The employer and insurer petition this court to discontinue payment of permanent total disability benefits based on the employee’s attainment of age 67 and the resulting statutory presumption of retirement.  We grant the petition.

The employee sustained a work-related injury on December 3, 2003, while employed by Wal-Mart Stores, Inc. [the employer].  The employer and its workers’ compensation insurer accepted liability for the injury, and, in December of 2006, the parties entered into a stipulation for settlement.  The stipulation contains the following agreement regarding the employee’s claim for permanent total disability benefits:

On May 10, 2011, the employer and insurer filed a petition to discontinue permanent total disability benefits, alleging that by the terms of the stipulation, the employer and insurer were entitled to raise defenses to the employee’s claim for ongoing permanent total disability benefits, including the retirement presumption defense; that the employee would reach age 67 on July 8, 2011; and that “permanent total disability shall cease at age 67 because the employee is presumed retired from the labor market.”  See Minn. Stat. § 176.101, subd. 4.

The employee filed an objection to the petition to discontinue permanent total disability benefits, alleging that there is no basis under Minn. Stat. § 176.461 and § 176.521, subd. 3, to modify the award; that the stipulation for settlement did not specifically reserve the retirement defense; and that the employee did not have any intention of retiring at age 67.

Minn. Stat. § 176.101, subd. 4, provides in part that “[p]ermanent total disability benefits shall cease at age 67 because the employee is presumed retired from the labor market.”  An employer and insurer may file, with this court, a petition to discontinue permanent total disability benefits in any case in which the employer or insurer is uncertain whether the statutory presumption applies.  See Olson v. 3M Co., 70 W.C.D. 341 (W.C.C.A. 2010).

In this case, the employer and insurer agreed that the employee had been permanently disabled from September 20, 2004, through November 1, 2006, “in substantial part because of the admitted work injury,” and agreed to continue paying permanent total disability benefits continuing from November 1, 2006, “subject to future defenses pursuant to the Workers’ Compensation Act.”  By agreeing that the employee’s right to payment after November 1, 2006, would be subject to future defenses, the parties incorporated into their settlement agreement the employer and insurer’s right to assert the retirement presumption contained in Minn. Stat. § 176.101, subd. 4.

There appears to be no dispute that the employee reached the age of 67 on July 8, 2011.  Pursuant to Minn. Stat. § 176.101, subd. 4, the employer and insurer are entitled to discontinue permanent total disability benefits.  If the employee claims entitlement to continuing permanent total disability benefits, she may file a petition pursuant to Minn. Stat. § 176.291.

I respectfully dissent.  There is no statutory basis for the Workers’ Compensation Court of Appeals to grant or deny the employer and insurer’s request to discontinue permanent total disability benefits under the circumstances presented in this case.  The function of the Workers’ Compensation Court of Appeals is to be the appellate review of the findings of fact and the application of law at the Office of Administrative Hearings.  In this case, by operation of law, the injured worker’s permanent total disability payments cease at age 67 because she is presumed retired from the labor market.^[1]  The birth date is not the disputed fact.  The injured worker’s ongoing entitlement to permanent total disability benefits upon reaching the age of 67 is the issue of fact.  The extent to which a retirement defense can limit the duration of a permanent total disability benefit is the genuine dispute.  The petition to discontinue permanent total disability benefits should therefore be presented to a compensation judge who is the designated finder of fact.  In all other discontinuances of ongoing benefits, the process for the initiation of a proceeding involves a filing at the Department of Labor and Industry and a determination by a compensation judge at the Office of Administrative Hearings.

Due process requires a procedure to be established that will allow the injured worker to expeditiously obtain a determination of whether she is entitled to ongoing permanent total disability benefits after reaching the age of the retirement presumption.  The procedure to obtain an expedited hearing in this situation is missing.^[2]  The statute allows the employer and insurer to discontinue permanent total disability benefits without filing a petition at the Workers’ Compensation Court of Appeals.  I see no statutory basis for this court to grant or deny the employer and insurer’s relief from payment of permanent total disability benefits.