Posted: 1/17/2007 - GETTING FIRED CAN BE A BLESSING

Summary:

Your Chance Of Winning Disability Retirement Can Be Dramatically Increased If You Are Fired By Your Agency Because Your Medical Condition Prevents You From Performing One Or More Of Your Job Duties.

By Harvey Friedman, Attorney at Law, Washington, D.C.

It may or may not surprise you, but a Federal employee can be fired, if prevented by a medical condition from performing even one critical job element and accommodation or reassignment is not in the cards.

We usually think of being fired as the worse thing. In fact, for Federal employees seeing OPM disability retirement, being fired for a medical inability to perform, can be a blessing in disguise.

Under a Federal court case, Bruner v. OPM, 996 F.2d 290 (1993), if you are fired for your inability to perform even one of your critical elements, as a result of your medical condition, you have a far better chance of winning disability retirement, then had you not been fired at all, been fired for cause or had you resigned to avoid being fired.

This is called the Bruner Presumption.

The Bruner case, and the many others that define it, are complex. They talk in terms of "allocation of the burdens of production and persuasion," "shifting burdens of proof," etc.

Let your lawyer worry about those technicalities. What is important to you is the potential result.

Here is a snapshot of how the Bruner Presumption works:

Applicants for disability retirement always have the burden of proving to OPM that they are entitled to disability retirement.

However, (although more complex then this), when an employee is fired for a disabling medical condition, the burden of proof switches.

One minute you have the job of proving to OPM that are disabled. The next minute, OPM has the job of proving that you are not disabled.

This may sound like a like a lot of legal mumbo-jumbo, but its practical effect on winning can be profound.

But beware! The Bruner Presumption is not magic. It does not guarantee that you will win, since OPM may be able to rebut or override the Presumption.

Also, it does not work in circumstances where you might think it would. For instance, if you are fired for AWOL, even though you were AWOL because of your medical condition, you will not get the benefit of the Bruner Presumption.

The law, meaning the U.S. Code (Statutes) and the Code of Federal Regulations (CFR), never mention the Bruner Presumption. They are not trying to hide it. It is just not a product of those statutes or regulations.

The Bruner Presumption is a product of case law. Once something is buried in a case, forget it, unless you know how to do legal research to find it.

I have not found a whisper about the Bruner Presumption on OPM's website, despite its vital importance to disability retirement applicants.

Most Federal employees have never heard of it since it is not in the law, not on OPM's website and buried in cases that are near impossible for non-lawyers to find,

I recently found, in talking to one OPM employee, who was about to make a decision in one of my cases that he had never even heard of the Bruner Presumption. Scary!

Just as scary, is that many OPM decision-makers, who do know about it, simply ignore it.

When you file for disability retirement and are entitled to the Bruner Presumption, make lots of noise about your right to it. Write it in huge letters at the top of your transmittal letter to OPM. They still might not hear you, but give it a try.

Some clients seeking disability retirement, who are about to be or already have been medically fired, want me to stop or overturn the medical firing. Bad idea! Let it happen. Use it to your advantage.

Some clients worry that their employment record will show that they were fired, when perhaps they can simply resign. Stop worrying. The record of a government employee who is fired for any reason and who later wins disability retirement, shows up as a disability separation and not as a firing.

Go for it! Take advantage of this very valuable right.



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