FERS and CSRS Disability Retirement: the Case of the Overturned Decision After a History of Linguistic Mischief
Can a man say something, yet not mean it? Can he mean something, yet not speak it? Can you neither mean nor say something, yet have thoughts which intend to do both? Can you think a thought without words? What would a wordless thought sound like? Can a concept exist without expression? Can the King of France truly be bald, as Russell mischievously asserted, when there is no King of France?
From Language, Truth and Nonsense
Sometimes, Judges must clarify the unintended consequences of prior cases, especially where a case has devolved beyond the scope of what the plain language of a statute had intended. Language is indeed a malleable vehicle; one need only perform a cursory study of Wittgenstein’s Philosophical Investigations to get an inkling of the complex historical evolution of language, its transformative liquidity in all of its complex forms, and that is precisely why rhetoricians in Plato’s days were both widely employed and criticized – because of their effectiveness in argumentation, as well as the resultant devaluation of language precipitated by their cleverness.
A recent U.S. Merit Systems Protection Board Case, Henderson v. OPM, decided on January 31, 2012, Docket No. DC-831E-10-0812-I-1, a decision rendered by the Full Board, provides an important clarification and constriction of a substantive standard of law which was in danger of becoming expanded well beyond the plain language of the statute undergirding the eligibility requirements of a Federal Disability Retirement application. It is rare that a judicial body retracts from prior holdings, if merely because to do so is to acknowledge fallibility and errancy in legal reasoning; rarer still that such a retraction returns the law back to its statutory roots, or what is commonly referred to as the “original intent” of a statute’s plain language. What the Full Board decided in Henderson is to return the standard of proof in all Federal Disability Retirement cases to a reasonable approach of considering all pertinent and relevant evidence, and to this extent, the winners encompass all Federal and Postal employees seeking Federal Disability Retirement benefits from the U.S. Office of Personnel Management.
While the history which necessitated the Board to retract itself involves a rather convoluted evolution of the case-law, a skeletal outline of its background is important to preview in order to appreciate its legal impact and significance. One may be excused from reciting the factual content of each of the cases, as such facts are devoid of relevance for our purposes; rather, it is the “holding” of each case which is pertinent. Thus, the origins of the errant pathway begins with the case of Mullins-Howard v. OPM, 71 M.S.P.R. 619 (1996), where the Board held that the case itself “is not a case…where the appellant’s entitlement of disability retirement turned on finely tuned correlations between particular medical impairments and specific job requirements.” This statement, in and of itself, is not outside of the boundaries of the legal requirements of the eligibility criteria needed to qualify for Federal Disability Retirement benefits. However, it was a subsequent case – Bynum v. OPM, 89 M.S.P.R. 1 (2001), which “expanded upon” and ultimately misinterpreted, in expansive and wayward form, the significance and import of the statement previously referred to in Mullins-Howard. What the Board in Bynum said was to misinterpret and extend what Mullins-Howard said, holding that:
The “Mullins-Howard approach creates an exception to the rule that medical evidence itself must show that the medical condition affects specific job duties and requirements. Where the Board is presented with the position description and with medical evidence that unambiguously and without contradiction indicates that the appellant cannot perform the duties or meet the requirements of the position, the Board may link the medical evidence to the job duties and requirements and find that the appellant is entitled to disability retirement.”
The significance of what the Board stated in the Bynum case cannot be overstated. For, Bynum now created – unintentionally – a new and more onerous standard of proof, in that it implies that (A) the general rule in proving a Federal Disability Retirement case is to show that particular medical conditions prevent one from performing one or more of the specific elements of one’s job, but moreover, (B) if that cannot be done, then the Federal or Postal employee must provide medical evidence which “unambiguously” and “without contradiction” indicates an inability to perform such duties. This creates a very narrow, and extremely high standard of proof – one which is neither found in any statutory language, the original intent behind the statute or regulations, or in any case-law prior to Bynum.
What the Board in Henderson pointed out needs to be restated in full:
Cases “subsequent to Bynum has relied upon it for the proposition that, in proving a claim of entitlement to disability retirement, the ‘general’ rule requires the appellant to show a nexus between her medical condition and her specific job duties, and the ‘exception’ to that rule, sometimes called the Mullins-Howard exception, allows the Board to link the medical evidence to the job duties where such evidence unambiguously and without contradiction indicates that the appellant cannot perform the duties or meet the requirements of her position.”
The problem with Bynum and cases subsequent to Bynum which relied upon the existence of the “general rule” and its exception, is that neither the general rule nor its exception reflect an accurate statement of the law. To that extent, the Board made a sweeping change – overruling Bynum and its progeny “to the extent that they state that the Board’s decision in Mullins-Howard reflects an ‘exception’ to a ‘general rule’ that medical evidence must unambiguously and without contradiction show how the medical condition affects specific job duties or indicate that the appellant cannot meet the requirements of her position.”
Indeed, the history of such evolving misinterpretation of the law, beginning with Mullins-Howard in 1996 and expanding for some 15 plus years, is similar to the child’s game we are all familiar with – sometimes known as the “Repeat Game” – where a phrase is whispered in the first participant’s ear, who then must whisper it verbatim to the next, and the fun of seeing how garbled the original phrase transforms over time and between individuals. Such childish follies are great fun; but in the world of law, where lives and futures are dependent upon the integrity of proper statutory interpretation, the warped remnants of legal reasoning can result in a denial of eligibility for Federal Disability Retirement benefits.
The importance of such retrenchment back to its originating statutory roots cannot be overstated. Indeed, in denial letters disapproving of a Federal Disability Retirement application, issued by the U.S. Office of Personnel Management, there have been an encroachment and insidious use of such non-statutory language such as “unambiguous medical evidence” or medical evidence which is “uncontradicted”, and this is indeed how the true “trickle-down” theory works –not via supply-side economics, but rather through Court and Board opinions, which are then adopted by Federal Agencies. The problem in this case, however, is that the overriding corrective basis which is supposed to keep a check upon such insidious invasion of inappropriate language – the Statute governing Federal Disability Retirement benefits, whether under FERS or CSRS — never contained or used such language.
The Board in Henderson returns us to the land of original intent, by reiterating and reestablishing a time prior to Bynum, prior to Mullins-Howard, by reemphasizing the two primary approaches to meeting the statutory requirements for Federal Disability Retirement eligibility: (1) showing that the medical condition caused a deficiency in performance, attendance or conduct, or (2) by showing that the medical condition is incompatible with useful and efficient service or retention in the position. Neither of these approaches required the showing of “unambiguous medical evidence” or of “uncontradicted” medical evidence.
Rather, the nostalgia of better days was recaptured in Henderson, by casting aside a standard of evidentiary requirements in proving a Federal Disability Retirement application under either FERS or CSRS, which neither existed in statute, nor was ever meant to exist in the greater universe of case-law. For the Federal or Postal Worker contemplating filing for Federal Disability Retirement benefits, this retrenchment back to the “good old days” is indeed a relief. For, while most Federal or Postal employees were probably unaware that such a misstatement of law had any practical impact on one’s life, it is precisely the subtle but insidious encroachment of bad law which creates unforeseen, consequential obstacles to the integrity of law, and it is refreshing to realize that the very criticism of language – its malleability and changeability – can also be the basis of corrective action. As law is the filament which binds a just and ordered society; as language is the vehicle through which laws are communicated; so an important component of a society based upon laws must maintain the integrity of that fragile filament which provides for simple justice, and Henderson – though after some fifteen years of unintended mischief – reinforces that fragile filament of society, if only within a microcosm of a limited universe impacting Federal and Postal employees contemplating filing for Federal Disability Retirement benefits.