Brunner Presumption - Medical Disability Retirement with OPM-FERS

What Is the Bruner Presumption?

Facing a potential adverse action due to a medical issue as a federal employee can be incredibly difficult and stressful. However, a powerful but often underutilized tool — the Bruner Presumption — can significantly strengthen your FERS disability retirement application if you understand the ins and outs of this tool in your disability application. 

Stemming from the 1993 Federal Circuit case Bruner v. OPM, this presumption kicks in when your agency takes an adverse action (like removal or termination) based on your medical inability to perform the essential functions of your job.

The Game-Changer: Burden Shifting

Normally, you carry the full burden of proving to OPM that you’re disabled and unable to do your job. But with the Bruner Presumption, your agency’s own action becomes prima facie evidence of disability. This shifts the burden from you proving your disability to the agency along with OPM must now produce their evidence to disprove your entitlement. It’s a major strategic advantage.

For more information click on the show's transcript...

For more information on this topic click on the show transcript...

The podcaster is Dr. Stephen Taylor, OWCP medical-legal consultant & DOL expert for Oberheiden Law Firm.  Dr. Taylor’s contact email information is:

fedcompconsultants@protonmail If you need a medical provider or assistance with an OWCP /  DOL claim in  Pensacola, Tampa or Jacksonville Florida you can make an appointment to see Dr. Taylor  at the clinic at  FWC Medical Centers or check out the webiste at fedcompconsultants.com To make a consultation with Dr. Taylor  call the clinic at 813-215-4356  in Florida.

For responses email Dr. Taylor at fedcompconsultants@protonmail.com

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Transcript

Welcome to Federal Workers Compensation Coffee Break Podcast. I’m Dr. Stephen Taylor a Federal Workers Compensation Consultant and a medical provider in Pensacola,  Tampa, Jacksonville & Florida and Daphne Alabama, who has been helping government employees with work-related injuries, disability, FERS Disability, VA disability and other types of Federal program filings for 31 years. I have assisted hospitals, clinics and doctors for over 25 years with being successful with OWCP. I have also worked with injured Federal Workers all over the country with properly filing their Federal Workers Compensation Claims and/or disability claims for about three decades. I  decided  to create a tutorial podcast to assist with the type of topics that have needed the most assistance over the years, related to injured federal workers and/or contractors as a resource for people who are looking for assistance with DOL-OWCP federal workers . The name of this tutorial podcast is  Federal Workers Compensation Coffee break Podcast. It is based on the lunch and learn short learning format.  Here at this podcast we discuss all sorts of topics related to federal workers compensation, Department of Labor, OWCP, FECA ACT, FERS, longshore-maritime, DOD contractors, VA benefits over a cup of coffee. 

Ok …so let's get our coffee going and dive into more information to assist with your OPM-FERS retirement disability application filing. Today we are talking about a not so well know bit of information that applies to federal employees and their retirement disability application called the  Bruner Presumption: 

This Brunner Presumption is a topic that can be a real lifeline for federal employees dealing with long-term medical issues: Medical Disability Retirement under FERS and the powerful Bruner Presumption.

If you’ve been injured on the job and are facing potential removal or separation, this episode could change how you approach your options. Grab your notepad and have the start to stop button handy to write down some of this information—we’re keeping it practical and actionable. Remember I wrote a book on this medical disability retirement application process that is available now for free in pdf form  on my website fedcompconsultants.com 

Ok let's review some topics on Medical Disability Retirement Basics. Remember there is a whole episode on medical disability retirement in a previous episode you can search and listen to that coincides with today's information. 

Ok… Federal disability retirement is a type of disability available only to eligible civil employees of the government as part of the OPM Federal Employment Retirement Services or commonly referred to as (FERS), that allows eligible employees to retire early when a medical condition prevents them from performing the useful and efficient service in their current position. Key requirements include:

At least 18 months of creditable federal service (FERS).

The disability must be expected to last at least one year.

Your agency must certify it cannot reasonably accommodate you in your current role or a vacant equivalent position in the same commuting area/grade.

This is different from OWCP wage-loss compensation — it’s a retirement benefit with its own rules, annuity calculations, and potential to continue health benefits while possibly working in the private sector.

What Is the Bruner Presumption?

Facing a potential adverse action due to a medical issue as a federal employee can be incredibly difficult and stressful. However, a powerful but often underutilized tool — the Bruner Presumption — can significantly strengthen your FERS disability retirement application if you understand the ins and outs of this tool in your disability application. 

Stemming from the 1993 Federal Circuit case Bruner v. OPM, this presumption kicks in when your agency takes an adverse action (like removal or termination) based on your medical inability to perform the essential functions of your job.

The Game-Changer: Burden Shifting

Normally, you carry the full burden of proving to OPM that you’re disabled and unable to do your job. But with the Bruner Presumption, your agency’s own action becomes prima facie evidence of disability. This shifts the burden from you proving your disability to the agency along with OPM must now produce their evidence to disprove your entitlement. It’s a major strategic advantage.

 Important Realities and Misconceptions

Here’s a critical point that even some HR specialists miss: The Bruner Presumption is not a guarantee of approval.

It gives you a strong head start by establishing a valid case on its face, but OPM can still deny the application if they present sufficient contrary evidence — such as medical records suggesting recovery or the ability to perform duties in another suitable position. Strong, well-documented medical evidence from your treating providers remains essential: clear diagnoses, work restrictions, expected duration, and the direct link to your position description are required for success. 

Agencies are generally required to exhaust the reasonable accommodation process (including potential reassignment) before removing someone for medical inability. Remember in our previous episodes on this topic and in my book, we cover how important it is to exhaust all the types of accommodations, modified duties, off work and FMLA along with reasonable accommodations. A history of these type of requests needs to be established by you and your doctor, in order for your disability application to be considered with any reasonable success.

Looking Ahead (Early 2026 Context):

With evolving guidance on reasonable accommodations, we have seen in this current political climate of being more budget conscious, that we  see more pushback from agencies reviewing or revoking telework/remote arrangements and forcing people back to the office despite their reasonable accommodations from their doctor. This has led me to seeing more and more increased separation attempts and, in turn, a wave of FERS disability retirement applications where the Bruner Presumption may play a key role. As a matter of fact  I have noticed that FERS medical disability applications are taking an enormously longer amount of time to process now …versus the last couple of decades. 

Let's discuss this context with a broader Application – Not Just “Medical Removal”

The presumption isn’t limited to removals explicitly labeled “for medical inability.” Courts and the MSPB have applied it more broadly when the underlying reason is medical. MSPB stands for the Merit Systems Protection Board.

It is an independent federal agency that serves as the guardian of the federal merit-based civil service system. In the context of the Bruner Presumption and federal disability retirement episodes, the MSPB is the administrative body that hears appeals when the Office of Personnel Management (OPM) denies a federal employee’s application for disability retirement (FERS or CSRS).

MSPB's Role in Disability Retirement: If OPM denies your FERS disability retirement application, you can appeal that decision to the MSPB. The MSPB reviews the evidence, applies legal precedents like Bruner v. OPM, and can overturn OPM’s decision.

Why It Matters: This is where the Bruner Presumption is often litigated and applied. The MSPB has issued many decisions expanding or clarifying when the presumption applies (e.g., in medical removal cases, AWOL situations tied to disability, etc.).

For example, in cases of extended absences or AWOL charges, the Bruner Presumption can still apply if you can show the absences stemmed directly from your physical or medical inability to perform your duties. As seen in cases like McCurdy v. OPM, when medical documentation clearly drove the agency’s decision, removal for absences can be treated as equivalent to removal for inability to perform.

If your situation involves medical-related performance or attendance issues, carefully review the specifics of your separation paperwork — it may qualify.

Ok… how about we try out 3 examples of when the Brunner Presumption could be applied to your disability application.

Here are three concise, realistic paragraph examples…eEach one illustrates a situation where the Bruner Presumption would strongly apply:

Example 1: Direct Medical Removal

A long-time federal employee with an accepted work-related back injury experiences chronic pain and mobility limitations that prevent them from performing the essential physical duties of their position. After attempting reasonable accommodations, the agency issues a removal action specifically citing the employee’s “medical inability to perform the essential functions of the position.” The employee then applies for FERS disability retirement. Because the removal was based on medical inability, the Bruner Presumption applies, shifting the burden to OPM to prove the employee is not disabled.

Example 2: Extended Medical Absences Leading to Removal

A postal worker develops severe PTSD following a traumatic workplace incident. The condition causes frequent panic attacks and prevents consistent attendance despite ongoing treatment. The agency eventually removes the employee for excessive absences (AWOL charges), but the underlying documentation and communications clearly reference the medical condition and inability to maintain a regular work schedule. When the employee files for FERS disability retirement, the Bruner Presumption can apply because the removal was effectively driven by the medical inability to perform the duties of the position.

Example 3: Performance-Based Action Rooted in Medical Condition

A federal administrative specialist with a progressive neurological condition (accepted under FECA) begins missing deadlines and making errors due to cognitive impairments and fatigue. The agency initiates performance-based removal proceedings. Medical documentation submitted during the process demonstrates that the performance deficiencies stem directly from the service-connected medical condition. Upon separation, the employee applies for FERS disability retirement. The Bruner Presumption is triggered because the agency’s action was fundamentally based on the employee’s medical inability to perform useful and efficient service.

I see these type of actions attempted lately in the current climate of government. 

Now… here are some of what your should understand from this episode as a  useful tool for practical takeaways & advice

Document everything — especially the medical basis for any agency actions.

Work closely with your physicians to build robust narrative reports tied to your official position description. If your doctor cannot do these type of reports our office does them. So, I am always your backup if you need someone to provide a detailed medical disability narrative report. 

Also, consider consulting a federal employment attorney or qualified federal consultant advisor early — coordination between OWCP claims and OPM retirement can be complex. There are many good one's out there on the internet. 

Financial planning tip: Disability retirement annuities are often lower than regular retirement, so understand the numbers and explore supplemental income options because federal medical disability with FERS gives you flexibility by working in the private sector with your disability that can be a good thing. But, this type of disability does not pay very well by itself. Remember I did a financial breakdown of the MDR payouts on episode 25 of this podcast…for more information you can listen to that episode. 

Final Thoughts:

The Bruner Presumption can turn a challenging situation into a stronger position, but success still depends on solid medical evidence and timely action. Don’t navigate this alone if you’re in this position.

Remember, this isn’t medical or legal advice—I’m not your doc or lawyer—but I try to be your roadmap to fight for fair comp or disability results. 

Thanks for joining me on this coffee break. If you found this helpful, like, subscribe, or share with a fellow federal worker, and drop any questions in the comments or on our site. if  you have benefitted  from this information please leave a 5 star review on the platform you found this podcast, so others will also find this information online. 

Ok… I think that is enough for today…I need to warm up this coffee and get going. So,  I want to thank you for listening and want to remind you to share this podcast with other federal workers, Also, if you need an approved  medical provider for your DOL -OWCP Or Longshore case in Florida you can still  find me in Tampa, Jacksonville  and Pensacola. To make a consultation with me to discuss your case or if you know someone if Florida who is recently injured you can call the clinic at 813-215-4356  or go  to our website at https://fedcompconsultants.com/   & fwcmedicalcenters.net  Also if you are in  another state and you want me to assist you with claim questions or assistance for your  doctor you can email me at fedcompconsultants@protonmail.com 

As usual I want to thank all of you who put on that uniform, that badge, deliver that mail, take care of our veterans and make this government run… a big thank you. I do this for free just for you…We could not do this  without all of the work all of you out there do…so this is my big  thank you. And remember if you  have an injured federal claim and you need assistance….I am  here to help!.

See you next time. Everyone stay blessed, pray for our soldiers and our nation to heal and for peace in war time and we will see you soon  with for another cup of coffee discussion on  Federal Workers Comp Coffee Break podcast. 

Off to get my coffee!