Federal and Postal Disability Retirement: The Futility of Waiting

The waiting game is perhaps the most frustrating aspect of any endeavor; for, in the end, dependence upon a third party to act, when the other person, entity or agency, may in fact never act, merely increases the sense of frustration.

In a Federal Disability Retirement application, ultimately filed with the U.S. Office of Personnel Management, whether under FERS (Federal Employees Retirement System) or CSRS (Civil Service Retirement System — that grand old system which some were fortunate enough to squeeze into before the mid-80s when abolition and transition to FERS occurred), Federal and Postal employees will often think that they must “wait” for their agency to act, to perform some duty, to respond, to do something… when in fact waiting normally results in further non-action.

Since the preponderance of the evidence in proving a Federal Disability Retirement case is solely upon the Federal or Postal worker who applies, it is rare that waiting for anything from one’s agency will bear any substantive fruit of any kind.  While medical conditions continue to progressively worsen, one is left waiting; while time continues to march on, one is left waiting; and while resources get depleted, and more and more SL & AL is used up, the Federal and Postal worker is left with the proverbial empty bag.

No, there is ultimately nothing that needs to be waited upon in preparing a Federal Disability Retirement application.  While dreams of the future are made with the stuff of patience, it rarely includes waiting upon an agency of the Federal Government to prepare one’s Federal Disability Retirement application.  Better to go chase a cloud in the sky than to expect anything helpful.

Sincerely,

Robert R. McGill, Esquire

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

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