Dryer, Linda, Applicant v. AB CELLULAR HOLDING / AT&T WIRELESS; ATLANTIC MUTUAL INSURANCE, in liquidation, by CALIFORNIA INSURANCE GUARANTEE ASSOCIATION, administered by SEDGWICK CMS, Defendants

WORKERS’ COMPENSATION APPEALS BOARD
STATE OF CALIFORNIA
LINDA DRYER, Applicant
vs.
AB CELLULAR HOLDING / AT&T WIRELESS;
ATLANTIC MUTUAL INSURANCE, in liquidation, by
CALIFORNIA INSURANCE GUARANTEE ASSOCIATION,
administered by SEDGWICK CMS, Defendants
Adjudication Numbers: ADJ3301560 (LBO 0308581); ADJ3209063 (LBO 0308583)
Pomona District Office
OPINION AND ORDER
DENYING PETITION
FOR REMOVAL
Lien claimant has filed a petition for removal from a minute order excusing a witness from
trial issued on September 10, 2025, by the workers’ compensation administrative law judge (WCJ).
Lien claimant contends that the WCJ denied lien claimant its right to cross examine the
witness, which violated lien claimant’s right to due process.
We 	have 	received 	an 	Answer 	from 	defendant. 	The 	WCJ 	filed 	a 	Report 	and
Recommendation on Petition for Removal (Report) recommending that we deny removal.
Lien claimant filed a supplemental petition. While lien claimant requested permission as
required by WCAB Rule 10964 (Cal. Code Regs., tit. 8, § 10964), the pleading does not appear to
add any new information or authority for lien claimant’s position. Thus, although it appears to be
frivolous, we accept the supplemental petition.
We have considered the allegations of the Petition for Removal and the supplemental
petition and the contents of the WCJ’s Report. Based on our review of the record and based upon
the WCJ’s analysis of the merits of petitioner’s arguments in the WCJ’s Report, we will deny
removal.

2
Removal is an extraordinary remedy rarely exercised by the Appeals Board. (Cortez v.
Workers’ Comp. Appeals Bd. (2006) 136 Cal.App.4th 596, 599, fn. 5 [71 Cal.Comp.Cases 155];
Kleemann v. Workers’ Comp. Appeals Bd. (2005) 127 Cal.App.4th 274, 280, fn. 2 [70
Cal.Comp.Cases 133].) The Appeals Board will grant removal only if the petitioner shows that
substantial prejudice or irreparable harm will result if removal is not granted. (Cal. Code Regs.,
tit. 8, 10955(a); see also Cortez, supra; Kleemann, supra.) Also, the petitioner must demonstrate
that reconsideration will not be an adequate remedy if a final decision adverse to the petitioner
ultimately issues. (Cal. Code Regs., tit. 8, § 10955(a).) Here, based upon the WCJ’s analysis of the
merits of petitioner’s arguments, we cannot find error in the current record, and thus we are not
persuaded that substantial prejudice or irreparable harm will result if removal is denied and/or that
reconsideration will not be an adequate remedy if the matter ultimately proceeds to a final decision
adverse to petitioner.
Labor Code section 5908 states that the appeals board “shall not be bound by the common
law or statutory rules of evidence and procedure, but may make inquiry in the manner, through
oral testimony and records, which is best calculated to ascertain the substantial rights of the parties
and carry out justly the spirit and provisions of this division.” 	The right to present evidence
implicates the right to due process. (Hegglin v. Workmen’s Comp. Appeals Bd. (1971) 4 Cal.3d
162, 175 [36 Cal.Comp.Cases 93, 102]; Pence v. Industrial Acci. Com. (1965) 63 Cal.2d 48, 51
[30 Cal.Comp.Cases 207, 209].)
To be clear, the Appeals Board is not bound to follow the text of Evidence Code section
776; however, principles of due process require that the spirit of the Evidence Code is followed so
as not to deprive any party the due process right to cross-examination. This conforms with the
guidance provided in a recent en banc opinion:
The workers’ compensation system “was intended to afford a simple and
nontechnical path to relief.” (Elkins v. Derby (1974) 12 Cal.3d 410, 419 [39
Cal.Comp.Cases 624]; Cf. Cal. Const., art. XX, § 21; § 3201.) . . . “[I]t is an
often-stated principle that the Act disfavors application of formalistic rules of
procedure 	that 	would 	defeat 	an 	employee's 	entitlement 	to 	rehabilitation
benefits.” (Martino v. Workers’ Comp. Appeals Bd. (2002) 103 Cal. App.4th
485, 490 [67 Cal.Comp.Cases 1273].)
(Perez v. Chicago Dogs (2025) 90 Cal. Comp. Cases 830, 838, (Appeals Board en banc).)

3
Here, lien claimant argues that the WCJ should not have dismissed a witness because lien
claimant wanted to cross examine the witness. However, lien claimant appears to be significantly
misrepresenting the facts of this case. Lien claimant did conduct a substantial cross examination
of the witness as documented in the minutes. (Minutes of Hearing and Summary of Evidence,
September 10, 2025, p. 13, line 22 through p. 16, line 7.) The cross examination summarized in
the minutes is not limited simply to an email as lien claimant suggests. The summary lasts nearly
three pages. Lien claimant David Silver, M.D., and lien claimant’s representative, Dan Escamilla
and Legal Service Bureau is admonished not to misrepresent or omit material facts in the future.
Next, lien claimants petition fails to acknowledge that it called no witnesses at all during
its case in chief. To the extent that lien claimant argues that this witness was required to present
critical evidence, lien claimant appears to have invited this error by not calling the witness during
its case in chief.
Accordingly, we deny removal.

4
For the foregoing reasons,
IT IS ORDERED that lien claimant’s Petition for Removal from the minute order
excusing a witness from trial issued on September 10, 2025, by the WCJ is DENIED.
WORKERS’ COMPENSATION APPEALS BOARD
/s/ ANNE SCHMITZ, DEPUTY COMMISSIONER
I CONCUR,
/s/ JOSEPH V. CAPURRO, COMMISSIONER
/s/ CRAIG L. SNELLINGS, COMMISSIONER
DATED AND FILED AT SAN FRANCISCO, CALIFORNIA
NOVEMBER 14, 2025
SERVICE MADE ON THE ABOVE DATE ON THE PERSONS LISTED BELOW AT
THEIR ADDRESSES SHOWN ON THE CURRENT OFFICIAL ADDRESS RECORD.
DAVID SILVER, M. D.
DAN ESCAMILLA
LEGAL SERVICE BUREAU
CANTRELL & GREEN
LINDA DRYER
FLOYD SKEREN MANUKIAN LANGEVIN, LLP
EDL/mc
I certify that I affixed the official seal of
the Workers’ Compensation Appeals
Board to this original decision on this date.
CS