RENDERED: JUNE 13, 2019 TO BE PUBLISHED
2018-SC-000638-WC
LETCHER COUNTY BOARD OF APPELLANT EDUCATION
ON APPEAL FROM COURT OF APPEALS V. CASE NO. 2018-CA-000788 WORKERS COMPENSATION BOARD NO. 15-WC-01407
ROGER HALL; HONORABLE CHRISTINA APPELLEES HAJJAR, ADMINISTRATIVE LAW JUDGE; AND WORKERS’ COMPENSATION BOARD
OPINION OF THE COURT BY JUSTICE KELLER
AFFIRMING
Roger Hall (Hall) developed mesothelioma after being exposed to asbestos
over the course of his employment as a teacher at Letcher County High School
in Letcher County, Kentucky. He initiated a claim for benefits pursuant to
Kentucky Revised Statutes (KRS) Chapter 342, the Workers’ Compensation
chapter. After reviewing the relevant evidence, an Administrative Law Judge
(ALJ) denied Hall’s claim. He appealed to the Workers’ Compensation Board
(Board), which unanimously reversed the ALJ’s determination. The Letcher
County Board of Education (Letcher County) appealed to the Court of Appeals, which unanimously affirmed the Board’s decision. He now appeals to this
Court.
I. BACKGROUND
Hall was employed as a teacher at Letcher County High School beginning
in 1976 until he retired in 2003. Over the course of his career, he physically
worked in two different school buildings—the old high school, and the new high
school. The boiler room located in the old high school building was used as a
breakroom for teachers. It contained furniture and vending machines.
Hall was subsequently transferred to the new Letcher County High
School, which was completed in 1992 and was located across the street from
the old school, which then became the elementary school. However, he and
other teachers continued to use the boiler room at the old high school as a
breakroom/lunchroom. Hall remained employed at the new high school until
his retirement in 2003. He occasionally worked as a substitute teacher until
2014.
Hall filed his Form 102-OD on September 4, 2015, alleging that he
developed mesothelioma in his abdominal area after being exposed to asbestos
over the course of his employment. Hall had been treated by multiple
physicians across the county as a result of this exposure. He underwent two
hernia surgeries, one cyto-reductive surgery and chemotherapy.
The ALJ concluded that Hall’s mesothelioma was caused by his exposure
to asbestos during his course of employment. However, the ALJ ultimately
2 determined that Hall’s claim was untimely filed pursuant to KRS
342.316(4)(a) which provides:
The right to compensation under this chapter resulting from an occupational disease shall be forever barred unless a claim is filed with the commissioner within three (3) years after the last injurious exposure to the occupational hazard or after the employee first experiences a distinct manifestation of an occupational disease in the form of symptoms reasonably sufficient to apprise the employee that he or she has contracted the disease, whichever shall last occur; and if death results from the occupational disease within that period, unless a claim therefor be filed with the commissioner within three (3) years after the death; but that notice of claim shall be deemed waived in case of disability or death where the employer, or its insurance carrier, voluntarily makes payment therefor, or if the incurrence of the disease or the death of the employee and its cause was known to the employer. However, the right to compensation for any occupational disease shall be forever barred, unless a claim is filed with the commissioner within five (5) years from the last injurious exposure to the occupational hazard, except that, in cases of radiation disease, asbestos-related disease, or a type of cancer specified in KRS 61.315(1 l)(b), a claim must be filed within twenty (20) years from the last injurious exposure to the occupational hazard.
(Emphasis added).
In applying this provision, the ALJ determined that although Hall had
satisfied the three-year manifestation date, he failed to timely file his claim
within twenty years of his last exposure to asbestos. The ALJ specifically
found that Hall’s last injurious exposure to asbestos occurred in 1990,
when the asbestos insulation was removed from the boiler room.
Therefore, his workers’ compensation benefits claim was dismissed.
The Board reversed based on testimonial evidence indicating that
although much of the asbestos was removed from the boiler room in 1990, the
boiler room tiles—which also contained asbestos—were not removed until Hall
3 retired in 2003, or sometime subsequent thereto. Therefore, the Board held
that the statute of limitations was satisfied, and that Hall’s claim could
proceed. Letcher County appealed, and the Court of Appeals unanimously
affirmed. Having reviewed the record and the law, we affirm the Court of
Appeals.
II. STANDARD OF REVIEW
The ALJ has the sole discretion to determine the quality, character, and
substance of the evidence and may reject any testimony and believe or
disbelieve various parts of the evidence regardless of whether it comes from the
same witness or the same party’s total proof. Paramount Foods, Inc. v.
Burkhardt, 695 S.W.2d 418, 419 (Ky. 1985). The claimant has the burden of
proof to prove that he or she is entitled to compensation under KRS Chapter
342. The issue in the present case, however, is whether the statute of
limitations bars Hall’s claim. We addressed the relevant standard of review in
Lizdo v. Gentec Equipment:
Having asserted that this claim was barred by the statute of limitations, the burden was on the employer to prove the elements of the defense. Although KRS 342.285 provides that an ALJ is the designated finder of fact, a finding that is unreasonable under the evidence is subject to reversal on appeal.
74 S.W.3d 703, 705 (Ky. 2002) (citing Special Fund v. Francis, 708 S.W.2d 641,
643 (1986)). We defined this standard more precisely in Francis as follows:
When the decision of the fact-finder favors the person with the burden of proof, his only burden on appeal is to show that there was some evidence of substance to support the finding, meaning evidence which would permit a fact-finder to reasonably find as it did.
4 A finding which is unreasonable under the evidence presented is “clearly erroneous” and, perforce, would “compel” a different finding.
Francis, 708 S.W.2d at 643.
Therefore, we must determine whether the ALJ’s dismissal of Hall’s claim as
untimely filed is clearly erroneous under the evidence and compels a different
result.
III. ANALYSIS
A. THE ALJ ERRED BY FINDING THAT HALL’S CLAIM WAS BARRED UNDER KRS 342.316(4)(a).
Letcher County’s primary argument here is that the ALJ correctly
determined that Hall’s claim was untimely because he filed his claim for
benefits more than twenty years after his last date of exposure. In support of
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RENDERED: JUNE 13, 2019 TO BE PUBLISHED
2018-SC-000638-WC
LETCHER COUNTY BOARD OF APPELLANT EDUCATION
ON APPEAL FROM COURT OF APPEALS V. CASE NO. 2018-CA-000788 WORKERS COMPENSATION BOARD NO. 15-WC-01407
ROGER HALL; HONORABLE CHRISTINA APPELLEES HAJJAR, ADMINISTRATIVE LAW JUDGE; AND WORKERS’ COMPENSATION BOARD
OPINION OF THE COURT BY JUSTICE KELLER
AFFIRMING
Roger Hall (Hall) developed mesothelioma after being exposed to asbestos
over the course of his employment as a teacher at Letcher County High School
in Letcher County, Kentucky. He initiated a claim for benefits pursuant to
Kentucky Revised Statutes (KRS) Chapter 342, the Workers’ Compensation
chapter. After reviewing the relevant evidence, an Administrative Law Judge
(ALJ) denied Hall’s claim. He appealed to the Workers’ Compensation Board
(Board), which unanimously reversed the ALJ’s determination. The Letcher
County Board of Education (Letcher County) appealed to the Court of Appeals, which unanimously affirmed the Board’s decision. He now appeals to this
Court.
I. BACKGROUND
Hall was employed as a teacher at Letcher County High School beginning
in 1976 until he retired in 2003. Over the course of his career, he physically
worked in two different school buildings—the old high school, and the new high
school. The boiler room located in the old high school building was used as a
breakroom for teachers. It contained furniture and vending machines.
Hall was subsequently transferred to the new Letcher County High
School, which was completed in 1992 and was located across the street from
the old school, which then became the elementary school. However, he and
other teachers continued to use the boiler room at the old high school as a
breakroom/lunchroom. Hall remained employed at the new high school until
his retirement in 2003. He occasionally worked as a substitute teacher until
2014.
Hall filed his Form 102-OD on September 4, 2015, alleging that he
developed mesothelioma in his abdominal area after being exposed to asbestos
over the course of his employment. Hall had been treated by multiple
physicians across the county as a result of this exposure. He underwent two
hernia surgeries, one cyto-reductive surgery and chemotherapy.
The ALJ concluded that Hall’s mesothelioma was caused by his exposure
to asbestos during his course of employment. However, the ALJ ultimately
2 determined that Hall’s claim was untimely filed pursuant to KRS
342.316(4)(a) which provides:
The right to compensation under this chapter resulting from an occupational disease shall be forever barred unless a claim is filed with the commissioner within three (3) years after the last injurious exposure to the occupational hazard or after the employee first experiences a distinct manifestation of an occupational disease in the form of symptoms reasonably sufficient to apprise the employee that he or she has contracted the disease, whichever shall last occur; and if death results from the occupational disease within that period, unless a claim therefor be filed with the commissioner within three (3) years after the death; but that notice of claim shall be deemed waived in case of disability or death where the employer, or its insurance carrier, voluntarily makes payment therefor, or if the incurrence of the disease or the death of the employee and its cause was known to the employer. However, the right to compensation for any occupational disease shall be forever barred, unless a claim is filed with the commissioner within five (5) years from the last injurious exposure to the occupational hazard, except that, in cases of radiation disease, asbestos-related disease, or a type of cancer specified in KRS 61.315(1 l)(b), a claim must be filed within twenty (20) years from the last injurious exposure to the occupational hazard.
(Emphasis added).
In applying this provision, the ALJ determined that although Hall had
satisfied the three-year manifestation date, he failed to timely file his claim
within twenty years of his last exposure to asbestos. The ALJ specifically
found that Hall’s last injurious exposure to asbestos occurred in 1990,
when the asbestos insulation was removed from the boiler room.
Therefore, his workers’ compensation benefits claim was dismissed.
The Board reversed based on testimonial evidence indicating that
although much of the asbestos was removed from the boiler room in 1990, the
boiler room tiles—which also contained asbestos—were not removed until Hall
3 retired in 2003, or sometime subsequent thereto. Therefore, the Board held
that the statute of limitations was satisfied, and that Hall’s claim could
proceed. Letcher County appealed, and the Court of Appeals unanimously
affirmed. Having reviewed the record and the law, we affirm the Court of
Appeals.
II. STANDARD OF REVIEW
The ALJ has the sole discretion to determine the quality, character, and
substance of the evidence and may reject any testimony and believe or
disbelieve various parts of the evidence regardless of whether it comes from the
same witness or the same party’s total proof. Paramount Foods, Inc. v.
Burkhardt, 695 S.W.2d 418, 419 (Ky. 1985). The claimant has the burden of
proof to prove that he or she is entitled to compensation under KRS Chapter
342. The issue in the present case, however, is whether the statute of
limitations bars Hall’s claim. We addressed the relevant standard of review in
Lizdo v. Gentec Equipment:
Having asserted that this claim was barred by the statute of limitations, the burden was on the employer to prove the elements of the defense. Although KRS 342.285 provides that an ALJ is the designated finder of fact, a finding that is unreasonable under the evidence is subject to reversal on appeal.
74 S.W.3d 703, 705 (Ky. 2002) (citing Special Fund v. Francis, 708 S.W.2d 641,
643 (1986)). We defined this standard more precisely in Francis as follows:
When the decision of the fact-finder favors the person with the burden of proof, his only burden on appeal is to show that there was some evidence of substance to support the finding, meaning evidence which would permit a fact-finder to reasonably find as it did.
4 A finding which is unreasonable under the evidence presented is “clearly erroneous” and, perforce, would “compel” a different finding.
Francis, 708 S.W.2d at 643.
Therefore, we must determine whether the ALJ’s dismissal of Hall’s claim as
untimely filed is clearly erroneous under the evidence and compels a different
result.
III. ANALYSIS
A. THE ALJ ERRED BY FINDING THAT HALL’S CLAIM WAS BARRED UNDER KRS 342.316(4)(a).
Letcher County’s primary argument here is that the ALJ correctly
determined that Hall’s claim was untimely because he filed his claim for
benefits more than twenty years after his last date of exposure. In support of
this central argument, Letcher County also argues that the Board erroneously
applied a de novo review of the ALJ’s findings, that the Court of Appeals
erroneously applied a substantial evidence standard of review, and that a
compelling evidence standard should have been applied in both instances. As
previously noted, the proper standard of review here is a clearly erroneous
standard which, if satisfied, would compel a different result. We will now
address the relevant evidence.
Hall testified that he and other teachers used the boiler room for
breaks and to eat lunch. According to Hall, he would spend up to an
hour a day in the boiler room. He further testified that although he was
never officially informed that the school contained asbestos material, he
5 discovered that the boiler room had asbestos after speaking with two school
employees and Elwood Cornett, who was the state worker who inspected the
school for asbestos.
Medical records from Dr. Fred Rosenblum, a pulmonary specialist,
indicated that Hall was exposed to asbestos which was present in both
insulation and. floor tiles. In his medical report, Dr. Rosenblum noted that
floor tiles containing asbestos were present in the school and were not removed
until after Hall’s diagnosis. Dr. Rosenblum’s report also noted that Hall “gives
a very convincing history of being exposed to asbestos while working at Letcher
high school and there is an appropriate lag time.” The report concluded that
asbestos containing materials at the school were causally related to Hall’s
condition.
Marion Whitaker, a maintenance supervisor at the Letcher County High
School, was in charge of Letcher County’s asbestos management policy. His
testimony indicated that there were asbestos tiles in the school at the time Hall
retired. Documentary evidence further confirmed that the tiles contained
asbestos. In reversing the ALJ, the Board cites to the following evidence:
[I]t appears from records filed as Exhibit 16 that significant amounts of tile containing asbestos remained in the school after 1990 and were eventually removed by Letcher County during the period Hall was teaching at Letcher County High School and thereafter .... There are at least nine notations, between July 10, 2001, and August 18, 2003, indicating tile was worn, missing, removed, or replaced.
Even though we are unable to determine from the records exactly where in the school this asbestos was located, it is clear from 6 Whitaker’s testimony there was asbestos found in the boiler room and the boiler equipment.
Contrary to the Board’s recitation of the record, some of this
evidence is not entirely clear. For example, it is unclear whether each
notation in Exhibit 16 cited by the Board is actually referencing tile.
However, many of the notations do clearly reference the removal or
replacement of a significant amount of tiling and other asbestos-
containing material. Furthermore, it is not entirely clear from Whitaker’s
deposition that the tile he was referencing was located in the boiler room.
However, his testimony does clearly indicate that there was asbestos-
containing tile in the school at the time Hall retired in 2003 and that
there was still asbestos tiling in the school at the time of Whitaker’s
deposition in 2016. Whitaker further testified that even though the tiles
posed a “minimal” risk of exposure once sealed, they were nevertheless
considered to be a “problem.”
We note that the issue here is not whether Hall’s exposure to the
tiles caused his mesothelioma. Rather, “the statute requires only that
exposure could independently cause the disease—not that it did in fact
cause the disease.” Miller v. Tema Isenmann, Inc., 542 S.W.3d 265, 271
(Ky. 2018). See also Childers v. Hackney’s Creek Coal Co., 337 S.W.2d
680, 683 (Ky. 1960). It is abundantly clear from the evidence that
Letcher County failed to eradicate all asbestos containing material from
the school building. It is also clear that this material, including tiling,
was present in the school until 2003 and beyond. This evidence compels 7 reversal of the ALJ’s order. Moreover, barring some clear evidence that Hall
was not, or could not have been, exposed to the remaining asbestos material,
Letcher County cannot meet its present burden. In the absence of such
evidence, the ALJ’s decision here is clear error.
IV. CONCLUSION
For the foregoing reasons, the opinion of the Court of Appeals is affirmed.
This case is remanded to the ALJ for further proceedings consistent with this
opinion.
All sitting. All concur.
COUNSEL FOR APPELLANT:
Barry Lewis Lewis and Lewis Law Offices
COUNSEL FOR APPELLEE, ROGER HALL:
Daniel Fayne Dotson
COUNSEL FOR APPELLEE, WORKERS’ COMPENSATION BOARD:
Michael W. Alvey Workers’ Compensation Board
COUNSEL FOR APPELLEE, HON. CHRISTINA HAJJAR:
Honorable Christina Hajjar Administrative Law Judge