## JUDGMENT No. 2019-1 (Administrative Tribunal of the IMF) — Applicant v. International Monetary Fund ## Source details **Canonical URL:** [JUDGMENT No. 2019-1 (Administrative Tribunal of the IMF) — Applicant v. International Monetary Fund](https://www.imf.org/-/media/files/imfat/j2019-1.pdf) ## Other formats - [Markdown version](/-/media/files/imfat/j2019-1.pdf.md) - [Structured JSON version](/-/media/files/imfat/j2019-1.pdf.json) --- ### Tribunal composition, proceedings, and procedural history - Tribunal composed pursuant to Article VII, Section 4 of the Tribunal’s Statute: Judge Catherine M. O’Regan (President), Judges Jan Paulsson and Edith Brown Weiss; met April 25–26 and November 7–8, 2018, and February 26, 2019. - Applicant designated Mr. Peter C. Hansen as counsel; Applicant filed Revised Application September 14, 2017 (supplemented September 29, 2017); Respondent’s Answer filed November 16, 2017 (transmitted December 11, 2017); Applicant’s Reply January 11, 2018; Fund’s Rejoinder February 20, 2018; Supplementary Request for Costs May 3, 2018 (Fund responded May 11, 2018). - Applicant initially filed on December 28, 2015; IMFAT Order No. 2016-1 (June 28, 2016) suspended pleadings pending exhaustion of administrative review; IMFAT Order No. 2017-1 (July 24, 2017) ordered filing of Revised Application after administrative channels were exhausted. ### Subject matter and core disputes - Applicant challenged SRP Administration Committee decisions to: - Reconsider and reverse its August 17, 2011 denial of a disability pension and grant a disability pension retroactive to and in lieu of the early retirement pension that commenced February 1, 2012. - Pay a “coordinated” annuity that was: capped at the workers’ compensation annuity amount; financed in part by the SRP; and reduced by the commutation payment Applicant took on his early retirement pension. - Applicant asserted entitlement to both: - the early retirement pension (reflecting deferred past income); and - a separate workers’ compensation annuity (reflecting lost future earnings). - Applicant sought multiple remedies including reinstatement of early retirement pension; reinstatement of separate workers’ compensation annuity; reimbursement of commutation and SBF repayments; monetary damages (including 3 years’ gross salary for pain and suffering and for spouse injury); reimbursement of lost personal effects; reimbursement for up to 24 months’ “special sick leave”; interest on retroactive payments; tax-compensation; 6 months’ gross salary and all legal fees for procedural irregularities; and legal fees and costs under Article XIV, Section 4 if Application well-founded. ### Key factual chronology and administrative findings - 2010: Applicant sustained a work-related injury on an overseas assignment; later determined to be permanently and totally disabling. - Fall 2011: - Applicant filed workers’ compensation claim; Claim Administrator initially rejected as untimely under GAO No. 20, Rev. 3 (November 1, 1982). - Applicant was separated for medical reasons under GAO No. 16, Rev. 6 (February 28, 2008); SRP Administration Committee (August 17, 2011) denied disability pension; Applicant did not seek review then. - Applicant received Separation Benefits Fund (SBF) benefits (maximum equivalent of 22.5 months’ salary available) and commenced an early retirement pension effective February 1, 2012; elected a commutation payment of one-third of that early retirement pension under SRP Section 15.1(a). - Post-2011: - Applicant filed fifteen Grievances (November 29, 2011); Fund waived timeliness defense for the workers’ compensation claim. - Claim Administrator in 2012 found Applicant “compensable” but “temporarily” totally disabled; on March 5, 2015 Claim Administrator concluded Applicant met standard for “permanent total disability” and entitled to a workers’ compensation annuity equal to 66-2/3 percent of final pensionable remuneration under GAO No. 20, Section 5.01.1, retroactive to February 1, 2012. - Grievance Committee recommended retroactivity and pro-rated recovery of SBF lump sum over four years; Fund Management accepted recommendations November 6, 2015 and directed monthly annuity benefits to commence as of November 1, 2015 (retroactive amounts withheld pending SRP Committee review). - SRP Administration Committee (January 22, 2016) reconsidered and granted disability pension retroactive to February 1, 2012, and coordinated it with workers’ compensation: capped at the workers’ compensation annuity amount; financed partly from SRP; reduced by the commutation payment. Decision on Review (June 17, 2017) sustained that approach. ### Document production, anonymity, and oral proceedings - Applicant requested production of three categories of documents (resident representative spouse insurance; Marsh Insurance claim for office effects; Fund documents on condition, benefits, pension, worker’s compensation and interpretation of rules). Tribunal denied Requests No. 1–3 (March 19, 2018). - Applicant’s anonymity under Rule XXII was granted; oral proceedings limited to counsel’s oral arguments were granted and held in private April 25, 2018. ### Tribunal’s standards of review and interpretive approach - For SRP Administration Committee decisions, Tribunal determines whether Committee correctly interpreted relevant Plan provisions and soundly applied them to facts. - For managerial discretionary decisions by Fund Management, Tribunal applies the “abuse of discretion” standard (arbitrary, capricious, discriminatory, improperly motivated, error of law or fact, or violation of fair and reasonable procedures) per Commentary on the Statute. ### Tribunal findings on SRP Section 10.5 and coordination - SRP Section 10.5 permits offset of amounts paid under workers’ compensation “against and payable, or deemed to be payable, in lieu of such part of [a] disability pension provided hereunder, in such equitable manner as the Administration Committee shall decide.” - Tribunal conclusions: - Plain meaning of SRP Section 10.5 does not authorize replacing an accrued SRP pension with a single annuity capped at the workers’ compensation amount; SRP Section 10.5 contemplates offset only of “such part” of a disability pension that replaces income forgone due to incapacity. - The Committee erred by treating the SRP pension as relinquishable in whole and by paying a single “coordinated” annuity capped at the workers’ compensation amount. - SRP Sections 9.1 and 13.2 restrict use of Retirement Fund assets to Plan liabilities; partial financing of the Fund’s workers’ compensation obligation by the SRP (sixty-eight percent in Applicant’s case per Committee calculation) contravened those provisions and was unlawful. - Treatment of the Applicant’s earlier commutation (one-third commutation elected under SRP Section 15.1(a)) as a basis for further reduction of the workers’ compensation annuity lacked basis in law and was erroneous. - Reliance on Executive Board decision EBAP/92/146 and GAO No. 20, Section 6.01 did not justify varying the plain meaning of SRP Section 10.5; EBAP/92/146 did not amend the SRP and could not lawfully alter Plan constraints. ### Tribunal findings on Fund Management actions (SBF repayment and related claims) - Tribunal held Fund abused its discretion in requiring repayment of the lump-sum SBF payment: - GAO No. 16, Section 10.04 provides SBF payment “when a staff member who is separated for medical reasons does not receive a disability pension”; GAO No. 16 does not expressly require repayment if a workers’ compensation annuity is later awarded. - The separation arrangements letter’s admonition about reimbursement if later granted a disability pension does not lawfully expand or override written law to require recovery for a workers’ compensation annuity. - Tribunal sustained no breach of duty of care claim: Applicant did not demonstrate an exception to the ordinary exclusivity of workers’ compensation remedies or that the injury for which he seeks tort relief was distinct from what the workers’ compensation remedy addresses. - Tribunal rejected claims for spouse injury compensation, lost personal effects (insufficient evidence of denial of insurance reimbursement), failure to afford maximum “special sick leave” (Applicant did not challenge 2011 medical separation), and tax-consequence damages (insufficient evidence). - Tribunal left interest on retroactive payments and legal fees/costs to remedial assessment. ### Remedies, monetary awards, and implementation - Rescissions: - Tribunal rescinded the SRP Administration Committee decisions reversing the 2011 denial and granting a retroactive disability pension in lieu of the early retirement pension, and the related “coordinated” annuity decision. - Tribunal rescinded Fund Management decision requiring repayment of the SBF lump-sum. - Corrective orders (to be implemented within 60 days of receipt of the Judgment): - Pay Applicant an early retirement pension retroactive to February 1, 2012, calculated under SRP Section 4.2 and reduced by the commutation payment pursuant to SRP Section 15.1(a), with all cost-of-living adjustments pursuant to SRP Section 4.11; all such sums to be paid solely by the SRP Retirement Fund. - Pay Applicant a separate workers’ compensation annuity retroactive to February 1, 2012, calculated at 66-2/3 percent of final pensionable remuneration in accordance with GAO No. 20, Rev. 3, Section 5.01.1, with cost-of-living adjustments per GAO No. 20, Rev. 3, Section 7; all such sums to be paid solely by the IMF (not by the SRP Retirement Fund). - Reimburse Applicant the sum recovered from him as a consequence of the Fund’s earlier repayment requirement of the SBF lump-sum. - In making retroactive payments, Fund to deduct sums already paid to Applicant since February 1, 2012 (early retirement pension, workers’ compensation annuity, or coordinated payments). - Interest on retroactive payments: - Fund shall pay interest on all retroactive payments ordered (minus payments already made) from February 1, 2012 until payment, at the rate prescribed for “regular interest” (SRP Section 1.1(v)) for the relevant period; Fund to provide Applicant an accounting of calculations. - Legal fees and costs: - Fund shall pay Applicant legal fees and costs incurred before the Tribunal in the sum of $27,531.50. - Noted earlier award pursuant to the Grievance Committee of $36,554.35 in legal fees (November 2015). ### Findings on systemic issues and recommendations implicit in remedies - Tribunal identified systemic failures and confusion in application of GAO Nos. 13, 16 and 20 and SRP disability provisions, noting: - Conflation of workers’ compensation annuities and SRP disability pensions across decision makers created inconsistent outcomes (2011, 2015, 2016 decisions). - Grievance Committee recommended re-examination of GAO Nos. 13, 16 and 20 and additional training for relevant personnel and Claim Administrator; Tribunal noted those recommendations and observed need for clarity. - Tribunal explicitly remedied the Applicant’s case to restore entitlements consistent with Fund law and restricted use of SRP assets to Plan liabilities, thereby reinforcing: - The requirement that SRP Section 10.5 offsets be applied only to “such part” of a disability pension attributable to lost future earnings due to incapacity. - The prohibition on using Retirement Fund assets to finance the Fund’s workers’ compensation obligations. *Source: Administrative Tribunal of the International Monetary Fund, JUDGMENT No. 2019-1 (Applicant v. International Monetary Fund, Judgment excerpts).* ### INTRODUCTION ........................................................................................................... ### INTRODUCTION ### Tribunal composition and proceedings - The Administrative Tribunal of the International Monetary Fund, composed for this case pursuant to Article VII, Section 4 of the Tribunal’s Statute, of Judge Catherine M. O’Regan (President), and Judges Jan Paulsson and Edith Brown Weiss, met on April 25-26 and November 7-8, 2018, and February 26, 2019, to adjudge the Application brought by Mr. “LL” against the International Monetary Fund. - Applicant designated Mr. Peter C. Hansen, Law Offices of Peter C. Hansen, LLC, as his “duly authorized representative and counsel”; Applicant submitted the Revised Application and Reply himself, each accompanied by a supporting Letter from counsel. Mr. Hansen appeared in oral proceedings. - Respondent was represented in the written pleadings by Ms. Diana Benoit and Ms. Melissa Su Thomas (Senior Counsels, IMF Legal Department). Ms. Benoit and Mr. Brian Patterson (Assistant General Counsel, IMF Legal Department) appeared in oral proceedings. ### Procedural history and Orders - Applicant initially filed an Application on December 28, 2015. - IMFAT Order No. 2016-1 (June 28, 2016): the Tribunal suspended the pleadings to allow exhaustion of related administrative review channels (Grievance Committee and SRP Administration Committee). - IMFAT Order No. 2017-1 (July 24, 2017): following notification that administrative review processes had been exhausted, the Tribunal ordered Applicant to file a Revised Application; the Revised Application is the subject of this Judgment. - Key filings and dates: - Revised Application filed September 14, 2017; supplemented September 29, 2017; transmitted to Respondent October 2, 2017. - Respondent’s Answer filed November 16, 2017; transmission deferred while the Tribunal considered document-production requests; Answer transmitted December 11, 2017. - Applicant’s Reply submitted January 11, 2018. - Fund’s Rejoinder filed February 20, 2018. - Supplementary Request for Costs submitted May 3, 2018; Fund responded May 11, 2018. ### Subject matter of the Revised Application — challenges to SRP Committee decisions - Applicant challenges the SRP Administration Committee’s decisions to: - Reconsider and reverse its 2011 decision denying Applicant a disability pension, and to grant a disability pension retroactive to and in lieu of the early retirement pension on which Applicant retired in 2012. - Pay Applicant a “coordinated” disability pension and workers’ compensation annuity that is: - capped at the amount payable as a workers’ compensation annuity; - financed in part by the SRP; and - reduced by the commutation payment Applicant took on his early retirement pension. - Applicant’s position: he is entitled to both the early retirement pension (reflecting deferred past income) and the workers’ compensation annuity (reflecting lost future earnings), and workers’ compensation benefits under GAO No. 20 should be financed exclusively by the IMF’s administrative budget. ### Additional allegations against the Fund and claims for relief - Applicant alleges that the Fund wrongfully: - required repayment of the lump-sum benefit granted from the Separation Benefits Fund (SBF) at time of separation for medical reasons pursuant to GAO No. 16; - breached a “duty of care” to take preventative measures to ensure his health and safety; - failed to provide compensation for injury to Applicant’s spouse; - failed to provide compensation for lost personal effects; - failed to provide “special sick leave” for workers’ compensation related absence; - failed to pay interest on retroactive benefit payments; - failed to compensate for alleged tax consequences of the Fund’s determination of benefits; - failed to provide compensation for procedural irregularities, delays, and failures to address confusion in the Fund’s laws on disability. - Relief sought by Applicant (enumerated): - (a) reinstatement of his early retirement pension; - (b) reinstatement of his separate workers’ compensation annuity; - (c) that the workers’ compensation annuity be financed solely by the IMF’s administrative budget; - (d) reimbursement of Applicant’s early retirement pension commutation payment to the extent it has been deducted from his “coordinated” annuity payments; - (e) reimbursement of Applicant’s repayment of the lump-sum SBF (medical separation) payment; - (f) 3 years’ gross salary as compensation for pain and suffering consequent to alleged breaches of the Fund’s “duty of care”; - (g) 3 years’ gross salary as compensation for injury to Applicant’s spouse; - (h) compensation for lost personal effects; - (i) reimbursement for the maximum 24 months of “special sick leave” in connection with his work-related injury; - (j) compensation for interest lost as a consequence of retroactive payments; - (k) compensation for alleged tax consequences of the Fund’s determination of payments due to Applicant; - (l) 6 months’ gross salary, plus all legal fees incurred since commencement of proceedings in any forum, regardless of whether Applicant prevails, as compensation for procedural irregularities, delays, and failure to address confusion in the Fund’s disability laws and for consequent mental and financial stress; - (m) legal fees and costs, which the Tribunal may award in accordance with Article XIV, Section 4 of the Statute, if the Application is found well-founded in whole or in part. ### Respondent’s principal stance - Respondent asks the Tribunal to sustain the SRP Administration Committee and Fund Management decisions (which accepted the Grievance Committee’s recommendations). - The Fund contends that the “coordinated” disability pension and workers’ compensation annuity, retroactive to the early retirement date, represent the maximum benefit available under Fund law for total and permanent disability from a work-related injury. - The Fund asserts the payments placed Applicant in the same position he would have been in had the finding of total and permanent disability been made before his retirement. - The Fund urges rejection of Applicant’s additional claims for relief as without merit. *Source: Administrative Tribunal of the International Monetary Fund, JUDGMENT No. 2019-1.* ### 10. Pursuant to Article X of the Statute and Rule XVII of the Rules of Procedure, in his ### 10. Pursuant to Article X of the Statute and Rule XVII of the Rules of Procedure, in his Revised Application, Applicant requested production of the following documents ### Document production requests and Tribunal rulings - Applicant requested three categories of documents: - Request No. 1: Details of the Fund’s program for the insurance of spouses as set out in the Resident Representative Handbook. - Request No. 2: The Marsh Insurance claim stating the replacement value of Applicant’s office effects lost in the circumstances of this case. - Request No. 3: All Fund documentation not strictly covered by attorney-client privilege relating to: - (a) Applicant’s condition, benefits, pension and worker’s compensation; and - (b) the Fund’s interpretation or understanding of its rules on worker’s compensation, and on pension vesting. - On March 19, 2018, after considering the parties’ views and the record, the Tribunal denied Applicant’s requests for production of documents. ### Tribunal reasoning and specific decisions - Request No. 1 (insurance of spouses): - The Fund annexed a portion of the Resident Representative Handbook and provided GAO No. 12 (Travel Insurance), Rev. 8 (May 15, 2006). - The Tribunal found Applicant had not shown that the Fund failed to produce documents responsive to Request No. 1. - Applicable procedural principle: where the Fund asserts it has no responsive documents and the applicant has not proffered evidence such documents exist, the request is denied (Rule XVII, para. 1). - Decision: Request No. 1 denied. - Request No. 2 (Marsh Insurance claim for replacement value of office effects): - The Fund stated it was unable to locate the requested document. - The requested claim related to damage incurred some five years before the events giving rise to the instant case, during an assignment at a different location. - The Fund annexed Applicant’s application for transit insurance for belongings shipped to the location relevant to this case. - Applicant supplied a listing of items for which he seeks compensation; the Fund argued its listing is more probative. - The Tribunal concluded the earlier-incident Marsh claim would not be probative of the issues in the case given the record. - Decision: Request No. 2 denied. - Request No. 3 (documents on Applicant’s condition, benefits, pension, worker’s compensation; Fund interpretation of rules): - As to 3(a): the Fund stated it had produced “most” relevant documentation during Grievance Committee proceedings and provided Minutes of the SRP Administration Committee’s meetings relevant to its Decisions of January 22, 2016 and June 17, 2017, with redactions for attorney-client privilege. - As to 3(b): the Fund objected that the request was “overly broad” and stated it had “already provided Applicant with all official statements of the Fund’s policy on workers’ compensation.” For “pension vesting,” the Fund attached Executive Board Document No. 285 (1948), the original SRP. - The Tribunal found Applicant had not identified what additional documents he sought beyond those already produced and had not satisfied Rule XVII, para. 1, which requires a statement of reasons and supporting documentation. - Decision: Request No. 3 denied. ### Applicant’s request for anonymity - Applicant requested anonymity under Rule XXII. - The Tribunal noted prior practice granting anonymity where health matters are central to the controversy, citing precedent (e.g., IMFAT Judgment No. 2007-6). - On March 19, 2018, the Tribunal confirmed Applicant will not be referred to by name in the Judgment. - Applicant also requested exclusion of particular factual details that might identify him; the Tribunal adopted its established approach to be “circumspect” with personal information but to provide sufficient reasons for decisions as necessary. ### Applicant’s request for oral proceedings - Article XII of the Tribunal’s Statute and Rule XIII, para. 1 authorize the Tribunal to decide whether oral proceedings are warranted and to hold them if useful. - Applicant requested oral proceedings limited to oral arguments by the parties’ counsel (Rule XIII, para. 6). - The Fund deferred to the Tribunal’s determination but requested the Tribunal define the subject matter to limit scope. - The Tribunal’s recent practice has been to hold oral proceedings when requested and to limit them to oral arguments of counsel, recognizing their benefit in clarifying legal issues and probing factual disputes (citing IMFAT Judgments No. 2016-2 and No. 2017-2). - On March 19, 2018, the Tribunal granted Applicant’s request for oral proceedings limited to counsel’s oral arguments and denied the Fund’s request to limit the issues; oral proceedings were to be held in private in light of anonymity. - Oral proceedings were held on April 25, 2018, with each party allotted a fixed period for counsel’s presentation followed by questioning by the Tribunal. ### Overview of factual and procedural history — key findings and chronology - 2010: Applicant suffered a work-related injury while on an overseas assignment; prognosis initially uncertain, later determined to be permanently and totally disabling. - 2010: HRD Director raised possibility of filing a workers’ compensation claim; Applicant did not file at that time. - 2011: - Applicant filed a workers’ compensation claim; the Workers’ Compensation Claim Administrator rejected it as untimely under GAO No. 20, Rev. 3 (November 1, 1982). - In fall 2011, Applicant was separated from the Fund for medical reasons pursuant to GAO No. 16, following a medical assessment finding him unfit for duty; Applicant did not challenge the medical separation. - As an SRP participant, Applicant was evaluated for disability pension under SRP Section 4.3; the SRP Administration Committee decided Applicant was not eligible for a disability pension on August 17, 2011; Applicant did not seek review then. - On September 13, 2011, HRD Director confirmed separation arrangements and informed Applicant of reimbursement obligations if later found eligible for disability retirement; Applicant signed with a notation rejecting acceptance of SBF compensation as implying Fund negligence. - Late 2011–early 2012: Applicant received Separation Benefits Fund (SBF) benefits and commenced an early retirement pension under SRP Section 4.2; Applicant elected a commutation payment of one-third of that early retirement pension under SRP Section 15.1(a). - Late 2011 onward: Applicant filed fifteen Grievances with the Grievance Committee related to injury, separation, and denial of workers’ compensation benefits; Fund waived timeliness defense to the workers’ compensation claim. - Post-grievance proceedings: - The Claim Administrator later found Applicant eligible for benefits for “temporary” but not “permanent” total disability; following Grievance Committee remand and reconsideration, in 2015 the Claim Administrator concluded Applicant’s total disability was “permanent,” entitling him to a workers’ compensation annuity of 66-2/3 percent of his final pensionable remuneration under GAO No. 20, Section 5.01.1. - Fund Management made the workers’ compensation annuity retroactive to the date of Applicant’s early retirement pension and required repayment (pro-rated over a four-year period) of the lump-sum SBF benefit previously received. - The SRP Administration Committee reconsidered its 2011 decision and in 2016 concluded Applicant’s early retirement pension should be replaced retroactively by a disability pension, to be “coordinated” with the workers’ compensation annuity, capped at the annuity amount, financed in part by the SRP, and reduced by the commutation payment taken on early retirement. Applicant sought review under the Committee’s Rules of Procedure; the 2017 Decision on Review denied Applicant’s challenges. - The Grievance Committee issued further decisions in 2016 and 2017 dismissing additional Grievances as outside jurisdiction or unproven, including claims for duty of care, compensation for alleged injury to spouse, reimbursement for lost personal effects, and compensation for lost interest, tax consequences, and delays. Fund Management accepted the Grievance Committee’s recommendations. ### Factual background — discrete elements - A. Applicant’s work-related injury (2010): - Applicant sustained a work-related injury during an overseas assignment; parties dispute the surrounding events. - B. Denial of workers’ compensation claim as untimely (2011): - Approximately two months after the injury, Applicant was diagnosed with a condition arising from it and was advised of the possibility of filing a workers’ compensation claim; he did not file immediately. - An initial fitness-for-duty assessment indicated a return to work by mid-2010; Applicant later experienced a setback. - In early 2011, Applicant filed the claim; it was rejected as untimely under GAO No. 20, Rev. 3 (November 1, 1982). - C. Separation for medical reasons; disability pension denial; SBF benefits; commencement of early retirement pension including commutation (2011–2012): - May 31, 2011: HRD Director notified Applicant of separation for medical reasons pursuant to GAO No. 16, Rev. 6 (February 28, 2008), Section 10, and advised of rights to object and to seek further medical opinion per GAO No. 13, Annex I, Section 2.02; Applicant did not challenge the separation. - GAO No. 16, Rev. 6, Section 10.02: separation for medical reasons for SRP participants is not implemented until disability pension determination under the SRP is made. - August 17, 2011: SRP Administration Committee concluded Applicant did not meet requirements for disability retirement under SRP Section 4.3; Applicant did not challenge that denial. - September 13, 2011: HRD Director’s separation letter detailed reimbursement obligations if disability retirement were later granted; Applicant signed with a notation rejecting acceptance of SBF compensation as implying IMF negligence. *International Monetary Fund Administrative Tribunal (IMFAT) Judgment.* ### 46. Applicant’s separation arrangements included a notice period of 60 days, as well as the ### j2019-1 - 46. Applicant’s separation arrangements included a notice period of 60 days, as well as the ### Separation arrangements and pension election - Applicant’s separation arrangements included a notice period of 60 days and the maximum payment (22.5 months’ salary) from the Separation Benefits Fund (SBF) pursuant to GAO No. 16. - Applicant elected to receive SBF benefits as a combination of separation leave and lump-sum payment; the period of paid separation leave bridged Applicant to his eligibility date for an early retirement pension under SRP Section 4.2. - Applicant’s early retirement pension (SRP Section 4.2) commenced on February 1, 2012. - Applicant elected a commutation payment of one-third of that early retirement pension pursuant to SRP Section 15.1(a). ### Channels of administrative review — Grievances and timeliness - On November 29, 2011, Applicant filed fifteen Grievances with the Fund’s Grievance Committee concerning his work-related injury, events surrounding that injury, his separation, and denial of workers’ compensation benefits. - Grievance 11 challenged denial of Applicant’s workers’ compensation claim; the Fund waived its timeliness defense as to that claim. - Proceedings on the fourteen other Grievances were suspended while the workers’ compensation claim was reconsidered by the Claim Administrator. ### Workers’ Compensation Claim Administrator decisions and characterization of disability (2012) - April 11, 2012: Claim Administrator notified Applicant that his claim was “compensable.” - August 30, 2012: Claim Administrator informed Applicant he was deemed to be “temporarily” (in contrast to “permanently”) totally disabled. - The Claim Administrator’s “temporarily” disability determination entitled Applicant only to reimbursement of medical expenses and not to a workers’ compensation annuity under GAO No. 20, Section 5.01.1. - The Claim Administrator’s responses involved consultation with Fund representatives and referenced documentation relating to the SRP Administration Committee’s 2011 decision to deny Applicant a disability pension. ### Grievance Committee findings on workers’ compensation process and standards (2014) - The Fund argued the workers’ compensation annuity claim was barred by the SRP disability pension denial; the Grievance Committee rejected that argument. - The Grievance Committee concluded: the Workers’ Compensation Claim Administrator “cannot be preempted by and should not defer to the Administration Committee when deciding worker compensation annuity claims.” (Grievance Committee Report and Recommendation, May 15, 2014, p. 31.) - The Grievance Committee found contradictions and vacillation in testimony regarding interpretation of GAO No. 20 and its interplay with the SRP, and documented differing versions of the Medical Advisor’s report produced for the SRP Administration Committee’s 2011 decision. - Key conclusions and criticisms by the Grievance Committee: - GAO No. 20, Section 5, requires the Claim Administrator to apply the same standards for total and permanent disability that govern the SRP’s disability pension determinations. - The Claim Administrator improperly applied its “own definitions of total and permanent disability” rather than applying “[SRP] Section 4.3, as interpreted by the Administrative Tribunal.” (Id., p. 34.) - The medical reports relied upon by the Claim Administrator were “sufficiently unclear and contradictory that they could not provide an evidentiary basis for a reasoned and reasonable decision.” (Id., p. 40.) - The Claim Administrator had an obligation to obtain clarification from physicians and the Fund had an obligation to ensure the Claim Administrator had access to all relevant medical reports and opinions. - Grievance Committee recommendations (May 15, 2014): - Rescind the Claim Administrator’s decision denying the workers’ compensation annuity. - Remand the question of the “permanency” of Applicant’s total disability to the Claim Administrator for reconsideration in light of updated medical reports and the Committee’s conclusions about decision-making process requirements. - Re-examine GAO Nos. 13, 16 and 20, and the pension disability provisions of the SRP, described as “complex and confusing.” - Provide additional training to relevant personnel at the Fund and at the Claim Administrator on enforcement of the SRP and relevant GAOs. - Specific faults identified in the Claim Administrator’s decision (Grievance Committee, p. 47): 1. Did not comply with Section 5.01.1 of GAO No. 20 requiring an independent annuity determination based on the same standards that govern the SRP’s disability pension determinations. 2. Did not comply with relevant Administrative Tribunal decisions governing disability pension decision-making, as applied by Section 5.01.1 of GAO No. 20. 3. Was made “in disregard of essential facts” (i.e., did not seek up-to-date medical information prior to the decision) and was manifestly erroneous when measured against all of the medical evidence available in August-September 2012. ### Reconsideration and finding of “permanent total disability” (2015) - March 5, 2015: Claim Administrator issued a new decision concluding Applicant met the standard for “permanent total disability” under the workers’ compensation policy and was entitled to a workers’ compensation annuity equivalent to 66-2/3 percent of his final pensionable remuneration pursuant to GAO No. 20, Section 5.01.1. - The reconsideration framed the issue as “[w]hether [Applicant] is permanently and totally disabled according to the Fund’s Staff Retirement Plan.” - The Claim Administrator referred to the Medical Advisor’s review and concluded Applicant’s permanent total disability was a “direct result” of the events of early 2010, dating the injury from commencement of treatment two months thereafter, and concluded Applicant was “unlikely to be able to return to work in any capacity in the foreseeable future.” ### Grievance Committee further Recommendation on implementation and repayment (October 1, 2015) - The Grievance Committee sought to provide a “make whole” remedy to place Applicant in the “. . . same financial status in which he would have been if his eligibility for a worker compensation annuity had not been delayed.” (Id., p. 5.) - Committee recommendations: - Make the workers’ compensation annuity retroactive to February 1, 2012 (Applicant had been paid a full salary through January 31, 2012). - Require repayment of the lump-sum SBF benefit received under GAO No. 16, reasoning that Fund policy must be coordinated to avoid allowing both a lump-sum SBF payment and a worker compensation annuity concurrently. - Pro-rate reimbursement of SBF benefits over a four-year period as deductions from Applicant’s workers’ compensation annuity payments to avoid hardship. (Id., p. 12.) - Commence payment of the worker compensation annuity, consistent with GAO No. 20, without any offset for past or future SRP payments, pending determination by the SRP Committees on coordination issues. (Id., p. 17.) - Deny Applicant’s request for moral damages for delay in determining annuity entitlement. (Id., pp. 17-18.) - The Committee noted it lacked jurisdiction to resolve certain coordination questions between the SRP pension and the worker compensation annuity, and recommended referral of those questions to the Administration and Pension Committees of the SRP. ### Fund Management actions and coordination with SRP Committees (2015) - June 5, 2014: Fund Management accepted the Grievance Committee’s recommendation that the Claim Administrator reconsider eligibility for a workers’ compensation annuity on the basis of “permanent total disability,” taking into account the Grievance Committee’s considerations. - November 6, 2015: Fund Management accepted the Grievance Committee’s October 1, 2015 recommendations as follows: 1. Applicant would be granted a workers’ compensation annuity in accordance with GAO No. 20, Section 5.01, retroactive to his separation date of February 1, 2012. 2. The lump-sum SBF benefit earlier paid to Applicant on the basis of his medical separation would be recovered by deductions from his workers’ compensation annuity payments on a pro-rated basis over four years, beginning with the start of those payments. 3. Reimbursement of Applicant’s attorney’s fees would be held in abeyance pending final recommendation on that question by the Grievance Committee. 4. No additional monetary compensation would be paid to Applicant in connection with the Grievance. - Management referred to the appropriate SRP Committees the open question of the impact on Applicant’s SRP benefits arising from the decision to grant a workers’ compensation annuity, including how Applicant’s SRP pension benefit should be coordinated with his workers’ compensation annuity. - Management directed that monthly annuity benefits begin as of November 1, 2015, or as soon as practicable thereafter, but notified Applicant that any retroactive workers’ compensation amounts would not be paid until conclusion of the SRP Committees’ review and that retroactive amounts may be partially offset if SRP Committees adjust past and future pension benefits. - According to the Fund, Applicant was paid both his early retirement pension payment and his workers’ compensation annuity for the months of November 2015 – January 2016. ### Administrative Tribunal proceedings, suspension, and provisional relief (2015–2016) - December 28, 2015: Applicant filed an initial Application with the Administrative Tribunal challenging: 1. Denial of compensation for alleged administrative failures and abuse of discretion in the delayed award of the workers’ compensation annuity. 2. Requirement to repay SBF benefits in light of the later award of the workers’ compensation annuity. 3. Denial of compensation for alleged premature separation and failure to provide workers’ compensation special leave. - The Fund filed a Motion for Summary Dismissal asserting Applicant had not exhausted all available channels of administrative review per Article V, Section 1, of the Tribunal’s Statute; the Fund maintained closely related claims remained pending before SRP and Grievance channels. - The Tribunal found the claims before it were “closely related” to matters pending in the Fund’s channels of review and suspended time limits on the Application until: a) Any appeal pending before the SRP Administration Committee in respect of Applicant’s pension payments was decided; and b) Management rendered final decisions on any Grievance Committee recommendations in respect of Applicant’s pending Grievances or the Committee denied jurisdiction. - The Tribunal considered provisional relief to suspend the repayment decision during Tribunal proceedings because Applicant asserted financial hardship. The Tribunal applied the standard that provisional relief may be granted if implementation of the contested decision would cause irreparable harm between filing and judgment. - The Tribunal concluded the standard for provisional relief had not been met and therefore did not grant interim measures suspending the repayment decision. *Source: Grievance Committee Report and Recommendation; Workers’ Compensation Claim Administrator decisions; Fund Management correspondence; Administrative Tribunal Order No. 2016-1.* ### 75. In sum, the Fund’s Motion for Summary Dismissal was not granted. Neither was ### 75. In sum, the Fund’s Motion for Summary Dismissal was not granted. Neither was ### SRP Administration Committee proceedings (2016-2017) — Decision and Findings (January 22, 2016) - Committee reconsidered its 2011 decision denying Applicant a disability pension after Fund Management’s November 6, 2015 referral about the effect of a workers’ compensation annuity retroactive to Applicant’s separation. - On February 8, 2016, Secretary notified Applicant that the Administration Committee had recommended, and the Pension Committee had approved, that Applicant be paid a disability pension under SRP Section 4.3, retroactive to and in lieu of the early retirement pension he began receiving on February 1, 2012. - Recommendation included a “coordinated” disability pension and workers’ compensation annuity: - Benefits capped at the amount payable as a workers’ compensation annuity. - Financed in part by the SRP. - Reduced by the commutation payment Applicant had taken on his early retirement pension. - Committee conclusions (summarized): 1. Reconsidered 2011 denial of disability pension under SRP Section 4.3. 2. Recommended retirement on a disability pension, retroactive to February 1, 2012, because of Applicant’s “permanent and total disability for the performance of any duty with the Fund that he might reasonably be called upon to perform.” 3. Subject to Pension Committee approval, ordered offset against the disability pension the amounts payable under the workers’ compensation regulations of the District of Columbia (invoking Section 10.5 and EBAP/92/146). 4. Deemed the commuted amount of Applicant’s early retirement pension paid in 2012 to have been paid pursuant to an election under Section 15.1(b), with a consequential reduction in the annuity payable to him. - Authority cited: - SRP Section 7.2(b) authority to reconsider prior decisions and interpret the Plan. - Committee found “no longer any genuine dispute that [Applicant] is permanently and totally disabled, and has been so since before his retirement from the Fund in 2012.” - Management’s acceptance of Workers’ Compensation Claim Administrator’s determination and Applicant’s own statements found to be “conclusive proof” of permanent and total disability for Section 4.3 purposes. - Coordination rationale: - SRP silent on coordination of workers’ compensation and early retirement benefits because typically an early retirement pension would not be awarded to someone determined to be totally and permanently disabled. - Failure to coordinate would result in an “unjustifiable windfall” because had the disability been timely determined Applicant would have received a disability pension coordinated with his workers’ compensation annuity. - Committee concluded, following EBAP/92/146 and Section 10.5, that Applicant would receive the larger of the benefits, which in his case is the workers’ compensation annuity, and that the annuity amount will be partially financed from the SRP. - Commutation offset: - Applicant elected the maximum (one third) commutation payment pursuant to SRP Section 15.1(a) when he retired in 2012. - Committee determined that the 2012 commuted payment should be deemed to have been received pursuant to an election under Section 15.1(b) and that the annuity payable shall be reduced using the commutation factors in Schedule D. ### SRP Administration Committee proceedings (2016-2017) — Decision on Review (June 17, 2017) - Applicant sought review asserting: - Committee lacked authority under the Plan to replace retroactively his early retirement pension with a disability pension at the Fund’s unilateral request. - If granted a disability pension, SRP Section 10.5 should offset only the amount by which the disability pension exceeded the early retirement pension. - Committee violated fiduciary duties by using SRP funds to pay part of the Fund’s workers’ compensation obligation. - Committee Decision on Review (June 17, 2017) sustained earlier Decision and Findings. - Key legal interpretations and holdings: - Disability pension is mandatory under the Plan if Employer requests it based on a finding of permanent and total disability; it is not an “option.” - Cited SRP Section 4.3: a participant meeting requirements for a disability pension “shall be retired on a disability pension before his normal retirement date,” and this can be initiated by the participant or the Employer. - Cited SRP Section 7.2(b) allowing Administration Committee to reconsider prior decisions. - Under SRP Section 4.2(a), a participant on disability retirement is not eligible to draw an early retirement pension; Plan intent is that permanently and totally disabled individuals receive a disability pension, not an early retirement pension. - On coordination and offsetting: - SRP Section 10.5 permits offsetting amounts payable under workers’ compensation against the disability pension “in such equitable manner as the Administration Committee shall decide.” - Committee found it reasonable to consider EBAP/92/146 when exercising discretion under Section 10.5. - EBAP/92/146 restated rule: participant should receive “either the workers’ compensation annuity or the disability pension, whichever is higher”; Fund first pays amounts payable under D.C. workers’ compensation regulations from administrative budget, balance paid by SRP. - Financial outcomes and rationale: - As of February 1, 2012, Applicant receives only the amount of his annual workers’ compensation annuity. - That annuity is larger than his disability pension — “approximately 1.3 times his disability pension.” - Following the 1992 Board decision, “sixty-eight percent of this worker’s compensation benefit is financed by the SRP” because the Fund pays the amount payable under D.C. law from its administrative budget and the balance is payable by the SRP. - Committee emphasized coordination serves policy of increasing total benefit pool available to all Plan participants; given SRP Section 10.5, EBAP/92/146, and GAO 20, Section 6.1, the Fund does not intend a participant who is permanently and totally disabled to receive both the workers’ compensation annuity and the entire disability pension. - Jurisdictional limitation noted: - Committee declined to decide Applicant’s argument that IMF’s maximum liability (as distinct from the SRP) should not be limited by the ceiling on workers’ compensation payments under District of Columbia law, stating any challenge to the Board’s decision and calculation of workers’ compensation annuity is within the jurisdiction of the Grievance Committee, not the Administration Committee. ### Grievance Committee proceedings (2016-2017) - Parallel proceedings resulted in a series of decisions in 2016 and 2017. - Jurisdictional decision (July 13, 2016): - For Grievances 1-8, Grievance Committee concluded that the Fund’s no-fault worker compensation system is intended to supplant negligence claims alleging workplace illness or injury; such claims alleging negligent failure of duty of care are preempted by the no-fault worker compensation regulations. - Distinguished IMFAT Judgment No. 2007-8 (Mr. “DD”) by noting Mr. “DD” rested on an independent Fund policy against harassment that recognized possible liability for non-intentional actions causing injury; Grievance Committee held it could not read into the Fund’s unwritten mandate a cause of action for negligence where the no-fault scheme expressly removes negligence as a cause of action for workplace illness or injury. - Concluded it did not have jurisdiction over Grievances 1-8 which asserted claims of negligence. - Fund Management actions (September 9, 2016): - Fund Management acknowledged Grievance Committee’s denial of jurisdiction over Grievances 1-8. - Accepted recommendations to dismiss Grievances 9 and 10 and to dismiss Grievance 13 upon payment to Applicant of $8,715 for a subsistence allowance claimed for relocation following the injury. - Final Decision (February 13, 2017) and subsequent acceptance (March 1, 2017): - Grievance Committee reaffirmed July 13, 2016 decisions with respect to Grievances 1-10. - Regarding Grievance 11 (workers’ compensation), Committee declined to address whether Applicant was entitled to retain his early retirement pension while receiving a workers’ compensation annuity, concluding that question falls exclusively within SRP Administration Committee jurisdiction. - Noted concerns about conversion of a worker compensation annuity (payable out of Fund assets) to a disability pension (payable out of SRP assets) but asserted it lacked jurisdiction to decide a challenge to an SRP Administration Committee decision; only the Administrative Tribunal can resolve such conflict between committees. - On claims of underpayment of annuity benefits and improper taxation, the Committee stated it retained concern and jurisdiction but rejected those claims as not proved because Applicant did not provide requested additional information after being given extra time and discovery. *International Monetary Fund* ### 97. The Grievance Committee also recommended denial of Grievances 12 -15, on the ground ### j2019-1 - 97. The Grievance Committee also recommended denial of Grievances 12 -15, on the ground ### F. Exhaustion of Administrative Review (2017) - The Grievance Committee recommended denial of Grievances 12 -15 on the ground that Applicant had failed to provide either supporting evidence or legal basis for them. (Paragraph 97) - On March 1, 2017, Fund Management notified Applicant that it accepted the Grievance Committee’s Final Decision and Recommendation. (Letter from Deputy Managing Director and Chief Administrative Officer to Applicant, March 1, 2017.) (Paragraph 98) - Following notification that administrative review processes had been exhausted, the Tribunal ordered Applicant to file a Revised Application “that would take account of those developments.” Mr. “LL”, Applicant v. International Monetary Fund, Respondent (Recommencement of the Proceedings), IMFAT Order No. 2017-1 (July 24, 2017). On September 14, 2017, Applicant filed his Revised Application with the Administrative Tribunal. (Paragraph 99) ### A. Applicant’s principal contentions - Applicant’s core legal and factual claims (Paragraph 100): 1. Applicant is entitled to both a vested early retirement pension, reflecting deferred past income, and a separate workers’ compensation annuity, reflecting lost future earnings. 2. The SRP Administration Committee did not have authority to replace, retroactively, Applicant’s early retirement pension with a disability pension at the unilateral request of the Fund. 3. Properly interpreted and applied, SRP Section 10.5 would operate to offset only the amount by which the disability pension exceeded the early retirement pension. 4. It is the Fund’s exclusive obligation as employer to finance lost future earnings resulting from a work-related injury. Partial financing of the workers’ compensation annuity by the SRP also conflicts with SRP provisions prohibiting diversion of Retirement Fund resources. The Board’s 1992 decision (EBAP/92/146), on which the SRP Administration Committee relied in coordinating Applicant’s benefits, conflicts with the SRP and was never incorporated in it. 5. Applicant’s earlier pension commutation payment likewise cannot be used to reduce the Fund’s exclusive responsibility to compensate for the work-related injury. 6. The Fund was not authorized by GAO No. 16 or the separation arrangements letter to recover the lump-sum Separation Benefits Fund (SBF) payment that Applicant received at the time of his separation for medical reasons. Workers’ compensation is not comparable to a severance benefit and cannot be offset against it. Additionally, recovery of the SBF payment violates the Fund’s two-year statute of limitations for recovery of undue payments. 7. The Fund breached a “duty of care” to take preventative measures to ensure Applicant’s health and safety by falling short of applicable standards adopted by other international agencies. The Fund’s workers’ compensation policy does not provide the exclusive remedy for breach of a “duty of care” under international administrative law. This is especially so, given that the Fund decided not to pay its workers’ compensation obligations to him solely through Fund resources but rather in part by the SRP. 8. The Fund has wrongfully denied Applicant compensation for the disability of his spouse, resulting from the failure to take measures to protect his family’s health and safety. 9. The Fund has wrongfully failed to reimburse Applicant for lost personal effects. 10. Applicant is entitled to reimbursement for the Fund’s failure to afford him the maximum 24 months of “special sick leave” to support his recovery from the work-related injury before being separated from the Fund. 11. The Fund’s errors in determining Applicant’s benefits resulted in undue tax liabilities for which the Fund should compensate him. 12. Applicant is entitled to interest from the Fund on four years of back payments of his workers’ compensation annuity. 13. Applicant is entitled to compensation for procedural irregularities, delays and confusion in the Fund’s laws governing disability. 14. Applicant seeks as relief: - (a) reinstatement of his early retirement pension; - (b) reinstatement of his separate workers’ compensation annuity; - (c) that the workers’ compensation annuity be financed solely by the IMF’s administrative budget; - (d) reimbursement of Applicant’s early retirement pension commutation payment to the extent that it has been deducted from his “coordinated” annuity payments; - (e) reimbursement of Applicant’s repayment of the lump-sum SBF (i.e., medical separation) payment; - (f) 3 years’ gross salary as compensation for pain and suffering consequent to alleged breaches of the Fund’s “duty of care” to ensure Applicant’s health and safety; - (g) 3 years’ gross salary as compensation for injury to Applicant’s spouse; - (h) compensation for lost personal effects; - (i) reimbursement for the maximum 24 months of “special sick leave” in connection with his work-related injury; - (j) compensation for interest lost as a consequence of retroactive payments to him; - (k) compensation for alleged tax consequences of the Fund’s determination of payments due to Applicant stemming from his work-related injury; - (l) 6 months’ gross salary, plus all legal fees incurred since the commencement of proceedings in any forum, regardless of whether Applicant prevails on the merits of the Application, as compensation for procedural irregularities, delays, and failure to address confusion in the Fund’s disability laws and for consequent mental and financial stress; - (m) legal fees and costs, which the Tribunal may award, in accordance with Article XIV, Section 4 of the Statute, if it concludes that the Application is well-founded in whole or in part. (Paragraph 100, subparagraphs 1–14) ### B. Respondent’s principal contentions - Respondent’s principal defenses and factual/legal positions (Paragraph 101): 1. Applicant’s “coordinated” disability pension and workers’ compensation annuity, retroactive to the date of his retirement, represents the maximum benefit available under Fund law for total and permanent disability stemming from a work-related injury. 2. The SRP Administration Committee had both the authority to reconsider its earlier denial of a disability pension for Applicant and the obligation to grant a disability pension retroactively, in light of the facts of the case. Furthermore, the Committee properly concluded that once Applicant was awarded a disability pension his early retirement pension must cease. 3. The SRP Administration Committee reasonably determined that the commutation payment Applicant had elected under the early retirement pension should be treated as if it had been taken under the newly-awarded disability pension. 4. The SRP Administration Committee’s decision to “coordinate” Applicant’s disability pension and workers’ compensation annuity—so that Applicant receives a sum equivalent to the larger of the two payments (i.e., the workers’ compensation annuity), the annuity is partially financed by the SRP, and the amount is reduced by Applicant’s commutation of his early retirement pension—was based on proper legal considerations and correct interpretations of Plan provisions, soundly applied to the facts of Applicant’s case. The Committee properly relied on EBAP/92/146 in exercising its discretion to offset workers’ compensation against pension benefits in “such equitable manner as the Administration Committee shall decide” as prescribed by SRP Section 10.5. 5. The Fund was entitled to recover the lump-sum Separation Benefits Fund (SBF) payment, paid to Applicant at the time of his medical separation, in light of the later determination of permanent and total disability. 6. Applicant is not entitled to relief for common law tort claims. Such claims are outside of the Tribunal’s jurisdiction and, in any event, are moot as they represent an alternative theory for holding the Fund responsible for the same injury for which Applicant already has been fully compensated under the Fund’s internal law. 7. Applicant’s claim for compensation for medical costs and lost earnings on behalf of his spouse should be denied because the Fund does not have a program that would provide insurance coverage for disability suffered by Applicant’s spouse in the circumstances of the case, beyond benefits that may already have been received under the Medical Benefits Plan or travel accident insurance. 8. Applicant has not provided evidence to support his claim for compensation for lost personal effects. Nor has he provided evidence that he sought or has been denied reimbursement through insurance policies maintained by the Fund. The listing of personal effects provided by Applicant in the Reply is “belated and arbitrary”; if relief is to be awarded, an alternate listing provided by the Fund should be considered more probative. 9. Applicant’s claim relating to the use of “special sick leave” for his workers’ compensation absences should be denied, as the sick leave and medical separation policies were properly applied in his case and he suffered no financial loss in relation to the category of sick leave used. 10. Applicant has not established any tax losses, nor any right to tax reimbursement by the Fund, in connection with his disability payments. 11. Applicant has not established a basis for his claim for interest payments in connection with the Fund’s retroactive payments to him. 12. Delays and procedural complications in the case do not form a basis for further compensation to Applicant. ### Relevant provisions of the Fund’s internal law - The Tribunal reproduces principal provisions of the Fund’s internal law relevant to the Revised Application. (Paragraph 102) - A. GAO No. 13 (Leave Policies), Rev. 6 (September 29, 2006) — provisions cited (Paragraph 103): - Section 4. Sick Leave (4.01 General; 4.01.1 purpose and separation initiation) - 4.02 Categories of Sick Leave listing (i) through (vi) - 4.08 Special Sick Leave: - 4.08.1 (i) The maximum period of special sick leave is equivalent to the staff member’s entitlement for sick leave with full and reduced pay provided in Sections 4.03 and 4.06 above when such entitlement exceeds two years; or (ii) The maximum period of special sick leave is two years for a staff member whose entitlement for sick leave with full and reduced pay provided in Sections 4.03 and 4.06 above does not exceed two years. - 4.08.2 Whether the staff member’s entitlement for special sick leave is (i) or (ii) above, there shall be no salary reduction during the first two years in such leave status. - 4.08.3 Subject to the provisions of this Section 4.08, the basic principles and procedures applicable to sick leave, in particular Sections (including subsections) 4.01, 4.09, 4.10, 4.11, and 4.12, shall apply to special sick leave as well. If the staff member is not able to return to duty after having been on special sick leave for the maximum period, the provisions of Annex I of this Order (Separation for Medical Disability) shall apply, unless he is placed on administrative leave without pay in accordance with Section 9 below. - 4.13 Role of the Fund’s Workers’ Compensation Claims Administrator: Under GAO No. 20, and taking into account the information provided by the treating physician, the Fund’s Workers’ Compensation Claims Administrator will advise the Human Resources Department regarding the staff member’s fitness for duty, including any necessary limitations on his activities. - ANNEX I – SEPARATION FOR MEDICAL REASONS: - Section 2. Separation at the Fund’s Initiative: - 2.01 Grounds for Separation: - 2.01.1 Staff Member in Sick Leave Status: if Director, Human Resources forms opinion that staff member will not be able to return to duty in the foreseeable future, Director shall initiate procedures in Section 2.02. - 2.02 Procedures: - 2.02.1 Director, Human Resources shall communicate opinion in writing and specify last date for any objection. - 2.02.2 If no objection received by specified date, GAO No. 16 procedures shall be followed; for participants in the Staff Retirement Plan, this will include determination of eligibility for a disability pension. - 2.02.3 If staff member notifies Director of objection before specified date, a further medical opinion shall be sought from a panel of experts constituted in accordance with Section 2.03. - B. GAO No. 16 (Separation of Staff Members), Rev. 6 (February 28, 2008) — provisions cited (Paragraph 104): - Section 4.06 Payments under the Separation Benefits Fund: - For regular staff members with 4.8 years of service or more, an amount equivalent to 1¼ months of salary for each year of service, subject to a maximum that is the smallest of: - (i) the equivalent of 22½ months of salary; - (ii) the amount of salary that would otherwise have been payable to the staff member between the last day on active duty and his or her mandatory retirement age of 65; - (iii) the amount of salary that would otherwise have been payable to the staff member between the last day on active duty and the date that is 12 months after the staff member reaches eligibility for an unreduced early retirement pension under Section 4.2(b) (ii) of the Staff Retirement Plan (SRP) (Rule of 85). For staff who have already met the Rule of 85, the amount shall be the equivalent of 12 months of salary. - 4.08 Separation Leave With Pay In Lieu of Separation Payment: staff member may request conversion of payment to separation leave; separation leave treated as contributory service for SRP; staff member normally deemed to have separated on last day of active service. - Section 10. Separation for Medical Reasons: - 10.01 General: provisions governing temporary incapacity in GAO No. 13 Section 4. For permanent incapacity, determination under Annex I to GAO No. 13 that a staff member shall be separated for medical reasons triggers the procedures in GAO No. 16. - 10.02 Effective Date: - 10.02.1 Staff Members Eligible for a Disability Pension: date of separation shall be set one calendar day prior to the date of commencement of the disability pension. The commencement of the pension is determined in accordance with the provisions of the Plan. - 10.02.2 Staff Members Ineligible for a Disability Pension: when not a participant in SRP or when no disability pension payable, effective date of separation determined by Director, Human Resources. The staff member shall be entitled to a minimum of 60 calendar days notice. *International Monetary Fund Administrative Tribunal, Applicant v. International Monetary Fund (Revised Application).* ### 10.04 Payments from Separation Benefits Fund. When a ### 10.04 Payments from Separation Benefits Fund. When a ### Separation Benefits Fund — separation payment entitlement - When a staff member who is separated for medical reasons does not receive a disability pension under the Staff Retirement Plan, he will be granted a separation payment from the Separation Benefits Fund in accordance with the provisions of Section 4.06. ### GAO No. 20 (Workers’ Compensation Policy), Rev. 3 (November 1, 1982) — purpose and scope - Purpose (Section 1.01): sets forth the terms of the Fund’s Workers’ Compensation policy providing benefits and compensation for illness, accidental injury or death arising out of, and in the course of, Fund employment. - Coverage (Section 2.01.4): restricted to accidental injury or death arising out of, and in the course of, Fund employment, and occupational disease or infection that arises naturally out of such employment or results from such accidental injury. Illness, injury or death during commuting, leaves of absence, vacations, and other absences shall not be deemed attributable to Fund employment. ### GAO No. 20 — key definitions (Section 2.01) - “Staff member”: any person employed by the Fund on a regular, fixed-term, temporary, consultant, or technical assistance expert appointment; includes Managing Director, Executive Directors, Alternate Executive Directors, Advisors and Assistants to Executive Directors; does not include IMF Institute participants. - “Final net remuneration”: the annual rate of salary, net-of-tax, excluding allowances for taxes, overtime payments and any other special pay, which was being paid at the time of the illness, injury or death. - “Final pensionable remuneration”: the annual rate of gross remuneration computed from the annual rate of net remuneration in accordance with Schedule A of the Fund’s Staff Retirement Plan. - “Claim Administrator”: the company engaged to administer the provisions of this Order. ### GAO No. 20 — eligibility and benefits (Sections 3, 4, 5) - Eligibility (Section 3.01): provides benefits to staff members irrespective of their location at time of service-connected injury or death, subject to exclusions in Section 2.01.4. - Permanent Total Disability (Section 5.01.1): - Entitlement: an annuity equivalent to 66–2/3 percent of his final pensionable remuneration. - Commencement: immediately upon the date of his separation from the Fund and continue for the duration of such total disability. - Determination: permanent total disability determined by the Claim Administrator per procedure under the Fund’s Staff Retirement Plan. - Permanent Partial Disability (Section 5.01.2): - Entitlement: a lump sum determined in accordance with the Schedule and principles in the Annex to the Order. - Adjustment: schedule of payments shall be adjusted annually for cost-of-living increases as described in subsection 7.02. ### GAO No. 20 — coordination with other Fund benefit plans (Section 6) - Annual Compensation Reductions (Section 6.01): entitlements under subsections 4.02, 4.03, 4.04, and 5.01.1 shall be reduced by the amount of all non-lump sum benefits paid (or that would have been paid had surviving spouse’s coverage existed under Section 4.9 of the Staff Retirement Plan) under the Staff Retirement Plan for the same illness, injury or death. - Special rule for technical assistance experts and persons on fixed-term appointments of two years or more not participating in the Staff Retirement Plan: entitlements reduced by amounts that would have been payable had the person been a participant from date of appointment. - Minimum Annual Compensation Payments (Section 6.01.1): annual compensation payable in the event of death to eligible surviving spouse and/or child(ren) or in the event of permanent total disability shall not be less than 5 percent of the staff member’s final pensionable remuneration irrespective of amounts payable under other Fund benefit plans. - Lump Sum Reductions (Section 6.02): lump sum payments under subsections 4.02 and 4.06 reduced by lump sums from Staff Retirement Plan, Group Life Insurance Plan, Travel Accident Insurance Plan and by the lump sum grant in event of death and the separation grant. Lump sums under subsection 5.01.2 reduced by amounts payable for same loss under other Fund policies. ### GAO No. 20 — cost-of-living adjustments (Section 7) - Adjustment of Annuities (Section 7.01): any annuity payable under the Order shall be adjusted for cost-of-living increases on May 1 following the first payment, and on each subsequent May 1, by the same percentage that pensions under the Staff Retirement Plan are increased in accordance with Section 4.11 of the Plan. - Basis of Compensation Adjustments (Section 7.03): increases in the cost-of-living for a financial year shall be measured using the Washington, D.C. Consumer Price Index for All Urban Consumers, as described in Section 4.11 of the Staff Retirement Plan. ### GAO No. 20 — medical expenses, reporting, and claims procedure (Sections 8–10) - Medical Expenses (Section 8.01): the Fund shall pay all reasonable medical, hospital and directly related costs for illness, accidental injury or death arising out of, and in the course of, Fund employment. - Report of Injury or Illness (Sections 9.01–9.03): - Headquarters procedures (Section 9.01): report all service-related accidents or illnesses immediately to the Health Room; Health Room nurse reports to the Staff Benefits Division. Written notification to Staff Benefits Division required without delay if illness or injury is consequence of or aggravated by employment; notify on return to work or not later than 30 days after occurrence. - Outside Washington procedures (Section 9.02): written report to Staff Benefits Division not later than 30 days after occurrence or upon return to work, whichever is earlier. - Submission of claim (Section 9.03): staff member must submit certified physician statement with diagnosis and treatment; bills and receipts required for reimbursement. - Disposition of Claims (Section 10.01–10.03): - Claims handled by Claim Administrator upon referral from Staff Benefits Division; Administrator disposes first per Order provisions and then per District of Columbia Workers’ Compensation Regulations if not specified. - Right of Appeal (Section 10.02): staff member may appeal Claim Administrator’s finding to the Grievance Committee under General Administrative Order No. 31, Rev. 1 procedures. - Channel of Payments (Section 10.03): payments by Administrator on approved claims normally made to staff member through the Fund; professional medical services paid to providers or reimbursed to staff member. - Choice of Currency and Exchange Rate (Section 10.04): the Staff Retirement Plan provisions relating to payments in a currency other than the U.S. dollar and determination of the exchange rate shall apply to payments under this Order. ### Staff Retirement Plan (May 11, 2011) — selected provisions governing pensions - SRP Section 4.2 (Early Retirement): - Eligibility at age 55: participant who has reached age 55 shall, upon ceasing to be a participant before normal retirement date for any cause other than death or disability, be retired under the Plan on an early retirement pension unless rights surrendered per Section 4.5(c). - Early retirement pension options (Section 4.2(a)(i)–(iii)): immediate pension, deferred pension effective on first day of any month after retirement but before normal retirement date, or deferred pension to become effective on normal retirement date (default unless participant elects otherwise). - Amounts for early retirement before normal retirement date (Section 4.2(b)): - Option (i): deferred pension decreased by 1/4 of 1 percent of such deferred pension for each month between effective date and normal retirement date. - Option (ii): deferred pension decreased by 1/8 of 1 percent of such deferred pension for each full month remaining after subtracting from 1,020 months the sum of participant's age in full months on effective date and eligible service in months. - Reduced early retirement (Section 4.2(c)): participant/retired participant age 50 with age in full months plus eligible service in months equal to 900 or more may elect reduced early retirement pension computed as deferred pension at age 55 reduced by 5/12 of 1 percent for each month between effective date and earliest date pension could become effective under Section 4.2(a)(i). - Section 4.2(d) additional reduced early retirement provisions for persons ceasing participation on or after April 1, 2008, with conditions (i)–(v) and comparisons of calculation methods in (i) and (ii). - Pensions under Section 4.2 subject to Section 4.12 (Section 4.2(e)). - SRP Section 4.3 (Disability Retirement): - Eligibility and timing (Section 4.3(a)): contributory service participant may be retired on disability pension before normal retirement date on first day of a calendar month not less than 30 nor more than 120 days after receipt of written application, provided Pension Committee finds (i) total incapacity for performance of any duty, (ii) incapacity likely to be permanent, and (iii) participant should be retired, based on recommendation of Administration Committee and physician certification. - Amount (Section 4.3(b)): disability pension equals the normal pension that would be payable if normal retirement date had fallen on date of disability retirement, computed using highest average remuneration and eligible service at time of disability retirement; in no event shall such pension be less than the smaller of: - (i) 50 percent of such highest average gross remuneration; or - (ii) the normal pension that participant would have received if he had remained a participant until his normal retirement date without change in such highest average remuneration. - Medical reexamination and discontinuance (Section 4.3(c)–(e)): Administration Committee may require annual medical examination; failure to permit exam may result in discontinuance; discontinuance not restored within five years and participant not returned to participation leads to deemed withdrawal from the Plan with entitlement under Section 4.2. *Source: International Monetary Fund (j2019-1).* ### Section 4.5(a), (b) or (c), whichever is applicable. ### Section 4.5(a), (b) or (c), whichever is applicable. ### Definition of normal retirement date (Section 4.3 reference) - Normal retirement date: the first day of the calendar month next following the sixty-fifth anniversary of his date of birth, or the date of such anniversary if it shall fall on the first day of a calendar month. ### Pension supplements (SRP Section 4.11) - Purpose: governs cost-of-living increases under the Plan. - Key rule: - Whenever the cost of living for a fiscal year beginning after April 30, 1977 increases, pensions shall be augmented by a pension supplement equal, expressed in percentage terms, to the increase in the cost of living for the fiscal year. - Measurement of cost-of-living increase (subsection (d)): - Measured on the basis of either: - (i) the most recent U.S. Consumer Price Index for All Urban Consumers, either published or certified to be selected for publication by the U.S. Bureau of Labor Statistics; or, if applicable, - (ii) the most recent consumer price index for a country either (1) published or certified to be selected for publication in International Financial Statistics or (2) in the absence of (1), another index determined to be suitable. - Determination of which index under (ii) applies to an election made in accordance with Section 16.3 shall be made by the Administration Committee. ### Pension Committee responsibilities (SRP Section 7.1) - Composition and membership: - Seven members, each with an alternate. - Members: the Managing Director of the Employer, ex officio; four Executive Directors elected biennially by the Executive Directors; one staff member appointed by the Managing Director; and one staff member elected biennially by the participants. - Alternates: Deputy Managing Director is Alternate of the Managing Director; alternates for Executive Directors per Section 7.4(g); Managing Director appoints alternate of his appointee; elected staff alternate elected by participants. - Provisions for temporary alternates and vacancy filling described. - Members appointed after January 1, 1978 referenced elsewhere for term lengths. - Governance and authority: - Managing Director shall be Chairman; in his absence his alternate shall be acting chairman. - Pension Committee shall appoint an Administration Committee and an Investment Committee and define their powers and duties. - Decides all matters of a general policy nature arising under the Plan and all other matters required to be decided by it or submitted to it by any Committee. - Authority to make and establish rules, policies, and procedures for overall administration and Retirement Fund management, binding upon Employer, participants, retired participants and others, subject to appeal to the Administrative Tribunal. - May secure services of an actuary (compensation paid by the Employer) and may rely on actuary’s recommendations for actuarial matters. - Must make periodic valuations of fixed and contingent assets and liabilities not less often than once every three years, review costs and benefits, and recommend changes in contributions and benefits to the Employer. Actuarial assumptions and methods determined from time to time upon recommendation of the actuary. ### Administration Committee responsibilities (SRP Section 7.2) - Composition and terms: - Five persons, each with an alternate, appointed by the Pension Committee upon nomination by the Managing Director, to serve at the pleasure of the Pension Committee. - Each member and alternate appointed after January 1, 1978 shall serve for a period of three years, subject to the pleasure of the Pension Committee, and may be reappointed. - Pension Committee designates chairman and vice chairman of the Administration Committee; alternates may act and vote in place of members. - Authorities and duties: - Subject to supervision and control of the Pension Committee, responsible for administration of the Plan and its application to participants, former participants and persons claiming through them. - Exclusive right to interpret the Plan, determine staff/participant status, direct employer to make disbursements from the Retirement Fund, determine entitlement and amounts of benefits, and determine questions arising in administration—decisions conclusive and binding, subject to appeal to the Administrative Tribunal. - May reconsider a decision or submit matters to the Pension Committee. - Authority to make, establish and prescribe rules, policies, procedures and forms for administration and interpretation of the Plan, disbursement of the Retirement Fund, and application of the Plan to individuals and the Employer. - Maintain accounts showing fiscal transactions of the Plan and keep data necessary for actuarial valuations. - Prepare annually a report showing in reasonable detail the assets and liabilities of the Plan and a brief account of operation for the past year; submit report to the Pension Committee and keep a copy on file at the headquarters of the Employer open to inspection by any participant or retired participant. - Determine equitably the part of any benefit provided by participant contributions or Employer contributions when necessary. ### Retirement Fund restrictions (SRP Section 9.1) - All contributions by the Employer and by participants pursuant to Article 6, and all other assets, funds and income of the Plan, shall be transferred to and become the property of the Employer, held and administered separately as the Retirement Fund solely for use in providing benefits and paying expenses of the Plan. - No part of the corpus or income of the Retirement Fund shall be used for or diverted to purposes other than for the exclusive benefit of participants and retired participants or their beneficiaries prior to satisfaction of all liabilities to such participants, retired participants and beneficiaries. - No person shall have any interest in or right to any part of the Retirement Fund or of the earnings thereof or any rights in, or to, or under the Plan or any part of the assets thereof except as and to the extent expressly provided in the Plan. ### Offset of workers’ compensation (SRP Section 10.5) - Rule: Any amounts paid or payable to any participant or dependents as a result of premiums, taxes or contributions paid by the Employer under any Workmen's Compensation Law or plan, or under any workman's compensation or employer's liability policy, or any other plan on account of death or incapacity for which the participant shall have been retired hereunder, may be offset against and payable, or deemed to be payable, in lieu of such part of his disability pension provided hereunder, in such equitable manner as the Administration Committee shall decide. ### Commutation of pension (SRP Section 15.1) - Rights to commute: - (a) Any participant or retired participant entitled to receive a normal, early retirement or deferred pension may elect, before pension becomes effective, to commute a stated portion, not exceeding one third, of his pension plus accumulated pension supplements into a lump sum payment. - (b) Any participant or retired participant entitled to a disability pension effective at or after 55 years of age may, before pension becomes effective and subject to Administration Committee approval, elect to commute a stated portion, not exceeding one third, of the early retirement pension plus accumulated pension supplements he would have been entitled to receive if retired on an early retirement pension instead of a disability pension, into a lump sum payment. - (c) Any election under (a) or (b) shall be irrevocable, provided the election shall be deemed not to have been made if the participant dies before the effective date of his pension. ### Source of payment for benefits (SRP Section 13.2) - All benefits and payments under the Plan shall be paid only from the Retirement Fund. ### SRP Administration Committee Rules of Procedure — Rule VIII (Review of Decisions) - Time limits and form: - A Requester or any person claiming rights or benefits who wishes to dispute a Decision may submit an Application for Review of a Decision to the Secretary within ninety (90) days after the Requestor receives a copy of the Decision. An Application must satisfy Rule III form requirements and otherwise applicable Request requirements. - If no Application submitted within this period and an extension described in Rule IX, paragraph 2 has not been granted, the right to submit an Application shall cease. - Committee review authority and limits: - Committee may review a Decision in response to a timely Application, at its own initiative, or at the request of the Pension Committee under Section 7.1(c). - Committee shall not review a Decision so as to affect adversely any action taken or recommended therein except in cases of: - a. misrepresentation of a material fact; - b. availability of material evidence not previously before the Committee; or - c. a disputed claim between two or more persons claiming rights or benefits under the Plan. - Notifications and procedure: - If the Committee undertakes or declines to review, all parties to the Decision shall be notified in writing. - Any review conducted in accordance with Rules IV, VI and VII. - Committee shall notify the Applicant of the results of its review within three months of receipt of the Application by the Secretary. ### Consideration of issues and standard of review in Tribunal proceedings - Central dispute described: - Whether SRP Section 10.5, or any other provision of the Fund’s internal law, prevents an Applicant from receiving a workers’ compensation annuity (fully financed by the IMF) for a work-related injury deemed a “permanent total disability” under GAO No. 20, and simultaneously receiving a separate early retirement pension (SRP Section 4.2) under the Staff Retirement Plan. - Respondent’s position: Applicant must be granted a disability pension (SRP Section 4.3) in lieu of the early retirement pension, and the disability pension must be “coordinated” with the workers’ compensation annuity so that the single annuity is capped at the amount of the workers’ compensation annuity, financed in part by the SRP, and reduced by the commutation payment previously taken on the early retirement pension. - Standard of review when Tribunal considers challenges to Administration Committee decisions: - Tribunal decides “whether the Committee has correctly interpreted the relevant Plan provisions and soundly applied them to the facts of the case.” - If the Tribunal concludes the Committee’s decision was “in error,” it may rescind the decision and correct its effects. - This standard differs from review of discretionary managerial decisions for two reasons: - SRP Section 7.2(b) vests the Administration Committee with exclusive authority to take individual decisions under the Plan, subject to appeal to the Tribunal. - Construal and application of SRP terms to facts more closely resemble a judicial act than managerial authority. - Application in the present case (2016 decision under review): - Tribunal will consider whether the Administration Committee correctly interpreted the Plan and soundly applied it when it decided in 2016: - (i) to reconsider and reverse its 2011 decision denying Applicant a disability pension and to grant a disability pension retroactive to and in lieu of the early retirement pension on which the Applicant had retired in 2012; and - (ii) to pay Applicant a “coordinated” disability pension and workers’ compensation annuity that is: - (a) capped at the amount payable as a workers’ compensation annuity; - (b) financed in part by the SRP; and - (c) reduced by the commutation payment Applicant had taken on his early retirement pension. *International Monetary Fund — j2019-1 (Section 4.5(a), (b) or (c), whichever is applicable)* ### 122. The challenged decisions were taken pursuant to two Plan provisions—namely, SRP ### 122. The challenged decisions were taken pursuant to two Plan provisions—namely, SRP ### Standard of review when Committee exercises discretionary authority - The Tribunal has not previously considered its standard of review in cases where the Committee exercises discretionary authority. - The Commentary on the Tribunal’s Statute sets out grounds for overturning individual decisions taken in the exercise of managerial discretion: the decision is “arbitrary, capricious, discriminatory, improperly motivated, based on an error of law or fact, or carried out in violation of fair and reasonable procedures.” (Commentary on the Statute, p. 19.) (Emphasis added.) - The lawful exercise of discretionary authority is confined by the principle that discretion is abused if it leads to an error of law. - SRP Section 7.2(c) provides that the Administration Committee may not act “contrary to the provisions” of the Plan; therefore, if the Committee misinterprets Plan terms, the Committee will have erred. ### Relevant SRP provisions invoked - SRP Section 7.2(b): “Nothing herein shall prevent the Administration Committee, at its own discretion, from reconsidering a decision taken . . . .” - The Fund invoked SRP Section 7.2(b) in support of the Committee’s 2016 decision to reconsider and reverse its 2011 denial of a disability pension and to replace retroactively the Applicant’s early retirement pension with a disability pension. - SRP Section 10.5: grants the Committee authority to offset workers’ compensation payments against “such part of [a] disability pension provided hereunder, in such equitable manner as the Administration Committee shall decide.” - The Committee relied on SRP Section 10.5 in deciding to “coordinate” the Applicant’s disability pension and workers’ compensation annuity. ### Cumulative effect of the Committee’s challenged decisions - The decisions replaced the Applicant’s separate early retirement pension and workers’ compensation annuity with a single “coordinated” annuity: - capped at the amount payable to him as a workers’ compensation annuity; - financed in part by the SRP; - reduced by the commutation payment he had taken on his early retirement pension. - The Tribunal structured review by first addressing the Committee’s preliminary decision to reconsider and reverse its earlier denial of a disability pension and to replace retroactively the early retirement pension with a disability pension. ### The Committee’s 2016 decision to reverse the 2011 denial and grant a retroactive disability pension - Decisions dates and references: - SRP Administration Committee Decision and Findings, January 22, 2016 (upheld in Decision on Review of June 17, 2017). - The Committee decided to grant a disability pension (SRP Section 4.3) retroactive to and in lieu of the early retirement pension (SRP Section 4.2) on which the Applicant had retired on February 1, 2012. - The Committee’s 2016 decision was taken in response to: - the Fund’s request for reconsideration in light of the Workers’ Compensation Claim Administrator’s 2015 determination of “permanent total disability” in terms of GAO No. 20, Section 5.01.1; - the Grievance Committee’s recommendation of a “make whole” remedy to place Applicant in the “same financial status in which he would have been if his eligibility for a worker compensation annuity had not been delayed by [the Claim Administrator]’s erroneous decision on the merits of his annuity application.” (Grievance Committee Report and Recommendation, October 1, 2015, p. 5.) - Fund Management’s referral to the SRP Committee of “how [Applicant’s] SRP pension benefit should be coordinated with [his] workers’ compensation annuity.” (Letter from Deputy Managing Director and Chief Administrative Officer to Applicant, November 6, 2015.) - The Committee observed the SRP is silent on coordination of workers’ compensation and an early retirement pension but SRP Section 10.5 allows offsetting workers’ compensation benefits against a disability pension. - The Committee stated: “[I]n the normal processing of claims ... an early retirement pension would not be awarded to a staff member who was determined to be totally and permanently disabled [under the workers’ compensation policy].” (SRP Administration Committee Decision and Findings, January 22, 2016, p. 4.) - The Committee concluded it could achieve the SRP policy of coordinating benefits “by reconsidering its 2011 denial of the disability pension, and restoring a disability pension retroactive to February 2012.” (Id.) (Emphasis added.) ### Committee’s factual and legal findings supporting retroactivity - The Committee found “no longer any genuine dispute that [Applicant] is permanently and totally disabled, and has been so since before his retirement from the Fund in 2012.” (SRP Administration Committee Decision and Findings, January 22, 2016, p. 2.) - The Committee characterized the Workers’ Compensation Claim Administrator’s 2015 determination (based on a 2014 review of medical records) as a “material change that renders the 2011 advice of [the Committee’s Medical Advisor] moot.” (Id.) - The Committee considered Management’s acceptance of that determination, together with Applicant’s statements and representations of his doctor’s opinions, to “constitute conclusive proof that [Applicant] is and has been permanently and totally disabled for purposes of Section 4.3 [of] the Plan since before his retirement in 2012.” (Id., pp. 1-2.) - The Committee concluded that SRP Section 4.3 makes a disability pension “mandatory” upon a finding that a participant is permanently and totally disabled prior to retirement: - SRP Section 4.3 provides that a participant in contributory service who meets the eligibility requirements for disability retirement “shall” be retired on a disability pension before his normal retirement date. - The Committee stated: “[T]he intent of the Plan ... is that an individual who is permanently and totally disabled is not eligible for an early retirement pension, but instead must be provided a disability pension.” (SRP Administration Committee Decision on Review, June 17, 2017, p. 4.) (Emphasis in original.) ### Applicant’s challenges to the Committee’s decisions - Applicant contends: - (i) the Committee lacked authority under the Plan to reverse, at the unilateral request of the Fund, its earlier denial of a disability pension and to grant a disability pension retroactive to and in lieu of his early retirement pension; - (ii) the SRP Administration Committee and the Workers’ Compensation Claim Administrator are not required to reach parallel outcomes as to a disability pension and a workers’ compensation annuity; - (iii) the proper application of SRP Section 10.5 to Applicant’s later-granted disability pension would have resulted in payments to Applicant equivalent to his retaining the early retirement pension plus the workers’ compensation annuity. ### Respondent’s defenses - Respondent maintains: - (i) the Committee acted within its authority in reversing its earlier decision and replacing retroactively Applicant’s early retirement pension with a disability pension; - (ii) Applicant met the eligibility criteria for a disability pension while still in contributory service; - (iii) the Committee was required by the determination of the Workers’ Compensation Claim Administrator to reverse its earlier denial of a disability pension so as to rectify an “unjustifiable windfall” resulting from Applicant’s having been granted an early retirement pension (not subject to the offsetting provision of SRP Section 10.5) along with a workers’ compensation annuity. ### Procedural and fairness issues concerning reconsideration - Applicable rules cited by the Committee: - SRP Section 7.2(b): discretionary authority to reconsider decisions. - SRP Section 4.3: disability retirement may be initiated either “by the participant or the Employer.” - SRP Administration Committee Rules of Procedure, Rule VIII (Review of Decisions): - “The Committee may review a Decision, either in response to a timely Application or at its own initiative.” (Rule VIII, para. 2.) - “The Committee shall not, however, review a Decision so as to affect adversely any action taken or recommended therein,” except in cases of: - a. misrepresentation of a material fact; - b. the availability of material evidence not previously before the Committee; or - c. a disputed claim between two or more persons claiming any rights or benefits under the Plan. - Respondent’s procedural arguments: - The replacement of a lower early retirement pension with a higher disability pension was “not adverse to Applicant,” so Rule VIII, para. 2(b) did not apply. - Alternatively, the “conclusive determination by [the Workers’ Compensation Claim Administrator] that [Applicant] is permanently and totally disabled—together with updated medical records and statements from Applicant that were not available at the time of the August 2011 decision—amounted to substantial new material evidence.” - Applicant’s counterargument: - Although the disability pension was larger, the Committee’s 2016 decision was adverse because it provided the predicate for “coordination” that resulted in a reduction of total payments to him. - Tribunal’s procedural observations and holding on procedure: - The Tribunal found the Fund’s argument unpersuasive that the Committee did not act against Applicant’s interests given that the Committee’s action was part of a larger decision that reduced total payments to the Applicant. - The Tribunal noted it is “not clear” that Rule VIII’s “material evidence not previously before the Committee” would include evidence gathered subsequent to the initial decision, or that it would be fair to base an exception on the emergence of subsequent facts. - Several years passed between the Committee’s 2011 decision and its 2016 reconsideration; Rule VIII appears to place no time limit on the Committee’s exercise of discretion to reconsider at its own initiative, while Rule VIII, para. 1, requires a Requestor who wishes to dispute a Decision to do so within 90 days after notification of the Decision. - Given that the Tribunal holds for Applicant on another basis, it did not decide whether the Committee’s application of Rule VIII, including the passage of time and the unilateral request by the Fund, was consistent with fair procedures. - The Tribunal reaffirmed that an SRP participant’s “. . . stake in the outcome of the [Committee’s] decision-making process deserves a high level of procedural protection” and that the Committee’s process “be a fair and reasonable one is an interest shared by all Plan participants and the organization.” Ms. “J”, para. 162. ### Core legal questions identified by the Tribunal - Did the Committee have authority to reconsider in 2016 at the unilateral request of the Fund its 2011 decision that the Applicant did not meet the criteria for disability retirement in terms of SRP Section 4.3 and to replace, retroactively, his early retirement pension with a disability pension? - Was the retroactive replacement of Applicant’s early retirement pension with a disability pension necessitated by the Workers’ Compensation Claim Administrator’s decision to grant Applicant a workers’ compensation annuity based on a finding of “permanent total disability” under GAO No. 20? *Excerpt from the Tribunal's findings concerning SRP Sections 7.2(b), 10.5, and 4.3.* ### 145. Applicant counters that the Fund’s law does not require harmonization of outcomes as ### j2019-1 - 145. Applicant counters that the Fund’s law does not require harmonization of outcomes as ### Relevant statutory and regulatory provisions - SRP Section 4.3(a) prescribes disability pension eligibility when: - (i) the participant, while in contributory service, became totally incapacitated, mentally or physically, for the performance of any duty with the Employer that he might reasonably be called upon to perform; - (ii) such incapacity is likely to be permanent; and - (iii) such participant should be retired. - SRP Section 4.3(b): A disability pension is “equal to the normal pension that would be payable to the participant if his normal retirement date had fallen on the date of his disability retirement, but using for such computation his highest average remuneration and eligible service at the time of his disability retirement.” - SRP Section 4.2(a): An early retirement pension applies when “A participant who has reached the age of 55, shall, upon ceasing to be a participant before his normal retirement date for any cause other than death or disability retirement under the Plan, be retired under the Plan on an early retirement pension . . . .” - GAO No. 20, Section 5.01.1 states in part: “Permanent total disability shall be determined by the Claim Administrator in accordance with the procedure for determining such disability under the Fund’s Staff Retirement Plan.” - GAO No. 13, Rev. 6, Annex I (Separation for Medical Reasons): separation procedures commence if, “on the basis of medical advice,” the HRD Director decides the staff member “will not be able to return to duty in the foreseeable future.” - GAO No. 16, Rev. 6, Section 10 cross-references Annex I: “In 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, the procedures outlined below shall apply.” - SRP Section 10.5 (full text preserved): “Any amounts which may be paid or payable to any participant or to his dependents or otherwise on his account, as the result of premiums, taxes or contributions paid by the Employer under any Workmen's Compensation Law or plan, or under any workman's compensation or employer's liability policy, or under any other plan, whether self-insured or otherwise, on account of his death or of any incapacity for which he shall have been retired hereunder, may be offset against and payable, or deemed to be payable, in lieu of such part of his disability pension provided hereunder, in such equitable manner as the Administration Committee shall decide.” ### Comparative standards and institutional roles - The SRP disability-pension standard requires that the participant became “totally incapacitated” while in contributory service, with incapacity “likely to be permanent.” - The workers’ compensation policy requires “permanent total disability” as determined by the Claim Administrator “in accordance with the procedure for determining such disability under the Fund’s Staff Retirement Plan,” but GAO No. 20 does not elaborate the substantive standard. - Separation for medical reasons under GAO No. 13 / GAO No. 16 can invoke a lower standard than the SRP disability-pension standard, according to Respondent’s characterization. - Decisions originate from different decision makers: the SRP Administration Committee (SRP benefits), the Claim Administrator (workers’ compensation annuities), and HRD Director/GAO procedures (separation for medical reasons). ### Central dispute: harmonization, sequence of decisions, and financial consequences - Respondent’s contention: - Decisions as to eligibility for a workers’ compensation annuity and a disability pension must be harmonized. - If Applicant met the “permanent total disability” standard under the workers’ compensation policy, Applicant must necessarily be retired on a disability pension under the SRP. - The sequence of findings matters; Respondent asserts that a finding of permanent and total disability made before the retirement date affects pension outcomes differently than a later finding. - Where a person is entitled to disability benefits under both policies, SRP and workers’ compensation benefits “be coordinated into a single pension or annuity” such that the participant receives the larger of the benefits. - Maintaining an early retirement pension along with a workers’ compensation annuity results in an “unjustifiable windfall” because SRP Section 10.5 applies only to disability pensions and not to early retirement pensions; thus an early retirement pension cannot coexist with a workers’ compensation annuity in Respondent’s view. - Applicant’s contention: - The Fund’s law does not require harmonization of outcomes between SRP disability retirement and “permanent total disability” under the workers’ compensation policy. - The Fund’s regulations do not prescribe any particular sequence of decision making between those two channels. - SRP Section 10.5 permits offset only of “such part” of a disability pension attributable to disability; the remainder (the pension reflecting deferred past income) should remain intact. - Applicant sought reinstatement of his early retirement pension plus a separate workers’ compensation annuity; Applicant asserts the Committee illegally offset the entire disability pension against the workers’ compensation annuity and thereby exceeded its authority and breached fiduciary duties under SRP Sections 7.2 and 9.1. ### Committee decisions and invoked authorities - SRP Administration Committee (2016 Decision) retroactively replaced Applicant’s early retirement pension with a disability pension and decided: - “[Applicant] will not receive benefits under both the SRP and the workers’ compensation policy; rather, he will receive the larger of the benefits, which, in his case, is the workers’ compensation annuity.” - “The amount of that annuity will be partially financed from the SRP in accordance with EBAP/92/146 and Section 10.5 of the Plan.” - The annuity would be reduced by the commutation payment Applicant had taken on his early retirement pension. - Committee and Fund cited three sources in support: SRP Section 10.5, Board decision EBAP/92/146, and GAO No. 20, Section 6.01. - Tribunal observation: the SRP Administration Committee is authorized to take decisions only under the Plan; Fund Management did not take a “coordination” decision under GAO No. 20, Section 6.01 in this case. The challenged coordination decision before the Tribunal is that rendered pursuant to SRP Section 10.5. ### Tribunal’s analytical framework and questions to resolve - The Tribunal states applicable interpretive principles: - The Committee must “start by considering the provisions of the Plan” and may not act “contrary to the provisions” of the Plan (SRP Sections 7.2(b), 7.2(c)). - When conflict exists between a Plan provision and a rule promulgated by the Committee, the Plan provision governs. - The Tribunal’s principal questions: 1. Did the Committee apply the plain meaning of SRP Section 10.5 in deciding to pay Applicant a single annuity, capped at the amount payable as a workers’ compensation annuity? 2. Did the Committee apply the plain meaning of SRP Section 10.5 in deciding that Applicant’s annuity would be partially financed by the SRP? 3. Did the Committee correctly interpret and soundly apply the plain meaning of SRP Section 10.5 in reducing Applicant’s annuity by the amount of the commutation payment he had taken on his early retirement pension? ### Key legal tensions and implications identified by the Tribunal - The standards for disability pension and workers’ compensation annuity emerge from different policies, serve different purposes, and are decided by different decision makers; applying them across schemes is likely to cause confusion. - Whether harmonization of outcomes is required by SRP Section 10.5 is central to the dispute; parties differ on whether SRP Section 10.5 authorizes: - (Respondent) full coordination into a single benefit equal to the larger of the two payments and partial financing from the SRP, with no coexistence of early retirement pension and workers’ compensation annuity; or - (Applicant) an offset limited to “such part” of the disability pension attributable to disability, preserving the underlying early retirement pension in full. - The Tribunal frames the immediate task as determining whether the Committee followed the plain text of SRP Section 10.5 or impermissibly varied that meaning by reference to EBAP/92/146 and GAO No. 20, Section 6.01. *Tribunal excerpt from j2019-1 (IMF).* ### 10.5 in deciding to pay Applicant a single annuity, capped at the ### SRP Section 10.5: Tribunal findings on coordination of SRP disability pensions and workers’ compensation annuities ### Plain meaning of SRP Section 10.5 and entitlement to accrued SRP pension - SRP Section 10.5 addresses eligibility for both an SRP disability pension and a workers’ compensation annuity as a consequence of a service-incurred disability. - The Fund has not identified any internal-law provision that prescribes payment of a single annuity where an SRP participant is entitled to a workers’ compensation annuity pursuant to GAO No. 20. - The Tribunal finds nothing in SRP Section 10.5, explicit or implicit, that supports treating the participant as entitled to a single annuity. - The Tribunal emphasizes that a retirement pension (including for disability) reflects contributions by the participant and the Fund and is not merely a discretionary “benefit” conferred by the Fund. - SRP Section 4.3 and SRP Section 15.1(b) demonstrate that a disability pensioner retired at or after early retirement age is treated, for accrual purposes, like other pensioners: - SRP Section 15.1(b) permits election of a commutation payment in the case of a disability pension (in an amount up to one third of the early retirement pension that the participant would have been entitled to receive had he not retired on a disability pension) if that disability pension becomes effective at or after the participant reaches 55 years of age. - The Tribunal concludes that a plain reading of SRP Section 10.5 does not permit requiring a participant who has accrued an SRP pension to relinquish the pension accrued on the basis of contributions and years of service. ### Tribunal conclusion on the Committee’s decision to pay a single annuity capped at the workers’ compensation amount - The Committee’s decision to pay Applicant a single annuity, capped at the amount payable to him as a workers’ compensation annuity, was not taken in an “equitable manner” as required by SRP Section 10.5. - The Committee afforded no weight to Applicant’s contributions to, and entitlements under, the Plan; by doing so it exceeded the margin of its discretionary authority and erred in offsetting Applicant’s disability pension in total by his workers’ compensation annuity. - Properly construed, SRP Section 10.5 allows offset against and payment in lieu of part of a disability pension by a workers’ compensation annuity only as to “such part” of the pension that represents replacement of income forgone due to incapacity to perform “any duty with the Employer that he might reasonably be called upon to perform” (SRP Section 4.3). - SRP Section 10.5 does not prescribe payment of a single annuity; the plain meaning is that the participant will retain both an SRP pension and a separate workers’ compensation annuity. ### Financing of any “coordinated” annuity and SRP fund restrictions - The Committee additionally decided to partially finance the single “coordinated” annuity by the SRP, blending SRP and workers’ compensation payments. - SRP Section 9.1 (text preserved verbatim) restricts the use of the Plan’s Retirement Fund: - 9.1 All the contributions made by the Employer and by participants pursuant to Article 6 hereof, and all other assets, funds and income of the Plan, shall be transferred to and become the property of the Employer, and shall be held and administered by the Employer, separately from its other property and assets, as the Retirement Fund, solely for use in providing the benefits and paying the expenses of the Plan, and no part of the corpus or income of the Retirement Fund shall be used for, or diverted to, purposes other than for the exclusive benefit of participants and retired participants or their beneficiaries under the Plan, prior to the satisfaction of all liabilities with respect to such participants, retired participants and beneficiaries. No person shall have any interest in or right to any part of the Retirement Fund or of the earnings thereof or any rights in, or to, or under the Plan, or any part of the assets thereof, except as and to the extent expressly provided in the Plan. - SRP Section 13.2 states: - All benefits and payments under the Plan shall be paid only from the Retirement Fund. - Read together, SRP Sections 9.1 and 13.2 make clear: - The assets of the Plan may be used only to pay the Plan’s liabilities, and the Plan’s liabilities may be paid only from the assets of the Plan. - The SRP does not permit its assets to be used to meet the Fund’s liabilities under its workers’ compensation scheme, nor may the Fund’s workers’ compensation budget be used to meet SRP disability pension obligations. - The Tribunal finds that blending SRP and workers’ compensation payments such that one finances the other is plainly “contrary to the provisions” of the Plan. - Limiting Applicant’s annuity payments to the workers’ compensation amount and financing that annuity in part by the SRP both (a) denies Applicant the pension payments due him under the SRP and (b) results in his workers’ compensation annuity being impermissibly subsidized by the SRP. This is a second independent reason the Committee’s coordination decisions are in error. ### Treatment of commutation payment and further reductions - The Committee decided that the commuted amount Applicant received in 2012 under SRP Section 15.1(a) for his early retirement pension “shall be deemed to have been paid to him pursuant to an election under Section 15.1(b) for the disability pension, and there shall be a consequential reduction in the annuity payable to him . . . .” - The Tribunal finds no basis to treat the earlier commutation payment as reducing the Fund’s exclusive responsibility to compensate for the work-related injury. - The Tribunal notes that, even accepting the Fund’s interpretation of SRP Section 10.5, Respondent has not explained why an annuity equal to the workers’ compensation amount should be reduced by a commutation payment previously taken from the SRP. - The Tribunal concludes there was no basis for further reduction of the annuity on account of Applicant’s earlier commutation. This is an additional reason the Committee’s coordination decisions are in error. ### Reliance on Executive Board decision EBAP/92/146 and its limits - The Committee and Respondent relied on Executive Board decision EBAP/92/146 and GAO No. 20, Section 6.01, to support the Committee’s coordination and financing approach. - EBAP/92/146 (Executive Board Decision No. 10166 – (92/126), adopted October 13, 1992) states in pertinent part: - 1. (a) The pension payable in respect of total and permanent disability resulting from a work-related illness or injury, and the benefits payable in respect of work-related death, shall be the higher of the amounts specified in GAO No. 20 and the amounts of the disability pension or the death benefits, respectively, payable under the provisions of the Staff Retirement Plan. - (b) In financing these pensions or benefits, the Fund shall first pay from its own resources the full amounts prescribed as payable under the workers’ compensation regulations of the District of Columbia. The balance of the financing shall be paid from the Staff Retirement Plan under the provisions governing the payment of disability pensions or death benefits, as applicable. If the aggregate amount of such payments is less than the amounts payable under (a) above, the Fund will pay the difference from its own resources. - The Tribunal identifies key differences between EBAP/92/146 and SRP Section 10.5: - EBAP/92/146 appears to assume a single annuity will be paid when both entitlements exist; SRP Section 10.5 contains no such assumption. - EBAP/92/146 caps the single annuity at the higher of the workers’ compensation annuity or the disability pension; there is nothing in SRP Section 10.5 supporting that approach. - EBAP/92/146 addresses apportionment of financing for a single annuity; SRP Section 10.5 does not address financing of a single “coordinated” annuity because it does not prescribe payment of a single annuity. - EBAP/92/146 originated in recommendations concerning “modifications to the Fund’s workers’ compensation policy” and did not propose or effect modifications to the SRP. - The Board paper underlying EBAP/92/146 expressly treated the matter of implementing reductions under SRP Section 10.5 as a matter for the SRP Administration Committee to decide in an “equitable manner,” and the paper referred to “reduction,” rather than elimination, of an SRP disability pension. - The Tribunal concludes that reliance on EBAP/92/146 and GAO No. 20 did not provide a sufficient basis to vary the plain meaning of SRP Section 10.5 in Applicant’s case; the Committee exceeded the bounds of its discretionary authority in interpreting and applying SRP Section 10.5. *The Tribunal.* ### 193. Importantly, the Board paper did not propose amendment of the SRP. Rather, the paper ### j2019-1 - 193. Importantly, the Board paper did not propose amendment of the SRP. Rather, the paper ### Whether the Board decision amended the SRP - The Board paper stated that “the proposals in this paper, if approved, will entail the amendment of that GAO [No. 20]” (Board paper, p. 5). - Neither GAO No. 20 (last revised in 1982) nor SRP Section 10.5 (unchanged since 1948) was amended in light of Board decision EBAP/92/146. - The history of Board decision EBAP/92/146 does not support the view that it effected changes to the SRP. ### Whether the Committee exceeded its discretionary authority by relying on EBAP/92/146 - Legal framework and limits: - SRP Section 10.5 authorizes offsetting a workers’ compensation annuity against “such part of [a] disability pension provided hereunder, in such equitable manner as the Administration Committee shall decide.” - SRP Section 7.2(c) limits the Committee’s rulemaking: Committee rules “shall not be contrary to the provisions hereof.” - The Tribunal recognizes a “clear hierarchy of norms”: when a conflict exists between a Plan provision and Committee Rules, the Plan provision must govern. - Tribunal findings on coordination rule: - The Committee’s Decision on Review characterized EBAP/92/146 as reiterating a “longstanding rule” that a “participant should receive either the workers’ compensation annuity or the disability pension, whichever is higher.” (SRP Administration Committee Decision on Review, June 17, 2017, p. 4.) - The Tribunal concluded the plain meaning of SRP Section 10.5 does not support payment of a single “coordinated” annuity capped at the workers’ compensation annuity because that approach fails to reflect an “equitable” weighing of interests. - EBAP/92/146 does not provide a basis for the Committee to vary the plain meaning of SRP Section 10.5. ### Financing of the “coordinated” annuity and related errors - Fact pattern and Committee formula: - The Committee adopted a funding formula drawn from the Board decision: “the Fund will first draw on its administrative budget up to the amount payable under the workers’ compensation regulations of the District of Columbia, and second, any balance shall be paid by the SRP (up to the amount of the disability pension).” (SRP Administration Committee Decision on Review, June 17, 2017, p. 4.) (Emphasis in original.) - Applying this formula, the Committee determined that sixty-eight percent of Applicant’s annuity was to be financed by the SRP. (Id., p. 5 and note 3.) - Tribunal conclusions on financing: - The Tribunal registered “disquiet and concern” at partial financing by the SRP of an annuity capped at the workers’ compensation amount. - Assuming Applicant had been properly retired on a disability pension, the Tribunal concluded the Committee erred in taking the financing decision. - The financing decision was tantamount to funding the Applicant’s workers’ compensation annuity in part by the Plan, contrary to SRP Sections 9.1 and 3.2. ### The Board paper’s stated legal rationale and Tribunal’s assessment - Board paper observations (as quoted in the record): - “[S]tandard practice in the private sector [is] for employers to pay the whole of work-related disability benefits through workers’ compensation insurance and not through a normal pension plan.” (Board paper, p. 2.) - Legal Department advised that the Fund’s primary reliance on the SRP “would seem to be contrary to the requirements of current U.S. pension and workers’ compensation law, because under those laws work-related disabilities are the exclusive liability of the employer.” (Board paper, p. 2.) (Emphasis added.) - “Using the resources of the SRP, which derive from both employer and employee contributions, for the payment of liabilities that in law are the sole responsibility of the employer could arguably be inconsistent with the fiduciary standards applicable to a qualified pension plan.” (Board paper, p. 2.) (Emphasis added.) - Tribunal assessment: - Although the Board paper recognized legal and fiduciary principles contraindicating SRP financing of employer-only liabilities, EBAP/92/146 proposed an approach to coordination that the Tribunal found inconsistent with the SRP. - When the Committee relied on EBAP/92/146 to pay a single “coordinated” annuity capped at the workers’ compensation amount and to devise the financing formula, it exceeded its discretionary authority under SRP Section 10.5. ### Article XX jurisdictional issue - Respondent’s contention: - Respondent argued Applicant’s challenge could be a regulatory challenge barred by Article XX because EBAP/92/146 pre-dated the Tribunal’s Statute (Board decision EBAP/92/146 taken October 13, 1992; Article XX bars acts taken before October 15, 1992). - Tribunal analysis and holding: - Article VI, Section 2, permits illegality of a regulatory decision to be asserted in support of an admissible application challenging an individual decision taken pursuant to that regulatory decision, but Article XX bars challenges to administrative acts before the Tribunal’s jurisdiction. - The Tribunal examined whether the Committee’s decision was taken “pursuant to” EBAP/92/146 in the sense of Article VI, Section 2. - The Committee exercised its own equitable discretion and “looked to” the Board decision in exercising that discretion; it did not consider itself bound by EBAP/92/146. - The individual decision in Applicant’s case was not taken “pursuant to” the 1992 Board regulatory decision; the Board decision did not determine the outcome of the Committee’s discretionary exercise. - Conclusion: Applicant’s challenge to the Committee’s “coordination” decisions is not barred by Article XX of the Statute. ### Interaction with GAO No. 20, Section 6.01 - GAO No. 20, Section 6.01 provision: - “Any entitlement to compensation under subsections 4.02, 4.03, 4.04, and 5.01.1 [workers’ compensation annuity for permanent total disability] shall be reduced by the amount of all non-lump sum benefits paid . . . under the Fund’s Staff Retirement Plan for the same illness, injury or death.” (GAO No. 20, Section 6.01.) - Tribunal interpretation and conflict analysis: - SRP Sections 9.1 and 13.2 make clear Plan assets may be used only to pay the Plan’s liabilities, and the Plan’s liabilities may be paid only from the assets of the Plan; blending SRP pension and workers’ compensation annuity so one finances the other is “contrary to the provisions” of the Plan. - The Tribunal sought to interpret Fund rules consistently. It observed that once SRP Section 10.5 offsets “such part” of a disability pension attributable to disability by the workers’ compensation annuity, there will not be “benefits paid . . . under the Fund’s Staff Retirement Plan for the same illness, injury or death.” Therefore, GAO No. 20, Section 6.01, may be in conflict with SRP Section 10.5. - To the extent the Committee relied on GAO No. 20, Section 6.01, in deciding the method of financing the Fund’s workers’ compensation obligation for Applicant, it exceeded its authority. - SRP Section 10.5 does not vest the Committee with authority to diminish the Fund’s financial obligation as Employer under GAO No. 20; the Committee’s responsibilities are limited to decisions under the Plan (SRP Section 7.2). - Fund Management did not take a decision in Applicant’s case under GAO No. 20, Section 6.01. ### Tribunal’s consolidated conclusions on Applicant’s challenges - EBAP/92/146 did not amend the SRP. - The SRP Administration Committee exceeded its discretionary authority under SRP Section 10.5 when it: - Applied EBAP/92/146 to pay Applicant a single “coordinated” annuity capped at the workers’ compensation annuity; and - Adopted the particular financing formula that resulted in partial financing of the workers’ compensation annuity by the SRP (sixty-eight percent in Applicant’s case). - The Committee’s financing decision was contrary to SRP Sections 9.1 and 3.2 and inconsistent with the Plan’s plain meaning. - Applicant’s challenge to the Committee’s interpretation and application of SRP Section 10.5 is not barred by Article XX of the Tribunal’s Statute. - GAO No. 20, Section 6.01, does not provide a lawful basis for the Committee to vary the plain meaning of SRP Section 10.5 in Applicant’s circumstances. *Attribution: Findings and conclusions of the Tribunal as set out in the IMF Administrative Tribunal judgment extract.* ### 213. As to Applicant’s challenges to decisions of the SRP Administration Committee, the ### j2019-1 - 213. As to Applicant’s challenges to decisions of the SRP Administration Committee, the ### SRP Administration Committee decision and Tribunal finding - The Tribunal recognizes the Committee’s discretionary authority in applying SRP Section 10.5. - The Tribunal concluded that the Committee exceeded the margin of its discretionary authority under SRP Section 10.5 when it: - Decided to pay Applicant a single “coordinated” disability pension and workers’ compensation annuity, capped at the amount payable to him as a workers’ compensation annuity, financed in part by the SRP, and reduced by the commutation payment he had taken on his early retirement pension. - Replaced retroactively his early retirement pension with a disability pension purportedly to “achieve the SRP policy of coordinating benefits for an individual who is permanently and totally disabled for work-related reasons” (SRP Administration Committee Decision and Findings, January 22, 2016, p. 4). - The Tribunal held that the Committee’s decision represented an error of law and cannot be sustained. ### Standard of review for Fund Management decisions - The Tribunal’s standard of review (“degree of deference—or depth of scrutiny”) 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. (Ms. “J”, para. 99) - For individual decisions involving managerial discretion, the Tribunal applies the standard from the Commentary on the Statute, p. 19: - Discretionary decisions cannot be overturned unless 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. - The “abuse of discretion” standard may emphasize different factors depending on the nature of the contested decision and the applicant’s grounds; it encompasses “error of law.” (Ms. “J”, para. 107) ### Issues raised by Applicant against Fund Management - The Tribunal framed the Applicant’s challenges to Fund Management as the following questions: 1. Did the Fund abuse its discretion in requiring Applicant to repay the lump-sum benefit granted from the Separation Benefits Fund (SBF) pursuant to GAO No. 16? 2. Did the Fund breach a “duty of care” to take preventative measures to ensure Applicant’s health and safety? 3. Did the Fund improperly fail to provide compensation for alleged injury to Applicant’s spouse? 4. Did the Fund improperly fail to provide Applicant compensation for lost personal effects? 5. Did the Fund improperly fail to afford Applicant “special sick leave” following his work-related injury? 6. Shall Applicant be compensated for alleged tax consequences of the Fund’s determination of his disability-related benefits? 7. Shall the Fund be required to pay Applicant interest on its retroactive payments to him? 8. Shall Applicant be compensated for alleged procedural irregularities, delays, and failures to address confusion in the Fund’s laws on disability? ### Repayment of SBF lump-sum: factual background - Applicant separated for medical reasons in fall of 2011 without access to an SRP disability pension. - The Fund granted the maximum SBF payment (i.e., 22.5 months’ salary, based on his years of service) pursuant to GAO No. 16. - Applicant opted to receive part of his SBF benefit as paid separation leave, bridging to an early retirement pension on February 1, 2012, with the remainder taken as a lump-sum payment. - In 2015, after the Workers’ Compensation Claim Administrator determined Applicant qualified for a workers’ compensation annuity under GAO No. 20, Section 5.01.1, the Grievance Committee recommended that the workers’ compensation annuity be made retroactive to Applicant’s 2012 retirement date and that he be required to repay (over a four-year period) the lump-sum SBF benefit. - Fund Management accepted that recommendation on November 6, 2015. - Applicant contested the repayment requirement in his initial Application to the Tribunal (see Mr. “LL”, Order No. 2016-1, para. 1) and renews the challenge. ### Parties’ positions on SBF repayment - Applicant’s contentions: - The Fund was not authorized by GAO No. 16 or his separation arrangements letter to recover the lump-sum SBF payment. - A workers’ compensation annuity (compensating for “loss of future earning capacity”) is not comparable to a severance benefit (compensating for “loss of office”) and therefore cannot be paid in lieu of it. - Recovery of the SBF payment violates the Fund’s two-year statute of limitations for recovery of undue payments. - Respondent’s contentions: - The Fund was entitled to recover the lump-sum SBF benefit in light of the later determination of permanent and total disability. - SBF payments are intended as an alternative to the SRP disability pension; any SBF payment received for a period subsequently found to have been covered by a disability pension must be reimbursed to the Fund. - The Fund argued that the policies governing disability pensions and worker compensation annuities are to be “harmonized,” and thus the lump-sum separation benefit should be deducted from the worker compensation annuity. ### Legal and interpretive analysis on SBF repayment - GAO No. 16, Section 10.04, provides: “When a staff member who is separated for medical reasons does not receive a disability pension under the Staff Retirement Plan, he will be granted a separation payment from the Separation Benefits Fund in accordance with the provisions of Section 4.06.” (Emphasis added.) - Applicant’s separation arrangements letter confirmed eligibility for SBF benefits was “based on the finding that [he was] not eligible for disability retirement under the Fund’s Staff Retirement Plan.” (Letter from HRD Director to Applicant, September 13, 2011.) - GAO No. 16 does not refer expressly to workers’ compensation annuities, nor does it impose a requirement that SBF benefits be repaid if a denial of a disability pension is later reversed. - The Tribunal found Respondent conflated disability pensions and workers’ compensation annuities in a manner inconsistent with the written law. - The Tribunal observed that: - The Grievance Committee acknowledged GAO No. 16 does not expressly mention workers’ compensation annuities (Grievance Committee Report and Recommendation, October 1, 2015, p. 10). - The Grievance Committee concluded that “the policy of coordinating separation benefit payments and disability pension payments must also apply to worker compensation annuities” and that Fund law “bars Grievant from receiving both a lump-sum medical separation payment from the SBF and a worker compensation annuity.” (Id., pp. 10-11.) - The Tribunal emphasized that no provision of the Fund’s written law cited by Respondent requires reimbursement of an SBF benefit as a consequence of a later award of a disability pension or workers’ compensation annuity. - The separation arrangements letter’s clause stating reimbursement would be required if a later disability pension were granted refers only to a subsequent disability pension, not to workers’ compensation annuities; and the Tribunal held that such a letter cannot override or expand the written law governing benefits (see Prader, para. 74; Mr. B. Tosko Bello, Judgment No. 2013-2, para. 69; Mr. M. D’Aoust, Judgment No. 1996-1, para. 12). ### Tribunal conclusion on SBF repayment - The Tribunal concluded that the Fund abused its discretion in the 2015 decision requiring repayment of the lump-sum SBF payment. - Reasons stated: - The decision was based on Applicant’s being awarded a workers’ compensation annuity in 2015, but GAO No. 16 does not bar receipt of an SBF benefit where a staff member also receives a workers’ compensation annuity. - No provision of the Fund’s internal law requires reimbursement of an SBF benefit consequent to the later award of other benefits. - Applicant’s separation arrangements letter does not provide a lawful basis for recovery of the lump-sum SBF payment. - Accordingly, the decision requiring Applicant to repay the lump-sum SBF benefit cannot be sustained. - Because the Tribunal found the Fund lacked authority to recover the SBF payment, it did not decide whether the Fund’s two-year statute of limitations for recovery of undue payments might also have barred recovery. ### Duty of care claim and workers’ compensation - Applicant’s claim: - The Fund breached a “duty of care” to take preventative measures to ensure his health and safety, falling short of standards adopted by other international organizations. - The Fund’s workers’ compensation policy does not provide the exclusive remedy for breach of a “duty of care” under international administrative law, especially because the Fund decided its workers’ compensation obligations would be paid in part by the SRP. - Applicant seeks 3 years’ gross salary as compensation for pain and suffering. - Respondent’s objections: - The claims are “common law tort claims” similar to original Grievances 1-7, which the Grievance Committee dismissed as outside its jurisdiction (Grievance Committee’s Jurisdictional Decision, July 13, 2016, p. 8). - The claims are “moot” because they represent an alternative legal theory for the same injury for which Applicant has been fully compensated under Fund internal law. - On the merits, the record demonstrates the Fund “made extensive efforts, in keeping with its duty of care, to ensure Applicant’s safety.” - Tribunal’s observation on workers’ compensation systems: - Workers’ compensation systems are no-fault schemes designed to compensate employees for employment-related injury or illness without proof of employer negligence, and ordinarily provide the employer with an “exclusive remedy” against tort claims (see Mr. “DD”, Judgment No. 2007-8, para. 131). - Such compensation systems may nonetheless recognize particular exceptions to that general rule. - Both parties accept the underlying quid pro quo principle of workers’ compensation: - Applicant: “An employer pays workers’ compensation in lieu of being sued for potentially much higher damages in a court of law. It is a ‘quid pro quo.’” - Respondent: “Under the Fund’s workers’ compensation scheme, employees need only establish that their injury was work-related in order to recover the full amount permitted under that policy; in exchange, the extent of the Fund’s liability for the injury is also determined by that policy.” *Tribunal findings and conclusions as set out in the supplied content.* ### 235. Despite agreement on the general principle supporting workers’ compensation schemes, ### j2019-1 - 235. Despite agreement on the general principle supporting workers’ compensation schemes, ### Quid pro quo, exclusivity, and GAO No. 20 - Applicant argues the quid pro quo of workers’ compensation was not met because the Fund did not fund the full amount of its workers’ compensation obligation under GAO No. 20 through its administrative budget, choosing instead to pay only up to the limit prescribed by District of Columbia law while the SRP made up the shortfall. - Applicant contends workers’ compensation must be the “exclusive financial responsibility of the employer” and that if it is not the “exclusive obligation” it does not provide an “exclusive remedy.” - The Tribunal notes GAO No. 20 does not, by its terms, provide an “exclusive remedy,” though the Fund maintains exclusivity is implicit; in Mr. “DD” the Tribunal observed that the “Fund’s Workers’ Compensation policy may provide an exclusive remedy in lieu of tort actions.” (Emphasis added.) - The Tribunal recognizes that the Fund’s workers’ compensation policy does not displace the Tribunal’s remedial powers under its Statute to “correct the effects” of an administrative act that contravened internal law (see Mr. “DD”, para. 136). ### Tribunal’s purposive interpretation and funding decision - The Tribunal concludes that ordinarily the Fund’s workers’ compensation policy will supply the exclusive remedy in cases of injury or illness arising out of Fund employment, while acknowledging potential exceptions (e.g., Mr. “DD”). - The Tribunal notes the Fund, in adopting GAO No. 20, chose to peg workers’ compensation pay levels to the Fund’s own salaries and indicated compensation levels are “not subject to the limits prescribed by D.C. law.” - Having decided that the Fund shall finance fully from its administrative budget a workers’ compensation annuity for Applicant, separate from his SRP pension, paid at 66-2/3 percent of his final pensionable remuneration per GAO No. 20, Section 5.01.1, the Tribunal finds the essential quid pro quo has been met. ### Applicant’s “duty of care” claim and exclusivity exceptions - Applicant suggested his “duty of care” claim might be analogous to a separate complaint like Mr. “DD” and cited international administrative jurisprudence that breaches of “duty of care” may supply causes of action despite exclusivity provisions. - The Tribunal finds Applicant has not established on the record a ground for exception to the exclusivity of the workers’ compensation remedy he has received. - The Tribunal does not preclude that a breach of “duty of care” claim could be cognizable in other circumstances, but it need not decide that question here. - Conclusion: Applicant has not shown a clear distinction between the injury he seeks redress for via the “duty of care” claim and the injury compensated by the workers’ compensation annuity; accordingly, the “duty of care” claim is not sustained. ### Compensation for alleged injury to Applicant’s spouse - Applicant contends the Fund wrongfully denied compensation for his spouse’s disability, allegedly resulting from the Fund’s failure to take preventative measures. - Respondent maintains no program exists to provide insurance coverage for disability suffered by Applicant’s spouse in these circumstances beyond benefits under the Medical Benefits Plan or travel accident insurance, and that the spouse lacks standing as she is not shown to be an “enrollee . . . or beneficiary” under Article II, Section 1 of the Tribunal’s Statute. - Tribunal: Applicant failed to identify any cognizable legal basis for the spouse claim; the complaint cannot be upheld. ### Compensation for lost personal effects - Applicant seeks reimbursement for personal effects lost in circumstances giving rise to his work-related injury. - Respondent: Applicant did not provide evidence he sought or was denied reimbursement through Fund insurance policies; the demand is “belated and arbitrary.” - Tribunal: In the absence of evidence that Applicant sought and was denied relief under the Fund’s insurance program, the claim for lost personal effects cannot be sustained. ### “Special sick leave” (GAO No. 13, Section 4.08) and medical separation - Applicant seeks compensation for not being afforded the maximum 24 months of “special sick leave.” - Respondent: Sick leave and medical separation policies were properly applied; Applicant suffered no financial loss from not having “special sick leave” status. - Staff Bulletin 89/19 (August 4, 1989) states “special sick leave, just like normal sick leave, would be provided only if the medical prognosis indicated an eventual return to duty.” - Facts on record: Applicant did not file a workers’ compensation claim until a year after the injury; that claim was initially rejected as untimely. Documentation shows Applicant utilized 245 days of regular sick leave and 53 days of extended sick leave at full pay; Applicant has not disputed this tabulation. - GAO No. 13, Annex I – Separation for Medical Reasons, Section 2.01.1 provides that further sick leave shall not be granted if the Director, Human Resources, opines the staff member will not be able to return to duty in the foreseeable future; the Director is to initiate medical separation. - Applicant was informed of procedures to seek further medical opinion (Section 2.02.3) but did not challenge his medical separation in 2011. - Tribunal: Because Applicant did not challenge his medical separation in 2011 and does not contest the regulatory rule on availability of “special sick leave” after a medical separation decision, his complaint cannot be sustained. ### Alleged tax consequences of disability-related benefits - Applicant seeks compensation for alleged undue tax liabilities resulting from Fund errors in benefit determinations, including differing tax treatment of pensions versus workers’ compensation and receipt in 2016 of four years of back payments. - Respondent: Applicant has not established any tax losses or right to tax reimbursement; neither pension nor workers’ compensation payments are made on a net-of-tax basis. - Tribunal: There is insufficient evidence on the record to determine Applicant’s claimed tax losses; the complaint cannot be sustained. ### Interest on retroactive payments - Applicant seeks interest on the value of four years of retroactive workers’ compensation annuity payments paid in 2016. - Respondent: Applicant has not established a basis for interest; he had use of the lump-sum SBF payment (which the Fund later required him to reimburse) during the period he was not receiving the annuity payments. - Tribunal: The interest claim raises broader questions about interest in correcting the effects of rescinded decisions; the claim for interest will be addressed later as part of remedies. ### Procedural irregularities, delays, and compensation for legal fees and stress - Applicant seeks compensation for procedural irregularities, delays, and confusion in the Fund’s disability laws, including all unreimbursed legal fees and six months’ gross salary for procedural irregularities, delays, and mental and financial stress. - Respondent: Delays and procedural complications do not form a basis for compensation; it would be “unfair to ascribe all the blame for the delays to the Fund.” The Fund notes Applicant failed at points to challenge adverse decisions (including 2011 denials) and engaged in settlement discussions in 2012-2013; Applicant had access to substantial resources and “received steady compensation and income replacement.” - Tribunal acknowledges longstanding inconsistencies and uncertainties in the Fund’s internal law on disability, as noted in prior Tribunal cases and the 2003 Annual Report of the Ombudsperson describing a “‘jumble’ of rules” and “dispersion of responsibility.” - Tribunal emphasizes the importance of clarity and adequate notice of applicable procedures but, on the record of this case, does not sustain Applicant’s claim for compensation based on procedural irregularities. *Source: The Tribunal’s judgment excerpts as presented in the supplied content.* ### 264. Applicant’s case has further exposed disquieting features i n the application of the Fund’s ### Applicant’s case has further exposed disquieting features in the application of the Fund’s internal law governing disability ### Failures and confusions in application of Fund disability law - Failure to distinguish clearly between a workers’ compensation annuity under GAO No. 20 and a disability pension under the SRP affected decisions in 2011, 2015, and 2016. - Specific consequences of the lack of clarity: - In 2011, conflation affected the decision whether Applicant should be granted a workers’ compensation annuity under GAO No. 20 following the denial of an SRP disability pension. - In 2015, the Fund required Applicant to repay the lump-sum SBF payment granted upon his separation for medical reasons in 2011 on the ground that he had been granted a retroactive workers’ compensation annuity. - In 2016, the SRP Administration Committee decided erroneously that Applicant’s SRP pension and workers’ compensation annuity should be blended into a single “coordinated” annuity, which was: - capped at the amount payable to him as a workers’ compensation annuity, - financed in part by the SRP, and - reduced by the commutation payment Applicant had taken on his early retirement pension. ### Grievance Committee findings and recommendations - The Grievance Committee found testimony marked by “contradictions and vacillation regarding the proper interpretation of GAO No. 20 and its interplay with the SRP.” - The Grievance Committee recommended: - Reversal and remand of the workers’ compensation decision. - Re-examination of GAO Nos. 13, 16 and 20, as well as the pension disability provisions of the SRP, which it termed “complex and confusing.” - Additional training for “relevant personnel at the Fund and at the Claim Administrator” on the enforcement of the SRP and relevant GAOs. - The Grievance Committee recommended reimbursement of the majority of Applicant’s attorneys’ fees for the portion of the Grievance proceedings relating to his workers’ compensation claim, observing that “a great deal of the delay in this case was the product of the [Workers’ Compensation] claim administrator’s misinterpretation and misapplication of Fund law.” - The Grievance Committee denied Applicant’s request for separate relief for the delay. ### Tribunal conclusions on liability and key errors - The Tribunal awarded compensation for intangible injury resulting from procedural failure in taking a sustainable decision in prior jurisprudence but did not award separate compensation for procedural failure where it had sustained the claim on substantive grounds in that prior case. - The Tribunal decided that the SRP Administration Committee erred in: - Reversing its 2011 decision denying Applicant a disability pension and granting that disability pension retroactive to and in lieu of the early retirement pension on which Applicant had retired in 2012. - Paying Applicant a “coordinated” disability pension and workers’ compensation annuity that was capped at the workers’ compensation amount, financed in part by the SRP, and reduced by the commutation payment. - The Tribunal concluded that Fund Management abused its discretion in requiring Applicant to repay his lump-sum SBF benefit as a consequence of being awarded a workers’ compensation annuity. - The Tribunal held that Applicant will be fully compensated for these errors. ### Tribunal findings on other claims against Fund Management - The Tribunal concluded: - The Fund abused its discretion in requiring Applicant to repay the lump-sum SBF payment received pursuant to GAO No. 16 upon his separation for medical reasons. - The Tribunal does not uphold Applicant’s complaint that the Fund breached a “duty of care” to take preventative measures to ensure his health and safety, noting that the Fund will pay Applicant fully and retroactively a workers’ compensation annuity calculated at 66-2/3 percent of his final pensionable remuneration per GAO No. 20, Section 5.01.1. - Applicant failed to identify a cognizable legal basis for compensation in relation to alleged injury to his spouse; that complaint cannot be sustained. - Applicant’s complaint that the Fund improperly failed to provide compensation for lost personal effects cannot be sustained; Applicant has not shown he sought and was denied relief pursuant to the Fund’s insurance program for such losses. - Applicant’s complaint that the Fund improperly failed to afford him “special sick leave” (GAO No. 13, Section 4.08) prior to his separation is not sustained; Applicant did not challenge the medical separation decision that terminated his sick leave entitlements. - The Tribunal cannot sustain Applicant’s claim for compensation for alleged tax consequences of the Fund’s determination of his disability-related benefits; it is without evidence to determine this claim. - Applicant’s claim for interest on the value of four years of retroactive workers’ compensation payments made in 2016 raises the larger question of the role of interest in correcting effects of decisions rescinded by the Tribunal; the question will be considered as part of remedies. - The Tribunal does not sustain Applicant’s claim for compensation for alleged procedural irregularities, delays, and failures to address confusion in the Fund’s disability laws as a separate basis for relief, but it may weigh these concerns in assessing remedies, including payment of interest on retroactive payments and reimbursement of legal fees and costs. ### Remedies ordered by the Tribunal (rescission and corrective measures) - The Tribunal rescinded the erroneous SRP Administration Committee decisions and the Fund Management decision requiring repayment of the SBF lump-sum. - To correct the effects of the rescinded decisions, the Tribunal ordered that the Fund shall: - Ensure Applicant is paid an early retirement pension retroactive to the date of his eligibility, i.e., February 1, 2012, calculated in accordance with SRP Section 4.2 and reduced by the commutation payment he had taken pursuant to SRP Section 15.1(a), and with the benefit of all cost-of-living adjustments pursuant to SRP Section 4.11, with all sums to be paid solely by the SRP Retirement Fund. - Pay Applicant a separate workers’ compensation annuity retroactive to the date of his separation from the Fund, i.e., February 1, 2012, calculated at 66-2/3 percent of his final pensionable remuneration in accordance with GAO No. 20, Rev. 3, Section 5.01.1, and with the benefit of all cost-of-living adjustments pursuant to GAO No. 20, Rev. 3, Section 7, with all sums to be paid solely by the IMF (i.e., not by the SRP Retirement Fund). - Reimburse Applicant the sum recovered from him as a consequence of the Fund’s decision to require him to repay the lump-sum SBF payment granted pursuant to GAO No. 16 upon his separation for medical reasons. - Implementation timelines and calculations: - Within 60 days of its receipt of the Judgment, the Fund shall ensure Applicant’s future payments be calculated and paid in accordance with the determinations above. - Within 60 days of its receipt of the Judgment, the Fund shall pay Applicant all of the retroactive payments due in accordance with the determinations above. - In making retroactive payments, the Fund shall deduct the sums already paid to Applicant since February 1, 2012, whether as an early retirement pension, a workers’ compensation annuity, or a “coordinated” disability pension and workers’ compensation annuity. ### Interest on retroactive payments and the Tribunal’s remedial authority - The Tribunal treated the question of interest on retroactive payments as part of its assessment of remedies. - Applicant sought interest on the value of four years of retroactive workers’ compensation annuity payments paid to him in 2016. - The Fund argued Applicant had no basis for interest because he had use of the lump-sum SBF payment during the period he did not receive workers’ compensation annuity payments and was later required to reimburse that lump-sum. - The Judgment is the first in which the Tribunal expressly addresses its authority to award pre-judgment interest on monetary compensation pursuant to Article XIV of the Statute. - The Tribunal noted prior cases in which it ordered retroactive payments or corrective payments but did not award interest on retroactive payments; those prior Judgments did not expressly consider the question of awarding interest. *Source: Tribunal Judgment (IMF Administrative Tribunal).* ### 284. In two other Judgments, in which the Tribunal gave effect to orders for division of ### j2019-1 - 284. In two other Judgments, in which the Tribunal gave effect to orders for division of ### Interest on retroactive payments — Tribunal practice and precedents - The Tribunal recognized past Judgments where interest was ordered when SRP Section 11.3 orders for division of marital property or child support were effected by deductions from an SRP participant’s pension payments (Mr. “P” (No. 2), para. 145; Ms. “M” and Dr. “M”, IMFAT Judgment No. 2006-6 (November 29, 2006)): - Mr. “P” (No. 2): Tribunal ordered rescission of escrow decision and that the Fund pay the ex-spouse the “amount now held in escrow, including interest.” - Ms. “M” and Dr. “M”: ordered deductions that would include “interest at the prevailing rate compounded quarterly . . . until the date on which each monthly pension payment is made.” - Other international administrative tribunals have recognized an “inherent power to award interest on payments due which have not been made in circumstances in which the fault for failing to pay is attributable to the Respondent” (Alrayes v. International Finance Corporation, WBAT Decision No. 529 (2016), para. 101; quoting Lamson-Scribner, Jr., WBAT Decision No. 32 (1987), para. 60). - Alrayes: compensation for “unjustifiable delays” included an award of three months’ net salary and interest on delayed payments from due date until payment (WBAT Decision No. 529, paras. 100, 103). - Lamson-Scribner, Jr.: awarded interest on sums improperly denied from date they should have been paid to date of actual payment. - UNAT approach (Warren v. Secretary-General of the United Nations, UNAT/2010/059 (2010)): - Concluded tribunals “must have the power to award interest in the normal course of ordering compensation” (Warren, paras. 10, 14). - Adopted approach to award interest at the US Prime Rate applicable at the due date of the entitlement, calculated from the due date to the date of payment of the compensation awarded by the UNDT (Warren, paras. 16-17). - Noted post-judgment interest set at a rate 5 percentage points greater than the US Prime Rate if judgment not executed within 60 days (Warren, para. 17). ### Tribunal’s guiding principle and application to the instant case - Guiding principle: the Tribunal’s authority to prescribe measures to “correct the effects” of a rescinded decision (Article XIV, Section 1) supports awards of interest where needed to restore full entitlements. - Factors supporting award of interest in this case: - Applicant sought interest on payments the Fund made in 2016 implementing a retroactive workers’ compensation annuity. - Decision-making process affected by longstanding uncertainties in application of the Fund’s internal law on disability; concerns raised since 2003 (see Ms. “J”, para. 89 and 2003 Annual Report of the Ombudsperson). - Record shows “‘dispersion of responsibility’” with differing interpretations of rules when an SRP participant incurs career-ending disability (quoting 2003 Annual Report of the Ombudsperson). - Interest particularly pertinent where there have been “unjustifiable delays” on the part of the respondent organization (Alrayes, para. 100). - Conclusion: interest on retroactive payments shall be awarded as part of measures to “correct the effects” of the rescinded decisions. ### Rate of interest to apply - The Tribunal notes various tribunals have used different measures (e.g., 5% per annum in Alrayes; 9% per annum in Lamson-Scribner, Jr.), or the US Prime Rate (Warren). - For the instant case, because a significant portion of wrongfully denied payments are early retirement pension payments under the SRP, the Tribunal concludes the appropriate rate is the rate of “regular interest” (SRP Section 1.1(v)) applied by the Plan during the relevant time period — the rate to which Applicant’s contributions would have been subject had he continued in contributory service. ### Legal fees and costs — statutory authority, requests, and award - Statutory basis: Article XIV, Section 4 permits the Tribunal, if an application is well-founded in whole or in part, to order that reasonable costs incurred by the applicant, including counsel fees, be totally or partially borne by the Fund, taking into account nature and complexity of the case, nature and quality of work performed, and the amount of fees in relation to prevailing rates. - Applicant’s representation and fee requests: - Applicant designated a “duly authorized representative and counsel” on the Tribunal’s form (Annex B) and stated in the Revised Application that he “continues to be represented by counsel.” - Applicant signed and submitted Revised Application and Reply himself; counsel provided supporting Letters. - Request for legal fees and costs attached to Reply totaled $26,405.37 for fees invoiced beginning August 2016. - Supplementary Request for Costs (May 3, 2018) sought an additional $1,126.13 for oral proceedings. - Fund’s objections included questions about the “nature and quality of the work performed,” that counsel’s contributions were “often at odds with Applicant’s own claims,” and a contention that dual filings contravened Rule VII; Fund urged proportionality if Applicant prevailed on some but not all claims. - Tribunal’s assessment and principles: - Applies a “measure of proportionality” based on degree of success, relative centrality and complexity of claims, and whether unsuccessful claims’ records were indispensable to success on other substantial counts (see Ms. “NN”, paras. 154-156; Mr. “F”, IMFAT Order No. 2005-1; Ms. N. Sachdev, IMFAT Judgment No. 2012-1, para. 260). - Applicant prevailed substantially on chief claims: (i) SRP Administration Committee erred in retroactively replacing early retirement pension with a disability pension and (ii) Fund abused discretion in requiring repayment of lump-sum SBF payment under GAO No. 16. - Less substantial unsuccessful challenges were significantly interwoven with successful claims in a novel and complex case. - Applicant’s total and permanent disability and need for legal representation weighed in favor of full reimbursement; counsel’s work contributed to Tribunal’s understanding and to Applicant’s success; counsel alone presented at oral proceedings. - Tribunal found no reason to diminish reimbursement because Applicant also submitted pleadings himself; held amount was not unreasonable or disproportionate. - Award: - The Fund shall pay Applicant the total amount of legal fees and costs incurred before the Tribunal in the sum of $27,531.50. - Note: parties do not dispute an earlier award of $36,554.35 in legal fees in November 2015 pursuant to the Grievance Committee (Grievance Committee’s Recommendation, November 13, 2015). ### Tribunal orders and remedial measures (selected, with exact terms) - Rescissions (Tribunal rescinded specific SRP Administration Committee decisions taken in 2016 and sustained in 2017): - Rescinded decision reversing 2011 denial of disability pension and granting disability pension retroactive to and in lieu of the early retirement pension on which Mr. “LL” retired in 2012. - Rescinded decision to pay Mr. “LL” a “coordinated” disability pension and workers’ compensation annuity that (a) is capped at amount payable as workers’ compensation annuity, (b) is financed in part by the SRP, and (c) is reduced by the commutation payment Mr. “LL” had taken on his early retirement pension. - Corrective payment orders: - Fund shall ensure Mr. “LL” is paid an early retirement pension retroactive to February 1, 2012, calculated in accordance with SRP Section 4.2 and reduced by the commutation payment pursuant to SRP Section 15.1(a), with all cost-of-living adjustments pursuant to SRP Section 4.11, with all sums paid solely by the SRP Retirement Fund. - Fund shall pay Mr. “LL” a separate workers’ compensation annuity retroactive to February 1, 2012, calculated at 66-2/3 percent of his final pensionable remuneration in accordance with GAO No. 20, Rev. 3, Section 5.01.1, and with cost-of-living adjustments pursuant to GAO No. 20, Rev. 3, Section 7, with all sums paid solely by the IMF (not by the SRP Retirement Fund). - Fund shall reimburse Mr. “LL” the sum recovered from him by requiring repayment of the lump-sum SBF payment pursuant to GAO No. 16 upon his separation for medical reasons. - Timing and calculations: - Within 60 days of receipt of the Judgment: - Fund shall ensure future payments are calculated and paid in accordance with the orders. - Fund shall pay all retroactive payments due in accordance with orders, deducting sums already paid to Mr. “LL” since February 1, 2012. - Interest: - Fund shall pay Mr. “LL” interest on all retroactive payments ordered (minus payments already made) from February 1, 2012, until their payment, at the rate prescribed for “regular interest” (SRP Section 1.1(v)) for the relevant period. - Fund shall provide Mr. “LL” an accounting of these calculations. - Matters not sustained: - Complaints not sustained include alleged wrongful breach of duty of care, failure to compensate spouse, lost personal effects, failure to provide “special sick leave” for workers’ compensation related absence, tax consequences of disability-related benefits, and procedural irregularities/delays/confusion in Fund laws on disability. - Fee award reaffirmed: - Fund shall pay legal fees and costs in the sum of $27,531.50. --- _Source: https://www.imf.org/-/media/files/imfat/j2019-1.pdf_