If disability retirement were merely a matter of determining the proper diagnosis of a medical condition, and having a doctor ascribe a percentage rating of disability, then the process of disability retirement would substantively be altered, and perhaps there would be far fewer cases to adjudicate at the Merit Systems Protection Board level. For, if the criteria were that ‘cut and dry’, there would be little for OPM and the applicant & the applicant’s lawyer to argue over. However, it rarely is that ‘cut and dry’ — because the major battle is rarely over the diagnosis; it is rarely over an issue concerning a percentage ascription of disability; rather, it is over the symptoms manifested, the significance of such symptoms upon the type of work one does, and in the impact such symptoms have upon the essential elements of one’s job.
That is why descriptive terms are important in disability retirement law. It is not so important ‘what it is’, as opposed to ‘how it is characterized’. From this perspective, it is important for a disability retirement attorney to be more of a poet than to be cold and analytical — although, the best approach would be to have a little bit of both. Remember to always know the context — the applicant will not be standing in front of an OPM representative showing how terrible the applicant’s medical condition is; there will be no visual presentation; everything is based upon a narrative — the applicant’s statement, the medical documentation, the legal memorandum of the attorney, etc. Thus, it is all-important for the attorney who represents a disability retirement applicant to have a good command of the English language.
Robert R. McGill, Esquire