One must never misunderstand the law and its application. This is true in any legal arena of every area of law; when it comes to Federal Disability Retirement law, the misunderstanding of an application of law can have direct and irreparable consequences: the failure to secure disability retirement benefits and, therefore, the financial security for one’s future. The “Bruner Presumption” is one such application of law which is often misunderstood. Without revealing all of its proper applications, it can (and is) often misunderstood to be equivalent to a “presumption of innocence” — but that would be wrong. The Bruner Presumption comes about as a result of an Agency Action — of removal based upon the employee’s medical inability to perform one or more of the essential elements of the job. With or without the Bruner Presumption in Federal Disability Retirement law, the “Burden of Production” — i.e., of the medical documentation, the factual establishment that the Agency is unable to accommodate the individual — still rests and remains with the applicant. One must never think that the applicability of the Bruner Presumption makes a case a “slam dunk” of any sort. This is especially so where we are talking about those medical conditions which are often viewed as “suspect” by the Office of Personnel Management — such as Fibroymyalgia, Chronic Fatigue Syndrome, Multiple Chemical Sensitivity cases, etc (by “suspect”, however, I do not mean to imply that such medical conditions make it harder for an applicant to get it approved; rather, it merely requires that the one who is preparing such an application, do it properly, thoroughly, and with legal force). Remember that the initial, and continuing, burden of production always remains with the applicant; what the Bruner Presumption merely does is to “shift” some of the weight of the burden of proof over to OPM, and in the event of an appeal to the Merit Systems Protection Board, of placing a Federal Disability Retirement case into a more favorable light with the Administrative Judge.
Sincerely,
Robert R. McGill, Esquire
Filed under: Agency’s and/or Supervisor’s Actions, Burden of Proof, Clarifications of Laws or Rules | Tagged: Administrative Law, adverse agency action, Bruner Presumption, Burden of Production, Chronic Fatigue Syndrome (CDC) and Postal/Federal workers, consequences of an agency's adverce action, CSRS disability retirement federal attorney, csrs retirement, disability FERS retirement, disability retirement from post office, disciplinary actions for medical conditions against federal workers, essential elements of jobs, establishing a medical condition with USPS management, federal disability law, federal disability retirement, federal medical retirement, FERS medical retirement, Fibromyalgia in OPM disabiity retirement, getting federal worker's disability benefits is not a "slam dunk", Health Conditions and the Federal and Postal Employee, limited burden of proof shift over to OPM, medical disability lawyers opm, Merit Systems Protection Board and OPM disability, MSPB Administrative Judge (AJ), Multiple Chemical Sensitivity (MCS), not owcp retirement but opm disability retirement, occupational Injuries at the U.S. Postal Service, Office of Personnel Management (OPM), owcp disability retirement really is usually meant "opm disability retirement", Post Office disability, Postal disability retirement, resources for injured federal workers, Robert R. McGill, the Bruner Presumption and the burden of proof, USPS and occupational medicine, USPS disability retirement, usps medical retirement, USPS Workers Comp |
Where could I look for cases of OPM and OWCP. I have a case with MSPB concerning my retirement benefits reduction do to injury. I was place in part time position by OWCP at a much lower pay grade. I retired and took OWCP over retirement as the offset was higher than my full retirement. Ifeel my retirement should have been at the salary of the job I was injured on, not the low pay position I was placed in. This should be against FECA rules, but I need case references.