KU HWA PITLECK, Employee/Petitioner, v. ST. ANTHONY HEALTH CTR. and LUMBERMAN=S UNDERWRITING ALLIANCE/CAMBRIDGE INTEGRATED SERVS., Employer-Insurer, and ST. ANTHONY HEALTH CTR. and AMERICAN COMP. INS. CO./RTW, INC., Employer-Insurer.

 

WORKERS= COMPENSATION COURT OF APPEALS

AUGUST 13, 2008

 

No. WC08-114

 

HEADNOTES

 

VACATION OF AWARD; CAUSATION - CONSEQUENTIAL INJURY.  Where the employee=s claims are based on a consequential injury not contemplated by the settlement, the settlement is not a bar to the employee=s claims and vacation of the award is denied.

 

Petition to vacate award on stipulation denied.

 

Determined by: Stofferahn, J., Wilson, J., and Pederson, J.

 

Attorneys: T. Michael Kilbury, Peterson, Logren & Kilbury, St. Paul, MN, for the Petitioner.  Vincent A. Petersen, Cousineau McGuire, Minneapolis, MN, for the Employer/Lumberman=s, and Janet Monson, Aafedt, Forde, Gray, Monson, & Hager, Minneapolis, MN, for the Employer/RTW.

 

 

OPINION

 

DAVID A. STOFFERAHN, Judge

 

The employee alleges there has been a substantial and unanticipated change in her medical condition and petitions to vacate the stipulation for settlement which was the subject of an award issued on February 26, 1997.  Finding that vacating the settlement is not necessary for the employee to proceed with her claims, we deny the petition.

 

BACKGROUND

 

In the 1997 stipulation, the employee claimed work injuries to her upper back and right upper extremity on September 25, 1992, and March 5, 1996, while employed at St. Anthony Health Center.  Lumberman=s, the 1992 insurer, admitted an injury to the upper back and right upper extremity and paid the employee $38,500.00, less attorney=s fees, in return for a full, final and complete settlement with medical left open.  RTW, the 1996 insurer, denied the employee=s claims of a Gillette injury and paid the employee $2,500.00 in return for a full, final, and complete settlement, including future medical.

 

Subsequent to the settlement, the employee began receiving medical treatment for kidney problems and was diagnosed with chronic renal insufficiency in November 2001.  Unfortunately, the employee=s condition worsened and she had kidney transplant surgery in November 2005.  In a June 14, 2007, report, the employee=s treating kidney specialist, Dr. Daniel Ries, stated that, in his opinion, the employee=s renal insufficiency and resulting transplant surgery were due to the employee=s use of Aprescription NSAIDS and Cox-II inhibitors@ for treatment of her upper back and upper extremity condition.  The employee states she has not worked since September 2003 because of her kidney condition.

 

The employee filed a petition to vacate the 1997 settlement with this court on January 24, 2008.  The employee claimed good cause as defined by Minn. Stat. ' 176.461 existed to vacate the settlement in that there had been a substantial and unanticipated change in her medical condition since the time of the award.  The insurers filed responses which opposed the employee=s petition.  The employee=s petition was heard at oral argument on July 14, 2008.

 

DECISION

 

At oral argument, the employee=s counsel acknowledged that there had not been a substantial change in the employee=s upper back and upper extremity condition.  It is the employee=s position that her kidney disease developed as a consequence of her work injury due to her use of pain medication for the work injury. The development of the kidney disease which ultimately led to transplant surgery and which, according to the employee, has caused her to be unable to work, is the substantial change in condition alleged by the employee in her petition to vacate.

 

A settlement does not bar a subsequent claim arising out of a consequential injury where the consequential injury was not in existence or was not the subject of dispute between the parties at the time of the settlement.  Sweep v. Hanson Silo Co., 391 N.W.2d 817, 39 W.C.D. 51 (Minn. 1986); Larson v. St. Louis Co., 62 W.C.D. 545 (W.C.C.A. 2002).  There is no contention by the insurers in the present case that the employee=s claims arising out of her kidney disease are barred by the settlement.

 

Because the settlement does not bar the claims asserted by the employee, there are no grounds to vacate the 1997 settlement and good cause under the statute has not been shown.  Wright v. Minnesota Vikings Football Club, Inc., slip op. (W.C.C.A. Mar. 7, 2003).  Accordingly, the employee=s petition to vacate is denied.^[1]