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.
Robert R. McGill, Esquire