The employee originally appealed the compensation judge’s ruling in favor of the employer at hearing, allowing the employer to offset the employee’s permanent total disability benefits by the amount of retirement benefits she was receiving from the Public Employees’ Retirement Association (PERA).  This court originally affirmed.  On appeal, the Minnesota Supreme Court reversed and remanded the case to this court for consideration in accordance with Ekdahl v. Ind. Sch. Dist. #213, 851 N.W.2d 874, 74 W.C.D. 463 (Minn. 2014).  Now, therefore, we reverse the compensation judge’s decision.

The employee, Ms. Sharon Hartwig, began receiving a retirement annuity from PERA on August 1, 2012.  She did not apply for or receive any disability benefits from PERA.  The employee also received federal Social Security retirement benefits.  The employer and insurer had paid $25,000.00 in permanent total disability benefits as of March 8, 2011.

The parties disputed whether the employer and insurer were entitled to offset the employee’s PERA retirement benefits against her permanent total disability benefits pursuant to Minn. Stat. § 176.101, subd. 4.  The compensation judge granted the offset to the employer and insurer, concluding that public employee retirement benefits are within the meaning of “government disability benefits,” as the term is defined in Minn. R. 5222.0100, subp. 4.  This court disagreed with the compensation judge’s interpretation of Minn. R. 5222.0100, subp. 4, but we affirmed the decision based, in part, on prior decisions allowing an offset for public employee retirement benefits.  See Hartwig v. Traverse Care Center, No. WC13-5582 (W.C.C.A. Dec. 23, 2013).

The Minnesota Supreme Court determined that Minn. Stat. § 176.101, subd. 4, does not permit permanent total disability benefits to be offset by public employee pension benefits.  Ekdahl, 851 N.W.2d at 877-78, 74 W.C.D. at 468-70.  The Supreme Court held that the term “old age and survivor insurance benefits,” as used in Minn. Stat. § 176.101, subd. 4, refers only to federal Social Security benefits received by an injured worker pursuant to the Social Security Act, and not to government-service pension benefits.  Id.  Therefore, the Supreme Court held that the offset in Minn. Stat. § 176.101, subd 4, for “old age and survivor insurance benefits” does not apply to an employee’s non-social security retirement pension benefits.  Id.

Minn. Stat. § 176.101, subd. 4, states, in pertinent part, that following the total payment of $25,000.00 of permanent total disability benefits, the amount of weekly benefits being paid by the employer “shall be reduced by the amount of any disability benefits being paid by any government disability benefit program if the disability benefits are occasioned by the same injury or injuries which give rise to payments under this subdivision.  This reduction shall also apply to any old age and survivor insurance benefits.”  In Ekdahl, the Minnesota Supreme Court determined that the term “old age and survivor insurance benefits” refers only to federal Social Security benefits received by an injured worker pursuant to the Social Security Act.  851 N.W.2d at 877-78, 74 W.C.D. at 468-70.  Therefore, the employer and insurer in this case were not entitled to offset the employee’s permanent total disability benefits based on the PERA benefits she was receiving, and we reverse the compensation judge’s award of the offset in accordance with Ekdahl.

During the briefing period on remand, the employee and employer submitted briefs.  No attorney fees were originally awarded because the employee did not prevail on appeal.  As a part of her brief on remand, the employee requested statutory interest on underpayment amounts together with attorney fees and costs on appeal.  The employee argues that the Minnesota Supreme Court remanded this matter to the Workers’ Compensation Court of Appeals and did not issue a final order.  Therefore, the employee argues that this court is the proper court to award taxable costs and attorney fees.

Minn. R. Civ. App. P. 139.06 controls attorney fees on civil appeal to the Minnesota Supreme Court.  Rule 139.06 states that a party seeking attorney fees on appeal shall submit such a request by motion pursuant to Minn. R. Civ. App. P. 127, and the Supreme Court has discretion to award fees.  See Minn. R. Civ. App. P. 139.06, subd. 1.  In Cooper v. Younkin, slip op. (W.C.C.A. 1984), this court rejected a petition to tax costs and attorney fees following a reversal of one of this court’s decisions, stating that “it appears that the application for attorney’s fees, if such taxation was intended to be such, should appropriately be directed to the Supreme Court wherein the position of the employee has prevailed.”  Here, the employee’s attorney has been awarded the customary amount of attorney fees for her work at this court.  The employee’s claim for attorney fees related to her attorney’s work before the Minnesota Supreme Court should appropriately be directed to that court.