July 9, 2013
Robert R. McGill
A sentry who daydreams while on duty imagines himself awake in the midst of a fantasy, in danger of shooting himself in his foot because of the images of courage he would have, but for the monotony of the momentary lull of dawn’s quietude, as the princess whom he protects softly stirs in the comfort of satin bed sheets.
— A Greek Proverb
What is familiarly known among practitioners of Federal Disability Retirement Law as the “Bruner Presumption” is essentially a recognized legal advantage in a Federal Disability Retirement case.
For those Federal or Postal Disability Retirement applicants who intend to assert such a presumption, and who intend to rely upon the legal force of its persuasive authority, a word of caution: Act as if you don’t have it. While it may be well-established law that an employee’s removal for his or her medical inability to perform the essential functions of his job or position will invoke the legal trigger; and further, that such a removal constitutes prima facie evidence that the removed Federal employee is entitled to disability retirement as “a matter of law”; and, finally, 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); Marczewski v. Office of Personnel Management, 80 M.S.P.R. 343 (1998) ); nevertheless, one must always expect a wide chasm between what the law “says”, and what the practical application of the law “means”.
Thus, before a Federal or Postal employee considers relying upon the Bruner Presumption for his or her Federal Disability Retirement application, a careful analysis of the efficacy of such reliance upon the legal presumption should be scrutinized and cautiously analyzed. First, however, let us be clear. To borrow an oft-worn Shakespearean phrase: It is better to be, than not to be, just as it is better to have the Bruner Presumption than not. However, the problem of possession is that it will often lead to loss of vigilance — similar to the proverbial story regarding the underachiever of the young man who comes from wealth and social advantages. It is precisely because of the lull of the Bruner Presumption and what it portends, that caution must be exercised in the assertion of the Bruner Presumption.
To begin the analysis, we must first review the existent elements of the Bruner Presumption:
Required Element #1: A Federal or Postal Worker is removed, and the removal is based upon one’s medical inability to perform one or more of the essential elements of one’s job (in subsequent cases, of course, there has been an extension of the presumption, where 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). But for our present purposes, for this discussion, let us hypothesize a clearly-established removal by a Federal agency, of an employee, which indicates that it was because of the medical inability to perform one’s job that formed the foundational basis of the removal.
Leads to Element #2: Such a removal constitutes evidence which is prima facie (Latin for, “On the face of it”, or on a first appearance) and essentially referring to a fact which is presumed to be the case, unless it is otherwise disproven. Thus, in a Federal Disability Retirement case, the fact of an agency removal based upon a medical inability to perform one’s job leads to a legal presumption that one is entitled to disability retirement benefits unless otherwise disproven. On its face, then, there is a presumption that one is entitled to Federal Disability Retirement benefits when a person is removed for his or her medical inability to perform one or more of the essential elements of one’s job.
Results in Element #3: Because the Disability Retirement presumption of approval can be “disproved”, the burden of proving the negative logically shifts from the Federal or Postal employee, over to the entity which must disprove it: The U.S. Office of Personnel Management.
Now, as to each, let us perform the proper analysis and evaluation in order to arrive at an accurate assessment.
A. The medical removal. The spectrum of language can range from the obviously explicit, to the “questionable at best” range, and it is therefore incumbent upon the Federal or Postal employee to fight where necessary, and insist when appropriate, for the insertion of language which will increase one’s chances on a probability scale to enhance triggering the presumption. Thus, if a proposed removal states that the Federal or Postal Worker is being removed for his or her medical inability to perform the essential duties of the position, then there is little to wrangle over, precisely because such precision of language will unquestionably invoke and trigger the Bruner Presumption. On the other hand, if language merely implies that the removal is based upon one’s medical condition, there may be difficulties down the road — especially if one’s Federal Disability Retirement application is denied at the Initial Stage of the application, then again at the Reconsideration Stage at the U.S. Office of Personnel Management, and one is therefore forced to file an appeal to the U.S. Merit Systems Protection Board. There, you will be required to persuade and convince the Administrative Judge that the language contained in the obfuscated content of the removal letter leads to a reasonable inference that should trigger the Bruner Presumption. In the end, that which is explicit is obviously preferable to an implied administrative action. Additionally, it goes without saying that the decision to remove the Federal or Postal employee should be consistent with the language contained in the proposal of removal. A sleight of hand in a bait-and-switch scheme is not unheard of by Federal Agencies and the U.S. Postal Service.
B. Evidence which triggers a presumption would obviously be that factual basis which naturally results in the so-called Bruner Presumption. But what does all of that mean? What, in practical terms, does a presumption lead to, and if one has it, in what way does it result in being entitled to Federal Disability Retirement benefits from the U.S. Office of Personnel Management? First, the possession of certain elements will lead to a domino effect of subsequent triggers. Thus, once it has been established that one is in possession of a removal action from the Federal agency, and the removal action was based upon one’s medical inability to perform the essential elements of one’s job, then there is a “presumption” — i.e., an act of acceptance that it is true — that one is entitled to Federal Disability Retirement benefits “as a matter of law”. But be careful, here — for, the crucial point of reference will depend upon the establishment of what the “it” is, as in, when OPM or the MSPB Administrative Judge must accept that “it” is true, what is the “it” that we are referring to? Presumably, the “it” refers to the fact that the medical condition for which one has been removed is “true”. But if the medical condition and the provable documentation which supports the existence and impact of the medical condition are insufficient, then the fact that the agency has removed the Federal or Postal employee because of the medical condition may become neutered and irrelevant. The circularity of such a problem is the crux of the issue with the Bruner Presumption: It in no way lessens the burden of persuasion on the part of the Federal or Postal employee who has the Bruner Presumption to prove one’s case. Thus, whether one is removed for one’s Medical Inability to perform the essential elements of one’s job, or for some other reason, the Federal or Postal employee filing for Federal Disability Retirement benefits must still prove all of the tripartite elements which form the essence of a Federal Disability Retirement application: The existence of a medical condition; the impact upon one’s positional duties in the Federal job; and the nexus between the former and the latter.
C. What does it mean to state 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, once the Bruner Presumption is triggered? On a theoretical level, it would have the greatest meaning in the following hypothetical: OPM denies a Federal Disability Retirement application both at the Initial Stage and the Reconsideration Stage; the Federal or Postal employee files an appeal to the Merit Systems Protection Board; a hearing is held; the Administrative Judge declares and informs the parties that the Bruner Presumption applies; OPM offers nothing more — no argument, no testimony, nothing; the record is closed and the Administrative Judge makes a decision. Presumably, the Federal or Postal employee in such a hypothetical would win the case. But again, there is a built-in caveat — for it is also quite likely that the Administrative Judge will act sua sponte (yes, the ghost of William F. Buckley still lives, where we all like to drop Latin phrases to appear erudite and obnoxious) and review the medical evidence for sufficiency regardless of the Bruner Presumption.
As an aside, there is the further question of what it could actually mean for the burden of production to “shift” to OPM. Since OPM is not a medical facility, in practical terms this means that they engage in “proof by negative inference” — meaning, it is time to play hardball law. They will essentially attempt to undermine the credibility of the doctor through cross examination; question the integrity of the Federal or Postal employee by pointing out other work that the employee has been seen to engage in; show what Supervisors and coworkers have said about the employee; and other evidence which often have little or nothing to do with the medical condition itself. In short, the law allows that OPM can meet its burden of production by demonstrating a lack of objective medical evidence providing a reasoned explanation of how certain aspects of a particular condition render the employee unable to perform specific work requirements. Trevan v. Office of Personnel Management, 69 F.3d 520, 526-27 (Fed. Cir. 1995).
There is, additionally, a further step involving the Bruner Presumption. If OPM produces the rebuttable evidence through negative inferences, the appellant then must come forward with evidence to rebut OPM’s assertion that he or she is not entitled to Federal Disability Retirement benefits. We have thus a back-and-forth interplay: Presumption; rebuttal of the presumption; rebuttal of the rebuttal. The Board then considers the totality of the evidence in deciding the Federal Disability Retirement issue, including objective clinical findings, diagnoses and medical opinions, subjective evidence of pain and disability, evidence relating to the effect of the applicant’s condition on his or her ability to perform in the grade or class of position last occupied, and evidence that the applicant was not qualified for reassignment to a vacant position at the same grade or level as the position the Federal or Postal employee last occupied. (See, e.g., Booth v. Office of Personnel Management, 99 M.S.P.R. 13 (2005). Note the following, however: Notwithstanding the shifting burdens of production, however, the appellant retains the burden of persuasion at all times. Trevan, 69 F.3d at 527.
What does this all mean? For, what good is the legal presumption triggered by Bruner, if the burden of persuasion is always retained by the appellant? One would expect that a legal presumption which asserts that a Federal or Postal employee is entitled to Federal Disability Retirement benefits “as a matter of law”, would be a difficult one to overcome. However, just when you thought that the right hand giveth, the left hand seemingly taketh away. For, if the U.S. Office of Personnel Management can undermine a legal presumption — one which raises the entitlement of Federal Disability Retirement benefits as a “matter of law” — merely by conveying a series of negative inferences, then how valuable or effective can the presumption be in the first place? One way to look at it is as follows: The legal burden of proof is one of preponderance of the evidence — meaning that the Judge, after reviewing the evidence in its entirety, will find for the Federal or Postal Worker filing for Federal Disability Retirement benefits if it appears to be more likely than not. That burden of proof is a fairly low one. As such, in cases where the scale is nearly equally balanced, having the Bruner Presumption may well be enough to tip the scales of justice in favor of the Federal or Postal disability retirement applicant. How should one NOT view the Bruner Presumption? By relying upon it too severely, at the expense of submission of sufficient medical documentation. Thus, in the end, the Bruner Presumption should be viewed as a legal advantage utilized after one has prepared one’s Federal Disability Retirement packet in as thorough and complete a manner as if no such presumption existed. Then, upon completion of the Federal Disability Retirement packet, the added-advantage should be asserted.
Whether one is removed for one’s medical inability to perform the essential elements of one’s job or not, eligibility for Federal Disability Retirement benefits from the U.S. Office of Personnel Management should be established through careful and concise compilation of one’s case. The burden of proof must always be met by the applicant, and utilizing the narrow legal maneuver is merely one mechanism from a conglomerate of legal tools which should be utilized with care and discretion.
About the Author
Robert R. McGill is an attorney who specializes in federal disability retirement, a practice area he dedicates 100% of his time helping Federal and Postal workers secure their disability retirement benefits under both FERS and CSRS. For more information about his legal services, publications and forum, please visit his CSRS and FERS Disability Retirement Website.