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

Federal and Postal Disability Retirement: Why Up to 1 Year?

In filing for Federal Disability Retirement benefits under FERS or CSRS, why should a person be given up to 1 year after separation from Federal Service, to file for the benefits?  The underlying legal rationale can be conflicting, but there are multiple pragmatic reasons why such a statute allowing for a person to file for Federal Disability Retirement benefits up to 1 year after separation from service, is “reasonable” and “sound in judgment”. 

Often, Federal and Postal employees get fired before the proper forms or medical documentation can be completed or gathered; proposed terminations and determinations on the proposals can come about quickly; a Federal or Postal employee who is focused upon getting treatment (surgery; psychiatric treatment, etc.) can be left with a sense of being overwhelmed, and incapable of filing for a benefit which requires rational thought, procedural organization, and an ability to be systematic in approaching the entire process; a person may not fully comprehend or appreciate the extent of a medical condition, and may quit, resign, or file for early retirement with a lesser annuity, feeling isolated and beset with a sense of hopelessness in not “having any other choice” but to walk away from the Federal or Postal job he or she loved; suffer from a Reduction-in-Force (RIF), and think that because of the RIF that disability retirement was not an option (it often is); and many other reasons.  Indeed, there is a rational and logical basis for allowing for the 1-year timeframe of filing for Federal Disability Retirement benefits under FERS or CSRS, after the Federal or Postal worker has been removed or separated from Federal Service.  On top of it all, to allow for it is simply “fair”.

Sincerely,

Robert R. McGill, Esquire