— Student: Is it a choice if you can only choose one, and you are only presented with one?
Master: Ah, but does the choosing occur in the act, or in the imagination? Is one limited by what one sees, or by the unlimited desires of a man’s imagination?
— Koan #233 from Master Todaiji’s Personal Notebook
The law is often a compendium of complexities for the lay person. Non-lawyers who enter into the “arena of law” often find it befuddling, confusing, and moreover, against the very grain of what law is “meant” to be. Law is meant to provide “justice”. But if Justice is indeed the goal, one must know, understand, and apply the law properly. This is no less true for those Applicants who are attempting to obtain Federal Employee Disability Retirement benefits from the Office of Personnel Management.
I have written many articles on multiple issues, over the years, on laws and cases impacting upon OPM Disability Retirement for FERS & CSRS employees of the Federal Service. In response to my articles, I have received many inquiries about the “meaning” of this or that statement I made, in a particular article I had written, or in an explanatory statement I made. Often, I am surprised by the question posed, which prompts me to ask myself: Did I write so badly? Did I fail to explain myself adequately? Or did the reader misunderstand what I had written?
The truth is probably a combination of both – that I failed to write clearly and concisely, and the reader (as a non-lawyer) failed to fully understand what I meant to convey. This article is meant, on a microcosmic level, to explain some small part of the law, and to interpret the language of a case, in order to help the non-lawyer somewhat understand how to read into legal language.
In the past, I have often referred to the benefit of securing the “Bruner Presumption” in a case. The “Bruner Presumption” is so named from a Federal Circuit Court case, Bruner v. Office of Personnel Management, 996 F.2d 290 (Fed. Cir. 1993). It essentially stands for the proposition that, if a Federal employee under FERS or CSRS is removed for his or her medical inability to perform the duties of his or her position, that such a specified removal constitutes “prima facie” evidence of entitlement to OPM Disability Retirement. Now, one might interpret this to mean that, because “prima facie” means “on the face of it”, that nothing further needs to be done. That OPM Disability Retirement is a “sure thing”, nothing could be further from the truth. For, in the same breath that the Merit Systems Protection Board speaks about the Bruner Presumption, the following statement will also always appear: “Notwithstanding the shifting burdens of production, however, the appellant retains the burden of persuasion at all times.” Trevan v. OPM, 69 F.3d 520 (Fed. Cir. 1995). What this means is that, regardless of the Bruner Presumption, the appellant always has to provide the underlying medical documentation to show that he or she was unable to perform the essential elements of his or her job.
Now, to the above, one might ask: Then, what is the purpose of the Bruner Presumption? The purpose is essentially to raise a higher bar against the Office of Personnel Management. Think about it this way: at an MSPB Hearing, the Office of Personnel Management has a right to cross-examine witnesses, have the Supervisor testify over the telephone, etc., to rebut the Bruner Presumption. In order to fight against this, the Applicant must present strong medical evidence anyway, to ensure that the Judge is persuaded of your medical disability.
So, is the Bruner Presumption of any use? The short answer is: Yes. It makes any effort by the Office of Personnel Management to undermine or attack the employee’s OPM Disability Retirement application much, much harder. Is the Bruner Presumption necessary? No. Most people don’t need it, precisely because, so long as an individual has a supportive doctor who will provide the necessary nexus between one’s medical condition and one’s positional duties, there is normally no need for that “higher bar” to fight against the Office of Personnel Management.
Beyond this, of course, is the question of how one obtains the Bruner Presumption. The obvious answer is to be removed for one’s “medical inability to perform” one’s job. However, most Agency removal actions are not so cooperative, and that is where people get into trouble. For instance, what if a person is removed for being excessively absent, and those absences are as a result of one’s medical conditions? Shouldn’t the Bruner Presumption apply in that instance? One would think so, because of the logical connection which should be able to be established. Unfortunately, however, it is not that easy – logic and logical connections do not necessarily prevail in arguing for the Bruner Presumption before a Merit Systems Protection Board Administrative Law Judge. Of course, an MSPB Administrative Judge is himself/herself constrained by legal precedents handed down by the Federal Circuit Courts and other MSPB cases handed down by the Full Board. For instance, it has become established precedent that “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.” Ayers-Kavtaradze v. Office of Personnel Management, 91 M.S.P.R. 397 (2002). In other words, it is not enough that there exists concurrent medical documentation supporting – outside of the document proposing to remove you – that you had a medical condition; rather, the actual proposal to remove you must specify within the document of proposed removal a reference of a disabling medical condition.
As you can see, the “arena of legal battles” can be a complex maze. Federal Disability Lawyers who are familiar with OPM Disability Retirement laws, statutes, procedures and cases, are able to (hopefully) maneuver around, through, and over the many legal landmines which present themselves as obstacles to a Federal or Postal employee who files for Federal Disability Retirement benefits under FERS or CSRS.
Because OPM Disability Retirement is an important benefit available to all Federal and Postal employees who have a minimum of 18 months of Federal Service (for FERS) and a minimum of 5 years for CSRS employees, it is crucial to know the governing laws, statutes, procedures and cases which impact an application. It is an important benefit which should be looked upon as an investment to attain a level of financial security, in the event that a Federal or Postal employee finds that he or she can no longer perform one or more of the essential elements of employment. I am a Federal Disability attorney who specializes in obtaining FERS Disability Retirement benefits for Federal and Postal employees. To contact me, you may email me at firstname.lastname@example.org, find me at www.FederalDisabilityLawyer.com, or call me at 1-800-990-7932, to discuss the particulars of your case.
Robert R. McGill, Esquire