Often times, Agencies persuade employees to settle their removal appeal by agreeing to alter the removal grounds so that the employee is removed for medical inability to perform the functions of their job.
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In other situations, federal employees are advised that such a removal is almost a guaranteed basis for securing disability retirement. Generally, it is true that a Federal employee who is removed for medical inability to perform the functions of their job will have an easier time proving that they are entitled to disability retirement. Employees in this situation have the benefit of what is called the “Bruner presumption”.
The “Bruner presumption” is based on the Bruner case, and here’s how it works. Generally, an applicant for disability retirement (under FERS and CSRS) has the burden of proving the necessary elements by a “preponderance of the evidence”. However, when the employee is removed on “medical inability” type grounds, the burden of proof shifts – to OPM – to prove that the applicant is not entitled to disability retirement.
We tell our clients to be wary of Agencies that try to offer you some benefit in settlement that will “guarantee” your eligibility for disability retirement. We also tell our potential clients that, most times, the Bruner presumption favors the disability retirement applicant.
Sometimes, however, the Bruner presumption doesn’t help the applicant – in July 2008, however, the Board issued a decision where the Bruner presumption was applied, but still found in favor of OPM’s denial of disability retirement. (Note of caution: the Board decision was an intial decision of the Administrative Judge, and thus cannot be cited in briefs, and has no precedential value).
In this particular case (the applicant was pro-se, and did not have an attorney or lawyer represent her before the Board), what bothered the MSPB Administrative Judge was that there was a lack of “objective medical evidence” showing that the applicant’s medical condition actually had an impact on her ability to do the work she was assigned. There were some doctor’s notes, but they appear to be mostly generic statements that really didn’t explain, in medical terms, how the condition prevents the applicant from doing her work.
This is what happens quite often in removal-settlement scenarios, particularly when a medical condition is involved. The Agency agrees to replace the removal letter with a “removal for medical inability” type letter. They’re happy because you give up your appeal, and they have no liability in the future. The Judge is happy, because it’s one less case to hear and decision to write. You’re happy, because you’ve been told you’re almost guaranteed to get disability retirement.
Who’s not happy – OPM. Why? Because the Agency’s action is often not based on any real medical evidence or, in some situations, it is based on medical evidence but they don’t state that in their letter. OPM is concerned that the Agency is trying to encroach on their authority to make dispensations from the disability retirement fund, and the employee is the one caught in the middle.
How do you prevent this from happening? A few things can be done.
First, make sure that if an Agency agrees to remove you based on medical inability that they state the condition and the inabilities, and the doctor’s notes on which they relied on in the removal letter.
Second, make sure that the Agency agrees – in the settlement agreement – to provide a supervisory statement in support of your application for disability retirement. We often attach such a supervisory statement as “Exhibit A” to the settlement agreement.
Third, make sure that your doctor has observed a nexus between your medical condition and your inability to perform certain tasks, and that your doctor can articulate why your medical condition prevents you from rendering useful and efficient government service – in other words, can your doctor explain how your particular medical condition prevents you from doing particular tasks in your job. If your doctor cannot articulate this “nexus”, the Bruner presumption cannot help you. I have found it helpful to have clients take their position description to their doctor, and have the doctor explain exactly what tasks on that PD the employee cannot do because of the medical condition and why.
Fourth, always have an attorney or lawyer experienced before the Merit Systems Protection Board (MSPB) or with FERS or CSRS disability retirement claims look over any settlement agreement and/or disability retirement application.
Those of us that practice regularly before the Board can spot a problem a mile away. Agency attorneys, who come and go from the Agency, often don’t have sufficient know-how to properly advise you on whether and how the Bruner presumption might work in your situation.
No post on this website is legal advice, is meant to be legal advice, and certainly does not serve as a substitute for legal advice. Information is power, and we are providing this information to give you, the federal employee, with some power. This information is not widely or easily accessible to Federal Employees.
It is best to consult with a lawyer familiar with Merit Systems Protection Board (MSPB) appeals to discuss the facts and law of your particular case.If you believe that an OPM denial of disability retirement is improper, and would like to challenge the OPM decision on disability retirement to the MSPB, contact an MSPB attorney at the Law Office of Eric L. Pines, PLLC, to schedule a telephone consultation.