Authorities as the decision cited them, with how this panel applied each one.
Labor Code section 5700; Reg 10756
No requirement for applicant to personally testify if represented by counsel at trial (Lab. Code, 5700; Reg 10756).
Applicant was represented by counsel and defendant did not subpoena or notify counsel to compel applicant's attendance, so no adverse inference was warranted.
From the decision · page 2no such presumption present in this matter:
Labor Code section 5705
Burden of proof rests on party holding affirmative of the issue (Lab. Code, 5705).
Defendant had burden to prove claim preclusion but failed to produce sufficient evidence.
From the decision · page 3affirmative defenses to applicant's current claim, and it was therefore defendant's burden to
General Dynamics Corp. v. Workers' Comp. Appeals Bd. (Anderson) (1999) 71 Cal.App.4th 624
Claim preclusion requires comparison of prior and current claims to determine if they are essentially the same (General Dynamics Corp. v. WCAB (Anderson) (1999)).
Defendant failed to produce evidence to compare prior and current claims to establish claim preclusion.
From the decision · page 4i.e., a compromise and release was approved on June 21, 1991 (Def. Exh. C,
Travelers Insurance Co. v WCAB (Duckworth), 81 CCC 234 (2016)
A prior settlement bars claims only if the claims were known and settled at the time of release (Travelers Insurance Co. v WCAB (Duckworth), 2016).
No evidence of what injuries or conditions were alleged or settled in prior claim, so claim preclusion not established.
From the decision · page 11In Travelers Insurance Co. v WCAB (Duckworth), 81 CCC 234 (2016), the Defendant asserted
that the applicant's current claim involving a brain injury was barred by a compromise and release
agreement settling applicant's prior claim for cumulative orthopedic injury during same period but
was unsuccessful because a review of the record from the prior case disclosed when Applicant's
case was settled there was no allegation of brain injury. The court stated that a general release in a
workers' compensation case will bar other potential claims against the employer, but those claims
must exist and be known at the time of execution of the release3. Here we have no way of knowing
with any clarity what the applicant initially alleged, what conditions medical documentation showed
as existing or known, nor what in fact was settled in 1991.
City of Anaheim v WCAB (Davis), 47 CCC 52 (1982)
Comparison of claims is necessary to determine if current claim is the same as prior settled claim (City of Anaheim v WCAB (Davis), 1982).
No evidence to compare prior and current claims to determine if they are the same.
From the decision · page 12In City of Anaheim v WCAB (Davis), 47 CCC 52 (1982), City of Anaheim contended that an injury
claim asserted against it was the same industrial injury as that asserted by the applicant in an earlier
case which was settled and that liability for that injury was finally determined and adjudicated by
the Board approved compromise and release. The appellate court compared the two claims,
looking to the terms of the prior compromise and release and reviewing the medical evidence, after
which it determined that indeed, the City was correct: there was no new or different claim, but one
claim for an ongoing condition and that claim was settled. Here there is no evidence upon which
to make such a comparison to ascertain whether the current claim is essentially the same claim as
the one brought (and apparently settled) previously by the applicant.