The employee appeals from the compensation judge’s decision that the permanent total disability benefits due to the employee in this case are based on 65 percent of the statewide average weekly wage on the date of the employee’s injury, adjusted in subsequent years based on the provisions of Minn. Stat. § 176.645.  We affirm.

This case came on for hearing before the compensation judge pursuant to a stipulation of facts between the parties.  On April 29, 1996, the employee, Kevin Olson, was working for the employer, Dart Distributing, Inc., when he sustained a low back injury arising out of and in the course and scope of his employment.  The parties entered into a stipulation for settlement on May 25, 2000.  They agreed that the employee had been rendered permanently and totally disabled and that he was entitled to permanent total disability benefits as of April 29, 1998.^[1]  The Office of Administrative Hearings issued an award on stipulation on May 31, 2000.

The record for the present hearing on stipulated facts closed on August 27, 2012.  At that time, the compensation judge was asked to determine the following issue:

The parties agree that on the employee’s date of injury, April 29, 1996, his average weekly wage was $429.88, which entitled him to a base compensation rate of $286.59.  The parties also agree that on April 29, 1996, 65 percent of the statewide average weekly wage (SAWW) was $329.00.  As such, the parties agree that on April 29, 1996, the employee’s compensation rate was less than 65 percent of the statewide average weekly wage.  The dispute concerns the method for any necessary recalculations.

In summary, the employee argues that because the minimum SAWW is increased each year, his permanent total disability rate should increase each year at the same rate as the minimum SAWW.  The employer and insurer argue that the employee’s initial permanent total disability rate is established at the date of injury as 65 percent of the minimum SAWW but is increased thereafter only by operation of Minn. Stat. § 176.645.

The parties presented their arguments to the compensation judge in written briefs.  Ultimately, the compensation judge determined that Minn. Stat. § 176.101, subd. 4, provided for compensation at 66-2/3 percent of the daily wage at the time of the injury, subject to a maximum and a minimum, but did not provide that the compensation rate should be adjusted each subsequent year based on the SAWW.  As such, the compensation judge found that the permanent total disability benefits due in this case were set at 65 percent of the SAWW on the date of the employee’s injury, and that amount would then be adjusted in subsequent years based on Minn. Stat. § 176.645.  The employee appeals.

“[A] decision which rests upon the application of a statute or rule to essentially undisputed facts generally involves a question of law which [the Workers’ Compensation Court of Appeals] may consider de novo.”  Krovchuk v. Koch Oil Refinery, 48 W.C.D. 607, 608 (W.C.C.A. 1993).

The SAWW is recalculated yearly.^[2]  Therefore, the employee argues that because Minn. Stat. § 176.101, subd. 4, imposes a minimum weekly permanent total disability compensation equal to 65 percent of the SAWW, his permanent total disability amount should be adjusted each year based on changes in the SAWW and not based on the more moderate adjustments delineated in Minn. Stat. § 176.645.^[3]

The first sentence of Minn. Stat. § 176.101, subd. 4, is at issue here, and that sentence states as follows:

The compensation judge relied on Vezina v. Best Western Inn Maplewood, 627 N.W.2d 324, 61 W.C.D. 255 (Minn. 2001).^[4]  In Vezina, the Minnesota Supreme Court analyzed Minn. Stat. § 176.101, subd. 4, and addressed the issue of whether the minimum permanent total disability rate could be further reduced by SSDI benefits paid.  Id. at 325, 61 W.C.D. at 256.  The Court determined that an offset for government disability benefits can be applied even if such an offset causes the level of permanent total disability benefits to fall below the minimum of 65 percent of the SAWW on the employee’s injury date.  Id. at 330, 61 W.C.D. at 264-65.  The Supreme Court also discussed the initial calculation process for permanent total disability benefits and concluded as follows:

The compensation judge found that any adjustments to the employee’s compensation rate should be made pursuant to Minn. Stat. § 176.645 and not under the employee’s proposed reading of Minn. Stat. § 176.101, subd. 4.  We agree.  Minn. Stat. § 176.645 has been amended multiple times.  However, its first sentence states that “For injuries occurring after October 1, 1975 for which benefits are payable under section 176.101, subdivisions 1, 2 and 4 and section 176.111, subdivision 5, the total benefits due the employee or any dependents shall be adjusted in accordance with this section.”  Minn. Stat. § 176.645, subd. 1.  This language explicitly applies Minn. Stat. § 176.645 to benefits payable under Minn. Stat. § 176.101, subd. 4.  Thus, the employee’s proposed adjustment of benefits based on the SAWW runs contrary to the plain language of Minn. Stat. § 176.645.

The employee bases his argument primarily on an analysis of the supplementary benefit statute, Minn. Stat. § 176.132, and its repeal in 1995.  The employee argues that Minn. Stat. § 176.132 was repealed at the same time that the minimum rate specified in Minn. Stat. § 176.101, subd. 4, changed to 65 percent of the SAWW.  As such, the employee argues that the legislature simply transferred the concept of entitlement to at least 65 percent of the SAWW for the year in which benefits are paid from Minn. Stat. § 176.132 to Minn. Stat. § 176.101, subd. 4.  Thus, he argues that his permanent total disability benefits should be recalculated in accordance with the SAWW and not pursuant to Minn. Stat. § 176.645.

This court addressed a similar argument in Shelton v. National Painting & Sandblasting, 61 W.C.D. 230 (W.C.C.A. 2000).^[6]  There, we noted that “with the repeal of supplementary benefits also came an essential reduction in workers’ compensation benefits in general.”  Id. at 250 (citing Minn. Stat. § 176.132 (1994)).  As such, this court stated that it “cannot agree that the insertion of a minimum weekly compensation of sixty-five percent of the statewide average weekly wage in Minn. Stat. § 176.101, subd. 4, somehow evinces a legislative intent to shift authorization for payment of the cost of supplementary benefits to that subdivision.”  Id.

Nor can we infer such a legislative intent now, as the employee urges.  A minimum compensation rate has always been a part of Minn. Stat. § 176.101, subd. 4, and prior to 1995 it was not uncommon for workers’ compensation benefits to be reduced below the minimum, even to the point of a complete offset.  Shelton, 61 W.C.D. at 248-49 (citation omitted).  The amendment to subdivision 4 in the 1995 legislation applied only to the amount of the minimum.  Id. at 249 (citing Potucek v. City of Warren, 535 N.W.2d 333, 53 W.C.D. 88 (Minn. 1995)).  Furthermore, adjustments based on the SAWW would exceed the two-percent limit found in Minn. Stat. § 176.645, subd.1, and might not follow the requirement that the initial adjustment of benefits be deferred until the fourth anniversary of the date of injury found in Minn. Stat. § 176.645, subd. 2.  See Id. at 251.

Based on his reading of Minn. Stat. § 176.101, subd. 4, the employee argues that § 176.101, subd 4, and § 176.645 are irreconcilable.  As such, he cites statutory construction statutes, including Minn. Stat. § 645.26, and argues that Minn. Stat. § 176.101, subd. 4, should supersede the adjustment rates provided in Minn. Stat. § 176.645.^[7]  We disagree.  Minn. Stat. § 645.16 and § 645.26 state that effect should be given to all statutory provisions, whenever possible.  Minn. Stat. § 176.101, subd. 4, refers to a minimum rate fixed on the date of injury, rather than a minimum rate that changes every year based on the SAWW.  Following the employee’s interpretation of § 176.101, subd. 4, would create an irreconcilable conflict with § 176.645.  In addition, ignoring Minn. Stat. § 176.645, with its explicit application to Minn. Stat. § 176.101, subd. 4, would render that portion of the statute ineffective.  Neither of these results could have been intended by the legislature.  As such, we affirm the compensation judge’s determination that the minimum found in Minn. Stat. § 176.101, subd. 4, applies at the time of the injury, and any subsequent adjustments to the compensation rate are to be made pursuant to Minn. Stat. § 176.645.