Last Updated on July 24, 2014 by Federal Disability Lawyer
Of course, it is always the separation from service based upon reasons delineated other than medically-based reasons which give rise to concerns in a federal disability retirement case. Understand, however, that the “Bruner Presumption” is essentially a “scale-tipper” for the Office of Personnel Management (supposedly) and for the Administrative Judge at the Merit Systems Protection Board (of somewhat greater certainty). By this, I mean merely that, with or without the Bruner Presumption, a Federal Disability Retirement applicant under FERS or CSRS must still prove by a preponderance of the evidence that he or she is eligible and entitled to federal disability retirement benefits. “Preponderance of the evidence” is essentially proof such that it is “more likely the case than not”. Thus, when all things are equal, the Bruner Presumption is supposed to tip the scale in favor of the federal disability retirement applicant.
On the other hand, if an individual was removed for reasons other than medically-based reasons — i.e., as a hypothetical, let’s say he was removed “for cause” — an act of dishonesty; failure to follow certain agency procedures; or whatever the case may be. Does such a removal tip the scale the other way? Not necessarily; however, it makes gathering the proper medical evidence that much more important, and what I often do is to try and tie in the underlying behavior which resulted in the removal “for cause”, with the medical basis — if at all possible.
Robert R. McGill, Esquire