Few disciplines and classes of artisans create their own tools. Musicians do not fashion their own instruments; accountants do not produce calculators or computers; painters do not manufacture their own brushes. The blacksmith does, however, form and mold his own ironworks.
Similarly, the lawyer formulates the tools upon which he crafts his arguments; for, as most Judges are lawyers themselves, and the vast majority of legislators are also attorneys, so the statutes which are issued, and the judicial opinions which are rendered, are analogously “created” by those who are members of the class identified as “lawyers”. Once created, it is how the tools are used which makes all the difference.
In Federal Disability Retirement law, the multiple tools available must be utilized for the very purpose of their making. Thus, application of the Bruner Presumption must be invoked where appropriate, and “stretched” to their logical extension wherever possible; the “Trevan” rule concerning SSDI approvals should be pointed out whenever it has been approved during the process of waiting for a decision on a Federal Disability Retirement application; and the restatement of the applicable legal criteria in Henderson v. OPM should be emphasized when OPM attempts to misinterpret the applicable statutory criteria in being eligible for Federal Disability Retirement as requiring a 1-to-1 ratio between medical conditions and positional duties; and multiple other legal tools.
The issue of “where” a tool was manufactured, unless poorly constructed, is rarely one of importance or relevance; rather, it is how the tool is applied which is the issue of greater import and significance. For it is precisely the “how” and the efficacy of the utilization of a tool which results in the intended consequences of such use.
For the blacksmith, a well-fitting horseshoe; for the accountant, a tax savings; for the artist, a masterpiece; for the lawyer, a victory.
Sincerely,
Robert R. McGill, Esquire
OPM Disability Retirement, Et Cetera… 