JAMES W. STEVENS, Employee, v. S.T. SERVS. and CNA INS. CO., Petitioners.
WORKERS’ COMPENSATION COURT OF APPEALS
OCTOBER 8, 2012
PERMANENT TOTAL DISABILITY – DISCONTINUANCE. Where it was apparently undisputed that the employee worked full time for three years while receiving permanent total disability benefits from the employer under a stipulation for settlement, but factual issues remained as to whether the employee was subsequently permanently and totally disabled again, given his age, condition, experience, and the work available in his community, it was appropriate to refer the matter to the Office of Administrative Hearings for an evidentiary hearing and findings on that issue and the issue of the employer and insurer’s entitlement to a credit.
Referred to Office of Administrative Hearings.
Wilson, J., Stofferahn, J., and Hall, J.
James W. Stevens, pro se. James R. Waldhauser, Cousineau McGuire, Minneapolis, MN, for the Petitioners.
DEBRA A. WILSON, Judge
The employer and insurer petition this court to allow discontinuance of permanent total disability benefits paid pursuant to an award on stipulation, contending that the employee is no longer permanently and totally disabled within the meaning of the workers’ compensation act. We deny the petition at this time but refer the matter to the Office of Administrative Hearings for an evidentiary hearing and findings as specified in this decision.
The employee sustained two work-related injuries in the course and scope of his employment with S.T. Services [the employer]: a right shoulder injury on June 30, 1984, and a left shoulder injury on September 3, 1985. He subsequently underwent several shoulder surgeries and was rated as having a 9% and 12% whole body impairment. At the time of his work injuries, the employee held a plumber’s license, but he was working for the employer as a terminal manager.
The employee’s injuries were the subject of extensive litigation. Then, in 1994, the parties entered into a stipulation for settlement, wherein they agreed, in part, as follows:
That all parties stipulate and agree that the Employee has been permanently and totally disabled from gainful employment since the injury of September 3, 1985 and that from this point forward, the Employee’s workers’ compensation benefits shall be classified as permanent total disability benefits within the meaning of M.S. 176.101, subd. 4. The Employer and Insurer will then be allowed to take its appropriate social security offset once $25,000.00 in permanent total disability benefits have been paid to the Employee subsequent to September 3, 1985 with the Employer and Insurer being allowed to calculate said offset once a determination of social security disability benefits has been made so that the Employer and Insurer can then take the proper calculations to determine the amount of any overpayment which may exist from the workers’ compensation benefits paid to the Employee subsequent to this date. The Employee shall provide the Employer and Insurer with appropriate information regarding the social security disability status as soon as said information becomes available to the Employee. The Employee shall continue to receive permanent total disability benefits on an ongoing basis subject to the terms and conditions of Chapter 176 in conjunction with the Employee’s injuries as previously described herein which occurred on or about June 30, 1984 and September 3, 1985 with both injuries contributing to the Employee’s permanent total disability status pursuant to M.S. 176.101, subd. 4.
Emphasis added. An award on stipulation was filed on November 23, 1994.
The employer and insurer apparently paid the employee benefits, including permanent total disability benefits, in accordance with the settlement agreement. However, seventeen years later, in 2011, the employer and insurer filed a petition to discontinue permanent total disability benefits, alleging that the employee was no longer permanently and totally disabled because he had been engaged in and was capable of gainful employment.
Pursuant to Minn. Stat. § 176.101, subd. 5 (1984), total disability is defined in part as any “injury which totally incapacitates the employee from working at an occupation which brings the employee an income.” To qualify for permanent total disability benefits, an injured employee must prove that “his physical condition, in combination with his age, training, and experience, and the type of work available in his community, causes him to be unable to secure anything more than sporadic employment resulting in insubstantial income.” Schulte v. C.H. Peterson Constr. Co., 278 Minn. 79, 83, 153 N.W.2d 130, 133-34, 24 W.C.D. 290, 295 (1967).
An employer and insurer may petition the Workers’ Compensation Court of Appeals to discontinue permanent total disability benefits where an employee is receiving such benefits pursuant to an adjudication, including an award on stipulation. Ramsey v. Frigidaire Freezer Prods., 58 W.C.D. 411 (W.C.C.A. 1998). Discontinuance will not be allowed unless the settlement agreement contains language indicating that benefits are payable only if the employee continues to be permanently and totally disabled. Id.; see also Haberle v. Erickson Mills, Inc., 58 W.C.D. 487 (W.C.C.A. 1998). The settlement agreement in the present case specifies that the employee was to receive ongoing permanent total disability benefits “subject to the terms and conditions of Chapter 176.” Given this language, it is evident that the parties contemplated continued payment of permanent total disability benefits only so long as the employee continued to qualify as permanently and totally disabled under the workers’ compensation act.
The employer and insurer submitted a number of documents in support of their request for discontinuance. According to these submissions, as well as the employee’s own sworn deposition testimony, the employee worked essentially full time for three years at a Home Depot in Alaska, earning nearly $35,000 in 2008, more than $42,000 in 2009, and more than $36,000 in 2010, all the while continuing to receive permanent total disability benefits. Thereafter the employee apparently returned to Minnesota to receive treatment for non work-related conditions, including prostate cancer.
In response to the employer and insurer’s petition, the employee, who is currently unrepresented, submitted a brief explaining how and why he came to work for Home Depot, alleging, for example, that he needed to work because his wife had incurred large medical bills. The employee also maintains that he was never able to actually work full time and that he never hid his employment from the workers’ compensation insurance investigator, who contacted him yearly.
After consideration of the scant record before us, we conclude that the matter should be referred to the Office of Administrative Hearings for an evidentiary hearing, findings of fact, and, if necessary, rulings on discovery. Even accepting the employer and insurer’s evidence at face value, the fact that the employee worked for several years in Alaska does not necessarily mean that he remains capable of gainful employment now that he has returned to Minnesota. This is especially true given the employee’s current age of 71 and his latest additional health issues. The compensation judge should therefore hold an evidentiary hearing and make findings on the issues of whether the employee is permanently and totally disabled as of the hearing date, whether the employer and insurer are entitled to a credit for permanent total disability benefits paid while the employee was working in Alaska, and, if a credit is appropriate, the amount of that credit. Either party may appeal from the compensation judge’s decision on these issues. If no appeal is taken, the compensation judge’s findings will be controlling as to the employer and insurer’s right to discontinue permanent total disability benefits and/or to take a credit for past overpayment, if any.
GARY M. HALL, Judge
I respectfully dissent from the majority’s opinion in this case.
I would dismiss the Petition to Discontinue based on the plain language of Minn. Stat. § 176.238, subd. 11, and Minn. Stat. § 176.239, subd. 10. Both of those sections expressly provide that the discontinuance procedures are inapplicable to an employee who has been adjudicated, or administratively determined to be, permanently and totally disabled. However, the majority here refers the matter to the Office of Administrative Hearings for an evidentiary hearing on the proposed discontinuance.
The majority relies on a line of cases dating back to 1995, in which this court created a remedy for what it apparently believed to be an omission by the legislature. This extra-legislative creation was challenged by members of the court in separate opinions at the time, and those separate opinions still resonate today. The legislature, in enacting Minn. Stat. § 176.238, subd. 11, and Minn. Stat. § 176.239, subd. 10, intended adjudications of Permanent Total Disability to be essentially permanent and to remain in force for the life of the employee, subject only to a potential vacation of the adjudication pursuant to Minn. Stat. § 176.461 (Additionally, Minn. Stat. § 176.101, subd. 4 was subsequently amended to allow an end to Permanent Total Disability benefits at age 67 based on a presumption of retirement.) While the majority cites the potential unfairness of this outcome as a justification for “establishing” a new procedure, it is the role of the legislature, not the courts, to legislate.
The practical effect of the majority’s ruling here is to refer a discontinuance issue for an evidentiary hearing, where the legislature specifically prohibited such a hearing. In my view, this result is contrary to the statute and the jurisdictional issue should be reconsidered.
 Some of the background information here was taken from this court’s previous decisions, Stevens v. S.T. Servs., 42 W.C.D. 28 (W.C.C.A. 1989), and Stevens v. S.T. Servs., slip op. (W.C.C.A. Nov. 14, 1991).
 The permanent partial disability requirements for permanent total disability contained in the current statute do not apply given the employee’s dates of injury. See Minn. Stat.§ 176.101, subd. 5(2).
 The dissent disagrees with the procedure established in Ramsey and related cases. Were we to adopt the position expressed by the dissent, employers and insurers would be obligated to pay permanent total disability benefits, indefinitely, to employees who are earning full wages. We find it highly unlikely that the legislature intended that result.
 The employer and insurer contend, for example, that the employee has improperly refused to sign a release allowing access to his social security records and that the employee also refused to submit to a requested examination by the employer and insurer’s medical expert. The employee, on the other hand, contends that the doctor became angry and refused to proceed with the examination. In general, discovery issues are best resolved at the trial level.
 See Olson v. 3M Co., 70 W.C.D. 341 (W.C.C.A. 2010); Tambornino v. Health Risk Mgmt., No. WC10-5045 (W.C.C.A. Mar. 18, 2010), summarily aff’d (Minn. Aug. 25, 2010); Ruby v. Mueller Pipelines, 69 W.C.D. 453 (W.C.C.A. 2009); Haberle v. Erickson Mills, Inc., 58 W.C.D. 478 (W.C.C.A. 1998) (Wilson, J., separate opinion); Ramsey v. Frigidaire Co. Freezer Prods., 58 W.C.D. 411 (W.C.C.A. 1998) (Wilson, J., concurring); Behrens v. City of Fairmont, 53 W.C.D. 20 (W.C.C.A. 1995) (Wilson, J., concurring in part and dissenting in part, Olsen, J., concurring in part and dissenting in part), rev’d on other grounds, 533 N.W.2d 854, 53 W.C.D. 41 (Minn. 1995).
 The potential unfairness of the legislative scheme was also mitigated by Minn. Stat. § 176.461 where a party could petition to vacate a finding of Permanent Total Disability based on cause. That statute was later amended to define cause as a mutual mistake of fact, newly discovered evidence, fraud, or an unanticipated and substantial change in medical condition since the award.