By Evan W. Cordes |
When an employee is receiving weekly permanent total disability benefits and reaches ages 67, an employer and insurer are entitled to automatically discontinue weekly benefits without filing a petition pursuant to Minn. Stat. § 176. 101, subd. 4. In, Buley v. Polaris Industries, No. WC16-6012, (W.C.C.A. Jan. 23, 2017) the Minnesota Workers’ Compensation Court of Appeals (WCCA) affirmed the process outlined by the Minnesota Supreme Court in Frandsen v. Ford Motor Co., 801 N.W.2d 177, 182 (Minn. 2011).
Minn. Stat. 176.101, subd. 4 states:
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 subjective statement the employee is not retired is not sufficient in itself to rebut the presumptive evidence of retirement but may be considered along with other evidence.
While the age 67 retirement presumption is rebuttable, the 67th birthday, according to the courts, triggers an automatic discontinuation. If the employee wishes to challenge it, they must file a Claim Petition. This places the burden to rebut the presumption solely on the employee to file a petition for reinstatement of those benefits.
The WCCA has defined retirement as a permanent, voluntary withdrawal from the labor market. To rebut the presumption that they are not retired or did not intend to retire, an employee must show that they continue to work, continue to seek work, would have continued working but for the injury, or that their retirement was not voluntary (i.e. a buyout).
While this presumption has been relatively easy to overcome for some employees, employers and insurers are encouraged to set a diary for when an employee receiving permanent total disability benefits turn 67 and monitor their ongoing activities up to that time.
The workers’ compensation attorneys at Hansen Dordell recommend reviewing each claim on a case-by-case basis to determine the best course of action for a discontinuance. For questions or to discuss a specific claim, please contact Hansen Dordell by phone at (651) 482-8900 or visit our website, www.hansendordell.com.Posted by Hansen Dordell Posted on 06 Feb