PERMANENT TOTAL DISABILITY – DISCONTINUANCE; PERMANENT TOTAL DISABILITY – RETIREMENT. Where an employer and insurer seek to discontinue permanent total disability on the basis the employee will reach the presumptive retirement age, no process is required, subject to the employee’s right to petition under Minn. Stat. § 176.291.
ATTORNEYS: Michael L. Garbow, Rodgers & Garbow, P.L.L.C., Bemidji, Minnesota, for the Respondent. David O. Nirenstein and Kelly B. Nyquist, Fitch, Johnson, Larson & Held, P.A., Minneapolis, Minnesota, for the Petitioner.
Petition to discontinue dismissed.
PATRICIA J. MILUN, Chief Judge
The employer petitions this court for an order discontinuing the payment of permanent total disability benefits on the ground that the employee will achieve the statutory presumptive retirement age of 67 on July 29, 2017. Having found an insufficient basis to grant the relief requested, we dismiss the petition.
The employee, Pamalyn Buley, was working for Polaris Manufacturing on April 24, 2001, September 23, 2005, and August 1, 2010, when she sustained work-related injuries. The employee and the employer entered into a stipulation that included payment of ongoing permanent total disability benefits in the amount of $ 504.62 per week.[1] The employer asserts that the employee will reach the presumptive retirement age of 67 on July 29, 2017, and therefore the employer is entitled to discontinue the payment of ongoing permanent total disability benefits. The employer cites Minn. Stat. § 176.101, subd. 4, as a basis for discontinuance and Minn. Stat. § 176.238, subd. 5, as the authority to bring this petition. The employee made no response to the petition to discontinue.
The employer relies on the process set forth in Minn. Stat. § 176.238, subd. 5, to obtain an order permitting discontinuance of permanent total disability benefits. The Minnesota Supreme Court, in Stevens v. S.T. Services, 851 N.W.2d 52, 57-58, 74 W.C.D. 433 (Minn. 2014), held that “The Legislature has expressly provided in subdivision 11 of section 176.238 that an employer may not petition under subdivision 5 of section 176.238 to discontinue benefits to an employee who has been adjudicated permanently totally disabled.” An adjudication of permanent total disability can occur through settlement, where the parties have not included language making the disability status conditional on future events.[2] As the employer has not included the actual settlement with the pleadings, the type of award cannot be determined and this court cannot proceed under Minn. Stat. § 176.238, subd. 5.
The only basis for discontinuance cited by the employer is the presumption of retirement upon reaching age 67 set out in Minn. Stat. § 176.101, subd. 4. The application of this presumption was the subject of the Minnesota Supreme Court’s decision in Frandsen v. Ford Motor Co., 801 N.W.2d 177, 182, 71 W.C.D. 377 (Minn. 2011), which held, in part:
According to its plain language, Minn. Stat. § 176.101, subd. 4, affords an employer the right to presume that an employee would have retired at age 67 and, correspondingly, to stop paying PTD benefits without taking any action prior to this cessation.
Upon remand, this court applied the Minnesota Supreme Court’s ruling, dismissing the petition to discontinue, stating:
Under the supreme court’s decision, there is no need for an employer or insurer to file a petition to discontinue permanent total disability benefits based upon the presumptive retirement provision of Minn. Stat. § 176.101, subd. 4. Rather, an employer and insurer may cease payment of permanent total disability benefits when the employee attains the age of 67, without taking any further action prior to the cessation. If the employee claims entitlement to permanent total disability benefits after age 67, he or she may file a petition pursuant to Minn. Stat. § 176.291.[3]
There is no legal basis for this court to vary from the procedure set out in Frandsen. Consistent with the terms and conditions of the stipulation, the parties may be permitted to discontinue permanent total disability benefits when the employee attains the age of 67, subject to the employee’s right to petition for reinstatement of those benefits. For the above-stated reasons, the court dismisses the employer’s petition to discontinue.
[1] The stipulation was identified as attached to a pleading as Exhibit 1, but the document was not submitted.
[2] Stevens, at 59 (describing an “open” award that lacks adjudication).
[3] Frandsen v. Ford Motor Co., No. WC11-5342 (W.C.C.A. November 17, 2011).