If an individual is successful in persuading the Agency to remove him or her for his/her medical inability to perform the job, then the entitlement to what is coined as the “Bruner Presumption” is obtained. This is a great advantage, but one which is often misunderstood.
Remember that, under Bruner v. Office of Personnel Management, 996 F.2d 290 (Fed. Cir. 1993), when an individual is accorded the Bruner Presumption because of being removed for one’s medical inability to perform one’s job, this merely means that the “burden of production” shifts to the Office of Personnel Management, who must disprove your entitlement to disability retirement. However, the initial burden of proving by a preponderance of the evidence must still be met: i.e., one must still submit sufficient medical evidence to show that one was or is unable to perform the essential elements of one’s job.
This point should be obvious: for the Agency itself would never have separated an individual unless there was medical evidence to show that the individual could no longer perform the job. Thus, the very medical evidence which supported and justified the Agency’s action, is the same medical evidence which can be used to meet the initial burden of proof with OPM. The key is that, after this burden is met, then OPM has the harder burden of disproving that which the applicant has met. This is the great advantage of the Bruner Presumption.
Sincerely,
Robert R. McGill, Esquire
Filed under: Burden of Proof, Clarifications of Laws or Rules, Federal Disability Judge-Made Decisions Quoted, Important Cases, Legal Updates and/or the Current Process Waiting Time, OPM Disability Administrative Law (Statutory and Non-Statutory Law) | Tagged: and Other Medical Documentation Submitted To the OPM, Appeals, Application, applying for federal disability, attaining an amicable separation, Bruner Presumption, Burden of Production, Burden of Proof, document preparation and opm disability law, essential elements of jobs, federal court decisions in OPM disability cases, federal disability attorney, federal disability retirement attorney, federal disability retirement lawyer, in bruner the applicant must still submit sufficient evidence, limited burden of proof shift over to OPM, more than enough medical documentation, opm case-law decisions, Postal disability, Postal disability retirement, preponderance of the evidence documents, separated because of the employee's inability to work, separated from service, the Bruner Presumption and the burden of proof, usps separation | Leave a comment »
