Disability Retirement for Federal Employees and the "Bruner" Presumption

I thought it might be helpful to briefly address a less than well-known case in MSPB jurisprudence – the Bruner presumption. Bruner v. Office of Personnel Management, 996 F.2d 290 (Fed.Cir.1993).

Under Bruner, when a Federal employee is fired for  “medical inability to perform the essential functions of the job”, the Federal Employee is presumed to be eligible for disability retirement so long as they file a timely application to OPM.  This does not mean the federal employee’s disability retirement is automatically granted by OPM. Instead, it means that if OPM is going to deny disability retirement to the federal employee, the burden is on OPM to show that the federal employee is not eligible for that benefit.  This is unusual because the burden of proving entitlement for federal disability retirement benefits almost always falls on the federal employee.

1. How Can Bruner Help a Federal Employee?

Bruner is good fodder for settlement discussions with an Agency during an MSPB Appeal.  When a Federal employee is able to show that there is a connection between a medical condition they have and specific performance/conduct deficiencies, then the employee might be able to persuade the Agency to substitute an AWOL or other misconduct/performance removal with the “unable to perform the essential functions” removal.

This early action benefits the Agency – by settling the case pre-appeal (on grounds of removal that the employee will agree to), they save the time of litigation and the risk of having the employee reinstated.

This usually benefits the employee – if they truly cannot perform the essential functions of the job because of the medical condition, then the employee typically can secure disability retirement through OPM.  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.

2. How Can Bruner Not Help a Federal Employee?

The federal employee should be wary of Agencies that try to offer him or her some benefit in settlement that will “guarantee” their eligibility for disability retirement. Sometimes, however, the Bruner presumption doesn’t help the applicant.  In July 2008, for example, the MSPB issued a decision where the Bruner presumption was applied, but the MSPB still affirmed OPM’s denial of disability retirement.

In this particular case the federal employee was pro-se, and did not have an attorney or lawyer represent her in her disability retirement claim or appeal before OPM or the MSPB.  What bothered the MSPB Administrative Judge was that there was a lack of “objective medical evidence” showing that the federal employee's medical condition actually  impacted her ability to do the work she was assigned. There were some doctor’s notes, in the form generic statements that failed to  explain, in medical terms, how the condition prevents the federal employee from performing the essential functions of her job.

This happens with some frequency 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 the federal employee gives up their MSPB appeal, and the Agency has no future liability. The Judge is happy, because it’s one less decision to write.  The federal employee appears to be happy, because he or she has been told that they are almost guaranteed to get disability retirement.

OPM is the only one that may not be happy. This is because the Agency’s removal 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 OPM's authority to make payments from the disability retirement fund, and the federal employee is the one caught in the middle.

3. How to Use Bruner to Help Your Application for Federal Disability Retirement

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 provides – in the settlement agreement, preferably – to provide a supervisory statement in support of your application for disability retirement. In some situations, I will have the Agency attach that supervisory statement as “Exhibit A” to the settlement agreement.

Third, make sure that your doctor (or the medical evidence) clearly articulates why and how a given medical condition prevents the federal employee from rendering useful and efficient government service.  This is done by being sure that a treating doctor can - or has - reviewed the Federal Employee's position description and can (or has) explained how the particular medical condition prevents the federal employee from doing particular tasks in their job. It is helpful for the Federal Employee to take their position description to their doctor, and have the doctor explain that he or she reviewed the position description and based on that review, explains precisely what tasks the federal 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 MSPB can spot a Bruner problem a mile away. Agency attorneys, who come and go from the Agency, and who are frequently very recently licensed attorneys with little real experience, often don’t know how to properly advise you on whether and how the Bruner presumption might work in your situation.