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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.

Latest Articles:

Federal Disability Retirement: Thanksgiving 11/24/2008 by Federal Lawyer This year has seen a tremendous amount of changes: a seeming meltdown of the economy; a coming change of the Presidency; vulnerability of the [...]   CSRS & FERS Disability Retirement: The Physician II 11/22/2008 by Federal Lawyer This blog is written in response to a question posed: in the event that an individual is unable to have a medical report written by a treating physician for circumstances beyond [...]   CSRS & FERS Disability Retirement: The Physician I 11/17/2008 by Federal Lawyer Initial inquiries concerning filing for Federal and Postal disability retirement benefits often ask the following question: Do I have a doctor to whom I can refer the individual? [...]   CSRS & FERS Disability Retirement: First Steps 11/15/2008 by Federal Lawyer Before you even think about filing for disability retirement benefits under FERS or CSRS, there is often a psychological component which must be overcome [...]   Federal Disability Retirement: Further Basics 11/10/2008 by Federal Lawyer In tough economic times, it is often difficult to find that "silver lining". This is even truer for my clients who obtain disability retirement benefits from the Federal Government, as well as [...]   CSRS & FERS Disability Retirement: Other Stories of Success 11/10/2008 by Federal Lawyer There are obviously many, many pitfalls in the attempt to obtain disability retirement benefits from the Office of Personnel Management. Sometimes, I get calls [...]   Federal Disability Retirement: Back to basics 11/03/2008 by Federal Lawyer The complexities surrounding preparation of a Federal Disability Retirement application are endless: concerns about the preparation of a proper medical narrative report [...]   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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