The employer and insurer petition this court to allow discontinuance of permanent total disability benefits paid pursuant to an award on stipulation, contending that the employee is no longer permanently and totally disabled within the meaning of the workers’ compensation act.  We deny the petition at this time but refer the matter to the Office of Administrative Hearings for an evidentiary hearing and findings as specified in this decision.

The employee sustained two work-related injuries in the course and scope of his employment with S.T. Services [the employer]:  a right shoulder injury on June 30, 1984, and a left shoulder injury on September 3, 1985.  He subsequently underwent several shoulder surgeries and was rated as having a 9% and 12% whole body impairment.  At the time of his work injuries, the employee held a plumber’s license, but he was working for the employer as a terminal manager.

The employee’s injuries were the subject of extensive litigation.  Then, in 1994, the parties entered into a stipulation for settlement, wherein they agreed, in part, as follows:

The employer and insurer apparently paid the employee benefits, including permanent total disability benefits, in accordance with the settlement agreement.  However, seventeen years later, in 2011, the employer and insurer filed a petition to discontinue permanent total disability benefits, alleging that the employee was no longer permanently and totally disabled because he had been engaged in and was capable of gainful employment.

Pursuant to Minn. Stat. § 176.101, subd. 5 (1984), total disability is defined in part as any “injury which totally incapacitates the employee from working at an occupation which brings the employee an income.”^[2]  To qualify for permanent total disability benefits, an injured employee must prove that “his physical condition, in combination with his age, training, and experience, and the type of work available in his community, causes him to be unable to secure anything more than sporadic employment resulting in insubstantial income.”  Schulte v. C.H. Peterson Constr. Co., 278 Minn. 79, 83, 153 N.W.2d 130, 133-34, 24 W.C.D. 290, 295 (1967).

An employer and insurer may petition the Workers’ Compensation Court of Appeals to discontinue permanent total disability benefits where an employee is receiving such benefits pursuant to an adjudication, including an award on stipulation.  Ramsey v. Frigidaire Freezer Prods., 58 W.C.D. 411 (W.C.C.A. 1998).   Discontinuance will not be allowed unless the settlement agreement contains language indicating that benefits are payable only if the employee continues to be permanently and totally disabled.  Id.; see also Haberle v. Erickson Mills, Inc., 58 W.C.D. 487 (W.C.C.A. 1998).  The settlement agreement in the present case specifies that the employee was to receive ongoing permanent total disability benefits “subject to the terms and conditions of Chapter 176.”  Given this language, it is evident that the parties contemplated continued payment of permanent total disability benefits only so long as the employee continued to qualify as permanently and totally disabled under the workers’ compensation act.

The employer and insurer submitted a number of documents in support of their request for discontinuance.  According to these submissions, as well as the employee’s own sworn deposition testimony, the employee worked essentially full time for three years at a Home Depot in Alaska, earning nearly $35,000 in 2008, more than $42,000 in 2009, and more than $36,000 in 2010, all the while continuing to receive permanent total disability benefits.  Thereafter the employee apparently returned to Minnesota to receive treatment for non work-related conditions, including prostate cancer.

In response to the employer and insurer’s petition, the employee, who is currently unrepresented, submitted a brief explaining how and why he came to work for Home Depot, alleging, for example, that he needed to work because his wife had incurred large medical bills.  The employee also maintains that he was never able to actually work full time and that he never hid his employment from the workers’ compensation insurance investigator, who contacted him yearly.

After consideration of the scant record before us, we conclude that the matter should be referred to the Office of Administrative Hearings for an evidentiary hearing, findings of fact, and, if necessary, rulings on discovery.^[4]  Even accepting the employer and insurer’s evidence at face value, the fact that the employee worked for several years in Alaska does not necessarily mean that he remains capable of gainful employment now that he has returned to Minnesota.  This is especially true given the employee’s current age of 71 and his latest additional health issues.  The compensation judge should therefore hold an evidentiary hearing and make findings on the issues of whether the employee is permanently and totally disabled as of the hearing date, whether the employer and insurer are entitled to a credit for permanent total disability benefits paid while the employee was working in Alaska, and, if a credit is appropriate, the amount of that credit.  Either party may appeal from the compensation judge’s decision on these issues.  If no appeal is taken, the compensation judge’s findings will be controlling as to the employer and insurer’s right to discontinue permanent total disability benefits and/or to take a credit for past overpayment, if any.

I respectfully dissent from the majority’s opinion in this case.

I would dismiss the Petition to Discontinue based on the plain language of Minn. Stat. § 176.238, subd. 11, and Minn. Stat. § 176.239, subd. 10.  Both of those sections expressly provide that the discontinuance procedures are inapplicable to an employee who has been adjudicated, or administratively determined to be, permanently and totally disabled.  However, the majority here refers the matter to the Office of Administrative Hearings for an evidentiary hearing on the proposed discontinuance.

The majority relies on a line of cases dating back to 1995, in which this court created a remedy for what it apparently believed to be an omission by the legislature.^[5]  This extra-legislative creation was challenged by members of the court in separate opinions at the time, and those separate opinions still resonate today. The legislature, in enacting Minn. Stat. § 176.238, subd. 11, and Minn. Stat. § 176.239, subd. 10, intended adjudications of Permanent Total Disability to be essentially permanent and to remain in force for the life of the employee, subject only to a potential vacation of the adjudication pursuant to Minn. Stat. § 176.461 (Additionally, Minn. Stat. § 176.101, subd. 4 was subsequently amended to allow an end to Permanent Total Disability benefits at age 67 based on a presumption of retirement.)  While the majority cites the potential unfairness of this outcome as a justification for “establishing” a new procedure, it is the role of the legislature, not the courts, to legislate.^[6]

The practical effect of the majority’s ruling here is to refer a discontinuance issue for an evidentiary hearing, where the legislature specifically prohibited such a hearing.  In my view, this result is contrary to the statute and the jurisdictional issue should be reconsidered.