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.

Gene Rudolph, the employee, sustained a personal injury on June 23, 2003, arising out of his employment with Minnesota Twist Drill, the employer, insured by CNA Insurance Company.  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 June 23, 2003.  In a stipulation for settlement, the employer and insurer agreed to pay permanent total disability benefits to the employee subject to the applicable Social Security disability benefit offset allowed by Minn. Stat. § 176.101, subd. 4.  The stipulation for settlement further provided as follows:

On April 13, 2011, 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 February 2011 and was presumed retired.  The petitioners assert the employee was born on February 29, 1944, and reached the age of 67 years on February 29, 2011.  The petitioners maintain they have no further liability for permanent total disability benefits pursuant to Minn. Stat. § 176.101, subd. 4.^[1]  The employee filed an Objection to Discontinuance contending he remains entitled to permanent total disability benefits.

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., 70 W.C.D. 341 (W.C.C.A. 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.  The settlement agreement provides the employer and insurer will pay permanent total disability benefits to the employee only so long as he remains entitled to such benefits under the Workers’ Compensation Act.  The settlement agreement further provides that nothing contained in the stipulation shall be construed as waiving, altering or limiting any right or defense the employer and insurer may have to the employee’s continued receipt of permanent total disability benefits including the retirement presumption contained in Minn. Stat. § 176.101, subd. 4.  Clearly, the parties incorporated into their settlement agreement the presumptive retirement provision of the statute.  See Ruby v. Mueller Pipelines, 69 W.C.D. 453 (W.C.C.A. 2009).  The employee reached the age of 67 in February 2011 and is presumed retired from the labor market.  The petitioners’ request to discontinue permanent total disability benefits is granted effective February 29, 2011.

I respectfully dissent.^[2]

The compensation judge is designated as the finder of fact.  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 he is presumed retired from the labor market.^[3]  The birthdate of the employee 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 process for the initiation of a proceeding in all other discontinuances of ongoing benefits involves a filing at the Department of Labor and Industry and a determination by a compensation judge.

Due process requires a procedure to be established that will allow the injured worker to expeditiously obtain a determination of whether he 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.^[4]  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 the employer and insurer’s relief from payment of permanent total disability benefits under the circumstances presented in this case.