In these consolidated cases, the employer and insurer appeal from the compensation judge’s determination that he lacked jurisdiction to determine a disputed discontinuance of permanent total disability benefits.  We affirm.  The employer and insurer also petition this court to discontinue payment of permanent total disability benefits on the basis the employee has reached the age of 67 and is presumed retired under Minn. Stat. § 176.101, subd. 4.  The petition to discontinue permanent total disability benefits is granted.

Albert F. Ruby, the employee, sustained a personal injury on September 9, 2004, arising out of his employment with Mueller Pipelines, the employer, then insured by St. Paul Fire & Marine Insurance Company/Travelers Group.  The employer and its insurer admitted liability for the employee’s injury.

Thereafter, the parties entered into a stipulated settlement of the employee’s claims in which the parties agreed the employee was rendered permanently and totally disabled on September 9, 2004, as a consequence of his work injury, and agreed the employee “shall be paid permanent total disability benefits pursuant to Minn. Stat. § 176.101, subd. 4.”  An Award on Stipulation was filed on March 13, 2006.

The employee reached his 67th birthday on November 11, 2008.  Thereafter, the appellants filed a Notice of Intention to Discontinue Workers’ Compensation Benefits under Minn. Stat. § 176.238 seeking to discontinue further payment of permanent total disability benefits on the ground that the employee, having reached the age of 67, was presumed retired pursuant to the provisions of Minn. Stat. § 176.101, subd. 4.^[1]

Following an administrative conference under Minn. Stat. § 176.239, the insurer was allowed to discontinue permanent total disability benefits.  The employee objected to the commissioner’s decision and the case was heard by a compensation judge at the Office of Administrative Hearings.  In Findings and Order served and filed May 5, 2009, the compensation judge found that the discontinuance provisions of Minn. Stat. §§ 176.238 and 176.239 do not apply to employees who have been adjudicated permanently and totally disabled.  The compensation judge concluded he lacked jurisdiction to determine the issue of a discontinuance of permanent total disability benefits and ordered the employer and insurer to recommence payment of permanent total disability benefits.  The employer and insurer appeal from this findings and order.

On May 19, 2009, the employer and insurer filed with the Workers’ Compensation Court of Appeals a Petition to Discontinue Permanent Total Benefits.  The petitioners seek to discontinue permanent total disability benefits on the basis that the employee has reached the age of 67 and is presumed retired under Minn. Stat. § 176.101, subd. 4.

The appellants appeal the compensation judge’s denial of their Petition to Discontinue Permanent Total Disability Benefits.  They argue the compensation judge erroneously concluded the judge lacked jurisdiction to grant or deny their petition to discontinue.  The appellants request this court remand the case to the compensation judge to decide the underlying issue of the employee’s entitlement to permanent total disability benefits.

Minn. Stat. § 176.238 provides procedures for discontinuing compensation benefits and details the procedures for resolution of requests by an employer and insurer to discontinue benefits.  Minn. Stat. § 176.239 provides procedures for parties to obtain an expedited interim administrative decision in disputes over discontinuance of compensation benefits.  Both statutes, however, contain a subdivision that states, “This section shall not apply to those employees who have been adjudicated permanently and totally disabled or to those employees who have been administratively determined, pursuant to division rules, to be permanently totally disabled.”  Minn. Stat. §§ 176.238, subd. 11, and 176.239, subd. 10.  In Cook v. J. Mark, Inc., 51 W.C.D. 432 (W.C.C.A. 1994), this court held an award on stipulation constitutes an “adjudication” within the meaning of Minn. Stat. § 176.238, subd. 11.  These two statutes are, therefore, inapplicable for the purpose of discontinuing permanent total disability benefits to this employee who is receiving those benefits pursuant to an award on stipulation.  See also Behrens v. City of Fairmont, 53 W.C.D. 20 (W.C.C.A. 1995), rev’d on other grounds, 533 N.W.2d 854, 53 W.C.D. 41 (Minn. 1995); Haberle v. Erickson Mills, Inc., 58 W.C.D. 478 (W.C.C.A. 1998).

The appellants argue the Cook, Behrens, and Haberle cases are no longer controlling because of subsequent amendments to Minn. Stat. § 176.101, subd. 4.  Effective October 1, 1995, subdivision 4 was amended by adding a provision that permanent total disability shall cease at age 67 because the employee is presumed retired from the labor market.  This amendment, the appellants argue, creates a cessation event that requires a corresponding statutory mechanism for discontinuing the benefits.  The appellants contend the procedures of Minn. Stat §§ 176.238 and 176.239 should, therefore, be applicable and available to furnish an expedited and efficient means to determine whether permanent total benefits at age 67 may be discontinued.  We are not persuaded.

Both Minn. Stat. §§ 176.238 and 176.239 contain the same language which states the statute does not apply to those employees who have been adjudicated permanently totally disabled.  This language is clear and unequivocal.  Had the legislature chosen to do so, it could have amended both statutes at the same time it added the retirement presumption to Minn. Stat. § 176.101, subd. 4.  The legislature did not do so.  The plain language of the statutes excludes their application to employees who have been adjudicated permanently totally disabled.  The compensation judge’s decision is, therefore, affirmed.

While the provisions of Minn. Stat. §§ 176.238 and 176.239 do not apply in this case, the petitioners are not without a remedy.  In Ramsey v. Frigidaire Co. Freezer Prods., 58 W.C.D. 411 (W.C.C.A. 1998), this court established a procedure to discontinue permanent total disability benefits separate from the statutes permitting a vacation of an award on stipulation.  See Minn. Stat. §§ 176.461 and 176.521.  The court in Ramsey held an employer and insurer may file with the Workers’ Compensation Court of Appeals a petition to discontinue permanent total disability benefits.^[2]  This Court will review the language of the settlement agreement to determine whether the stipulation for settlement contains language demonstrating the parties intended benefits would continue only so long as the employee remained permanently and totally disabled.  The petitioners contend this is such a case.

The law in effect on the date of the employee’s injury and the date of the award on stipulation states that benefits “shall cease at age 67” based upon a presumption of retirement.  The Stipulation for Settlement provides the employee “shall be paid permanent total disability benefits pursuant to Minn. Stat. § 176.101, subd. 4.”  The petitioners argue that, based upon the language of the stipulation, its agreement to pay ongoing permanent total disability benefits assumes the employee remains permanently and totally disabled.  The employee has reached the age of 67 years and is now statutorily presumed retired.  Accordingly, the petitioners contend they are entitled to discontinue the employee’s permanent total disability benefits.  The employee argues the parties agreed in the stipulation that the employee was and would remain permanently and totally disabled, with no conditions.  The stipulation does not, the employee argues, specifically provide the employee might, at some later date, be required to prove his ongoing entitlement to permanent total disability benefits.  Accordingly, the employee asks this court to deny the petition to discontinue.

In agreeing the employee would be paid benefits pursuant to Minn. Stat. § 176.101, subd. 4, the parties incorporated into their settlement agreement the presumptive retirement provision of the statute.  The employee has reached age 67 and, pursuant to the statute, payments of permanent total disability shall cease and the employee is presumed retired from the labor market.  The employer and insurer are entitled to discontinue payment to the employee of permanent total disability benefits effective the day the employee reached age 67.  The employee is free to file a claim petition should he claim entitlement to permanent total disability benefits after age 67.