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.  We deny the petition to discontinue benefits.

Shannon M. Tambornino, the employee, sustained a personal injury on February 26, 1997, arising out of her employment with Health Risk Management, the employer.  The employer and its insurer admitted liability for the employee’s personal 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 effective June 25, 2002, as a consequence of her work injury.  The employer and insurer agreed to pay a lump sum to the employee in settlement of her claims for permanent partial disability benefits and in settlement of any and all claims for permanent total disability benefits through September 2, 2005.  The employer and insurer further agreed to “continue to pay to the employee permanent total disability benefits from and after September 30, 2005, as her condition may warrant, and shall continue to reduce said ongoing benefits on a dollar-for-dollar basis, by reason of her receipt of Social Security Disability Insurance benefits.”  (Pet. Ex. 1, ¶ 16.)  An Award on Stipulation was served and filed on October 19, 2005.

The employer and insurer filed a Petition to Discontinue Permanent Total Disability Benefits with this court on January 6, 2010.  The petitioners seek to discontinue 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.

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 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).

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.^[1]  In considering a petition to discontinue permanent total benefits, 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 states that permanent total disability benefits “shall cease at age 67 because the employee is presumed retired from the labor market.”  The petitioners argue that since their obligation to pay permanent total disability benefits is governed by Minn. Stat. § 176.101, subd. 4, the settlement agreement implicitly incorporates the presumptive retirement provision of the statute.  Since the employee is now 67 years of age, the petitioners assert she is no longer entitled to permanent total disability benefits and seek to discontinue those benefits.  The petitioners further contend this case is controlled by our decision in Ruby v. Mueller Pipelines, Nos. WC09-182, WC09-187 (W.C.C.A. Nov. 25, 2009).

In the Ruby case, the parties entered into a settlement in which they agreed the employee was permanently and totally disabled as a consequence of a work injury and agreed the employee “shall be paid permanent total disability benefits pursuant to Minn. Stat. § 176.101, subd. 4.”  Id.  The settlement was approved pursuant to Minn. Stat. § 176.521 and an award was issued.  Thereafter, the employee reached the age of 67 and the employer and insurer petitioned this court to discontinue permanent total disability benefits.  This court held that by their agreement that the employee would be paid benefits pursuant to Minn. Stat. § 176.101, subd. 4, the parties incorporated into the stipulation for settlement the presumptive retirement provision of the statute.  Accordingly, this court held the employer and insurer were entitled to discontinue permanent total benefits at age 67.

In this case, the parties did not specifically incorporate into the settlement agreement the provisions of Minn. Stat. § 176.101, subd. 4.  The settlement provides the employer shall pay permanent total disability benefits not pursuant to the statute but, rather, as the employee’s condition may warrant.  This difference between the two settlement agreements distinguishes this case from Ruby.  Accordingly, the Ruby case is not controlling.

It is well established that, except as limited by public policy, a person may waive a statutory right.  Stephenson v. Martin, 259 N.W.2d 467, 30 W.C.D. 130 (Minn. 1977).  In Stephenson, the employee was injured in a work-related automobile accident.  The employee filed a claim petition seeking workers’ compensation benefits from her employer and brought a civil action against a third party for negligence.  After extensive negotiations, the parties entered into a stipulation for settlement resolving the employee’s claim for workers’ compensation benefits and an award was issued.  Thereafter, the employee settled the third-party action and the employer and insurer sought reimbursement of the sums they had paid pursuant to the stipulation and based upon their right to subrogation under Minn. Stat. § 176.061.  The employee denied subrogation was applicable because the stipulation for settlement had settled all claims between the parties arising out of the Workers’ Compensation Act with the exception of future medical expenses.  The issue was submitted to a compensation judge who determined the employer and insurer were not entitled to subrogation.  This court affirmed concluding the employer and insurer had waived their right of subrogation by entering into the settlement without reserving that right.

On appeal, the Supreme Court stated waiver was an intentional relinquishment of known right, and while both knowledge and intention were essential elements, the knowledge may be actual or constructive and the intention can be inferred from conduct.  The court observed the employer and insurer had actual knowledge of their statutory right of subrogation, but entered into an unambiguous settlement in which they agreed to make specified payments in full, final, and complete settlement of the employee’s claims.  The court went on to state that the employer and insurer “did not expressly reserve a right to claim subrogation in the stipulation, and it is obvious that if they can now assert that right against the employee’s third-party recovery, the parties’ expressed intent with respect to the payments specified in the stipulation and ordered by the award thereon will be defeated.”  Id. at 471, 30 W.C.D. at 136.  The court concluded the employer and insurer’s intention to waive their right of subrogation was reasonably to be inferred from their conduct in assenting to the terms of the stipulation and in failing to make an express reservation of their right therein.  Accordingly, the supreme court concluded this court properly determined that the employer and insurer waived their right of subrogation by entering into the stipulation for settlement.

The law in effect on the date of the employee’s injury and the date of the award states that benefits shall cease at age 67 based upon a presumption of retirement.  The parties’ stipulation for settlement provides that the employer and insurer shall pay permanent total disability benefits to the employee as her condition may warrant.  We interpret the word condition to mean the employee’s physical ability to work, not her age. By their agreement, the parties limited the cessation of permanent total disability benefits to a change in the employee’s physical condition.  The settlement agreement does not expressly reserve the employer’s right to discontinue permanent total disability benefits when the employee reached the age of 67 years.  As in the Stephenson case, we conclude the petitioners’ intention to waive their right to discontinue permanent total disability benefits at age 67 is reasonably to be inferred from their conduct in assenting to the terms of the stipulation and by failing to make an express reservation of that right in the stipulation.  Accordingly, the employer and insurer’s petition to discontinue the employee’s permanent total disability benefits is denied.