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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 Worker Disability Retirement: Relying on Common Sense 02/03/2012 by Federal Lawyer The problem of relying on "common sense" (as that term is often used and understood) is that such reliance not only reflects a presumption that one possesses that very quality that we deem [...]   Postal and Federal Disability Retirement: Relative Costs 02/02/2012 by Federal Lawyer In preparing, formulating, and filing for Federal Disability Retirement benefits from the Office of Personnel Management, there is always the question of costs involved -- of the time frame [...]   Federal Employee Medical Retirement: The Larger Process 02/02/2012 by Federal Lawyer There is, of course, the limited process of issues impacting a Federal Disability Retirement application, whether under FERS or CSRS -- of the actual paperwork; of obtaining and completing [...]   Medical Retirement for Federal Workers: When a Mistake is Made 02/01/2012 by Federal Lawyer Mistakes made in preparing, formulating and filing for Federal Disability Retirement benefits under FERS or CSRS, from the U.S. Office of Personnel Management, are usually correctable, [...]   FERS & CSRS Disability Retirement for Federal and USPS Workers: As a Process 01/30/2012 by Federal Lawyer It is often a necessity to be reminded that the preparation, formulation, and ultimately the filing of a Federal Disability Retirement application under FERS or CSRS, with the U.S. Office of Personnel [...]   Medical Retirement for Federal Workers: The Chance of Winning 01/29/2012 by Federal Lawyer To characterize the filing of a Federal Disability Retirement application under FERS or CSRS, from the U.S. Office of Personnel Management, in terms of the percentage chances [...]   OPM Disability Retirement: Additional Supporting Evidence 01/28/2012 by Federal Lawyer In preparing, formulating and filing for Federal Disability Retirement benefits from the U.S. Office of Personnel Management, whether under FERS or CSRS, there is nothing to preclude [...]   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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