PHILLIP LINIEWICZ, Employee, v. MULLER FAMILY THEATRE, and WESTERN NAT=L INS. GROUP, Employer-Insurer/Appellants.
WORKERS= COMPENSATION COURT OF APPEALS
MARCH 21, 2007
PERMANENT TOTAL DISABILITY - RETIREMENT. The employee=s continued participation in job search past age 67 and job search under the direction of the QRC and placement vendor is evidence which supports the finding that the retirement presumption in Minn. Stat. ' 176.101, subd. 4, was rebutted.
Determined by: Stofferahn, J., Pederson, J., and Johnson, C.J.
Compensation Judge: Gary M. Hall
Attorneys: David R. Vail, Soderberg & Vail, Minneapolis, MN, for the Respondent. Michael Forde, Aafedt, Forde, Gray, Monson & Hager, Minneapolis, MN, for the Appellants.
DAVID A. STOFFERAHN, Judge
The employer and insurer appeal from the compensation judge=s failure to apply the retirement presumption of Minn. Stat. ' 176.101, subd. 4, and from the compensation judge=s award of continuing permanent total disability benefits. We affirm.
Phillip Liniewicz, the employee, sustained a work injury on March 13, 2002, while in the employ of Muller Family Theatre. The employee subsequently filed a claim petition seeking permanent total disability benefits as the result of his injury. The employee=s claim petition was heard by Compensation Judge Gary Hall on July 5, 2006.
In his Findings and Order of September 5, 2006, Compensation Judge Hall determined the employee was permanently totally disabled as of October 28, 2004. He further found that the employee was entitled to additional permanent partial disability benefits beyond the 10 percent previously paid by the employer and insurer and that the employee had reached the requisite threshold of permanent partial disability required for an award of permanent total disability. Finally, the compensation judge noted the employee reached age 67 on January 9, 2006, and concluded that the employee had rebutted the retirement presumption set forth in Minn. Stat. ' 176.101, subd. 4. The employee was awarded permanent total disability benefits. The employer and insurer appeal only from the compensation judge=s finding that the employee rebutted the retirement presumption and from the subsequent award of permanent total disability benefits.
Phillip Liniewicz was born January 9, 1939. He completed high school and two years of junior college in the Chicago area. From about 1975 to 1986, the employee worked at a high school in Niles, Illinois, and from 1986 to about 1996 he worked at a hospital in Glenville, Illinois. He was employed in building maintenance with both employers.
In 1996, the employee moved to Minnesota and went into business with his cousin remodeling and rehabbing houses. After his cousin died in 2001, the employee decided not to continue the business. In July 2001, the employee went to work for Muller Family Theatre. He was employed as a maintenance worker for the employer with his primary duties being general repair and maintenance of building systems.
On March 13, 2002, the employee slipped on ice outside the employer=s building as he was returning from an errand. He broke five ribs on his left side and injured his left rotator cuff, neck, and sternum. The employee has treated with a number of health care providers for his injuries; his current treating physician is Dr. Seth Rosenbaum. There has been discussion of surgery but the employee has chosen not to explore that option. More recently, the employee had received acupuncture treatment at Mayo Clinic but the employee was not receiving any active care for his injury at the time of the hearing.
A rehabilitation consultation was done on May 31, 2002, by QRC Nancy Jo Ferguson. Ms. Ferguson noted that the employee at that time was still undergoing diagnostic tests but had been released to work by Dr. Hipp, his current treating physician. The employee was given restrictions of no lifting over 25 pounds, occasional reaching knee to overhead, and no climbing of ladders. Ms. Ferguson indicated the employee was eligible for statutory rehabilitation services and concluded that the employee should be able to return to some form of maintenance position.
The employee testified that he worked for his employer on and off until October 2002. At least at some point, the employee worked as a ticket seller for the employer. He stopped working for the employer in October 2002 and has not returned to work since. The extent of the employee=s work at Muller after his injury and whether he was employed there on a full-time or part-time basis is not in the record.
The employee changed QRCs in July 2002 and began working with Michael Stern at Brezinski and Associates. In his May 9, 2003, report, the earliest one in the record, Mr. Stern refers to the employee receiving treatment at Mayo Clinic and indicates that Dr. Rosenbaum is the employee=s treating physician. That report does not address whether the employee was released to return to work at that time.
A functional capacities evaluation was done in October 2003. The R-33 prepared as a result released the employee to part-time work with restrictions of occasional lifting up to five pounds and occasional bending, kneeling, pushing and pulling. A job placement plan and agreement was prepared which followed these restrictions and the employee began working with a placement specialist from Brezinski and Associates. Possible jobs identified were light delivery, light security (monitor checker), parking lot attendant, and real estate. The employee also had vocational testing done in January 2004 that did not change the direction of rehabilitation.
The employee went through a chronic pain program at Sister Kenny Institute in the summer of 2004. Following the program, the employee had another functional capacities evaluation, and Dr. Matthew Monsein prepared an R-33 that was later signed by Dr. Rosenbaum. The 2004 restrictions allowed occasional lifting and carrying up to 10 pounds and occasional activities such as bending, crouching and kneeling. The employee was to start a job at four hours a day and three non-consecutive days per week.
After the new FCE, the employee started job search again, this time working with David Laurie, a placement specialist. The new job placement plan and agreement called for placement in light delivery, call center clerk, customer service, retail hardware, and rental clerk. In the first placement report after the new JPPA, that of November 4, 2004, Mr. Laurie stated that his office contacted 131 employers and developed five job leads. No interviews resulted.
The employee continued in placement activities with Mr. Laurie until March 20, 2006. At that time, Mr. Laurie closed his placement file, stating in a report that he agreed with a report from Mr. Stern of March 10, 2006, in which Mr. Stern stated the employee was not capable of sustained employment on greater than a sporadic basis. In a fax dated April 24, 2006, the insurance adjuster on the case requested that Mr. Stern close his file. No further vocational rehabilitation activity took place.
At the hearing, the employee testified that it had not been his intent to retire at age 67. He stated, Abasically I enjoy working and I need also money, financial problems.@ The employee also testified that he was receiving Social Security benefits but he was unable to state when he had started receiving benefits and what type of benefits were being paid.
In 1995, the legislature added the following language to Minn. Stat. ' 176.101, subd. 4,
Permanent total disability shall cease at age 67 because the employee is presumed retired from the labor market. This presumption is rebuttable by the employee. The subjective statement the employee is not retired is not sufficient in itself to rebut the presumptive evidence of retirement but may be considered along with other evidence.
On appeal, the employer and insurer argue that the compensation judge erred in failing to apply this provision so as to continue permanent total disability benefits past January 9, 2006, when the employee turned 67. According to the argument, the only evidence presented by the employee to rebut the presumption was his testimony at the hearing, and this type of testimony is specifically excluded by the statute. We disagree.
Retirement is a permanent voluntary withdrawal from the labor market. Szuba v. Wendy=s Int=l, 65 W.C.D. 212 (W.C.C.A. 2005). The question is whether the evidence supports the compensation judge=s conclusion that the employee did not intend to voluntarily and permanently withdraw from the labor market as of January 9, 2006.
We find such evidence in the present case. We note at the outset that the compensation judge did not reach his conclusion on this point solely on the testimony of the employee. The compensation judge identified a number of factors which he identified as serving to rebut the retirement presumption. Among those factors was the employee=s continued activity in vocational rehabilitation after he was 67.
As of January 9, 2006, the employee was involved in statutory rehabilitation. He was working with a QRC and a placement specialist. There is no suggestion in the rehabilitation records that the employee was minimizing his activities because of his age, and there are no comments reported in those records that the employee did not intend to work after age 67. Limits on his job search were the results of severe restrictions imposed by his work injury. Rehabilitation and job search ended not at the request of the employee but at the request of the insurer who recognized that the employee was not able to return to gainful employment. Given this evidence, we agree with the compensation judge=s conclusion that the statutory presumption of retirement was rebutted.
The decision of the compensation judge is affirmed.
 The provision at issue in the present case should not be confused with Minn. Stat. ' 176.101, subd. 8, which also has a retirement presumption in cases of temporary total disability. Subdivision 8 requires the cessation of temporary total disability benefits if the employee has retired and retirement is presumed if the employee is receiving Social Security or other Aservice-issued government retirement pension.@