition” while notifying Applicant that the request for review of the May 1999 termination was considered untimely under GAO No. 31. - The Fund requested that the Grievance Committee hold the Grievance in abeyance until the Claim Administrator’s review of the new claim was known. - In 2002, after partial resolution of the 2001 claim in Applicant’s favor (restoring continuity of medical benefits), the Fund informed Applicant’s counsel that “[t]he Fund considers that the resolution of Ms. Shinberg’s Workers’ Compensation claim renders moot the grievance pending with the Grievance Committee.” (Letter from Fund’s counsel to Applicant’s counsel, March 19, 2002.) - The Grievance Committee therefore never had the opportunity to rule on Applicant’s appeal pursuant to GAO No. 20, Section 10.02 and GAO No. 31. ### Tribunal findings on attorney’s fees - The Tribunal concludes the matter of attorney’s fees in cases under the Fund’s Workers’ Compensation policy has been “specified otherwise” by GAO No. 20 insofar as it provides a right of review in the Grievance Committee and that the Committee’s “normal procedures” apply. - The Grievance Committee did not award legal fees because the Fund treated the Grievance as moot when the Claim Administrator resolved the subsequent claim in Applicant’s favor. - The Claim Administrator’s 2002 determination concluded Applicant had “sustained myofacial pain syndrome ... as a result of her traumatic injuries of 5/28/87 and 8/7/97 ... [which had] rendered her capable of working on a regular part-time basis,” and restored medical benefits retroactively to their termination in May 1999. - The Claim Administrator’s decision effectively reversed the May 1999 termination of benefits that had been the subject of the Grievance. - The Tribunal finds it inequitable for the Fund to deny attorney’s fees for the period February 2000 through February 2002 on the basis that the Grievance Committee did not uphold her claim, because the intervening Claim Administrator decision rendered the Grievance moot while vindicating Applicant’s claim. ### Admissibility and merits of retaliation claim - Applicant alleged the Fund retaliated by “... twice ... starting termination proceedings against her which were found to be unjustified” to “avoid its workers compensation obligations.” - Respondent argued the retaliation claim was inadmissible for failure to exhaust administrative review under Article V, Section 1 of the Tribunal’s Statute. - Applicant first raised the retaliation contention in a post-hearing brief to the Grievance Committee but did not seek separate relief on that count in Grievance Committee proceedings; the Grievance Chairman’s Order of October 26, 2005 did not refer to retaliation. - The Tribunal requires exhaustion of available administrative review channels but has recognized that a later arising claim may be justiciable if (a) it is closely linked with the principal decision and (b) it has been given some measure of review. - The Tribunal concludes Applicant did not exhaust available channels of administrative review for the retaliation claim because it was not given any measure of review through the Fund’s dispute resolution process; therefore the retaliation claim is inadmissible. - Even on the merits, the Tribunal found no substantiation of retaliation. The Tribunal’s prior Judgment in Shinberg I documented the Fund’s accommodation of Applicant’s medical conditions and held the Fund met its obligations to accommodate Ms. Shinberg; that decision is inconsistent with a finding of retaliatory discharge, and Applicant offered no evidence of animus. ### Remedies and awards - Article XIV, Section 1 of the Tribunal’s Statute authorizes rescission of individual decisions and measures “involving the payment of money or otherwise, required to correct the effects of that decision.” - The Tribunal concludes Applicant prevailed on her claim for reimbursement of attorney’s fees under the Fund’s internal law (not under D.C. law) and must be compensated for the relevant period. - Having examined Applicant’s invoice covering counsel’s efforts from February 24, 2000 through the filing of the post-hearing brief on July 6, 2005, the Tribunal awards: - $12,838.90 in attorney’s fees and costs for counsel’s efforts covering the period from Applicant’s first consultation on the Workers’ Compensation issue in February 2000 through resolution of Applicant’s third Workers’ Compensation claim by the Claim Administrator and related consultation in February 2002. - The Tribunal further awards reasonable costs of Applicant’s legal representation in the Administrative Tribunal itself: - $5,512.86, which is 90 percent of the fees and costs requested for representation before the Tribunal. - The Tribunal notes that the award of Workers’ Compensation attorney’s fees for February 2000–February 2002 includes work sufficiently interwoven with Workers’ Compensation issues even if some charges relate to additional issues; work before the Grievance Committee similar to that performed before the Tribunal is not encompassed in the February 2000–February 2002 compensation award. ### Decision (summary) - The Administrative Tribunal of the International Monetary Fund unanimously decides: 1. Grant in part Applicant’s claim that the Fund wrongfully denied an award of attorney’s fees incurred in maintaining her Workers’ Compensation coverage; award of $12,838.90 to Applicant. 2. Deny Applicant’s contention that the Fund retaliated against her for asserting Workers’ Compensation claims. 3. Award Applicant reasonable costs of legal representation before the Tribunal in the sum of $5,512.86 (90 percent of the fees and costs requested). --- _Source: https://www.imf.org/-/media/files/imfat/j2007-5.pdf_