Last Updated on May 16, 2008
If an individual is successful in persuading the Agency to remove him or her for his/her medical inability to perform the job, then the entitlement to what is coined as the “Bruner Presumption” is obtained. This is a great advantage, but one which is often misunderstood.
Remember that, under Bruner v. Office of Personnel Management, 996 F.2d 290 (Fed. Cir. 1993), when an individual is accorded the Bruner Presumption because of being removed for one’s medical inability to perform one’s job, this merely means that the “burden of production” shifts to the Office of Personnel Management, who must disprove your entitlement to disability retirement. However, the initial burden of proving by a preponderance of the evidence must still be met: i.e., one must still submit sufficient medical evidence to show that one was or is unable to perform the essential elements of one’s job.
This point should be obvious: for the Agency itself would never have separated an individual unless there was medical evidence to show that the individual could no longer perform the job. Thus, the very medical evidence which supported and justified the Agency’s action, is the same medical evidence which can be used to meet the initial burden of proof with OPM. The key is that, after this burden is met, then OPM has the harder burden of disproving that which the applicant has met. This is the great advantage of the Bruner Presumption.
Sincerely,
Robert R. McGill, Esquire