Remember that the applicant who is requesting disability retirement benefits from the Office of Personnel Management always has the burden of proving, by a preponderance of the evidence, that he or she is entitled and eligible for disability retirement benefits. Even if the Agency proposes and effectuates a removal based upon one’s medical inability to perform the essential elements of one’s job (thereby invoking the “Bruner Presumption”); nevertheless, the burden of persuasion always remains with the applicant.
Never assume anything; yes, the Bruner Presumption is nice to have, but don’t ever rely upon it to have your disability retirement benefits handed to you, because it won’t be. The Bruner Presumption “can be rebutted if adequate evidence is identified in the record to establish that the appellant actually is not entitled to disability retirement; even with the rebuttable presumption, the appellant retains the burden of persuasion at all times to establish his entitlement to disability retirement” (See Morton v. Office of Personnel Management, 88 M.S.P.R. 691 (2001).
Remember: you always have the burden to prove your entitlement to disability retirement benefits; you must prove it; you must work tirelessly to show it.
Robert R. McGill, Esquire