DONALD W. VANDERVOORT, Employee/Appellant, v. OLINGER TRANSP., INC., and SFM MUT. INS. CO., Employer-Insurer.
WORKERS’ COMPENSATION COURT OF APPEALS
JANUARY 4, 2010
PERMANENT TOTAL DISABILITY - RETIREMENT. The record as a whole did not support the compensation judge’s conclusion that the employee had failed to rebut the presumption that he had retired at age 67, where the parties had stipulated, prior to the employee’s reaching the age of 67 that the employee was permanently and totally disabled, and the judge erroneously focused on the fact that the employee had not sought rehabilitation assistance or other work.
Determined by: Wilson, J., Stofferahn, J., and Johnson, C.J.
Compensation Judge: Cheryl LeClair-Sommer
Attorneys: Troy A. Scotting, Kasal & Scotting, Hutchinson, MN, for the Appellant. Mark S. Lorentzen, Lynn, Scharfenberg & Assocs., Bloomington, MN, for the Respondents.
DEBRA A. WILSON, Judge
The employee appeals from the judge’s decision that the employee failed to rebut the retirement presumption. We reverse.
The employee began work for Olinger Transportation [the employer], as a truck driver, in 1998. Previously, he had worked in farming from the time he was in high school until the early 1980’s, when he lost his farm due to economic conditions. From 1980 to 1998, the employee worked sporadically at temporary positions, working primarily for other farmers, or mowing a golf course.
When he began his employment at the employer, the employee told Mike Olinger, the owner, that he needed to work to build up his Social Security fund. His work at the employer was his first full-time employment since 1980.
On May 27, 2004, the employee sustained a work-related injury while employed by the employer. The employer and insurer admitted liability. About a month after the injury, on June 24, 2004, the employee applied for Social Security disability benefits. While he was initially rejected, as he did not qualify as disabled under applicable rules, Social Security disability benefits were eventually awarded.
In February of 2007, the parties entered into a stipulation for settlement. At that time, the employee was claiming that he had been temporarily totally disabled from January 21, 2006, through March 26, 2006, and temporarily partially disabled continuing from March 27, 2006, or, in the alternative, that he had been permanently and totally disabled for that same time period. The employer and insurer were contending that the employee had reached maximum medical improvement on May 9, 2005, and was not entitled to the temporary total disability benefits claimed; that the employee’s earnings were not an accurate reflection of his earning capacity and that he was not temporarily partially disabled; and that the employee was not permanently and totally disabled but that, if he was permanently and totally disabled, they were entitled to an offset for Social Security disability benefits. In the settlement agreement, the parties stipulated that the employee had been permanently and totally disabled as of January 21, 2006, and that, effective December 13, 2006, the employer and insurer were entitled to offset Social Security disability benefits against their liability for permanent total disability benefits. The parties further agreed that permanent total disability benefits would cease on June 29, 2009, when the employee turned 67, but that the employee retained the right to rebut the presumption of retirement contained in Minn. Stat. §176.101.
The employer and insurer discontinued permanent total disability benefits effective June 29, 2009, and the employee filed an objection to discontinuance. The matter came on for hearing, and, in findings and order filed on July 13, 2009, the compensation judge found that the employee had failed to rebut the retirement presumption. The employee appeals.
STANDARD OF REVIEW
On appeal, the Workers’ Compensation Court of Appeals must determine whether “the findings of fact and order [are] clearly erroneous and unsupported by substantial evidence in view of the entire record as submitted.” Minn. Stat. § 176.421, subd. 1 (2008). Substantial evidence supports the findings if, in the context of the entire record, “they are supported by evidence that a reasonable mind might accept as adequate.” Hengemuhle v. Long Prairie Jaycees, 358 N.W.2d 54, 59, 37 W.C.D. 235, 239 (Minn. 1984). Where evidence conflicts or more than one inference may reasonably be drawn from the evidence, the findings are to be affirmed. Id. at 60, 37 W.C.D. at 240. Similarly, findings of fact should not be disturbed, even though the reviewing court might disagree with them, “unless they are clearly erroneous in the sense that they are manifestly contrary to the weight of evidence or not reasonably supported by the evidence as a whole.” Northern States Power Co. v. Lyon Food Prods., Inc., 304 Minn. 196, 201, 229 N.W.2d 521, 524 (1975).
“[A] decision which rests upon the application of a statute or rule to essentially undisputed facts generally involves a question of law which [the Workers’ Compensation Court of Appeals] may consider de novo.” Krovchuk v. Koch Oil Refinery, 48 W.C.D. 607, 608 (W.C.C.A. 1993).
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.
In the present case, the parties’ February 2007 stipulation provides that permanent total disability benefits would cease on the employee’s 67th birthday, June 29, 2009, and that the employee retained the right to rebut the presumption of retirement.
In determining whether the employee had rebutted the retirement presumption, the compensation judge considered six factors: the employee’s expressed intent to retire or continue working; the employee’s application for Social Security retirement benefits; evidence of a financial need for employment income, including the adequacy of a pension or other retirement income; whether the employee or the employer had initiated a discussion of retirement; whether the employee had sought rehabilitation assistance; and whether the employee had actively sought alternative employment or was working. See Davidson v. Thermal King, slip op. (W.C.C.A. Feb. 2, 2004), citing Dillemuth v. Owatonna Tool Co., 59 W.C.D. 349 (W.C.C.A. 1999).
On appeal, the employee contends that, because the parties had stipulated in February of 2007 that he had become permanent totally disabled as of January of 2006, his failure to seek rehabilitation assistance or alternative employment should not be used to support the conclusion that he had voluntarily retired. Given the facts of this case, we agree.
This case is distinguishable from the Davidson and Liniewicz v. Muller Family Theatre cases cited by the compensation judge. In both of those cases, the employee had been adjudicated to be permanently totally disabled after the alleged “retirement.” In Davidson, the employer and insurer had contended that the employee was not entitled to permanent total disability benefits because he had accepted the employer’s offer of an early retirement package. In that case, however, subsequent to leaving the employer, the employee sought rehabilitation assistance and looked for other work. This court affirmed the compensation judge’s finding that the employee was permanently totally disabled and that he had not voluntarily retired from the labor market when he accepted the employer’s offer of early retirement.
In Liniewicz, the hearing on the employee’s claim for permanent total disability benefits took place in July of 2006. The employee had reached age 67 on January 9, 2006, at which time he was involved in statutory rehabilitation, working with a QRC and a placement specialist. This court affirmed the compensation judge’s decision that the employee had become permanently totally disabled as of October 28, 2004, and that he had rebutted the retirement presumption, in that he was involved in statutory rehabilitation at the time of his 67th birthday, and rehabilitation and job search efforts had ended at the request of the insurer, not the employee. In both of these cases, whether the employee had sought rehabilitation assistance and whether the employee had looked for work were relevant to the question of whether the employee had voluntarily retired.
The timing of events is different in the instant case than in the cases discussed above. The parties had stipulated, prior to the employee’s attainment of age 67, that the employee was permanently totally disabled, which “means that the employee’s physical disability, in combination with the employee’s age, education, training and experience, causes the employee to be unable to secure anything more than sporadic employment resulting in an insubstantial income.” Minn. Stat. §176.101, subd. 5(b). Given the stipulation as to permanent total disability, the employee had no reason to request rehabilitation services or seek employment. As such, we cannot agree with the judge’s conclusion that the employee’s failure to seek rehabilitation assistance or seek employment suggests that the employee had voluntarily retired. We then turn to the other factors considered by the compensation judge.
First, the judge found that the employee did not express an intention either to retire or to continue working at any time prior to the hearing. While the judge did not find the employee’s testimony as to his intention to continue working into the future credible, she nevertheless found this factor to be neutral “since the employee did not express an intent to retire at a specific age.” The judge further found the employee’s application for Social Security disability benefits, which were later converted to retirement benefits, to be a neutral factor, and, accepting the employee’s testimony on the issue, the judge found that evidence of a financial need for employment income weighed in the employee’s favor. Finally, while the judge found that neither party had initiated a discussion about retirement, she indicated, in her memorandum, that the employee’s assertion, on commencing work for the employer, that he needed to build up his Social Security benefits, provided some evidence of “an intent to voluntarily retire in the future.” However, while we agree that the employee’s statement in this regard suggests that he intended to retire at some point in the future, that statement does not provide any evidence of an intent to retire at age 67. This factor, therefore, should also have been viewed as neutral.
A compensation judge may determine how each relevant factor should be weighed. Here, however, we are left with three neutral factors and one factor that weighs in the employee’s favor. While the compensation judge also discussed the lack of medical evidence indicating that the employee is medically unable to work, the only basis for discontinuance was that the employee had reached the age of 67. There was no allegation in pleadings or at hearing that the employee’s medical condition had changed since the stipulation or that the employee is now medically capable of holding a job. Under these circumstances, we can only conclude that the employee rebutted the retirement presumption. We therefore reverse the compensation judge’s decision and order continued payment of permanent total disability benefits.
 The employer and insurer admitted liability for a low back injury and paid over $50,000 in indemnity benefits and more than $80,000 in medical and rehabilitation benefits.
 No. WC06-253 (W.C.C.A. Mar. 21, 2007).
 The parties agree that, prior to that stipulation for settlement, the employee had been receiving rehabilitation assistance in an effort to find work.
 Assessment of a witness’s credibility is the unique function of the trier of fact. Even v. Kraft, Inc., 445 N.W.2d 831, 42 W.C.D. 220 (Minn. 1989).
 We note, however, that the evidence included a functional capacity evaluation [FCE] performed on January 5 and 6 of 2006. While the summary report for that FCE states that “no specific return to work goal was identified for this evaluation,” it also states that the employee’s goals were to “get rid of the pain, move better, and return to trucking.” This would certainly reflect an intention to continue working and should perhaps have weighed in the employee’s favor.