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Attorney Robert R. McGill will be answering questions about Federal Disability Retirement in a new forum at Martindale-Hubbell's Lawyers.com.

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OPM Disability Retirement: The Law and Language 03/11/2010 by Federal Lawyer Language is the playground of the Attorney. It is the heart and soul of his or her profession. Through language, the attorney describes, delineates, argues, and provides a sequential (hopefully) [...]   Federal and Postal Disability Retirement: Revisiting the Concept of “Accommodations” 03/10/2010 by Federal Lawyer "Accommodation" is a legal term of art. At least, in preparing a Federal Disability Retirement application under FERS or CSRS, it is a specific term, with specific definitions, with underlying [...]   FERS & CSRS Disability Retirement: The Doctor 03/09/2010 by Federal Lawyer Out of all of the elements comprising a Federal Disability Retirement application -- the various aspects, including medical, personal, impact-statement, statement of disability, Supervisor's [...]   OPM Disability Retirement: The 1-Year Rule 03/08/2010 by Federal Lawyer Periodically, I remind everyone of the various "1-year" rules which govern Federal Disability Retirement issues under FERS & CSRS. Since there are multiple applications of the 1-year rule [...]   Federal and Postal Disability Retirement: The Appropriate Language Game 03/07/2010 by Federal Lawyer In filing an application for OPM Disability Retirement benefits under FERS or CSRS, there are many questions that are posed for the person who is just being introduced to the concept [...]   FERS & CSRS Disability Retirement: Learning from Experience 03/05/2010 by Federal Lawyer The problems inherent in filing a Federal Disability Retirement application under FERS or CSRS are multi-fold and multi-tiered. Even today, after years and years of practicing in this particular area of law [...]   OPM Disability Retirement: What to Do 03/04/2010 by Federal Lawyer Whether or not one should hire an attorney at the initial stage of the process of filing for Federal Disability Retirement benefits under FERS or CSRS, or whether to wait for a denial [...]   read all blogs »

The Bruner Presumption
Legal Analysis of Non-Statutory Laws

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This is an important concept and one which all disability retirement applicants should be aware of. It is well-established law that an employee's removal for his or her physical inability to perform the essential functions of his job or position, constitutes prima facie evidence that he is entitled to disability retirement as a matter of law, and that the burden of production then shifts to OPM to produce evidence sufficient to support a finding that the applicant is not entitled to disability retirement benefits. See Bruner v. Office of Personnel Management, 996 F.2d 290, 294 (Fed. Cir. 1993); and Marczewski v. Office of Personnel Management, 80 M.S.P.R. 343 (1998). What this means, essentially, is that if a Federal or Postal employee is removed for his or her medical inability to perform his/her job, the "burden of production" is placed onto OPM. It is as if OPM must "disprove" a disability retirement case, as opposed to an individual having to prove his/her right to disability retirement. It is a "prima facie" case, in that, by having your Agency remove you for your inability to perform your job, it is considered a valid case "on its face".

Further, in more recent cases, the Merit Systems Protection Board has held that the Bruner Presumption also applies where "removal for extended absences is equivalent to removal for physical inability to perform where it is accompanied by specifications indicating that the decision to remove was based on medical documentation suggesting that the appellant was disabled and unable to perform her duties." McCurdy v. OPM, DA-844E-03-0088-I-1 (April 30, 2004), citing as authority Ayers-Kavtaradze v. Office of Personnel Management, 91 M.S.P.R. 397 (2002). This means that the removal itself need not specifically state that you are being removed for your medical inability to perform your job; it can remove you for other reasons stated, such as "extended absences", as long as you can establish a paper-trail showing that those extended absences were based upon a medical reason.

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