OPM Disability Retirement: The Resignation Argument

Sometimes, in preparing to file for Federal Disability Retirement benefits from the Office of Personnel Management under FERS or CSRS, one is either forced to resign or, because of financial or other reasons, it is the best course of action to take.  

In any resignation, one should submit a resignation letter which clearly and concisely identifies the reason for one’s resignation:  Medical inability to perform one’s job.  While such resignation, for the reasons stated, may not invoke what is termed the “Bruner Presumption“, it nevertheless lays the groundwork for arguing that one is entitled to the Bruner Presumption.  

Now, understand that such an argument may fly completely over the heads of anyone and everyone at the Office of Personnel Management.  However, if the case is denied both at the Initial Stage of the Process, and at the Reconsideration Stage of the Process at the Office of Personnel Management, then it must be filed as an appeal to the Merit Systems Protection Board.  There, with an Administrative Judge reviewing the record, while it may still end up that one is not entitled (technically) to the Bruner Presumption, sometimes the strength of an argument in favor of a legal precedent is almost as strong as obtaining the substantive elements of the legal precedent.  

Indeed, if all of the corollary issues surrounding the stated resignation for medical reasons are consistent — the medical documentation; using FMLA; being on OWCP for part of the time, or otherwise only able to work part of the time; etc. — then the fact that one was forced to resign based upon one’s medical inability to perform one’s job, is a consistency worth documenting and arguing thus:  While it is true that one was not removed for one’s medical inability to perform the job, it is “as if” one was removed, because there was really no other choice available.  Sometimes, it is the argument itself which provides the foundation for persuasion, and not the technical application of a legal device.

Sincerely,

Robert R. McGill, Esquire

Federal Disability Retirement: Beyond the Bruner Presumption

The methodology of making extended legal arguments beyond the explicitly stated statute or case-law is a natural event, accepted and expected by Judges and opposing counsel.  However, there are unspoken but circumscribed limits to such arguments, and when an individual attempts to go beyond the parameters of rational argumentation, the entire argument loses its underlying credibility.  

Thus, in a Federal Disability Retirement application under FERS or CSRS, one may argue for the application of the Bruner Presumption once a proposal to removal a Federal or Postal employee for his or her medical inability to perform the essential elements of one’s job has been  initiated.  Such an argument would certainly be a logically viable one.  

Further, there is certainly legal authority and precedent for use of Social Security Disability approvals, and Veteran’s Administration ratings, as persuasive arguments in a Federal Disability Retirement case.  But how far can an argument — often “by analogy”, which has a long tradition of acceptance in the legal arena — be taken?  For instance, can an email discussion between supervisors within an agency discussing and admitting a proposed removal of an employee based upon his or her medical inability to perform the job be used?  Probably, but sparingly.  Can the Bruner Presumption be applied in such a hypothetical?  Probably not, but the principles underlying the case of Bruner v. OPM can certainly be argued as “further evidence” of the agency’s inability to accommodate the Federal or Postal applicant.  

These all constitute the boundaries of legal argumentation, which can be pushed to their limits, but with care and the tool of logical force.  But one must, of course, always be careful — because, to use a tool based upon logic implies that the user has been trained in logic and logical argumentation, which in and of itself is a discipline sorely lacking in many people, including many attorneys.

Sincerely,

Robert R. McGill, Esquire

OPM Disability Retirement: Using the Bruner Presumption

Argumentation on a point of law, persuasive argumentation based upon a logical implication of a legal finding, extended argumentation based upon an implicit extension of a finding of law — all can be effective tools in a formulation of a Federal Disability Retirement application under FERS or CSRS.  

Thus, in preparing, formulating and filing for Federal Disability Retirement benefits under FERS or CSRS, often the question is posed as to whether the “Bruner Presumption” (that presumption which is derived from being separated from Federal Service based upon  a medical inability to perform one or more of the essential elements of one’s job, or a finding of a parallel delineation of being administratively separated while concurrently showing that a medical condition was the underlying basis of such separation from Federal Service) can be applied based upon the proposal of an administrative separation, or whether the actual separation from Federal Service must occur.  

While the application of the legal presumption can be applied only upon an actual separation, certainly a persuasive argument can be made that OPM and the Administrative Judge at the Merit Systems Protection Board should effectively grant the presumption, inasmuch as the intent of the Agency is (once a proposal to remove based upon the medical inability to perform the job is made) certainly to follow through on any proposal; nevertheless, technically, the Bruner Presumption is applied only after a decision on the proposal to remove is made.  However, as has been previously stated on many occasions, one should never wait upon the Agency to propose anything, let alone to act upon the proposal.  Instead, one should always affirmatively move forward — especially when contemplating filing for Federal Disability Retirement benefits under FERS or CSRS.

Sincerely,

Robert R. McGill, Esquire

Disability Retirement for Federal Government Employees: Misreading the Law

As the old adage goes, a little bit of knowledge is a dangerous thing.  The Bruner Presumption is one of those legal tools which is often misunderstood and misapplied. The legal presumption stems from a Federal Circuit Court of Appeals opinion which basically declared (among other things) that when a Federal or Postal employee is separated from Federal Service for his or her medical inability to perform one or more of the essential elements of one’s job, that there is a “presumption” that the Federal or Postal employee is entitled to Federal Disability Retirement benefits from the Office of Personnel Management.  

Does this make it a certainty that one will receive an approval of a Federal Disability Retirement application from the Office of Personnel Management?  No. Does it enhance the chances of obtaining an approval from the Office of Personnel Management?  Maybe.  

One must remember that the Office of Personnel Management, at least for the first 2 stages of the process, does not assign attorneys as Case Managers to review a Federal Disability Retirement application.  As such, relying too heavily on the “Bruner Presumption” would be a mistake.  Further, to wait for the agency to terminate you based upon your medical inability to perform your job so that you can argue that you “have the Bruner Presumption” would be foolhardy.  It is a legal tool.  In order to use it, you must apply it in the right manner.  It would be like using a screwdriver to open up a can of peas.  As another old adage goes:  “Leave it to the professionals“. 

Sincerely,

Robert R. McGill, Esquire

Federal Worker Disability Retirement: Bruner Revisited

In filing for Federal Disability Retirement benefits under FERS or CSRS, one should never pause or hesitate from affirmatively going forward in preparing a Federal Disability Retirement application based upon what the Agency will or will not do; is expected or not expected to do; or is predicted or not predicted to do.  One should simply move forward based upon one’s personal and professional circumstances, the extent of the medical condition, the impact of one’s medical condition upon one’s ability to perform the essential elements of one’s job, etc.  

Thus, for instance, where a Federal or Postal employee has informed the Agency of one’s medical condition, or one has filed for FMLA and submitted substantiating medical documentation, if the plan is to “wait” for the Agency to remove the Federal or Postal employee in order to obtain the advantage of what is generally known as the “Bruner Presumption,” such a plan is normally not the best course of action, for various reasons.  

First, the Agency may take an extraordinary amount of time, and in the end, may attempt to remove the Federal or Postal employee for “other reasons” (performance issues, for instance).  Second, whether or not one “gets” the Bruner Presumption in a case, that legal advantage is really for the Third Stage of the process — at the Merit Systems Protection Board — inasmuch as most of the Claims Reviewers at the Office of Personnel Management are not legally informed enough to know such a legal presumption from a nearby neighbor named John Doe Bruner.  And Third, one must affirmatively prove by a preponderance of the evidence, anyway, that one cannot perform the essential elements of one’s job because of a medical condition.  The Bruner Presumption, while a great thing to have, does not override the medical condition and evidence which must be presented.

Sincerely,

Robert R. McGill, Esquire

Federal and Postal Service Disability Retirement: Termination

Termination by a Federal Agency or the Postal Service can be a trying time, even if it has been a long time in expectancy.  The key is to try and begin negotiating with the agency even before the Notice of proposed termination is issued.  During that period when you know that the Agency is considering filing a Notice of Proposed Termination, is precisely the window of opportunity to try and convince & persuade the agency that the underlying basis of any proposed termination is and should be based upon your medical inability to perform one or more of the essential elements of your job.  This would be done through various means:  submission of medical documentation to your supervisor, agency & Human Resources personnel; addressing key points concerning conduct or performance with medical evidence showing a direct and causal correlation between such conduct or performance with the medical evidence, etc.  If, on the other hand, a Notice of Proposed Termination is issued but one which is not based upon one’s medical condition, that does not mean that the window of opportunity has been lost — it just may mean that the strategy and tactic to try and persuade the Agency to amend the proposed termination may have to be adapted.  The key to all of this is to make sure and aggressively attack, rebut, and answer, at all stages of any proposed termination, in order to gain an advantage for one’s medical disability retirement.

Sincerely,

Robert R. McGill, Esquire

OPM Disability Retirement: After Separation from Service (Part 2)

Of course, it is always the separation from service based upon reasons delineated other than medically-based reasons which give rise to concerns in a federal disability retirement case.  Understand, however, that the “Bruner Presumption” is essentially a “scale-tipper” for the Office of Personnel Management (supposedly) and for the Administrative Judge at the Merit Systems Protection Board (of somewhat greater certainty).  By this, I mean merely that, with or without the Bruner Presumption, a Federal Disability Retirement applicant under FERS or CSRS must still prove by a preponderance of the evidence that he or she is eligible and entitled to federal disability retirement benefits. “Preponderance of the evidence” is essentially proof such that it is “more likely the case than not”.  Thus, when all things are equal, the Bruner Presumption is supposed to tip the scale in favor of the federal disability retirement applicant. 

On the other hand, if an individual was removed for reasons other than medically-based reasons — i.e., as a hypothetical, let’s say he was removed “for cause” — an act of dishonesty; failure to follow certain agency procedures; or whatever the case may be.  Does such a removal tip the scale the other way?  Not necessarily; however, it makes gathering the proper medical evidence that much more important, and what I often do is to try and tie in the underlying behavior which resulted in the removal “for cause”, with the medical basis — if at all possible.

Sincerely,

Robert R. McGill, Esquire

Federal and Postal Service Disability Retirement: After Separation from Service

It should be well established for anyone who has looked into Federal Disability Retirement issues, that a person has one (1) year from the time of separation from Federal Service to file for Federal Disability retirement benefits.  Separation from Federal Service can take many different forms:  Resignation; separation for cause; administrative separation based upon one’s medical inability to perform one or more of the essential elements of one’s job; etc.  The latter of these delineated forms (separation for medical inability to perform) is obviously the most beneficial to one contemplating filing for Federal Disability Retirement (first and foremost because it allows for the Bruner Presumption to be applied). 

On the other hand, separation based upon a resignation is often neutral for issues concerning disability retirement (unless, of course, one has been foolish to put into his or her letter of resignation that the reason for the resignation is to go and become a professional poker player for the next year — but even then, if a medical condition existed prior to resignation, one might still be eligible for disability retirement benefits under FERS or CSRS); and, obviously, if the resignation was accompanied by a medical reason, and that particular medical reason was reflected in the SF 50, all the better.  Even separation for adverse actions — if there was a medical condition which existed prior to separation — can be explained away and fought for.  The point here is, regardless of the nature, reason and expressed rationale for separation from service, if a medical condition existed prior to separation from service, such that the medical condition prevented one from performing one or more of the essential elements of one’s job, there is a viable basis for filing for, and fighting for, Federal Disability Retirement benefits under FERS or CSRS.

Sincerely,

Robert R. McGill, Esquire

CSRS & FERS Disability Retirement: Clarity over Question

While a compromise position on certain issues in Federal Disability Retirement for FERS & CSRS may be the best that one may hope for, obviously, clarity over question is the better course to have.  Thus, for instance, in a removal action, where a Federal or Postal employee is being removed for his or her “excessive absences,” it is best to have the proposed removal and the decision of removal to reference one or more medical conditions, or at least some acknowledgment by the Agency, that would explicate — implicitly or otherwise — that the underlying basis for the “excessive absences” were as a result of the medical condition.  There are cases which clearly state that where excessive absences are referenced by medical conditions, the Bruner Presumption would apply in a Federal Disability Retirement case. 

Now, in those cases where the removal action merely removes a Federal or Postal employee for “excessive absences”, there are other methods which may win over an Administrative Judge to apply the Bruner Presumption.  Such “other methods” may include emails or correspondence, at or near the time of the removal action, which appears to put the Agency on notice about specific medical conditions, including attachments of doctor’s reports, medical notations, etc.  Such concurrent documentation can convince an Administrative Judge that, indeed, the question as to whether the “excessive absences” were as a result of a medical condition, and whether the Agency was aware of such an underlying basis, is clarified by documents which provide a proper context within the reasonable time-frame of the issuance of the proposal to remove and the decision to remove.  It is always better, of course, to have clarity over a question, but sometimes the question can be clarified with additional and concurrent documentation.

Sincerely,

Robert R. McGill, Esquire

OPM Disability Retirement: Argument by Analogy

Attorneys argue “by analogy” all of the time; cases and decisions from the Merit Systems Protection Board, and language from the Federal Circuit Court of Appeals, provide the fertile fodder for such argumentation.  Thus, such issues as to whether the Bruner Presumption should apply in the case; whether a case is similar to previously-decided Federal Disability Retirement cases; the similarity of fact-scenarios and legal applications — they are all open to argument by analogy.  That is why case-citations are important — even in arguing a Federal Disability Retirement case to the Office of Personnel Management.  Whether and how much influence such legal argumentation can have at the first two stages of the disability retirement application process, may be open to dispute; but cases should never be compiled and prepared for the first or second stage alone; all disability retirement applications should be prepared “as if” it will be denied and will be presented on appeal to the Merit Systems Protection Board.  Such careful preparation serves two (2) purposes:  First, for the Office of Personnel Management, to let them know that if they deny it and it goes on appeal to the Merit Systems Protection Board, they will have to answer to the scrutiny of the Administrative Law Judge; and Second, for the Administrative Law Judge at the Merit Systems Protection Board, to let him or her know that you did indeed prepare the case well, and that your particular Federal Disability Retirement application conforms to the law, and should therefore be approved.

Sincerely,

Robert R. McGill, Esquire