CSRS & FERS Disability Retirement: The Bruner Presumption – Agency Actions, Part II

One must never misunderstand the law and its application.  This is true in any legal arena of every area of law; when it comes to Federal Disability Retirement law, the misunderstanding of an application of law can have direct and irreparable consequences:  the failure to secure disability retirement benefits and, therefore, the financial security for one’s future.

The “Bruner Presumption” is one such application of law which is often misunderstood.  Without revealing all of its proper applications, it can (and is) often misunderstood to be equivalent to a “presumption of innocence” — but that would be wrong.  The Bruner Presumption comes about as a result of an Agency Action — of removal based upon the employee’s medical inability to perform one or more of the essential elements of the job.

With or without the Bruner Presumption in Federal Disability Retirement law, the “Burden of Production” — i.e., of the medical documentation, the factual establishment that the Agency is unable to accommodate the individual — still rests and remains with the applicant.  One must never think that the applicability of the Bruner Presumption makes a case a “slam dunk” of any sort.

This is especially so where we are talking about those medical conditions which are often viewed as “suspect” by the Office of Personnel Management — such as Fibroymyalgia, Chronic Fatigue Syndrome, Multiple Chemical Sensitivity cases, etc (by “suspect”, however, I do not mean to imply that such medical conditions make it harder for an applicant to get it approved; rather, it merely requires that the one who is preparing such an application, do it properly, thoroughly, and with legal force).

Remember that the initial, and continuing, burden of production always remains with the applicant; what the Bruner Presumption merely does is to “shift” some of the weight of the burden of proof over to OPM, and in the event of an appeal to the Merit Systems Protection Board, of placing a Federal Disability Retirement case into a more favorable light with the Administrative Judge.

Sincerely,

Robert R. McGill, Esquire

OPM Disability Retirement: Quality versus Quantity

While most Federal Disability Retirement applicants whom I represent, and have represented, retain me at the initial stage of the application, a good many of my clients come to me at the Second (Reconsideration) and Third (Merit Systems Protection Board) Stages of the process.  I find that the vast majority of the individuals who attempted to put his or her disability retirement packet together, and got it denied at the first level, attempted to simply overpower the Office of Personnel Management with a voluminous compendium of medical records.

Wrong move.  Always place quality over quantity.

Streamlining a case is often the key to winning a disability retirement case.  This is just as true for cases involving Fibromyalgia, Chronic Fatigue, Multiple Chemical Sensitivity, etc.  Because such medical conditions are often thought of as “not quite” legitimate conditions, applicants often make the mistake of thinking that by overloading the Office of Personnel Management with a thick, unwieldy file of medical records, that the sheer weight of the records will convince OPM that it is a “legitimate” case.

Wrong move.  Don’t be defensive.

Such conditions as Fibromyalgia, Chronic Fatigue, Multiple Chemical Sensitivity, Bi-polar Disorder, panic attacks, Generalized Anxiety Disorder — they are all legitimate basis for disability retirement.  Such medical conditions need not be apologized for.  Such conditions need not be “defensively” or “apologetically” submitted.  They are legitimate conditions to file; they just need to be submitted in the proper manner — by having a strong, streamlined, and cohesive medical narrative, properly prepared by the doctor, under the guidance of a Federal Disability Retirement attorney.

Sincerely,

Robert R. McGill, Esquire

CSRS & FERS Disability Retirement: Thoughts on Specific Disabilities

There is a view that is often proposed that, for certain medical conditions or disabilities, that a different “approach” needs to be undertaken.  Thus, by way of example, certain medical conditions such as (to name just a few, and of course, the list is by no means intended to be exhaustive) Fibromyalgia, Chronic Fatigue Syndrome (CFS), various forms of Multiple Chemical/Environmental Sensitivity cases, and even psychiatric conditions such as Bi-polar Disorder, Generalized Anxiety, etc. — are often thought to be somehow in a “different” category from (again, by way of example) more “traditional” medical conditions such as Multiple Sclerosis, Lupus, Shoulder Impingement Syndrome, Osteoarthritis, degenerative disc disease, herniated discs (cervical or lumbar), Torn ACL, Failed Back Syndrome, etc.

Thus, the question sometimes posed is:  should the former types of medical conditions somehow be treated “differently” than the latter, more traditional types of medical conditions?  My answer is, generally, “No”.

First, each individual case must be treated based upon the uniqueness of the particular case.  Second, to file a disability retirement application “differently” because you fear that OPM may not accept your particular kind of medical condition approaches the entire process in a defensive, almost defeatist manner.  Third, because Federal Disability Retirement is based upon the symptoms which are manifested, as opposed to a “category” of a medical condition, and further, how those symptoms and manifested symptomatologies impact the essential elements of one’s job, it is the emphasis upon the nexus between the symptoms and the core elements of the job which should always be emphasized, and not what your medical condition is “called” or “named” as.

Thus, as a general point of legal approach, I prepare all of my clients’ disability retirement applications in a similar vein:  that, regardless of what condition you have been diagnosed with, the symptoms exhibited and clinically identified by your treating doctor impact your ability to perform the essential elements of your job.  This is the best approach to take in all cases.

Sincerely,

Robert R. McGill, Esquire

CSRS & FERS Federal Disability Retirement: Psychiatric Disabilities

I am often asked, on an initial interview/consultation of a potential client, whether or not psychiatric medical disabilities (Major Depression, Generalized Anxiety Disorder, PTSD, panic attacks, Bi-polar disorder, etc.) are “more difficult” to prove than physical disabilities. This question is similar, of course, to the question often asked of certain other kinds of disabilities, like Fibromyalgia, chronic fatigue syndrome, Irritable Bowel Syndrome, and other similar (often designated as “auto-immune” disabilities) medical conditions.

In my experience, there is no single generic answer to the question of whether or not a particular medical disability is “more difficult” to prove than another. In my experience, I have gotten approved an application for Major Depression based upon a single-page note from a Psychiatrist; on the converse/inverse experience, I have had cases rejected at the First Stage of the process (but, fortunately, had the same cases approved at the Second, Reconsideration Stage) showing chronic, failed-back syndrome cases where prior surgical discectomies, multiple diagnostic MRIs showing incontrovertible basis for severe and radiating pain, and multiple specialists verifying the client’s clear and irrefutable inability to perform the essential elements of his/her job. In preparing a Federal disability retirement retirement application, my many years of experience has taught me a number of elementary & foundational lessons: First, a clear and concise presentation of providing a direct nexus between the particular medical condition and the type of job that the Federal/Postal employeee performs, is very important; Second, it is very rarely the volume of records which is convincing; rather, it is the quality of the medical report which is paramount; and Third, it often depends upon which OPM Disability Specialist it is assigned to, which sometimes “makes the difference” between approval and denial.

Sincerely,

Robert R. McGill, Esquire