Legal Case Summary

Today and that is Leskowski versus United States. Good morning, Your Honourous Minute. Please the Court. My name is Dara Smith and I represent the United States. With the course of permission I'd like to serve three minutes for a battle. Thank you, Your Honourous. In a tort action against the United States, the government is not required to compensate a plaintiff twice for the same injury. The District Court violated this rule against double recovery when it refused to offset the damages award by the amount of Mr. Leskowski's future veterans disability benefits, which were awarded for the same injury that forms the basis of this tort action. This aspect of the District Court's decision should be reversed. Let me ask you for what I characterize as an update in the appendix specifically at page 223. There's a suggestion or a copy of a notice that is actually to Mr

. Leskowski that the VA believes his condition could improve a worsening in the future and it was to schedule an examination for him. Is that examination taken place? Yes, Your Honourous. That examination has taken place and there's been a review. So it takes a little bit of explaining to say what happened. The basic conclusion is that his benefits have remained the same. Essentially, he's now 100% disabled, whereas he was partially disabled with a finding of individual unemployability before. So now he is rated as 100% disabled, which means that he continues to get the 100% rate. Thank you. Let me go to something that really hasn't been spoken to. I don't believe in either side's briefing. Nor was it really addressed by the District Court

. I've wrestled with this in this case from the start. I know that it is your position that Judge Monley earned. I'm sure also that both sides agree that he correctly stated that this is not a situation where we could apply the collateral source. So he's writing that respect. But if he earned, was his error legal in nature, or was it factual in nature? I ask that because ultimately it seems what he was saying or speculating is that there is some probability that these benefits will be discontinued or altered in some way. And yet there are no factual predicates in the record that I was able to see that would support that if it's a finding effect. Your Honor, we believe it's a question of law. And the legal issue is whether when someone has been awarded disability benefits and they're currently entitled to them, whether a future offset is required. I didn't think Judge Monley disagreed with that legal principle. I thought he understood that a set off is required. The question is how do you measure what the set off is going to be? Isn't that a factual determination? Isn't that where the fact finders best judgment comes into play in terms of deciding what's that amount? That would be a factual question, Your Honor, but that's not exactly what happened here

. So Judge Monley did agree that past benefits were used as an offset. And so we agree that an offset of some kind is required. He would have granted a full offset of guaranteed future benefits, would he not have? And wasn't he looking for that type of evidence? I believe that's correct, Your Honor, but a guarantee is the wrong legal standard. And that's exactly what we're getting at here. Well, what is the legal standard? What is the nature of the proof that must be offered by a defendant in this case because the defendant has the burden of proof on the offset, correct? Yes, Your Honor, that's correct. So what is the nature of proof? Is it simply that we're paying 100% disability benefit now and we'll just go by his and dissipate a life expectancy or whatever period of time that benefits are to be paid and take the present value of that? Is that all the proof is? Yes, Your Honor, that's all that's required because he's currently entitled to those benefits. But wouldn't there be some statistical basis that could be presented to the fact finder for saying what's the probability that these benefits will continue for what period of time as an evidentiary peg for the fact finder to hang the conclusion on about the amount that should be set up? To the extent that there's a factual component to this, it should be about how likely he is to improve. And the District Court judge found the factual matter that he was not going to improve and that he would remain unable to work for the rest of his life. What was that the factual determination? It was expressed more vaguely by the District Court with respect to the possibility or likelihood, whichever it might be, that Congress and or the VA might somehow alter either the benefits regime or entitlement to these benefits in Mr. Lyskowski's particular case. Your Honor, we think this goes to the heart of the problem

. The District Court judge did apparently believe that it was possible that these benefits could be revoked, of course. Clearly, and he resided, in fact, didn't he rely on a District of Maine opinion? Yes, he did rely on the Pwari case, which we believe is distinguishable, but I can get back to that. It doesn't bind that anyway, but let's return to basics. Let's return to what the evidence was in this case. And in fact, and I was going to get to the issue of burden, but first of all, we would all have to agree that the burden of proving damages is, approving damages is on the point. Yes, hon. And in fact, isn't there evidence in the record from an economist or other expert? I specifically refer to Exhibit 108, and I think that was offered by Mr. Lyskowski, but 108 not only puts into evidence, future loss in earnings, it puts into evidence future offset. So the record contains by virtue of point of own presentation of evidence, evidence of the offset. Exactly, Your Honor. From which the District could ultimately make a factual determination, right? That's exactly

. If pending upon likelihood or probability. Yes and no. So the likelihood and probability issue here has to do with whether he'll be able to work. And because if he's unable to work in the future, his benefits will continue by virtue of the disability benefits scheme. And yes, Congress could change that. That is always a possibility, but And the Sun might not come up tomorrow. Yes, Your Honor. It's impossible to not award no offsets would ever be available if it were dependent on the fact that Congress could change the law. In fact, the likelihood of the Sun not coming up tomorrow was greater than the likelihood that Congress will agree on it. That's entirely possible, Your Honor. That's true

. I mean, so if the since the Supreme Court said in Brooks and in Brown that future offsets are required, it can't possibly be dependent on the fact that Congress could change the regime or that the regulatory regime could change. So all we're really talking about is the speculation that the VA would discontinue or reduce those benefits essentially un reasonably. Even though he did not get better. And the court can't presume that because of the presumption of regularity, the agency will follow its own regulations. So since there was a factual finding that he was entitled to lost wages because he would not be able to work for the remainder of his life expectancy until age 67. And he's entitled to benefits now. And the regulations reflect that he can't have those benefits reduced or terminated except for some other completely irrelevant reasons. Or if you were to be if you were to materially improve, then that's all that's required. That's all the evidence that's necessary to be in the referendum. So is it your position that as a matter of law, when the plaintiff contends and the fact finder accepts the contention that the plaintiff will be disabled, unable to work for the balance of expected work life, then the offset would be matching it would be for the expected work life of the plaintiff as well. Exactly, Your Honor

. And even if it were for a limited period of time, if the just recorded found that he would be unable to work for 10 years, then the government would be entitled to an offset for 10 years. Why did the government weave its entitlement to its under the statute 38 1151, where the statute seems to suggest that an individual who receives a court claims judgment is also receiving benefits that is benefits stop until such time as the benefits he would have received equal to judgment and then it kicks back in. Why we wouldn't be here if you guys didn't weave that, right? That's not exactly right, Your Honor. I know the provision you're talking about, the benefits would have to have been awarded under a different statutory section for that to apply. I see. That section existed before the Federal Twerke claims act and so it was for a different type of situation. So why did you have to go even out of the way to send, I don't know if it was you, but the government sent a letter indicating to the plaintiff, we're not going to apply this statute, but we're we're reserving our right to seek an offset against the judgment. Why did you even make reference to that if it doesn't apply? I'm not exactly certain why the letter was required. I know that it's the VA has no statutory regulatory authority to stop benefits under these circumstances when they were awarded for disability, which is a different section. So I'm not sure exactly why it was, couched that way or why the letter was submitted, but we they simply aren't able to do that. There's no mechanism for them to do that

. Okay, thank you. Thank you, Your Honor. So in other words, essentially it's it's a question of law to get back to the original question because it's a it's a legal issue whether an offset is required when benefits when someone is entitled to benefits. Well, but didn't the district court acknowledge that that is a legal requirement? That is that there be an offset. The difference is what he determined was that the offset could not factually be justified because of the possibility, the factual possibility that in the future there might be some change in the benefits regime by Congress or some determination by the VA relative to an entitlement. Isn't that I mean if you've said he's speculating, I mean has not that been your argument at least in part that the district court speculated or is that my word? We did say that it was the speculative statement. We can't speculate about the law. Can you speculate about what an event might be or speculate what a factual development might be? That's true, Your Honor. And certainly the district court agreed that an offset is required for past benefits or that an offset could be required for future benefits, but we believe that as a matter of law an offset is required for future benefits without any kind of factual assessment other than the assessment about of course how long he will be unable to work which was already done. There can't be any kind of guaranteed. There can't be any kind of factual

. What could there be a statistical basis for determining how long benefits continue and this type of circumstance, post-traumatic stress disorder, how long benefits continue to be paid, probabilities of recovery, etc. The probability of recovery had to do with the factual finding about how long he would be unable to work. There's really no, I mean it should be congruent if he maintains this level of disability he will maintain the same level of benefits under the regulations. So that's not really a factual matter except as to the medical evidence. Thank you. Thank you. We'll have you Good morning. My name is John Dempsey Dan Briar and I represent Stan and Marisol Leskowski. Judge Smith, I believe you framed the issue when you said Judge Munley agreed it was a legal requirement that there be set off but he found there had not been a factual basis to grant a set off and that is of course the problem. Well, actually if I said that I didn't mean it that way. I didn't say that there had been a factual basis in the record

. I said that he would have felt, what I intended anyway was he made a factual determination that certainly he agreed that a right of set off is a legal issue. But factually whether or not there would be some diminution in the future or some possibility of it is instead a factual matter. And I believe that the government's response to that point you made was that the government believed it did not need to make an additional factual showing on the point which of course misses the standard in the third circuit about the award of personal injury damages. And I'd like to illustrate to the court what I think the government has done here because I believe its entire position on the issue of set off is predicated on a misunderstanding of the trial record. What the government has argued to this court is that it has the burden, the government has the burden of demonstrating that these VA benefits are expected benefits. They take that, they acknowledge that burden at page five of their reply brief. The government then says to this court at page 10 of their reply brief that the parties had calculated the present value of Mr. Leskowski's expected future VA benefits and stipulated to that amount. And the government continues therefore no additional factual record was necessary. The government would have this court believe that the parties stipulated that the benefits were expected and that we agreed as to amount. In Judge Smith you made reference to that and one of the questions you asked about the economist exhibit in the case. The exhibit 108 is your exhibit or your plan is exhibit isn't it? It is, Judge. And in fact you put into evidence the amount of offset. So it was in the record. But here's the key point. I want to make sure to be very clear about it. When you look I've just read to you from the government's brief where the government says the party stipulated as to expected benefits and stipulated as to the amount of those benefits. Therefore the government argues to this court it had no burden to make any further fact showing. The evidence was in the record and I would direct the court to the actual stipulation to page 163 of the joint appendix where we did stipulate. And what we say with the and I'm going to read verbatim the stipulation if the court determines that the United States is entitled to an offset for Mr. Leskowski's non-guaranteed monthly VA benefit in excess of an earlier determination that the government had made then the set off amount is agreed. But it was for the court

. The exhibit 108 is your exhibit or your plan is exhibit isn't it? It is, Judge. And in fact you put into evidence the amount of offset. So it was in the record. But here's the key point. I want to make sure to be very clear about it. When you look I've just read to you from the government's brief where the government says the party stipulated as to expected benefits and stipulated as to the amount of those benefits. Therefore the government argues to this court it had no burden to make any further fact showing. The evidence was in the record and I would direct the court to the actual stipulation to page 163 of the joint appendix where we did stipulate. And what we say with the and I'm going to read verbatim the stipulation if the court determines that the United States is entitled to an offset for Mr. Leskowski's non-guaranteed monthly VA benefit in excess of an earlier determination that the government had made then the set off amount is agreed. But it was for the court. It was for the district court to determine as a matter of fact Judge Vanasky what the fair reduction of the damage award would be which is entirely consistent with this court's holding in the United States versus Barnes also a federal tort claims at case. And so the determination by the district court was to apply no offset at all which at least as a matter of recent history has demonstrated that double recovery has resulted for at least a short period of time. In the court and Judge the court properly made that determination to apply no offset based upon the record before the court and to make the point where the government suggests in its brief to the court that the parties had stipulated that the VA benefit was an expected benefit and therefore they say no additional record was necessary. When you look at the stipulation what you see is that the parties did not agree the VA benefit was expected to continue. We asked for a stipulation on that very point prior to trial and they would. What stipulation did you request? We asked for a stipulation either that the government signed an agreement that would say the benefit was guaranteed to continue. So is guaranteed the same as expected? No I believe it's not Judge. So what evidence should the government have presented then to show that these benefits were expected? The government should have called the witness to explain to the court how Stan Leskowski would fare under the VA's disability standards. Do you mean based upon his condition or do you mean based upon the existence of a federal program to fund these sorts of benefits? I mean both Judge the government. How could the government do that or they would they have his current condition at the time and just Smith asked what is his condition to date and he continues to receive. You would want something I think Judge Vanasky was suggesting that some kind of statistical proof that to someone who suffered his condition continued to suffer that condition throughout his working life

. It was for the district court to determine as a matter of fact Judge Vanasky what the fair reduction of the damage award would be which is entirely consistent with this court's holding in the United States versus Barnes also a federal tort claims at case. And so the determination by the district court was to apply no offset at all which at least as a matter of recent history has demonstrated that double recovery has resulted for at least a short period of time. In the court and Judge the court properly made that determination to apply no offset based upon the record before the court and to make the point where the government suggests in its brief to the court that the parties had stipulated that the VA benefit was an expected benefit and therefore they say no additional record was necessary. When you look at the stipulation what you see is that the parties did not agree the VA benefit was expected to continue. We asked for a stipulation on that very point prior to trial and they would. What stipulation did you request? We asked for a stipulation either that the government signed an agreement that would say the benefit was guaranteed to continue. So is guaranteed the same as expected? No I believe it's not Judge. So what evidence should the government have presented then to show that these benefits were expected? The government should have called the witness to explain to the court how Stan Leskowski would fare under the VA's disability standards. Do you mean based upon his condition or do you mean based upon the existence of a federal program to fund these sorts of benefits? I mean both Judge the government. How could the government do that or they would they have his current condition at the time and just Smith asked what is his condition to date and he continues to receive. You would want something I think Judge Vanasky was suggesting that some kind of statistical proof that to someone who suffered his condition continued to suffer that condition throughout his working life. You think the government was obligated to first prove that and then have to prove somehow that aside from the presumption of regularity that agencies continue to fulfill their obligations that this funding stream would exist. They have to prove both those things. Well I want to make sure I understand the question the the government would have an obligation under this court's test in United States versus Barnes. After the plaintiff has proven damages the government seeking to reduce those damages has the burden to come to court and to offer the proper amount of reduction. Well you would have a stipulation as to the quantity. Quantity correct. But what we absolutely do not have is a stipulation that the VA would continue to treat Stan Leskowski as entitled to a particular 100% disability rating for the rest of his life and and the government argues in its brief for the very first time they they never argued to judge monthly that so long as Mr. Leskowski remains unable to work he will continue to receive his current VA disability benefit at the current level that that is nowhere in the trial record. Was there anything in the trial record that that would support the assertion that these VA benefits would disappear and that he wouldn't continue to receive? That's the essence of as I drew from the District Court opinion is relying on the district court case that says basically we have no guarantee that that things will continue and because there's no guarantee we're not going to offset. And that seems to be exactly what the District Court did here. I don't agree that judge monthly based his decision on the requirement of a guarantee

. You think the government was obligated to first prove that and then have to prove somehow that aside from the presumption of regularity that agencies continue to fulfill their obligations that this funding stream would exist. They have to prove both those things. Well I want to make sure I understand the question the the government would have an obligation under this court's test in United States versus Barnes. After the plaintiff has proven damages the government seeking to reduce those damages has the burden to come to court and to offer the proper amount of reduction. Well you would have a stipulation as to the quantity. Quantity correct. But what we absolutely do not have is a stipulation that the VA would continue to treat Stan Leskowski as entitled to a particular 100% disability rating for the rest of his life and and the government argues in its brief for the very first time they they never argued to judge monthly that so long as Mr. Leskowski remains unable to work he will continue to receive his current VA disability benefit at the current level that that is nowhere in the trial record. Was there anything in the trial record that that would support the assertion that these VA benefits would disappear and that he wouldn't continue to receive? That's the essence of as I drew from the District Court opinion is relying on the district court case that says basically we have no guarantee that that things will continue and because there's no guarantee we're not going to offset. And that seems to be exactly what the District Court did here. I don't agree that judge monthly based his decision on the requirement of a guarantee. I do believe that judge monthly concluded as a matter of fact based upon the record before him that those benefits were not expected benefits. They weren't the plaintiff did not have a reasonable expectation based upon the proof offered to judge monthly that those benefits would continue into the future and judge just to put a very fine. He's not at odds with exhibit 108 setting out an offset since it's plaintiff's own expert doing so. Well what exhibit 108 does is it identifies if the court concludes that the that Sergeant Leskowski is going to continue to receive a 100% disability payment for the rest of his work life here is the value the calculated value of what that offset would be but what it does not do judges to suggest that the parties had agreed he would do so. In fact it's a critical point. The United States of America did not try that case. The United States of America made the judgment at trial to argue to the trial court that Mr. Leskowski would improve that he was not going to be 100% disabled for the rest of his life. They submitted a post trial proposed finding a fact that suggested his condition had improved and they submitted a finding of fact that suggested he could go back to work. The government did not argue at trial that the VA benefit was likely to continue for Stanley Leskowski. They argued the exact opposite

. I do believe that judge monthly concluded as a matter of fact based upon the record before him that those benefits were not expected benefits. They weren't the plaintiff did not have a reasonable expectation based upon the proof offered to judge monthly that those benefits would continue into the future and judge just to put a very fine. He's not at odds with exhibit 108 setting out an offset since it's plaintiff's own expert doing so. Well what exhibit 108 does is it identifies if the court concludes that the that Sergeant Leskowski is going to continue to receive a 100% disability payment for the rest of his work life here is the value the calculated value of what that offset would be but what it does not do judges to suggest that the parties had agreed he would do so. In fact it's a critical point. The United States of America did not try that case. The United States of America made the judgment at trial to argue to the trial court that Mr. Leskowski would improve that he was not going to be 100% disabled for the rest of his life. They submitted a post trial proposed finding a fact that suggested his condition had improved and they submitted a finding of fact that suggested he could go back to work. The government did not argue at trial that the VA benefit was likely to continue for Stanley Leskowski. They argued the exact opposite. So the evidence that was before Judge Munley was exactly zero. We had signed a stipulation. The party signed a stipulation where the VA rather than put a witness on and do what Judge Vanasky suggested gives statistical likelihood that the benefit would continue or simply to say here are the standards that we at the VA apply to decide whether this individual will be 30% PTSD disabled which is what they've rated him at one point. A 100% PTSD disabled which is what they've rated him at one point. 50% PTSD disabled which is what they've rated him at one point. 70% PTSD disabled which is what he was rated at the time of trial. Bring someone in to explain to the judge here are the standards we apply. They are not of course. Isn't there an inconsistency though in the district courts finding that it has made a factual determination that he will be disabled for the remainder of his life for purposes of calculating future lost earnings. An inconsistency with then saying but the benefits that he's receiving based upon my factual determination that he now 100% disabled and will continue to be 100% disabled. Isn't there a factual it wouldn't it necessarily follow that there should then be an offset for what the judge has determined is to be the likely scenario that is he is 100% disabled

. So the evidence that was before Judge Munley was exactly zero. We had signed a stipulation. The party signed a stipulation where the VA rather than put a witness on and do what Judge Vanasky suggested gives statistical likelihood that the benefit would continue or simply to say here are the standards that we at the VA apply to decide whether this individual will be 30% PTSD disabled which is what they've rated him at one point. A 100% PTSD disabled which is what they've rated him at one point. 50% PTSD disabled which is what they've rated him at one point. 70% PTSD disabled which is what he was rated at the time of trial. Bring someone in to explain to the judge here are the standards we apply. They are not of course. Isn't there an inconsistency though in the district courts finding that it has made a factual determination that he will be disabled for the remainder of his life for purposes of calculating future lost earnings. An inconsistency with then saying but the benefits that he's receiving based upon my factual determination that he now 100% disabled and will continue to be 100% disabled. Isn't there a factual it wouldn't it necessarily follow that there should then be an offset for what the judge has determined is to be the likely scenario that is he is 100% disabled. No you're on it that there is that maybe at 30 thousand feet there may appear to be an inconsistency but what Judge monthly is very careful to do in his opinion which carefully considers this very issue is to say that the VA will reevaluate Mr. Leskowski on their own rules and their own standards not ours not the middle district of Pennsylvania rules and the VA signed a stipulation prior to trial because we wanted them to bring a witness into court so we could make the very point on the record that that Stan Leskowski's PTSD disability in the eyes of the VA had fluctuated over the period of time where he had been from our perspective disabled but yet under their standard he his disability changed and so we wanted a witness to come in and explain why that was. But that wasn't why the district court denied the offset the district court didn't denied the offset because it felt that the VA stream of revenue was could potentially end. Oh I'm not suggesting that that's the basis that the well that's what I'm trying to review with you right now that the factual the basis of the factual determination we're going to call it that is this view that the VA benefit could end at some point and so the district court seemed concerned about that and as I understood it for that reason declined to set to have the offset what quality of proof should the government have put forth to support. Judge Schwartz that was certainly one concern that Judge monthly identified that the government at any point in time has the ability to discontinue the VA benefit and the suggestion has been that that may not that is not a likely event. Judge monthly also identified other concerns that he had about the nature of the VA benefit. His concern and his opinion is that it is the VA who in its sole discretion will make the determination of whether Mr. Leskowski remains disabled at the current level and they will do so based upon employability standards that are difficult to articulate with any specificity that's what Judge monthly says and he had no witness come into court to explain to him what those standards were. He also says it is unclear when and how often the VA will exercise their sole discretion to review Mr. Leskowski to determine whether he continues to be disabled and the issue judge is that the only evidence before the district court on the question of whether those VA benefits that are so important to our client would continue into the future was a stipulation signed by both parties and in the stipulation what the parties agreed is that the VA and its sole discretion will decide whether those benefits continue at the current level and whether they are increased or decreased or remain the same and so Judge monthly was stuck with that before him and the VA having made no proof to him or suggested or argued in any way that those benefits will continue now fault him for failing to conclude as a matter of fact that the VA benefit would continue at 100% in judge the benefit was not even 100% when we tried the case it was 70% they fault Judge monthly for failing to have reached a factual conclusion that the benefits should continue until Mr. Leskowski reached age 67 and they offered him no evidence not one witness not one document no explanation for what standard the VA applies under title 38 to determine whether Mr

. No you're on it that there is that maybe at 30 thousand feet there may appear to be an inconsistency but what Judge monthly is very careful to do in his opinion which carefully considers this very issue is to say that the VA will reevaluate Mr. Leskowski on their own rules and their own standards not ours not the middle district of Pennsylvania rules and the VA signed a stipulation prior to trial because we wanted them to bring a witness into court so we could make the very point on the record that that Stan Leskowski's PTSD disability in the eyes of the VA had fluctuated over the period of time where he had been from our perspective disabled but yet under their standard he his disability changed and so we wanted a witness to come in and explain why that was. But that wasn't why the district court denied the offset the district court didn't denied the offset because it felt that the VA stream of revenue was could potentially end. Oh I'm not suggesting that that's the basis that the well that's what I'm trying to review with you right now that the factual the basis of the factual determination we're going to call it that is this view that the VA benefit could end at some point and so the district court seemed concerned about that and as I understood it for that reason declined to set to have the offset what quality of proof should the government have put forth to support. Judge Schwartz that was certainly one concern that Judge monthly identified that the government at any point in time has the ability to discontinue the VA benefit and the suggestion has been that that may not that is not a likely event. Judge monthly also identified other concerns that he had about the nature of the VA benefit. His concern and his opinion is that it is the VA who in its sole discretion will make the determination of whether Mr. Leskowski remains disabled at the current level and they will do so based upon employability standards that are difficult to articulate with any specificity that's what Judge monthly says and he had no witness come into court to explain to him what those standards were. He also says it is unclear when and how often the VA will exercise their sole discretion to review Mr. Leskowski to determine whether he continues to be disabled and the issue judge is that the only evidence before the district court on the question of whether those VA benefits that are so important to our client would continue into the future was a stipulation signed by both parties and in the stipulation what the parties agreed is that the VA and its sole discretion will decide whether those benefits continue at the current level and whether they are increased or decreased or remain the same and so Judge monthly was stuck with that before him and the VA having made no proof to him or suggested or argued in any way that those benefits will continue now fault him for failing to conclude as a matter of fact that the VA benefit would continue at 100% in judge the benefit was not even 100% when we tried the case it was 70% they fault Judge monthly for failing to have reached a factual conclusion that the benefits should continue until Mr. Leskowski reached age 67 and they offered him no evidence not one witness not one document no explanation for what standard the VA applies under title 38 to determine whether Mr. Leskowski remains disabled and against that record judge monthly made a factual finding and the test for this court to evaluate the factual finding and I want to be clear about what Judge monthly found he was distinguishing in a 11 circuit opinion in United States versus coal and in that case the trial court had awarded damages to a veteran and the matter went up on appeal and the trial court had also worked a set off the trial court effectively ordered the VA benefits to cease until the VA benefit had reached $384,000 which was the amount of the award and the 11 circuit said we don't think the trial court can do that we think the trial court has reached too far in ordering the VA benefits to cease exactly but the 11 circuit said we'll remain the case to the district court to award damages and to reduce the future wage loss damage by the expected benefit Judge monthly deals with the case very directly in his opinion and he what he says is in in the coal case the court was dealing with expected benefits benefits that are expected to continue here what I have before me is a situation where I have benefits that are possible uncertain future and not guaranteed so I'm not dealing with expected benefits and he made that determination as a matter of fact and he did so in the context of coal and another reason the coal case and Judge monthly's handling of it is so important is because if Judge monthly had applied the standard of requiring a guarantee before he would give an offset which is what the government has heard. Your time is up Mr. Damsy you can continue that thought but then that's but but then your time is up. The last thought your honor is that had Judge monthly applied the standard that the government urges he did which is to they fault him for requiring that the benefit be guaranteed and absent a guarantee then there should be no set off. That's what the government argues Judge monthly decided and respectfully that is absolutely not what he decided and I would ask the court to look at the way Judge monthly handled the decision in coal had Judge monthly decided all right we're now beyond a minute of additional. Thank you Donna. Appreciate it. Thank you Miss Smith for the bottle. Thank you Your Honours I just have a couple of quick points. First of all I would like to point to page 63 of the Joint Appendix where Judge monthly's opinion says it is inappropriate to provide a set off for non-guaranteed future benefits. It seems fairly clear that Judge monthly thought that benefits had to be guaranteed to continue but even if that's simply semantic what's also semantic is the distinction between expected benefits and the category of uncertain benefits that the judge created

. Leskowski remains disabled and against that record judge monthly made a factual finding and the test for this court to evaluate the factual finding and I want to be clear about what Judge monthly found he was distinguishing in a 11 circuit opinion in United States versus coal and in that case the trial court had awarded damages to a veteran and the matter went up on appeal and the trial court had also worked a set off the trial court effectively ordered the VA benefits to cease until the VA benefit had reached $384,000 which was the amount of the award and the 11 circuit said we don't think the trial court can do that we think the trial court has reached too far in ordering the VA benefits to cease exactly but the 11 circuit said we'll remain the case to the district court to award damages and to reduce the future wage loss damage by the expected benefit Judge monthly deals with the case very directly in his opinion and he what he says is in in the coal case the court was dealing with expected benefits benefits that are expected to continue here what I have before me is a situation where I have benefits that are possible uncertain future and not guaranteed so I'm not dealing with expected benefits and he made that determination as a matter of fact and he did so in the context of coal and another reason the coal case and Judge monthly's handling of it is so important is because if Judge monthly had applied the standard of requiring a guarantee before he would give an offset which is what the government has heard. Your time is up Mr. Damsy you can continue that thought but then that's but but then your time is up. The last thought your honor is that had Judge monthly applied the standard that the government urges he did which is to they fault him for requiring that the benefit be guaranteed and absent a guarantee then there should be no set off. That's what the government argues Judge monthly decided and respectfully that is absolutely not what he decided and I would ask the court to look at the way Judge monthly handled the decision in coal had Judge monthly decided all right we're now beyond a minute of additional. Thank you Donna. Appreciate it. Thank you Miss Smith for the bottle. Thank you Your Honours I just have a couple of quick points. First of all I would like to point to page 63 of the Joint Appendix where Judge monthly's opinion says it is inappropriate to provide a set off for non-guaranteed future benefits. It seems fairly clear that Judge monthly thought that benefits had to be guaranteed to continue but even if that's simply semantic what's also semantic is the distinction between expected benefits and the category of uncertain benefits that the judge created. Benefits are expected because Mr. Luskowski is entitled to them now and also because of the factual finding the Judge monthly made that he would be unable to work until age 67. Those are the factual findings there and it's a contradiction to say that notwithstanding those facts he's going to possibly have his benefits terminated in the future. If that happens it will be because the the judge incorrectly found that he would be unable to work or that he would never improve. If he does improve materially and it's very difficult to show that someone has made a material improvement under the VA's regulations and there's almost a presumption that they'll continue and the veteran is given every benefit of the doubt. If that were to occur that would be fortunate and the judge would have been wrong in the factual finding that he would be unable to work and that's the only circumstance in which benefits would be legally revoked. There was no need for for witness to explain the law to the judge. The the submission by the government referred to the statute and regulations that govern when VA benefits are available and the judge was perfectly capable of assessing on his own whether those standards were or weren't congruent to the standards that need to be shown in a short action. There's no need for an expert witness to explain whether those legal standards are congruent. If the VA had not determined or had determined that Mr. Laskowski was not disabled and the district court had come to an opposite conclusion and decided that not only was he currently disabled but he'd remain disabled for the rest of his life would the government then be entitled to an offset? I'm sorry, you're on it

. Benefits are expected because Mr. Luskowski is entitled to them now and also because of the factual finding the Judge monthly made that he would be unable to work until age 67. Those are the factual findings there and it's a contradiction to say that notwithstanding those facts he's going to possibly have his benefits terminated in the future. If that happens it will be because the the judge incorrectly found that he would be unable to work or that he would never improve. If he does improve materially and it's very difficult to show that someone has made a material improvement under the VA's regulations and there's almost a presumption that they'll continue and the veteran is given every benefit of the doubt. If that were to occur that would be fortunate and the judge would have been wrong in the factual finding that he would be unable to work and that's the only circumstance in which benefits would be legally revoked. There was no need for for witness to explain the law to the judge. The the submission by the government referred to the statute and regulations that govern when VA benefits are available and the judge was perfectly capable of assessing on his own whether those standards were or weren't congruent to the standards that need to be shown in a short action. There's no need for an expert witness to explain whether those legal standards are congruent. If the VA had not determined or had determined that Mr. Laskowski was not disabled and the district court had come to an opposite conclusion and decided that not only was he currently disabled but he'd remain disabled for the rest of his life would the government then be entitled to an offset? I'm sorry, you're on it. If the VA had had determined that Mr. Laskowski is not disabled he's not receiving any benefits at the time of trial. But Mr. Laskowski says I am disabled and he convinces the fact finder that he's disabled and is going to be disabled for the rest of his life. Under that scenario would the government be entitled to an offset? Absolutely not, Your Honor. It would be an entirely different situation if someone had not applied for benefits or if they had not been awarded benefits. The Your Honor, that would be an entirely different situation. So the district court did require a guarantee and says so pretty clearly but in any event there's really no distinction that he's trying to draw between expected and uncertain benefits when someone has been awarded benefits and found disabled by the VA. And if the court does believe that this is a factual issue then it's certainly clear error because it's a contradiction to say that Mr. Laskowski will remain unable to work for the rest of his life. He is currently receiving benefits and yet that they're not expected to continue

. Thank you. Thank you very much. Thank you to both sides for a will or a case. We will take it under advisement and we wil