GEORGE E. FRANDSEN, Employee, v. FORD MOTOR CO., SELF-INSURED, Employer/Petitioner.
WORKERS’ COMPENSATION COURT OF APPEALS
NOVEMBER 17, 2011
PERMANENT TOTAL DISABILITY - DISCONTINUANCE; PERMANENT TOTAL DISABILITY - RETIREMENT. In cases involving the retirement presumption contained in Minn. Stat. § 176.101, subd. 4, an employer or insurer may discontinue payment of permanent total disability benefits when the employee attains the age of 67 without taking further action prior to cessation. No petition to discontinue permanent total disability benefits is required.
Petition to discontinue permanent total disability dismissed.
Determined en banc.
Attorneys: James F. Schneider, Butts, Sandberg & Schneider, Forest Lake, MN, for the Employee. Kathryn Hipp Carlson, Minneapolis, MN, for the Petitioner.
THOMAS L. JOHNSON, Judge
The self-insured employer petitioned this court to discontinue payment of permanent total disability benefits on the ground that the employee had reached the age of 67 years and was therefore presumed retired pursuant to Minn. Stat. § 176.101, subd. 4. This court denied the petition. On appeal, the Minnesota Supreme Court reversed and remanded the case to this court. We dismiss the employer’s petition.
George E. Frandsen, the employee, sustained an injury on November 3, 2004, arising out of and in the course of his employment with Ford Motor Company, the employer, then self-insured for workers’ compensation liability. The employer admitted liability for the employee’s personal injury. Thereafter, the parties entered into a stipulated settlement of the employee’s claims. According to the agreement, the parties acknowledged that the employee had been found totally disabled by the Social Security Administration effective August 1, 2005, and was receiving Social Security disability benefits. The parties also agreed that the employee had become permanently and totally disabled effective November 3, 2004, as a consequence of his work injury. The stipulation specified that all benefits paid to the employee from and after the date of injury would be reclassified as permanent and total disability benefits and that the employer had paid $25,000.00 in permanent total disability benefits as of March 23, 2006. Finally, the parties agreed that, as of March 26, 2007, the employer would begin to offset the permanent total disability benefits payable to the employee by the amount of his Social Security disability benefits, subject to annual adjustments. An Award on Stipulation was served and filed on April 30, 2007.
In September 2010, the employer filed with this court a petition seeking to discontinue the employee’s permanent total disability benefits on grounds that the employee had reached the age of 67 and was presumed retired under Minn. Stat. § 176.101, subd. 4. The employee objected to the requested discontinuance, contending that he was entitled to ongoing permanent total disability benefits. By decision served and filed December 22, 2010, this court denied the employer’s petition to discontinue benefits. Frandsen v. Ford Motor Co., No. WC10-5175 (W.C.C.A. Dec. 22, 2010). On appeal, the Minnesota Supreme Court reversed that decision and remanded the case to this court. See Frandsen v. Ford Motor Co., No. A11-0126 (Minn. Aug. 10, 2011).
Minn. Stat. § 176.101, subd. 4, governs eligibility for permanent total disability benefits and provides, in part,
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. A 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 Frandsen, the supreme court held that, “according to its plain language, Minn. Stat. § 176.101, subd. 4, affords the employer the right to presume that an employee would have retired at age 67 and, correspondingly, to stop paying PTD benefits without taking any action prior to this cessation.” Id., slip op. at 10 (footnote omitted). The court further held that the retirement presumption “shall apply unless the employee rebuts the presumption or proves knowing and intentional waiver by the employer.” Id., slip op. at 11.
Under the supreme court’s decision, there is no need for an employer or insurer to file a petition to discontinue permanent total disability benefits based upon the presumptive retirement provision of Minn. Stat. § 176.101, subd. 4. Rather, an employer and insurer may cease payment of permanent total disability benefits when the employee attains the age of 67, without taking any further action prior to the cessation. If the employee claims entitlement to permanent total disability benefits after age 67, he or she may file a petition pursuant to Minn. Stat. § 176.291.
The self-insured employer’s petition to discontinue permanent total disability benefits is dismissed.
 Minn. Stat. § 176.101, subd. 4, provides in part that, after a total of $25,000.00 in weekly workers’ compensation benefits has been paid, the weekly benefit paid by the employer may be reduced by the amount of disability benefits paid by a government disability benefit program.