The employee has appealed from the compensation judge’s Order dismissing his claim petition for penalties.  We affirm.

The employee sustained work related injuries to his shoulders in 1984 and 1985.^[1]  In 1994, the parties entered into a stipulation in which it was agreed that the employee was permanently totally disabled and would be paid ongoing permanent total disability benefits.  An Award on Stipulation was served and filed November 23, 1994.

In June 2011, the employer and insurer filed a petition with this court to discontinue benefits alleging that the employee had returned to employment with substantial income and, as a result, was no longer permanently totally disabled.

The parties began settlement negotiations in September 2011 and proceedings in this court were held in abeyance.  On October 5, 2011, the employer and insurer filed a Notice of Intention to Discontinue Benefits (NOID) which stated:

This court then issued its decision on the petition to discontinue benefits.  The case was referred to the Office of Administrative Hearings for an evidentiary hearing on the issue of whether the employee continued to be permanently totally disabled.  Stevens v. ST Servs., 72 W.C.D. 569 (W.C.C.A. 2012).  At the hearing at the Office of Administrative Hearings, the compensation judge found the employee was not permanently totally disabled and granted the petition to discontinue.  The employee appealed that decision.

This court affirmed the decision of the compensation judge.  Stevens v. ST Servs., 74 W.C.D. 419 (W.C.C.A. 2013).  That decision was appealed to the Minnesota Supreme Court.  The supreme court reversed this court, holding that the use of a petition to discontinue permanent total disability benefits was not authorized by the statute.  The case was remanded to this court with instructions to dismiss the employer and insurer’s petition.  Stevens v. ST Servs., 851 N.W.2d 52, 74 W.C.D. 433 (Minn. 2014).

This court issued its order dismissing the petition to discontinue on September 4, 2014.  On or about September 17, 2014, the employer and insurer paid the employee permanent total disability benefits for the period from October 4, 2011, through September 16, 2014, and reinstated benefits from that point forward.^[2]

The employee filed a claim petition in April 2015 claiming interest and penalties for non-payment and late payment of benefits pursuant to Minn. Stats. §§ 176.221 and 176.225.  The employer and insurer filed a motion to dismiss the employee’s claim petition.  The motion was heard by a compensation judge on August 10, 2015.  There was no testimony at the hearing.  The parties introduced memoranda and affidavits to support their positions.  In her order on motion, served and filed August 21, 2015, the compensation judge dismissed the claim petition.  The employee has appealed the order.

In his claim petition, the employee alleged he was entitled to an award of penalties for non-payment of benefits under Minn. Stat. § 176.225, subd. 1; for late payment of benefits under § 176.221, subd. 3a; and interest on the penalty award pursuant to Minn. Stat. § 549.09.  These claims all had their origin in the NOID filed by the employer and insurer in October 2011 and the resulting discontinuance of permanent total disability benefits.  The employee argues on appeal, as he did before the compensation judge, that an award of penalties is required in this case because the employer and insurer had no right under the statute to discontinue permanent total disability benefits.

As the employee asserts, the procedure for discontinuing benefits, including the filing of a notice of intention to discontinue benefits, may not be used to discontinue permanent total disability benefits.  Minn. Stat. §  176.238, subd. 11; Behrens v. City of Fairmont, 53 W.C.D. 20 (W.C.C.A 1995).  However, this statement of the law does not adequately address the issues in this case.

As was noted in our earlier decisions, the basic controversy in this case since June 2011 has been the employee’s entitlement to permanent total disability benefits despite his return to employment for a time while he lived in Alaska.  The question of how and whether the employer and insurer may have that issue considered has been the subject of numerous proceedings and appeals.

The unsettled nature of the law on this question led the parties to discuss settlement.  In addition to petitioning to discontinue benefits, the employer and insurer were asserting that the employee had received permanent total disability benefits in bad faith and was liable for repayment of those benefits pursuant to Minn. Stat. § 176.179. This court was notified of settlement negotiations in September 2011 and negotiations apparently continued at least into March 2012.  As a part of those negotiations, the parties agreed that the employee’s permanent total disability benefits could be discontinued.  The NOID setting out this agreement and announcing the cessation of benefits was served on the employee as well as his attorney.  No objection to the NOID was filed and settlement negotiations continued for some months. While this case involves what appears to be a unique use of an NOID, we agree with the compensation judge that it does not require a penalty to be assessed against the employer and insurer.

The employee also raises on appeal the question of whether the record before the compensation judge was adequate to support her order.  The employee points to no information that the compensation judge failed to receive or consider.  Both parties submitted memoranda and affidavits and, as reflected in the transcript, there was no objection to this procedure or to the evidence presented to the compensation judge.  The issue before the compensation judge was whether, on what were essentially undisputed facts, the actions of the employer and insurer mandated a penalty award against them.

The decision of the compensation judge is affirmed.