dissenting.
[¶ 38] I respectfully dissent.
[¶ 39] The majority opinion overlooks the plain language of N.D.C.C. § 65-05-08 (1991) and overstates the holdings of this Court in Kallhoff v. North Dakota Workers’ Comp. Bureau, 484 N.W.2d 510 (N.D.1992) and Shiek v. North Dakota Workers Comp. Bureau, 1998 ND 139, 582 N.W.2d 639 (‘‘Shiek I ”).
[¶ 40] Under the statutory scheme effective in 1992 an injured claimant with a permanent total disability would ordinarily continue to receive benefits past retirement age subject to certain offsets. That, I agree, is the import of the wording in N.D.C.C. § 65-05-09 (1991), requiring weekly compensation “during such disability.”
[¶ 41] But N.D.C.C. § 65-05-09 is clearly and explicitly limited by the provisions of N.D.C.C. § 65-05-08, which states “[i]f the period of total or partial disability is of five consecutive calendar days’ duration or more, compensation must be paid for the period of disability provided that ” certain conditions are met. (Emphasis added). One of those conditions, when disability benefits have been discontinued and the claimant re-applies for benefits, is the “employee has not retired or voluntarily withdrawn from the job market as defined in section 65-05-09.3.”
[¶ 42] Section 65-05-09.3, N.D.C.C. (1991), provides:
An employee who has retired or voluntarily withdrawn from the labor force is presumed retired from the labor market and is ineligible for receipt of disability benefits under this title. The presumption may be rebutted by a preponderance of the evidence that the worker:
1. Is actively seeking employment;
2. Is available for gainful employment;
3. Has not rejected any job offer made by a former employer, or other bona fide job offer by another employer; and
4. Has not provided the employer, upon written request, with written notice of a scheduled retirement date. *505The presumption does not apply to any employee who is permanently and totally disabled as defined under this title.
[¶ 43] The statute establishes a rebut-table presumption that a worker who has retired from the labor force has also removed himself or herself from the labor market, but does not permit the presumption to be applied to a worker who is permanently and totally disabled.
[¶ 44] Section 65-05-09.3, N.D.C.C., supplied a “clear sense of direction” to this Court in Kallhoff to interpret the word “retire” even though § 65-05-09.3 was enacted after the injury at issue in the case. Kallhoff 484 N.W.2d at 514. The specific issue in Kallhoff was whether N.D.C.C. § 65-05-09.2 applied to Kallhoff. Id. at 512. N.D.C.C. § 65-05-09.2 (1991) offset federal social security retirement benefits against workers’ compensation disability benefits for “workers who retire on or after July 1, 1989.”3 (Emphasis added). Kallhoff had been permanently and totally disabled and had been continuously receiving benefits since 1983. Kallhoff, at 511. In 1990, when Kallhoff turned sixty-five, the Social Security Administration automatically converted his social security disability benefits into retirement benefits. Id. The Bureau argued such conversion made Kallhoff a person who “retir[ed] on or after July 1,1989.” Id. at 512.
[¶ 45] This Court held the mere application of federal benefits law did not make Kallhoff a person who had “retired” as required by the statute.
So, retirement is linked with the ordinary and commonly understood meaning that retirement is voluntary. However, there is no statutory presumption of retirement for “any employee who is permanently and totally disabled as defined in [Title 65].”
Id. at 514. Kallhoff cannot be read to say a claimant who is permanently and totally disabled cannot voluntarily retire. Rather it stands for the proposition that where a statute requires a voluntary action (such as retirement), the requirement is not satisfied by the automatic operation of law over which a person has no control.
[¶ 46] Kallhoff is consistent with the later holding of this Court in Shiek I, construing N.D.C.C. § 65-05-09.3. This section permits the Bureau to treat a worker who has retired as if that person had removed himself or herself from the labor market, unless the worker introduces sufficient evidence to overcome the presumption. N.D.C.C. § 65-05-09.3. However, the presumption does not apply to a worker who is permanently and totally disabled. Id. The statute itself recognizes, as stated in Kallhoff and repeated by the majority, that “disabled workers are not subject to the ordinary prerequisite of vol-untariness in deciding when they retire.” Kallhoff 484 N.W.2d at 514; majority at ¶ 20. Retirement, standing alone, is insufficient to establish that a person has voluntarily withdrawn from the labor market.
[¶ 47] In Shiek I, we remanded with the following direction in applying N.D.C.C. § 65-05-09.3:
We conclude once the claimant has established by a preponderance of the evidence that he or she is totally and permanently disabled, the Bureau must prove, without the aid of a presumption, the claimant is retired from the labor *506market. In other words, if the claimant demonstrates he or she is permanently and totally disabled, the burden shifts to the Bureau to prove the claimant is not permanently and totally disabled or that the claimant retired from the labor market voluntarily, rather than having been forced from that market by the disability, if the Bureau seeks to hold the claimant ineligible for further benefits.
Shiek I, 1998 ND 139, ¶21, 582 N.W.2d 639. To qualify for benefits under N.D.C.C. § 65-05-08, a claimant may not have “retired or voluntarily withdrawn from the job market.” Retirement from a specific job is insufficient to show removal from the labor market because the presumption does not apply. This, however, does not exclude the possibility that the worker may have voluntarily withdrawn from the labor market for reasons not arising from the disabled condition.
[¶ 48] Given the explicit language of N.D.C.C. § 65-05-08 and § 65-05-09.3, it is inappropriate for this Court to create a rule of law that says a totally and permanently disabled worker is eligible for disability benefits without regard to whether the worker may have voluntarily withdrawn from the labor market for reasons separate from his injured condition. It would be rare, I would presume, for a worker to have a voluntary withdrawal from the labor market under conditions of total and permanent disability, but this is a question of fact.
[¶ 49] The Bureau found:
The greater weight or preponderance of the evidence has clearly demonstrated that the claimant, Darold Shiek, voluntarily resigned and retired from the labor market effective September 25, 1992, which was the date of his 62nd birthday. This voluntary action was done in accordance with plans that the claimant had made years before to retire upon reaching the age of 62. This decision was not based upon ... his work-related injuries. A preponderance of the evidence has shown, without the aid of the retirement presumption, that the claimant voluntarily retired from the labor market in September of 1992 rather than having been forced from the market by any disability. As such, the claimant is ineligible for further benefits.
[¶ 50] Given the extensive recitation of evidence on which this finding is based, I would not hold that this finding is unsupported by the record. I would affirm.
[¶ 51] DALE V. SANDSTROM, J., concurs.. Section 65-05-09.2, N.D.C.C., was amended in 1993 to provide:
This section applies to an employee who becomes entitled to and receives social security retirement benefits after June 30, 1989, or who receives social security retirement benefits that have been converted from social security disability benefits by the social security administration after June 30, 1989.