- 18 - Finally, we note that the commission could have theoretically awarded the benefits to Judge Byrne on the basis of his having served more than 2 years as a judge or on the basis of his work-related disability and that a factual issue could conceivably have been raised regarding whether the benefits were actually received under that portion of CGC section 75061(a) that is in the nature of a workers’ compensation act. Respondent does not argue this issue on brief. Indeed, in response to petitioners’ argument that the burden of proof on this issue is upon respondent pursuant to section 7491, respondent states that “This case involves purely a legal question, namely whether the California Judges’ Retirement Law is in the nature of a worker’s compensation act.”15 14(...continued) 274, 281 n.15 (1985); Thurman v. Commissioner, T.C. Memo. 1998- 233. 15Under these circumstances, we need not decide who bears the burden of proof under sec. 7491(a)(1). However, the parties agree that the examination began on Mar. 31, 1999, and that none of the limitations under sec. 7491(a)(2) are applicable. Moreover, petitioners introduced credible evidence that the commission had before it several reports which concluded that Judge Byrne was disabled as a result of a work-related injury and that it could have awarded the benefits on this basis.Page: Previous 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 Next
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