Last Updated on June 10, 2009 by Federal Disability Lawyer
Like perennial plants, some issues continue to repeatedly crop up; once planted, they keep showing up in various question-forms. The one which needs to be addressed, again, is the “1-year” issue: there are actually two (2) questions which keep resurrecting themselves: A. Filing a disability retirement application within 1 year of separation from service, and B. A medical condition which must last for a minimum of one year.
As to the former: The statute of limitations begins to toll when a person has been officially separated from Federal Service. This means that the Agency must take you off of the Federal rolls. If you continue to receive a paycheck, you are likely not separated (unless, of course, it is some form of a severance paycheck); if you receive a paycheck with “0-balances”, you are still not likely separated. If you are injured and you haven’t worked for a year, but you have not received notification that you have been separated from Federal Service, the 1-year mark has likely not begun. On the other hand, if your SF-50 or PS Form 50 states that you are separated, then you are separated. At that point, you have one (1) year to file your Federal Disability Retirement application.
As to the latter (Issue “B” herein): In most cases, it is a prospective issue. It doesn’t mean that you must “have been” medically unable to work for a year; it doesn’t mean that you have to wait around for a year, out of work and penniless, for a year; it doesn’t mean that you must be on OWCP or on LWOP or on sick leave for a year — instead, it means that your medical condition must last for at least a year. In other words, as is the case with most medical conditions, after a couple of months, your doctor should have an opinion — a “prognosis” — of how long your medical condition which impacts your ability to perform the essential elements of your job, will likely last, within reasonable medical certainty. Indeed, since the Federal Disability Retirement process often takes from 8 – 10 months (from start to finish) to obtain an approval, by the end of the process, the full year will likely have occurred anyway. In other words, you don’t need to wait around for a year to show that you can’t perform the essential elements of your job; indeed, that would be foolish.
Robert R. McGill, Esquire