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 benefits, the petition is granted.

DiAnn C. Olson, the employee, sustained personal injuries on September 13, 1999, and September 18, 2002, arising out of her employment with 3M Company, the employer, insured by Old Republic Insurance Company.  The employer and its insurer admitted liability for the employee’s personal injuries.  In 2003, the employee filed a claim petition seeking permanent total disability benefits.  In a Findings and Order served and filed February 16, 2005, a compensation judge at the Office of Administrative Hearings found the employee was permanently and totally disabled as a result of her September 18, 2002, work injury.  The decision of the compensation judge was not appealed, and payment of permanent total disability benefits was commenced.

On October 26, 2009, the employee attained the age of 67 years.  On that same date, the employer and insurer served and filed a Notice of Intention to Discontinue Workers’ Compensation Benefits (NOID) on the basis that the employee had reached 67 years of age and was presumed retired.  The petitioners asserted they had no further liability for permanent total disability benefits pursuant to Minn. Stat. § 176.101, subd. 4.^[1]  The employee requested an administrative conference under Minn. Stat. § 176.239.  Following a hearing, a compensation judge issued an Award on Discontinuance allowing the employer and insurer to discontinue permanent total disability benefits.  The employee filed an objection to discontinuance seeking reinstatement of permanent total disability benefits and a claim petition alleging entitlement to permanent total disability benefits from and after October 27, 2009.  Thereafter, the employer and insurer filed with this court a petition to discontinue permanent total disability benefits and the matter was heard before a panel of this court.

Minnesota Statutes § 176.238 specifies procedures for discontinuing workers’ compensation benefits and for resolution of requests by an employer and insurer to discontinue benefits.  Minnesota Statutes § 176.239 sets forth procedures for obtaining 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.  This statutory language is clear and unequivocal.  The employee was adjudicated permanently and totally disabled by a Findings and Order served and filed February 16, 2005.  These two statutes are, therefore, inapplicable for the purpose of discontinuing benefits to this employee who is receiving permanent total disability benefits pursuant to an adjudication.  See 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); Ruby v. Mueller Pipelines, 69 W.C.D. 453 (W.C.C.A. 2009).

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 Petter v. K.W. McKee, Inc., 270 Minn. 362, 133 N.W.2d 638, 23 W.C.D. 436 (1965) the supreme court stated the employer could seek modification of the award of permanent total disability benefits under Minn. Stat. § 176.461, providing for reopening an award for cause, if the employee’s condition improved.  See also Kadolph v. Koob Implement Co., 32 W.C.D. 61, 62 (W.C.C.A. 1979) (the procedure to be followed where there has been an award of permanent and total disability is by petition to vacate pursuant to Minn. Stat. § 176.461.)  The supreme court in Behrens, citing the Petter decision, stated that when an employee has been determined to be permanently and totally disabled, “such benefits are payable for an indefinite period of time into the future unless and until such time as the case may be reopened upon sufficient cause under section 176.461.”^[2]  See,e.g., Cook v. J. Mark, Inc., 51 W.C.D. 432 (W.C.C.A. 1994).

In addition, in a series of cases, this court has established a separate procedure for filing a petition to discontinue permanent total disability benefits with the Workers’ Compensation Court of Appeals similar to that for vacating or setting aside an award on stipulation.^[3]  See Minn. Stat. §§ 176.461 and 176.521, subd. 3.  A petition to this court to discontinue permanent total disability benefits is intended to afford a mechanism by which an employer or insurer can obtain a determination of its continuing liability for permanent total disability benefits where relief is not available under Minn. Stat. § 176.461.^[4]  Petitions to discontinue have typically involved questions about the employee’s ability to work at the present time as compared to the employee’s ability to work at the time of the stipulation.  In considering a petition to discontinue, this court has reviewed the language of the settlement agreement to determine whether the stipulation contains language demonstrating the parties intended benefits would continue only so long as the employee remains permanently and totally disabled.  See, e.g., Campbell v. Independent Sch. Dist. #191, slip op. (W.C.C.A. Mar. 15, 2001); Moe v. DIDD, Inc., slip op. (W.C.C.A. Oct. 10, 2000); Haberle, 58 W.C.D. 478.

More recently, this court has received petitions to discontinue permanent total benefits based upon the retirement presumption of Minn. Stat. § 176.101, subd. 4.  In Ruby v. Mueller Pipelines, 69 W.C.D. 453 (W.C.C.A. 2009), the parties entered into a stipulation for settlement that stated the employee “shall be paid permanent total disability benefits pursuant to Minn. Stat. § 176.101, subd. 4.”  The employer later filed a petition with this court to discontinue payment of permanent total disability benefits because the employee had reached the age of 67.  This court determined that by the language in the settlement agreement, the parties incorporated into the stipulation for settlement the presumptive retirement provision of the statute.  The court held the employer and insurer were entitled to discontinue payment to the employee of permanent total disability benefits effective the date the employee reached age 67.  In Tambornino v. Health Risk Mgmt., No. WC10-5045 (W.C.C.A. Mar. 18, 2010), the parties’ settlement document provided the employer and insurer would pay permanent total disability benefits to the employee “as her condition may warrant.”  The court interpreted the word “condition” to mean the employee’s physical ability to work, not her age.  The parties did not specifically incorporate into the settlement agreement the provisions of Minn. Stat. § 176.101, subd. 4, nor did they expressly reserve the right to discontinue permanent total disability benefits when the employee reached the age of 67.  The court concluded the employer and insurer’s intention to waive the right to discontinue permanent total benefits at age 67 could be reasonably inferred by their agreement to continue paying permanent total disability benefits so long as the employee’s condition warranted, and by failing to expressly reserve that right in the stipulation.  Accordingly, the employer and insurer’s petition to discontinue permanent total disability benefits was denied.

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.

In this case, the employee was adjudicated permanently and totally disabled pursuant to a Findings and Order served and filed February 16, 2005.  There is no need to review the language of the order as payment of permanent total disability benefits pursuant to a findings and order must be made in accordance with the provisions of the workers’ compensation act, including Minn. Stat. § 176.101, subd. 4.  There is no dispute the employee has reached the age of 67.  The employer and insurer were entitled to cease payment of permanent total disability benefits effective October 26, 2009, the day the employee reached age 67.  The petition to discontinue is granted.