Disability Retirement Laws

By: Robert McGill

- What is the difference between the madman, the mediocre, and the Master? The madman fails to master reality, and therefore is unable to function with knowledge; the mediocre may have some knowledge, but fails to master it; and the Master -- he is the rare one who sees the reality, seeks the knowledge, and is able to grasp both.
-- From Ancient Parables

I have often discussed the legal advantages of being separated from Federal Service for one’s “medical inability to perform" one’s job, which results in what is commonly known as the “Bruner Presumption", where such a termination results in a prima facie showing of his or her burden of proof. What this means is that, with such a termination, the “burden of production" shifts to the Office of Personnel Management, who must disprove your entitlement to disability retirement. Bruner v. Office of Personnel Management, 996 F.2d 290, 294 (Fed. Cir. 1993) Bruner was a 1993 case, and still applies today. However, further developments since then have expanded the applicability of the Bruner Presumption, and they are of importance for those filing for disability retirement.

Some recent developments impacting FERS and CSRS disability retirement applicants:

The Merit Systems Protection Board has held that 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, Docket #DA-844E-03-0088-I-1 (April 30, 2004), citing as authority Ayers-Kavtaradze v. OPM, 91 M.S.P.R. 397 (2002).

What this means is that, the mere fact that a removal letter does not specifically state that you are being separated from service for you “medical inability to perform" your job, does not necessarily mean that you are not entitled to the Bruner Presumption. That is why it is often important to have an attorney involved in negotiating the terms of a removal action, especially where removal is an action about to happen.

For instance, if it is becoming clear that you have been on LWOP for a period approaching a year, it might be a good idea to submit medical reports and documents showing the medical basis for your LWOP. Or, if a Notice of Proposed Removal has been issued, it is important to respond to such a proposal by submitting medical documentation establishing the basis for your non-attendance at work.

Now, the next and natural question is: How far will the Merit Systems Protection Board go in giving you the Bruner Presumption? The answer: It is not always important to get the Bruner Presumption, as it is to argue for the Bruner Presumption. In my experience litigating these cases before the Board, I have found that it is helpful to make a forceful argument that my client should be entitled to the Bruner Presumption, based upon all of the circumstantial evidence. And, even if I am not able to convince the Administrative Judge that my client is entitled to the Bruner Presumption, the argument itself highlights the fact to the Judge that it was a close call -- and this often leads to a victory.

Indeed, as a rather funny aside, after I had submitted a legal memorandum and argued to a Judge during a Prehearing Conference that the Bruner Presumption should apply in a particular case. The Judge stated to me, “Mr. McGill, according to your argument, the Bruner Presumption should always apply!" To which I responded: “Your Honor, that would indeed be my preference."

Furthermore, it is also of vital importance to appeal a removal action whenever possible and legally permissible, especially where the removal action was based upon the alleged misconduct of the individual. Why? Because by appealing the removal action, you always stand the chance of coming to a compromise with the Agency, and having the Agency change the basis of the removal to one of “inability to perform the job" or, at the very least, to “resignation based upon medical problems".

The case-law is consistent in holding that the Board will “generally give effect to the terms of a settlement agreement between an applicant for disability retirement and her employing agency in determining the applicant’s entitlement to disability retirement." Jordan v. Office of Personnel Management, 77 M.S.P.R. 610, 614-17 (1998), recons. Denied, 86 M.S.P.R. 144 (2000); and Bynum v. OPM, DC-831E-00-0093-I-1 (June 29, 2001).

Similarly, cases such as Morton v. OPM, PH-844E-99-0224-I-1 (June 28, 2001) -- where, while the Board found that the Appellant was not entitled to disability retirement, went out of its way to clarify the fact that the Administrative Judge was “improperly influenced by" the original removal action, and that the original removal action should not have been considered in making the determination concerning disability retirement entitlement. Also, in Lewis v. OPM, CH-831E-98-0434-I-2, the Board stated unequivocally that the Board “will give effect to the terms of a settlement agreement between an applicant for disability retirement and her employing agency, in determining the applicant’s entitlement to disability retirement."

In other words, even if you were originally removed for misconduct, if your removal is later changed by a settlement agreement with the Agency, and you subsequently file for disability retirement, the Administrative Judge must keep a blind eye with respect to the original removal action. In the course of representing Federal and Postal Workers to obtain disability retirement benefits, I have always tried to emphasize the fact that, while it is each individual’s choice as to whether or not to hire an attorney, you should always proceed with the greatest tool available -- knowledge.

Disability Retirement is a benefit accorded to all Federal and Postal Employees under FERS and CSRS. However, as with all benefits, the right to it remains unclaimed unless one proves, by a preponderance of the evidence, that one is legally entitled to it. To prove your claim, you must go at it from a position of strength -- and this requires knowledge.

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