Board Remands Disability Retirement Case
In Hartsock-Shaw v. OPM, 2007 MSPB 222, Docket No. PH-844E-06-0658-I-1, September 21, 2007, the Board vacated the administrative judge’s (AJ) initial decision to uphold the Office of Personnel Management’s (OPM) denial of the appellant’s application for disability retirement benefits. The Board remanded the case for further proceedings for the AJ’s failure to apply the “Bruner presumption.” Bruner v. OPM, 996 F.2d 290 (Fed. Cir. 1993).
The appellant was a mail processing clerk for the U.S. Postal Service and suffered from major depression. Due to her depression and an abusive husband, appellant requested a reasonable accommodation of light-duty and only working daytime shifts. The Postal Service granted appellant’s reasonable accommodation from 1995 until February 1997. When the Postal Service discontinued the daylight-only schedule in 1997, the appellant stopped working. She has not worked since 1997. The Postal Service issued a PS Form 50 dated April 28, 2004, showing appellant was removed from service effective April 26, 2004. Unfortunately, the cause for removal was cut off on the form. As there was a question as to whether the appellant had been removed, the AJ stated that the Bruner presumption would not apply.
The Bruner case held that an employee’s removal for physical inability to perform the essential functions of her position constitutes prima facie evidence that she is entitled to disability retirement. Bruner, 966 F.2d at 294. The burden of production then shifts to OPM to produce evidence sufficient to support a finding that the applicant is not entitled to disability retirement benefits. If OPM produces such evidence, the applicant must then come forward with evidence to rebut OPM’s assertion that she is not entitled to benefits. The appellant argued that the approval of her Social Security disability benefits, the Postal Service’s requests for her to undergo fitness-for-duty examinations, and her contention that the Postal Service subsequently removed her for inability to perform the duties of her position warranted application of the Bruner presumption of disability.
The Board held that because the record below was incomplete as to whether the appellant was removed from her position, the case would be remanded for a hearing as to whether the Bruner presumption applies. This case illustrates the importance of using the Bruner presumption, where applicable, to enhance the chances for approval of an employee’s disability retirement application.
