[00:00:00] Speaker 03:
This morning is Murphy v. McDonough, case number 23-1572.

[00:00:50] Speaker 04:
Thank you.

[00:00:54] Speaker 03:
We're done with our photo now.

[00:00:57] Speaker 03:
We had to get a photo since we have Judge Checkie with us.

[00:01:00] Speaker 03:
Thank you.

[00:01:01] Speaker 03:
This is a big occasion.

[00:01:04] Speaker 03:
So our next case, as I said, was Murphy v. McDonough, case number 23-1572.

[00:01:08] Speaker 03:
Mr. Raven, whenever you're ready, please proceed.

[00:01:20] Speaker 01:
Good morning, please, the court.

[00:01:23] Speaker 01:
This case is about a very strange question.

[00:01:27] Speaker 01:
What do you call employment in which the employer doesn't pay any wages and the employee doesn't do any work?

[00:01:36] Speaker 01:
Is that earned income if the veteran in this case is actually receiving workers' compensation?

[00:01:44] Speaker 01:
Workers' compensation under section 4.16a is not income.

[00:01:49] Speaker 01:
It is a benefit.

[00:01:50] Speaker 01:
It is similar to social security.

[00:01:52] Speaker 01:
It is not marginal employment.

[00:01:54] Speaker 01:
It is not protected employment.

[00:01:55] Speaker 01:
It's not really employment.

[00:01:57] Speaker 01:
A person is employed for the purposes of being on the book in order to get workers' compensation.

[00:02:03] Speaker 02:
Is it your argument that receipt of workers' compensation necessarily implies the veteran is not substantially and gainfully employed?

[00:02:11] Speaker 01:
My argument is that receipt of workers' compensation demonstrates that a veteran is not receiving income.

[00:02:19] Speaker 01:
They're not substantially, gainfully employed.

[00:02:22] Speaker 01:
38 CFR 4.16 uses the phrase earned annual income to describe marginal employment.

[00:02:29] Speaker 01:
But there is no income.

[00:02:30] Speaker 01:
There is no earned income.

[00:02:31] Speaker 01:
Let me correct that, because that's the dispute between the secretary and myself.

[00:02:38] Speaker 01:
Workers' compensation, social security, investments, they're all income.

[00:02:43] Speaker 01:
So are wages.

[00:02:44] Speaker 01:
That's income.

[00:02:44] Speaker 01:
That's what you use to figure out whether a person is living in poverty, whether they're above the poverty threshold.

[00:02:52] Speaker 01:
But for the purposes of determining whether or not someone is eligible for a total disability rating based on individual unemployability, workers' compensation is not income.

[00:03:05] Speaker 01:
So this is the tough question.

[00:03:07] Speaker 01:
Someone who's employed but hasn't worked for years and receiving workers' compensation wants to file a claim for a total disability benefit based on not having a substantially gainful employment.

[00:03:21] Speaker 01:
But they're receiving a benefit from the government, like workers' compensation or Social Security.

[00:03:26] Speaker 01:
Workers' compensation is not taxed.

[00:03:28] Speaker 01:
It doesn't pay any payroll taxes.

[00:03:30] Speaker 01:
There's no federal tax for workers' compensation.

[00:03:32] Speaker 01:
It is not the same as a person's wage.

[00:03:35] Speaker 01:
It is often much less than a person's wage.

[00:03:39] Speaker 01:
And this is why Mr. Murphy filed his claim for a total disability rating based on individual employability because he could not live off of what he was paid by the federal government for workers' compensation.

[00:03:50] Speaker 04:
In terms of your position, do you have any specific case law that you'd like to cite to?

[00:03:55] Speaker 01:
For what for what for in terms of income and how you address it these would be gainful employment And more specifically his workers compensation benefits, so there is no case that I found on point describing Or defining earned annual income or whether or not workers compensation is accounted as earned income

[00:04:17] Speaker 01:
But workers' compensation is not earned.

[00:04:19] Speaker 01:
So to go to your question, there is no case that says that workers' compensation is income.

[00:04:26] Speaker 01:
Further, the secretary could not find any case that says that workers' compensation is earned income.

[00:04:32] Speaker 01:
There's a distinction.

[00:04:33] Speaker 01:
We always get confused here.

[00:04:35] Speaker 01:
Workers' compensation is income.

[00:04:36] Speaker 02:
So can you also address the threshold question of whether or not we have jurisdiction with respect to this appeal?

[00:04:41] Speaker 03:
And specifically, I'm just going to add on the jurisdiction.

[00:04:44] Speaker 03:
The finding appears to be a finding on page JA25 by the board that there's no indication the veteran was being paid workers' compensation in 1994 or 1995.

[00:04:55] Speaker 03:
That seems like a fact finding that we can't review.

[00:05:03] Speaker 03:
Sure.

[00:05:05] Speaker 03:
Sure.

[00:05:05] Speaker 03:
It's hard to get to your legal issue if that fact finding exists.

[00:05:09] Speaker 01:
Right.

[00:05:09] Speaker 01:
In order to reach that finding of fact, the board relied upon, actually ignored, a principle of law about whether or not the documents from OPM and the US Postal Service demonstrated that Mr. Murphy was not working.

[00:05:25] Speaker 01:
He was employed but not working.

[00:05:27] Speaker 01:
And because the board found that the letters from OPM

[00:05:32] Speaker 01:
the Office of Personnel Management and the letters from the US Postal Service, which are in the appendix, indicate that he was not working and that he was receiving workers' compensation.

[00:05:44] Speaker 04:
Also, but didn't he say in his application in January of 1995 that he was then employed and he had earned $22,000?

[00:05:57] Speaker 01:
So Mr. Murphy is not necessarily an attorney.

[00:06:02] Speaker 01:
But in his application in the Joint Appendix, he did indicate that he was employed, which was correct.

[00:06:08] Speaker 01:
He was employed.

[00:06:09] Speaker 01:
But when it asked for what he was working, he put down what he was receiving from workers' compensation.

[00:06:15] Speaker 01:
Because as is true from OPM, OPM indicated that he last worked in 1992.

[00:06:21] Speaker 01:
He didn't understand that.

[00:06:23] Speaker 01:
If you look at that initial application, he writes in that for lost time for work, I've lost three years, the last three years of work.

[00:06:33] Speaker 01:
So that doesn't square.

[00:06:34] Speaker 03:
This is such a fact finding.

[00:06:37] Speaker 03:
And our court cannot.

[00:06:39] Speaker 03:
We are limited in our jurisdiction here.

[00:06:42] Speaker 03:
And we are not able.

[00:06:43] Speaker 03:
It's an odd area of jurisdiction that we have, right?

[00:06:46] Speaker 03:
But we cannot review fact findings, and we cannot review application of law to fact.

[00:06:52] Speaker 03:
And so I just can't understand how this is not a fact question.

[00:06:56] Speaker 01:
Because the question is a legal question.

[00:07:01] Speaker 01:
It's whether or not.

[00:07:02] Speaker 01:
Which question are you saying?

[00:07:03] Speaker 03:
The question is whether he received workers' compensation.

[00:07:06] Speaker 01:
Well, no, the question is whether or not workers' compensation.

[00:07:09] Speaker 01:
Well, there are two questions.

[00:07:10] Speaker 01:
Well, one, whether or not there is a presumption of regularity that attaches to government documents.

[00:07:15] Speaker 01:
For example, the board received letters from OPM and the post office saying that he stopped working.

[00:07:23] Speaker 03:
Did they say that those documents were irregular or were not entitled to a presumption?

[00:07:29] Speaker 01:
No, they didn't, but they disregarded them.

[00:07:32] Speaker 01:
They found that they were rebutted by the veterans' applications.

[00:07:36] Speaker 04:
How is that not a factual analysis?

[00:07:40] Speaker 01:
Because they're ignoring the rule of law that it's entitled to presumption of regularity.

[00:07:46] Speaker 04:
I don't think anyone said that it's not an authentic document.

[00:07:51] Speaker 04:
I think they weighed the evidence before them.

[00:07:55] Speaker 04:
Right.

[00:07:55] Speaker 04:
So how would that not be a factual analysis or review?

[00:08:00] Speaker 01:
I would just point out, I think that once the presumption of regularity attaches, it's not necessarily the application.

[00:08:08] Speaker 01:
It's just that they never accorded the evidence with the deference that's supposed to be accorded.

[00:08:16] Speaker 03:
I think you want to have a certain weight.

[00:08:19] Speaker 03:
And I understand that.

[00:08:20] Speaker 03:
But I don't think the presumption of regularity tells you how much weight to give the document.

[00:08:26] Speaker 03:
It just tells you that it's a proper, authentic document.

[00:08:30] Speaker 01:
But if you were to consider the absence of that document, for example, if they had written to OPM and they had asked, what is the nature of Mr. Murphy's employment?

[00:08:43] Speaker 01:
And they had written back, here's an example of he's been employed.

[00:08:48] Speaker 01:
There's no evidence he's received workers' compensation.

[00:08:51] Speaker 01:
The absence of receiving workers' compensation would be evidence that he never received compensation.

[00:08:57] Speaker 01:
Well, I mean workers' compensation.

[00:08:59] Speaker 03:
But you would be arguing in front of us.

[00:09:01] Speaker 03:
There is no substantial evidence to support the fact finding that he did not receive workers' compensation.

[00:09:08] Speaker 03:
That's what your argument really is, right?

[00:09:12] Speaker 03:
But that's something that we as a court don't have jurisdiction to review.

[00:09:18] Speaker 01:
Well, I would respectfully disagree.

[00:09:20] Speaker 01:
I think that the issues are entitlement, whether or not workers' compensation is income for purposes of 4.16, and whether or not there's a presumption of legality when VA receives documents from OPM.

[00:09:36] Speaker 01:
Thank you.

[00:09:55] Speaker 00:
Good morning.

[00:09:55] Speaker 00:
May it please the court.

[00:09:57] Speaker 00:
I believe the court's seen right what this case is really about and has directed us to appendix page 25, which is exactly where we were planning to start this whole case.

[00:10:05] Speaker 00:
This whole case, while it has been positioned by the appellant as a legal question,

[00:10:10] Speaker 00:
as to whether or not workers' compensation counts as income and whether or not a presumption of regularity was interpreted correctly, those decisions were not made by the courts below.

[00:10:19] Speaker 00:
Instead, as we see on Appendix 25, the decision was a factual one.

[00:10:24] Speaker 00:
There was no evidence that he was receiving, and that they say retirement benefits or workers' compensation.

[00:10:30] Speaker 00:
Because that is a factual determination as to whether or not workers' compensation is even an issue in this case,

[00:10:36] Speaker 00:
The board, the Veterans Court, never properly got to the issue of what is workers' compensation when it comes to earned annual income under 4.16.

[00:10:46] Speaker 00:
They found that the records from the Veterans Court do not indicate that income in 1994 or 1995 would have been such, meaning workers' compensation.

[00:10:56] Speaker 00:
Now, on appeal to the Veterans Court, Mr. Murphy raised these arguments, arguing about workers' compensation and whether or not it is income.

[00:11:03] Speaker 00:
And the Veterans Court, in Appendix 4, finds that even if they had found this issue, it's not clear what workers' compensation would be considered.

[00:11:12] Speaker 00:
But just because the Veterans Court notes this, that's not the decision.

[00:11:17] Speaker 00:
The Veterans Court then goes on to say, the question is whether there was clear error in the factual determinations.

[00:11:23] Speaker 00:
They found no clear error.

[00:11:24] Speaker 00:
They found no proper argument of clear error.

[00:11:26] Speaker 00:
And so therefore, they found applying law to fact that there was no reason to reverse, remand, or otherwise correct the board's factual determinations.

[00:11:36] Speaker 00:
Based on this, this court lacks jurisdiction over this case.

[00:11:39] Speaker 00:
This is simply a case of factual issues.

[00:11:41] Speaker 00:
Was he receiving workers' compensation?

[00:11:43] Speaker 00:
The board found no.

[00:11:44] Speaker 00:
A publication of law to fact.

[00:11:47] Speaker 00:
Did the board err in that determination, applying the law as it fits to how to look at factual questions for the clear error standard?

[00:11:53] Speaker 00:
And again, the Veterans Court found no.

[00:11:55] Speaker 00:
While Mr. Murphy also argues that there was, and is on page four of his brief, the Veterans Court holding that records and responses from the Postal Service and OPM were not entitled to presumption of regularity, as this Court just noted, that language does not appear in the Veterans Court decision.

[00:12:10] Speaker 00:
That language does not appear in the Board's decision.

[00:12:12] Speaker 00:
There is no holding regarding the presumption of regularity.

[00:12:17] Speaker 00:
Even if there was, Mr Murphy presents no arguments regarding whether or not the presumption of regularity should apply to the other records that the board considered in its factual determination.

[00:12:27] Speaker 00:
It did have an OPM record, which as a government record is entitled to presumption of regularity.

[00:12:31] Speaker 00:
We don't dispute that.

[00:12:34] Speaker 00:
But they also had letters from the Post Office stating that Mr Murphy was still working up to the date that the board found he was still working.

[00:12:41] Speaker 00:
That letter is also a government record.

[00:12:42] Speaker 00:
That letter is also entitled to presumption of regularity and it's up to the finder of fact

[00:12:46] Speaker 00:
In this case, the board, to determine how to weigh the evidence.

[00:12:50] Speaker 00:
And as the court noted, the weighing of evidence is a factual determination, a factual determination that is beyond the support of limited jurisdiction.

[00:13:00] Speaker 00:
Lessons?

[00:13:00] Speaker 02:
I was going to say, to sum up, it sounds like often you all will say, dismiss for lack of jurisdiction or affirm.

[00:13:06] Speaker 02:
But I feel like you're all in on dismiss for lack of jurisdiction.

[00:13:09] Speaker 02:
Is that fair?

[00:13:09] Speaker 00:
We start jurisdiction always in these cases.

[00:13:11] Speaker 00:
So I think that this court should be a dismissal.

[00:13:14] Speaker 00:
If this court decides to go beyond the jurisdictional issue, there is no evidence of error at all by the Veterans Court.

[00:13:20] Speaker 00:
In that case, an affirmation would also be appropriate in this case.

[00:13:24] Speaker 00:
But this court, as it noted, has a very specific jurisdiction.

[00:13:28] Speaker 00:
There's a reason Congress limited that jurisdiction.

[00:13:31] Speaker 00:
And when we get to a jurisdictional question, we don't get to the actual merits of the case.

[00:13:35] Speaker 00:
We stop right there.

[00:13:35] Speaker 00:
So we do believe dismissal is appropriate.

[00:13:38] Speaker 00:
But as we argued in our brief, even if it wasn't, there is no evidence that earned annual income should be read to only

[00:13:44] Speaker 00:
include regular wages.

[00:13:47] Speaker 00:
The argument that it should be somehow limited does not appear in the language of 4.16.

[00:13:51] Speaker 00:
It would read language in that has not been put there.

[00:13:55] Speaker 00:
And it doesn't explain how the VA should determine difference between income that's received as wages versus vacation pay, sick leave, family leave, workers' compensation.

[00:14:08] Speaker 00:
How are these not earned incomes and benefit a money paid by an employer?

[00:14:14] Speaker 04:
And I believe your adversary in his papers had a phrase in there, living wage.

[00:14:18] Speaker 04:
Do you have any response to that?

[00:14:20] Speaker 00:
I don't know where that language comes from with the first response.

[00:14:22] Speaker 00:
We don't see that language in the actual regulation.

[00:14:26] Speaker 00:
We don't see the language in any jurisprudence regarding this issue.

[00:14:29] Speaker 00:
And there doesn't seem to be much on that issue.

[00:14:31] Speaker 00:
We don't say that there is some case out there that decides this.

[00:14:35] Speaker 00:
But the living wage is.

[00:14:37] Speaker 00:
I don't know where that comes from.

[00:14:38] Speaker 00:
Instead, we, and I'll put this in our brief, have tried to find situations where there's similar language that this court can rely on to sort of look at the plain language standard.

[00:14:48] Speaker 00:
One of those we point to is not exactly a perfect-ish match, but under 28 USC Section 32, earned income, close to earned annual income.

[00:14:58] Speaker 00:
We're not claiming it's the exact same language, but earned income.

[00:15:02] Speaker 00:
is defined under that statue as wages, salaries, tips, and other employee compensation.

[00:15:10] Speaker 00:
We think that language is illustrative.

[00:15:13] Speaker 00:
Black's law dictionary also defines earned income and unearned income differently.

[00:15:17] Speaker 00:
Unearned income is income from investments, income that's not received from a job, whereas earned income is defined as money derived from one's own labor or active participation.

[00:15:31] Speaker 00:
We say workers' conversation fits that definition as well.

[00:15:34] Speaker 00:
So we have not seen any evidence, especially under plain language, which is always that we start with interpretation of regulation, that earned annual income should somehow have a limitation applied to it that doesn't appear in the regulation.

[00:15:45] Speaker 00:
Instead, we think the court should look at it and consider the fact that the regulation specifically says this is a factual inquiry.

[00:15:52] Speaker 00:
Marginal employment, the question as to whether earned annual income is above the poverty level or there's some sort of marginal employment, is a factual inquiry.

[00:15:59] Speaker 00:
So rather than saying,

[00:16:01] Speaker 00:
as a regulation, workers' compensation, you're definitely in, or without workers' compensation, you're definitely out, which would be a problem for many veterans who may not receive workers' compensation, but may still be entitled to TDIU.

[00:16:13] Speaker 00:
We think that actually left to the board, to the RO, to the VA, to fulfill its obligations to do a factual inquiry when determining marginal employment.

[00:16:25] Speaker 00:
Mr. Gose, any further questions?

[00:16:28] Speaker 00:
We also need to dismiss for lack of jurisdiction or otherwise affirmed.

[00:16:31] Speaker 03:
Thank you.

[00:16:31] Speaker 03:
Thank you.

[00:16:33] Speaker 03:
Mr. Raven?

[00:16:37] Speaker 01:
Section 4.16A, 38 CFR.

[00:16:40] Speaker 01:
For purposes of this section, marginal employment generally shall be deemed to exist when a veteran's earned annual income does not exceed the amount established by the US Department of Commerce through the census as the poverty threshold for one person.

[00:16:53] Speaker 01:
Earned annual income.

[00:16:55] Speaker 01:
Compensation is not earned.

[00:16:57] Speaker 01:
It's to compensate for not earning.

[00:17:00] Speaker 01:
And I realize that this court is focused on the jurisdictional aspect.

[00:17:05] Speaker 01:
But the issue that the veteran would like to present is that workers' compensation is not earned income for the purposes of determining eligibility for entitlement to TDIU.

[00:17:21] Speaker 01:
Any questions?

[00:17:21] Speaker 01:
Thank you.

[00:17:22] Speaker 03:
Thank you.

[00:17:23] Speaker 03:
The case will be submitted on the briefs.

[00:17:25] Speaker 03:
We thank both counsels for their briefing and argument.