Postal and Federal Disability Retirement: The Agency & the Burden of Proof

In a Federal Disability Retirement case, submitted to the U.S. Office of Personnel Management, whether under FERS or CSRS, the burden of proving one’s medical inability to perform one or more of the essential elements of one’s job, always remains with the individual Federal or Postal applicant.

Certainly, there are actions by the agency which may add to such proof (e.g., declaring that the Federal or Postal worker is “not fit for duty” will further concretize an assessment made by a third party; or initiating a separation from Federal Service based upon one’s medical inability to perform the essential elements of the job will trigger the Bruner Presumption, which then invokes a rebuttable presumption and shifts the “burden of production” (note that it is not the shifting of the “burden of proof” — a conceptual distinction important to recognize) over to the U.S. Office of Personnel Management.

Waiting for one’s agency to act upon anything is, however, a very dangerous venture to begin with; thinking that one’s own agency will provide the proof necessary to establish one’s eligibility for Federal Disability Retirement benefits would not only be dangerous, but foolhardy.  For, at its most fundamental level, the fact that the very entity which makes a decision on a Federal Disability Retirement application (OPM) is one which is separate and independent from the agency for which one works, creates a chasm which only further magnifies the inherent problem.

OPM pays little to no attention to what the agency does — except, perhaps, when the agency attempts to directly confront and challenge a Federal Disability Retirement application.  Otherwise, don’t look for help from one’s agency (generally speaking) when one is filing for Federal Disability Retirement benefits; such unfounded reliance will only disappoint, at best.

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

OPM Disability Retirement: When to File

I still get calls by people who state that (A) they are waiting for a year before they are going to file for FERS or CSRS disability retirement, (B)  It hasn’t been a year since they have been on LWOP, but it almost will be, or (C) They are waiting to be terminated so that their year will begin.  Quiz:  Which of the above (A, B or C) is the correct basis upon which to decide to file for Federal Disability Retirement benefits?  Answer:  None of the Above. 

Since OPM disability retirement can take anywhere from 6 – 8, sometimes 10 months to get (beginning the time-sequence from the time a doctor is contacted to provide a medical report, to putting the entire packet together, to getting it to the Agency Human Resources Personnel, to getting it to Boyers, PA, to getting it to Washington, D.C., to getting an initial approval, etc.), it is:  A.  Not a good idea to “wait a year” because there is no reason to wait; B. You don’t need to wait a year on LWOP to file for Federal Disability Retirement benefits, and:  C.  You don’t need to get terminated, or separated from Federal Service, in order to file for Federal Disability Retirement benefits. 

Let me re-emphasize:  The “1-year rule” has to do with the following:  A.  You have one (1) year from the date you are separated from Federal Service to file for disability retirement — but you can file at any time, whether separated or not, as long as it is not after 1 year after being separated from service.  B. Your medical condition must be expected to last for a minimum of 12 months — but your treating doctor should be able to tell quite easily whether or not the medical condition for which you are being treated will last that long — normally within a couple of months of treatment. 

Sincerely,

Robert R. McGill, Esquire