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Generally, the answer to the above question is yes. However, the MSPB has laid out a test which will control whether or not a medical condition or illness can justify an untimely filed appeal.

The test is laid out in Lacy v. Dept. of Navy, 73 MSPR 434 (1998), and requires that an employee show three things:

(1) Identify the time period during which he suffered from the illness;

(2) submit medical evidence showing that he suffered from the alleged illness during that time period;

3) explain how the illness prevented him from timely filing his appeal or a request for an extension of time.

This is not as easy as it seems – the Board really wants the appellant to “connect the dots” so to speak. Medical evidence does not necessarily include medical documents, and may include corroborating evidence of an illness. However, the evidence should show the dates and durations of the illness. Also, while there is no requirement that the illness be incapacitating, there should be a good explanation for how the illness prevented the Appellant from filing or asking for more time.

If you would like to discuss whether your medical illness might be good cause for an untimely filed appeal, contact an MSPB Attorney today.

[Practice Note: The Lacy test may be subject to attack by an Agency: in a 2006 case, the Board found that the Lacy test only applied because the appellant in that case was not informed of the specific test for securing a waiver on the Board’s time limit on the basis of physical or mental illness.]

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Eric L. Pines is a nationally recognized federal employment lawyer, mediator, and attorney business coach. He represents federal employees and acts as in-house counsel for over fifty thousand federal employees through his work as a federal employee labor union representative.

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