Just some comments about this important concept and one which all disability retirement applicants should be aware of. It is well-established law that an employee’s removal for his or her physical inability to perform the essential functions of his job or position, constitutes prima facie evidence that he is entitled to disability retirement as a matter of law, and that the burden of production then shifts to OPM to produce evidence sufficient to support a finding that the applicant is not entitled to disability retirement benefits. See Bruner v. Office of Personnel Management, 996 F.2d 290, 294 (Fed. Cir. 1993); and Marczewski v. Office of Personnel Management, 80 M.S.P.R. 343 (1998). What this means, essentially, is that if a Federal or Postal employee is removed for his or her medical inability to perform his/her job, the “burden of production” is placed onto OPM. It is as if OPM must “disprove” a disability retirement case, as opposed to an individual having to prove his/her right to disability retirement. It is a “prima facie” case, in that, by having your Agency remove you for your inability to perform your job, it is considered a valid case “on its face”. Further, in more recent cases, the Merit Systems Protection Board has held that the Bruner Presumption also applies where “removal for extended absences is equivalent to removal for physical inability to perform where it is accompanied by specifications indicating that the decision to remove was based on medical documentation suggesting that the appellant was disabled and unable to perform her duties.” McCurdy v. OPM, DA-844E-03-0088-I-1 (April 30, 2004), citing as authority Ayers-Kavtaradze v. Office of Personnel Management, 91 M.S.P.R. 397 (2002). This means that the removal itself need not specifically state that you are being removed for your medical inability to perform your job; it can remove you for other reasons stated, such as “extended absences”, as long as you can establish a paper-trail showing that those extended absences were based upon a medical reason.
Sincerely,
Robert R. McGill, Attorney
Filed under: Burden of Proof, Clarifications of Laws or Rules, Federal Disability Judge-Made Decisions Quoted, Important Cases, Legal Updates and/or the Current Process Waiting Time, OPM Disability Actors - The Agency, OPM Disability Administrative Law (Statutory and Non-Statutory Law) | Tagged: "excessive LWOP" as ground for removal, Advanced Notice of Proposed Removal (Notice), Ayers-Kavtaradze v. Office of Personnel Management, being removed from the federal sector, Bruner Presumption, Bruner v. Office of Personnel Management, core functions of an existing federal position, disability retirement for usda agriculture employees, essential elements of jobs, Federal Employees Disability System South Carolina, fighting a proposed removal by Postal management, inability to perform core functions of a us government job, long lwop disability reasons, long lwop sick leave for stress, LWOP in federal disability retirement, Marczewski v. Office of Personnel Management, McCurdy v. Office of Personnel Management, Notice of Removal, physical inability removal, the Bruner Presumption and the burden of proof, usps lwop | Leave a comment »
