Tag Archives: bruner presumption in opm disability and its limitations

OPM Disability Retirement: Termination (Part 2)

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There are times when an Agency will proceed and terminate a Federal or Postal employee based upon adverse grounds — of “Failing to follow proper leave procedures”, for being AWOL, for Failure to do X, Y or Z.  Such adverse actions may be the “surface” reason for the actual, underlying reason — that of one’s medical inability to perform one or more of the essential elements of one’s job.

Once a proposed termination becomes an actual termination, then the course of action to take, of course, is to file an appeal with the Merit Systems Protection Board.  An Administrative Judge can often be of great assistance in defining and narrowing the issues, and in gently persuading and convincing the Agency to consider changing and amending the “surface” reason to the true, underlying reason of medical inability to perform the job.

The goal here, of course, is to do everything to help in “weighting” a disability retirement application in your favor, and while obtaining the Bruner Presumption in a case is not critical, in many cases, it can be helpful.  And the way to get the Administrative Judge on your side, so that the AJ will then try and persuade the Agency to consider amending a removal, is to obtain well-documented, well-written medical narrative reports from the doctors.

As is almost always the case, the underlying basis for any disability retirement application begins and ends with a well-written medical report.

Sincerely,

Robert R. McGill, Esquire

OPM Disability Retirement: After Separation from Service (Part 2)

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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.

Sincerely,

Robert R. McGill, Esquire

CSRS & FERS Disability Retirement: Clarity over Question

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While a compromise position on certain issues in Federal Disability Retirement for FERS & CSRS may be the best that one may hope for, obviously, clarity over question is the better course to have.  Thus, for instance, in a removal action, where a Federal or Postal employee is being removed for his or her “excessive absences,” it is best to have the proposed removal and the decision of removal to reference one or more medical conditions, or at least some acknowledgment by the Agency, that would explicate — implicitly or otherwise — that the underlying basis for the “excessive absences” were as a result of the medical condition.  There are cases which clearly state that where excessive absences are referenced by medical conditions, the Bruner Presumption would apply in a Federal Disability Retirement case.

Now, in those cases where the removal action merely removes a Federal or Postal employee for “excessive absences”, there are other methods which may win over an Administrative Judge to apply the Bruner Presumption.  Such “other methods” may include emails or correspondence, at or near the time of the removal action, which appears to put the Agency on notice about specific medical conditions, including attachments of doctor’s reports, medical notations, etc.  Such concurrent documentation can convince an Administrative Judge that, indeed, the question as to whether the “excessive absences” were as a result of a medical condition, and whether the Agency was aware of such an underlying basis, is clarified by documents which provide a proper context within the reasonable time-frame of the issuance of the proposal to remove and the decision to remove.  It is always better, of course, to have clarity over a question, but sometimes the question can be clarified with additional and concurrent documentation.

Sincerely,

Robert R. McGill, Esquire

FERS & CSRS disability retirement: What it means to have the “burden of proof”

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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.

Sincerely,

Robert R. McGill, Esquire
FERS Disability Retirement Lawyer