The employer and insurer petition this court to discontinue payment of permanent total disability benefits on the basis that the employee has reached the age of 67 years and is presumed retired under Minn. Stat. § 176.101, subd. 4.  Concluding the employer and insurer may properly discontinue permanent total disability benefits, the petition is granted.

Edward Kanieski, the employee, sustained a personal injury on January 30, 1996, arising out of his employment with Ferche Millwork, Inc., insured by Travelers Property Casualty Company of America.^[1]  The employer and insurer admitted liability for the employee’s personal injury.  Thereafter, the parties entered into a settlement of the employee’s claims in which they stipulated the employee was permanently and totally disabled as of August 9, 1999.  The employer and insurer agreed to pay certain workers’ compensation benefits to the employee, including a lump sum payment representing permanent total disability benefits from August 9, 1999, through August 9, 2001.  In the stipulation for settlement, the employer and insurer further agreed to “continue to pay permanent total disability benefits subsequent to August 9, 2001, for as long as the Employee remains entitled to permanent total disability benefits under the Minnesota Workers’ Compensation Act.”  (Stip. for Settlement ¶ X.3.)  An award on stipulation was served and filed on October 18, 2001.

On August 9, 2010, the employer and insurer filed with this court a petition to discontinue permanent total disability benefits on the basis that the employee had reached age 67 in July 2010 and was presumed retired.  The petitioners assert the employee was born on July 22, 1943, and reached the age of 67 years on July 22, 2010.  The petitioners maintain they have no further liability for permanent total disability benefits from and after July 2010 pursuant to Minn. Stat. § 176.101, subd. 4.^[2]  The employee filed no responsive pleadings.

In cases in which the presumptive retirement provision of Minn. Stat. § 176.101, subd. 4, applies, an employer or insurer may discontinue payment of permanent total disability benefits to an employee who has been adjudicated or administratively determined to be permanently and totally disabled without filing with this court a petition to discontinue benefits.  In such cases, an employer and insurer have no continuing liability for permanent total disability benefits after the employee attains the age of 67 years.  If the employee claims entitlement to permanent total disability benefits after attaining the age of 67 years, he or she may file a petition pursuant to Minn. Stat. § 176.291.  An employer and insurer may, however, be liable for penalties under Minn. Stat. § 176.225 if an employee’s permanent total disability benefits are improperly discontinued.  In any case in which the employer or insurer is uncertain whether the statutory presumption applies, an employer or insurer may file with this court a petition to discontinue permanent total disability benefits.  See Olson v. 3M Co., No. WC10-5054 (W.C.C.A. June 29, 2010).

In this case, the parties stipulated the employee was entitled to permanent total disability benefits by reason of his personal injury and an award on stipulation was served and filed.^[3]  The settlement agreement provides the employer and insurer will pay permanent total disability benefits to the employee so long as he remains entitled to such benefits under the workers’ compensation act.  By agreeing the employee would be paid benefits pursuant to the workers’ compensation act, the parties incorporated into their settlement agreement the presumptive retirement provision of Minn. Stat. § 176.101, subd. 4.  See Ruby v. Mueller Pipelines, 69 W.C.D. 453 (W.C.C.A. 2009).  The employee reached the age of 67 in July 2010 and is presumed retired from the labor market.  The petitioners’ request to discontinue permanent total disability benefits, effective July 22, 2010, is granted.