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 J. Stans, Sr., the employee, sustained a personal injury on August 2, 1997, arising out of his employment with N & D Construction, the employer, then insured by State Fund Mutual Insurance Company.  The employer and insurer admitted liability for the employee’s personal injury and commenced payment of workers’ compensation benefits.

In September 2002, the parties entered into a settlement of the employee’s claims.  The parties agreed the employee was permanently and totally disabled by reason of his personal injury and the insurer agreed to commence payment of permanent total disability benefits to the employee.  In the settlement agreement, the employer and insurer “reserv[ed] the right to discontinue permanent total disability benefits at age 67 based on the retirement presumption.”  The stipulation further provided the employee reserved the right to “contest any presumption of retirement at age 67 and further reserves the right to claim permanent total disability benefits beyond that presumed retirement age.”  (Stipulation for Settlement, ¶ V.7.)  An award on stipulation was served and filed on September 10, 2002.

The employee was born on June 21, 1943, and reached the age of 67 years on June 21, 2010.  In February 2010, the employer and insurer filed with this court a petition to discontinue permanent total disability benefits on the basis that the employee would reach the age 67 in June 2010 and would then be presumed retired.  The petitioners assert they have no further liability for permanent total disability benefits from and after June 21, 2010, pursuant to Minn. Stat. § 176.101, subd.4.  The employee filed no response to the employer and insurer’s petition.

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 (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.^[1]  The settlement agreement specifically allows the employer and insurer to discontinue permanent total disability benefits when the employee reaches 67 years of age.  The employee reached the age of 67 years on June 21, 2010.  The petitioner’s request to discontinue permanent total disability benefits effective June 21, 2010, is granted.