Silva, Eloisa, Applicant v. CALIFORNIA MENS COLONY, legally uninsured, administered by STATE COMPENSATION INSURANCE FUND, Defendants

WORKERS’ COMPENSATION APPEALS BOARD
STATE OF CALIFORNIA
ELOISA SILVA, Applicant
vs.
CALIFORNIA MENS COLONY, legally uninsured,
administered by STATE COMPENSATION INSURANCE FUND, Defendants
Adjudication Numbers: ADJ17267767; ADJ19390574
Santa Barbara District Office
OPINION AND ORDER
GRANTING PETITION FOR
REMOVAL
AND DECISION AFTER
REMOVAL
Defendant has filed a petition for removal from the “Joint Order Vacating Submission,
Appointing L.C. § 5701 ‘Regular Physician’ & Ordering the Matter Off Calendar” (Orders) issued
on August 29, 2025, by the workers’ compensation administrative law judge (WCJ).
Defendant contends that the appointment of a regular physician is not supported by the
record and that the parties should be provided the opportunity to return to the original evaluators.
We have not received 	an Answer from applicant. The WCJ filed a Report and
Recommendation on Petition for Removal (Report) recommending that we deny removal.
We have considered the allegations of the Petition for Removal and the contents of the
WCJ’s Report. Based on our review of the record, we will grant removal and as our Decision After
Removal, we will rescind the August 29, 2025 Orders and return this matter to the trial level for
further proceedings.
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.,

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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).)
The WCJ and the Appeals Board have a duty to further develop the record where there is
insufficient evidence on an issue. (McClune v. Workers’ Comp. Appeals Bd. (1998) 62 Cal.App.4th
1117, 1121-1122 [63 Cal.Comp.Cases 261].) The Appeals Board has a constitutional mandate to
“ensure substantial justice in all cases.” (Kuykendall v. Workers’ Comp. Appeals Bd. (2000)
79 Cal.App.4th 	396, 	403 	[65 	Cal.Comp.Cases 	264].) 	The 	Board 	may 	not 	leave 	matters
undeveloped where it is clear that additional discovery is needed. (Id. at p. 404.) The preferred
procedure is to allow supplementation of the medical record by the physicians who have already
reported in the case. (McDuffie v. Los Angeles County Metropolitan Transit Authority (2003)
67 Cal.Comp.Cases 138 (Appeals Board en banc).) However, where the medical record remains
deficient following a return to the prior physicians, or where good cause exists otherwise, the WCJ
may order an examination of applicant to proceed with a regular physician appointed by the WCJ.
(Lab. Code, § 5701.)
Decisions 	of 	the 	Appeals 	Board 	“must 	be 	based 	on 	admitted 	evidence 	in 	the
record.” (Hamilton v. Lockheed Corporation (Hamilton) (2001) 66 Cal.Comp.Cases 473, 476
(Appeals Board en banc).) Furthermore, decisions of the Appeals Board must be supported by
substantial evidence. 	(Lab. Code, §§ 5903, 5952(d); Lamb v. Workmen’s Comp. Appeals Bd.
(1974) 11 Cal.3d 274 [39 Cal.Comp.Cases 310]; Garza v. Workmen’s Comp. Appeals Bd. (1970)
3 Cal.3d 312 [35 Cal.Comp.Cases 500]; LeVesque v. Workmen’s Comp. Appeals Bd. (1970)
1 Cal.3d 627 [35 Cal.Comp.Cases 16].) 	An adequate and complete record is necessary to
understand the basis for the WCJ’s decision. (Lab. Code, § 5313; see also Cal. Code Regs., tit. 8,
§ 10761.)
Here, the WCJ ordered the trial off calendar for further development of the record and
appointed a regular physician. In reviewing the record, we agree with defendant that the trial judge
issued this order prematurely and that the current record does not establish good cause to deviate
from the standard procedure of returning to the evaluators who have already reported in the case.
The WCJ’s order thus violates the parties right to due process and removal is appropriate.
Upon return, the parties should proceed with appropriate development of the record as
discussed above.

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Accordingly, we grant removal and as our Decision After Removal, we rescind the
August 29, 2025 Orders and return this matter to the trial level for further proceedings.
For the foregoing reasons,
IT IS ORDERED that defendant’s Petition for Removal from the Orders issued on
August 29, 2025, by the WCJ is GRANTED.
IT IS FURTHER ORDERED as the Decision After Removal of 	the Workers’
Compensation Appeals Board that the Orders issued on August 29, 2025, by the WCJ are
RESCINDED and this matter is RETURNED to the trial level for further proceedings.
WORKERS’ COMPENSATION APPEALS BOARD
/s/ CRAIG L. SNELLINGS, COMMISSIONER
I CONCUR,
/s/ JOSÉ H. RAZO, COMMISSIONER
/s/ KATHERINE A. ZALEWSKI, CHAIR
DATED AND FILED AT SAN FRANCISCO, CALIFORNIA
November 17, 2025
SERVICE MADE ON THE ABOVE DATE ON THE PERSONS LISTED BELOW AT
THEIR ADDRESSES SHOWN ON THE CURRENT OFFICIAL ADDRESS RECORD.
ELOISA SILVA
STOUT, KAUFMAN, HOLZMAN & SPRAGUE
STATE COMPENSATION INSURANCE FUND
EDL/mc
I certify that I affixed the official seal of
the Workers’ Compensation Appeals
Board to this original decision on this
date. 	o.o