Opinion
No. 81-783.
January 22, 1982.
Gilmore, deLambert, Aafedt, Eustis Forde and Donald W. Anderson, Minneapolis, for relators.
Grose, Von Holtum, Von Holtum, Sieben Schmidt and Timothy J. McCoy, Minneapolis, for respondent.
Considered and decided by the court en banc without oral argument.
Certiorari on the relation of the employer-insurer to review a decision of the Workers' Compensation Court of Appeals determining that employee is entitled to receive continuing temporary total disability compensation. Both relators and employee have construed the decision under review to require that an employer must furnish evidence "unequivocally establishing" employee's intent to retire. Assuming that this was the basis on which the majority of the Court of Appeals evaluated the evidence on that issue, we reverse and remand for that tribunal's determination of whether a preponderance of the evidence established the employer-insurer's claim.
The apparent confusion about the required quantum of proof on this issue is traceable to the fact that in Gaston v. North Star Lanes, 295 N.W.2d 623, 626 (Minn. 1980), we distinguished the facts in that case from those in Joens v. Campbell Soup Co., 281 N.W.2d 695 (Minn. 1979), by noting that in Joens the evidence had unequivocally established the employee's intent to retire on a specific date regardless of her disability. That statement was not intended to suggest that only such evidence can establish such intent on the part of an employee nor that the issue requires greater proof than any other question of fact. Our decisions on the subject have made it clear that, as with all other fact questions, a claim that an employee intended to and did retire at a specific time can be established by a preponderance of the evidence. See Joens; Saenger v. Liberty Carton Co., 281 N.W.2d 693 (Minn. 1979).
Although we are not certain that the Court of Appeals did in fact apply an improper test in its evaluation of the evidence, we reverse the decision and remand for reconsideration of the evidence pertaining to whether employee had intended to retire on her 62nd birthday.
Reversed and remanded.