JEFFREY R. WRIGHT, Petitioner, v. MINN. VIKINGS FOOTBALL CLUB, INC., and INSURANCE CO. OF NORTH AMERICA, Employer-Insurer, and MINN. VIKINGS FOOTBALL CLUB, INC., and ARGONAUT INS. CO., Employer-Insurer, and MINN. VIKINGS FOOTBALL CLUB, INC., and EMPLOYERS INS. OF WAUSAU, Employer-Insurer, and ECOLAB, and EMPLOYERS INS. OF WAUSAU, Employer-Insurer.

 

WORKERS= COMPENSATION COURT OF APPEALS

MARCH 7, 2003

 

HEADNOTES

 

VACATION OF AWARD.  Where the employee had a pending claim for injuries not covered by the settlement agreement, it was premature to vacate the settlement agreement.

 

Petition to vacate is dismissed.

 

Determined by Stofferahn, J., Johnson, C.J., and Rykken, J.

 

OPINION

 

DAVID A. STOFFERAHN, Judge

 

The employee petitions this court to set aside an award on stipulation, served and filed on March 17, 1999, on the grounds that there has been an unanticipated substantial change in his medical condition since the time of the settlement.  Concluding that the employee=s petition is premature, we dismiss the petition to vacate without prejudice.

 

BACKGROUND

 

The employee was in the course and scope of his employment with Ecolab when he was injured in a motor-vehicle accident on November 21, 1994.  The employer and its insurer, Employers Insurance of Wausau, accepted responsibility for the employee=s cervical injury from the accident but denied the employee=s claim that he had also sustained injuries to the thoracic and lumbar spine and to both knees. 

 

The parties entered into a stipulation for settlement which was the subject of an award, served and filed March 17, 1999.  The employer and insurer agreed to accept continued responsibility for certain medical expenses related to the employee=s cervical spine but all other potential claims, including any claims related to the lumbar spine, were settled on a full, final and complete basis.

 

On October 23, 2002, the employee filed a petition to vacate the settlement.  The employee alleged that there had been a substantial and unanticipated change in his medical condition since the time of his settlement.  Specifically, the employee claimed that at the time of his settlement he had been diagnosed as having a lumbar sprain/strain from the motor-vehicle accident and that his  condition had changed since that time, ultimately resulting in lumbar fusion surgery on February 22, 2002. 

 

The employer and insurer filed an objection to the petition in which it was argued that the employee failed to meet his burden of proof and had not established the factors necessary for finding an unanticipated substantial change in his medical condition.

 

This court heard oral arguments of the parties on this matter on February 24, 2003.  At that time, the attorney for the employee indicated that there was a pending claim petition which alleged that the employee sustained an injury to his low back on February 22, 2002, and which also alleged that the Minnesota Vikings Football Club and its insurer were responsible for the consequences of that injury, including surgery.

 

DECISION

 

The employee has filed a petition to vacate in which he alleges that the 1994 injury with Ecolab is responsible for the low back surgery performed in 2002.  The employee has also filed a claim petition in which he alleges that he sustained an injury to his low back on February 22, 2002, which is responsible for the surgery.  The employee did not file a medical report with his petition to vacate which would provide a causal relationship between the 1994 injury and the surgery.

 

If the employee is successful in his claim petition, the employer and insurer in 2002 would be responsible for the benefits claimed by the employee.  A settlement between the employee and an earlier employer does not affect the liability of a subsequent employer and insurer for a subsequent injury.  Johnson v. Tech Group Inc., 491 N.W.2d 287, 47 W.C.D. 367 (Minn. 1992).  If the employee is successful in his claim petition, the existence of the settlement which is at issue here becomes irrelevant and there is no need to have this settlement vacated. 

 

For these reasons, we find the employee=s petition to vacate to be premature. Kinnunen v. Brockway Glass, slip op. (W.C.C.A. January 27, 2002); Niesen v. Brigham Jennifer Group Inc., slip op. (W.C.C.A. December 11, 2001).  The employee=s petition to vacate is dismissed without prejudice.