The employer and insurer appeal from the compensation judge’s determination that the employee rebutted the retirement presumption in Minn. Stat. § 176.101, subd. 4, and was entitled to continuing permanent total disability compensation.  We affirm.

Edwin Skari, the employee, was born October 3, 1942.  He left school when he was in the 10th grade and later obtained a degree from St. Paul Technical Institute as a machinist in 1972.  Mr. Skari has been deaf since childhood.  He has no verbal skills but is able to use sign language and do some lip reading.  Mr. Skari also has a learning disability associated with his hearing loss.

Mr. Skari went to work for Aero Systems Engineering [Aero] as a machinist in 1978 and worked there for 22 years.  During his employment, Mr. Skari sustained a number of work injuries affecting his low back and both shoulders.  As the cumulative result of his work injuries, Mr. Skari was unable to continue working at Aero after November 2001.  In 2005, the parties entered into a stipulation that the employee became permanently totally disabled as of March 5, 2002.

In September 2009, the employer and insurer filed a notice of intention to discontinue [NOID] seeking the discontinuance of permanent total disability benefits because the employee would be 67 years old, was presumed retired, and was not entitled to permanent total disability compensation pursuant to Minn. Stat. § 176.101, subd. 4.  An administrative conference was held and benefits were allowed to be discontinued.  The employee filed an objection to discontinuance.

A formal hearing was scheduled and a compensation judge issued findings and order determining that there was no jurisdiction to consider the discontinuance of permanent total disability benefits.  According to the findings, the employee had been adjudicated permanently totally disabled by the parties’ settlement in 2005 and Minn. Stat. §§ 176.238 and 176.239 did not apply to an employee who had been adjudicated permanently totally disabled.  The employer and insurer were ordered to continue payment of benefits.  The employer and insurer appealed to this court.

In our decision, we held that the stipulation was not an adjudication of permanent total disability and represented an agreement to continue payments by the employer pursuant to a temporary order.  Since there had been no adjudication of permanent total disability, Minn. Stat. §§ 176.238 and 176.239 could be used by the employer and insurer to discontinue benefits and the compensation judge had jurisdiction to consider the discontinuance of benefits.  The matter was remanded for a hearing on the merits.^[1]

A hearing was held before Compensation Judge Jane Gordon Ertl on December 30, 2010.  In her findings and order served and filed February 18, 2011, the compensation judge found the employee had rebutted the presumption of retirement at age 67 and was entitled to continuing permanent total disability benefits.  The employer and insurer have appealed.

Minn. Stat. § 176.101, subd. 4, provides in pertinent part, “Permanent total disability shall cease at age 67 because the employee is presumed retired from the labor market.  This presumption is rebuttable by the employee.”  The issue at the hearing was whether the employee had rebutted the retirement presumption and the compensation judge concluded he had done so.

The determination of whether the employee has presented sufficient evidence to rebut the presumption of retirement is a question of fact for the compensation judge.  Olson v. 3M Co., No. WC11-5249 (W.C.C.A. Sept. 12, 2011).  The question for this court is whether the decision of the compensation judge is supported by substantial evidence when considering the record as a whole.  If so, the decision is to be affirmed.  Hengemuhle v. Long Prairie Jaycees, 358 N.W.2d 54, 59, 37 W.C.D. 235, 239 (Minn. 1984).

The employer and insurer argue that the compensation judge erred as a matter of law and failed to apply the factors set out in Grunst v. Immanuel-St. Joseph Hosp., 424 N.W.2d 66, 40 W.C.D. 1130 (Minn. 1988).  In Grunst, the court dealt with a predecessor statute which provided that an employee who received Social Security old age benefits was considered to be retired.  The court discussed the difficulty in deciding a case on the basis of what can only be a set of hypothetical facts, since the employee’s work injury had already removed the employee from the labor market.  In discussing what evidence, in addition to the employee’s testimony, could be considered in trying to determine the employee’s intent to retire, the court stated, “Depending upon the particular case, such other evidence might be the availability of the type of work employee was performing, the presence or absence of a pension plan or other retirement arrangements and their adequacy, the employee’s age and work history, and the employee’s willingness to forego social security benefits if suitable work were available.”  (Emphasis added) 424 N.W.2d at 69, 40 W.C.D. at 1136.  The court, by using the phrase “depending on the particular case,” recognized that each case has its own unique facts that should be reviewed on the question of retirement and did not intend to set out a rigid formula to be applied in every case.  In the present case, while not referring specifically to Grunst, the compensation judge considered the types of factors identified in that case and carefully reviewed the evidence submitted by the parties.

Mr. Skari testified at the hearing and, although the statute provides that his subjective statements alone cannot rebut the presumption, his testimony is clearly relevant and important and was considered by the compensation judge.  The employee testified that he enjoyed his job, would have kept working as long as he was able to do so, and had no plans to retire on a specific date.  It was important to him to keep working so he could continue to contribute to his retirement plan and have more money for his retirement.  The employee’s wife testified that she handles the financial affairs of the family.  She stated that when the employee was working and later, when he was on permanent total disability benefits, they had no difficulty in paying their bills.  After workers’ compensation benefits were discontinued, they were not able to meet all their expenses and their adult daughter paid for their auto and homeowner’s insurance and paid their property taxes.

The employer and insurer presented evidence to dispute this testimony, including three years of bank statements from the employee’s checking account, the homeowner’s insurance premium payments for four years, motor vehicle premium insurance payments for four years, and a utility bill for residential gas and electric service.  The employer and insurer argued that this evidence showed that, even without workers’ compensation benefits, the employee had adequate financial resources for his daily needs.

The parties also presented evidence on the likelihood of the employee retiring at different ages.  L. David Russell testified on behalf of the employer and insurer that the average retirement age in the United States is about 62 and that when an employee is in a physically demanding job such as machinist, the retirement age is even younger.  Dr. Phillip Haber testified for the employee that although workers in physically demanding jobs do in fact retire early, the retirement age in the United States is increasing.  Dr. Haber also testified that the employee’s disabilities, including his hearing loss, would make it difficult for the employee to find lighter post-retirement employment, making it more likely that the employee would have kept working for Aero were it not for his injuries.  A representative from the employer testified that most machinists at the company retired before age 60 but there was no mandatory retirement age for its employees.

We also note here that the evidence showed a strong desire on the part of the employee to be employed and a willingness to forego Social Security benefits.  Based on his hearing loss, lack of verbal communication skills and his learning disability, the employee was eligible for Social Security disability benefits even before his injuries.  In her memorandum, the compensation judge noted that the employee “was in a specific work environment that seemed to provide more opportunity to continue his employment than might have existed had he been in the general labor market.”

At the hearing and on appeal the employer and insurer emphasized that the employee’s current financial situation demonstrated his ability to meet his needs and proved that he had retired.  However, the evidence on this issue was in conflict and it is evident that the compensation judge considered this argument and accepted instead the evidence offered by the employee.  In her memorandum, the compensation judge stated “This employee’s testimony that he would have worked past age 67, the likelihood of his continued employment with his employer, the lack of mandatory retirement at the employer, the lack of any other specific reason to leave his employment, and his financial situation outweigh the general factors favoring retirement and the employee has rebutted the age 67 retirement presumption.”  There is substantial evidence sufficient to support the compensation judge’s determination.

The compensation judge’s decision is affirmed.