CSRS & FERS Disability Retirement: the Bruner Presumption – Agency Actions II

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

OPM Disability Retirement: Agency Actions I

Can adverse agency actions to terminate a Federal employee impact a potential disability retirement application?  The short answer is “yes”, but the longer answer would have to consider multiple factors:  what is the underlying basis of the adverse action?  Does a person’s medical conditions (often psychiatric, cognitive dysfunctions impacting upon less than stellar performance ratings, or perhaps impacting upon the essential elements of one’s job in other ways) explain, in whole or in part, the “adverse” nature of the action?  Has there been a “paper trail” established with respect to informing the Agency of medical conditions, such that it can “explain” — again, in whole or in part — the apparent basis of the adverse action?  Is the Agency open to negotiating a material change in the proposed removal — i.e., from one which is adversarial (and therefore would be appealed to the Merit Systems Protection Board) to one based upon one’s medical inability to perform the essential elements of one’s job (with a stipulation that no appeal will be filed, thereby saving the Agency’s time, resource, and personnel).  It is important to “get involved” in the process of any contemplated Agency action — early.  If the Agency puts an employee on a Performance Improvement Plan (PIP), it is time — in fact, overdue — to become active in the future plans for filing a disability retirement application.

Sincerely,

Robert R. McGill, Esquire

CSRS & FERS Disability Retirement: VER, the Economy, & Decisions to Make

The news coming out on the Voluntary Early Retirement offer for Postal employees has not been very positive.  My information has been gathered from multiple sources:  Official Statements from the U.S. Postal Service; “insider information” from Postal employees; various newspaper accounts and website information.  Recent statements from the APWU President, of course, sheds further light on the matter.  Mr. Burrus warns (wisely, in my opinion) that, in this “uncertain economy, there is no reason to make a hasty decision.”  That is certainly true.  The loss of potential future income over a period of years or decades should be considered; the one sector of the economy which seems to be expanding at an alarming pace is the Federal government, and if the Federal government is unwilling to let AIG and banks fail, then surely it will not allow the Postal Service to self-destruct.  Now, with respect to Federal and Postal employees who must, because of medical conditions which impact his or her ability to perform the essential elements of one’s job, a decision to file for disability retirement benefits is a pragmatic one:  either disability retirement, or risk being terminated because of the continuing decline in performance and ability to complete the essential elements of the position.  An offer of a VER without financial incentives — taking into account what an individual will lose in benefits, pay increases, etc. over the next decade or two — is not a very attractive offer.  Any such VER should be considered carefully.  On the other hand, disability retirement is a different matter:  It is a pragmatic decision to accept the fact that one has a medical condition such that you cannot perform the particular kind of job you hold, anymore.  It is a decision that it may be the right time to “move on” — bad economy or not.

Sincerely,

Robert R. McGill, Esquire

Chess and the Art of Deception

At my rudimentary level of playing (if “playing” may be the accurate description) and understanding chess, it is a game of deception and decoy; of contrivances to convince your opposition to believe you intend to do X, while all the while planning to do Y.  Aside from being obnoxious, what would one think if, as your opponent is about to make a move, you were to stop him and say, “Excuse me, but if you move that Knight, I would take your Queen.”  This would be acceptable, of course, if you were teaching your son or daughter the game of chess; as the younger, more inexperienced player is about the make a fatal mistake, to caution:  “If you do that, you will lose your Queen.”  Inasmuch as creating a ruse is part of the game of chess; of setting up decoys; of intentionally putting up a moderately important piece (say, a Bishop) as a sacrificial piece in order to set up a deception in order to create the ultimate outcome:  Checkmate.  

Yet, where in the rules of the game did the acceptance of deception as a modality of behavior become established?  I do not recall when, as a child, as I was taught the fundamental rules of the game of chess, I was informed that being deceptive was an accepted norm.  No one ever said to me, “Hey there, if you put the pawn there, then wait a few moves, then move the pawn forward and make your opponent think you’re interested in taking his Knight, when all the while you have your Queen sitting in the corner waiting to take his Castle – it’s okay to do that.”  I have never seen the issue of deception explicitly stated in the “Rules of Chess”; but, I suppose, there are books and articles “out there” which include (or “assume”) ploys of deception as being “part of the game”.  It is probably no different than, say, sending all of your wide receivers and tight end out for a long bomb, then pump-faking, then shovel-passing the football to the fullback.  That, too, is a form of deception.  Yet, all of that occurs in a single move, where multiple players are expected to be performing their roles; and, besides, for each of the players on offense, there are an equal number on defense, for a 1-on-1 ratio.  And because all of the players move with fluidity concurrently, to describe the play as a play of “deception” is somehow not the same as planning 4 or 5 moves in the game of chess, while all the while knowing that you are engaging in a ploy of deception.  Thus, one might say, it is a game of dishonest intentions.  But, you counter, just as there is a 1 to 1 ratio of players, so there is the same ratio between two chess players; each player sees the full board in its totality; the one who is deceived is deceived in the open field of the chessboard.  Yes, but it is the intention that makes all the difference.  Yes, but, you counter, isn’t the intention of sending out the wideouts and tight end, all the while knowing that you plan on a draw play, the same type of intentional deception?  Is intentional deception part of a game?  Where and when do we learn it?  How do we learn it?  How does one learn to deceive another?  Does one learn from a “Rule Book of Deception”?  If so, I have never studied from such a book.  Yet, as I play the game of chess, I realize that the greater the deceiver, the more gifted the player.  Inasmuch as I am not much of a chess player, perhaps that is a positive reflection of my character.