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: Conflicts & Peripheral Issues

Man is the only animal who has more than one side on his mouth, and the lawyer is a special species of the animal who, unlike the limitation of the cat who only has nine lives, possesses an infinite number of geometric sides of a mouth.  Lawyers make concurrent and conflicting arguments all the time, but as long as the arguments are bifurcated and the issues kept separate and do not directly conflict or contradict, there is certainly nothing wrong with that.

In a Federal Disability Retirement case, if a Federal or Postal employee wants to pursue a collateral issue in another forum while concomitantly filing for Federal Disability Retirement benefits, there is normally no conflict or problem which arises.  But in the limited instance where a Federal or Postal employee is attempting to reverse a termination and regain a position, at some point in the process the two issues may come to a direct conflict.

Normally, however, the issue involves merely changing the underlying reasons which the Agency proposed for the termination, and it is a legitimate argument to litigate with the Agency to change the terms of the termination.

Sincerely,

Robert R. McGill, Esquire

OPM Disability Retirement: Termination (Part 2)

There are times when an Agency will proceed and terminate a Federal or Postal employee based upon adverse grounds — of “Failing to follow proper leave procedures”, for being AWOL, for Failure to do X, Y or Z.  Such adverse actions may be the “surface” reason for the actual, underlying reason — that of one’s medical inability to perform one or more of the essential elements of one’s job.  Once a proposed termination becomes an actual termination, then the course of action to take, of course, is to file an appeal with the Merit Systems Protection Board.  An Administrative Judge can often be of great assistance in defining and narrowing the issues, and in gently persuading and convincing the Agency to consider changing and amending the “surface” reason to the true, underlying reason of medical inability to perform the job.  The goal here, of course, is to do everything to help in “weighting” a disability retirement application in your favor, and while obtaining the Bruner Presumption in a case is not critical, in many cases, it can be helpful.  And the way to get the Administrative Judge on your side, so that the AJ will then try and persuade the Agency to consider amending a removal, is to obtain well-documented, well-written medical narrative reports from the doctors.  As is almost always the case, the underlying basis for any disability retirement application begins and ends with a well-written medical report.

Sincerely,

Robert R. McGill, Esquire