Workers’
Compensation Board
OPINION
ENTERED: April 27, 2018
CLAIM NO. 201501407
ROGER HALL PETITIONER
VS. APPEAL FROM HON. CHRISTINA
D. HAJJAR,
ADMINISTRATIVE LAW JUDGE
LETCHER COUNTY BOARD OF EDUCATION
and HON. CHRISTINA D. HAJJAR,
ADMINISTRATIVE LAW JUDGE RESPONDENTS
OPINION
REVERSING
AND REMANDING
*
* * * * *
BEFORE: ALVEY, Chairman, STIVERS and RECHTER, Members.
STIVERS,
Member.
Roger Hall (“Hall”) seeks review of the October 25, 2017, Opinion and Order of
Hon. Christina D. Hajjar, Administrative Law Judge (“ALJ”) finding his claim against
Letcher County Board of Education (“Letcher County”) for work-related
mesothelioma is barred by the statute of limitations in KRS 342.316(4)(a). Hall
also appeals from the December 6, 2017, Order overruling his petition of
reconsideration.
On appeal, Hall argues the ALJ’s determination he did not
timely file his claim for work-related mesothelioma is not supported by
substantial evidence. The Form 102-CD filed September 4, 2015, alleges Hall
“became affected by reason of a disease arising out of and in the course of his
employment.” Hall did not provide the date he became affected, rather he
inserted “Gradual.” He identified the occupational disease as mesothelioma.
Hall stated he gave Letcher County verbal notice within a few weeks of the
diagnosis. He alleged he was a teacher at Letcher County High School for
approximately twenty-seven years and was exposed to asbestos on a daily basis. Hall
stated “asbestos was discovered by samples in 1988 but not removed until 1990.”
Hall asserted none of the employees were notified of the discovery nor was the
break room where asbestos was discovered closed.
Hall introduced the medical records from Vanderbilt
University Medical Center (“Vanderbilt”), Appalachian Regional Healthcare, and
Dr. Paul Sugarbaker with Medstar Washington Hospital Center (“Medstar”). Those
documents establish Hall was diagnosed with peritoneal mesothelioma in November
2014. Hall underwent extensive surgery performed by Dr. Sugarbaker at Medstar on
March 5, 2015.
Pursuant to KRS 342.315, Hall was referred for a University
Evaluation which was performed by Dr. Frederick J. Rosenblum. In his Form
108-OD, Dr. Rosenblum provides the following history:
He was diagnosed with abdominal
mesothelioma in November of 2014 at the time of a hernia repair. He underwent
site [sic] over [sic] Dr. [sic] surgery in Washington DC in March 2015. He has
done well since it appears to be in remission. He was a high school teacher and
at Letcher High School from 1976 until 2003. The break room was essentially in
the furnace room starting in 1988 where there was asbestos insulation and this
was not repaired until 1990. In addition, the heating pipes in the classrooms
from 1976 to 1988 were insulated with asbestos. In addition, the floor tiles
were in the school apparently were made with asbestos the entire time he was
there and were not removed until after his diagnosis. According to Mr. Hall
none of the exposure is in dispute. Since the diagnosis and treatment of the
abdominal mesothelioma, he is unable to work and is limited by leg weakness
with an unsteady gait as well as general weakness.
Dr. Rosenblum noted Hall worked for
the school system from 1976 to 2003 and opined as follows:
Peritoneal mesothelioma due to exposure
to asbestos. He gives a very convincing history of being exposed to asbestos
while working at Letcher high school and there is an appropriate lag time.
Peritoneal mesothelioma is associated with asbestos exposure just as pleural
mesothelioma and is considered the etiology (European Society of Medical
Oncology, volume 18 2007 page 95). Because he does not have a primary
respiratory deficit the best way to determine his total body impairment is the
use of the cardiopulmonary stress test (CPET). He achieved only 9.2 mL of
oxygen consumption per minute or 45% of his predicted which meets criteria for
a class 4 impairment. This gives a range of 45 to 65% whole body impairment. I
estimate this person’s impairment at 55% based on the above data.
As to causation, Dr. Rosenblum opined
Hall’s disease was causally related to his work environment. He also concluded
the pulmonary impairment was caused in part by factors in Hall’s work environment.
Dr. Rosenblum identified the relevant factors in the work environment and explained
the causal relationship between those factors and his diagnosis: “Asbestos
present at the workplace which again does not appear to be in dispute with an
appropriate lag between the exposure and the disease. Also, no other asbestos
exposure history.”
The February 12, 2016, Benefit Review Conference (“BRC”)
Order and Memorandum reflects the parties identified the contested issues as
follows: “Statute of Limitations/Repose; Whether Plaintiff sustained an
occupationally acquired disease; Work-relatedness/Causation; Extent and
Duration/Benefits per KRS Chapter 342; Whether Plaintiff had an injurious
exposure during employment with Defendant; Date of last exposure; Notice;
Whether an impairment rating under the AMA Guides, Fifth Edition is required;
Manifestation; Date of disability.”[1]
Letcher County introduced Hall’s November 9,
2015, deposition. Hall retired as a teacher with the Letcher County system on
July 1, 2003. As to his involvement with Letcher County after he retired, Hall
testified as follows:
A: Well, I retired on July 1, 2003, but
I had gone back a few times for the first few years and substituted – well, the
first year and substituted for them. And then about four years later, I tried a
round again. That was about three years ago that time I was substituting
altogether.
After a short stent of substitute teaching, Hall had a
radio program from 2005 to 2009. Other than substitute teaching and the radio
program, Hall had no other employment after he retired. Hall testified he was
hired by Letcher County in August 1976. He estimated the first year after he
retired he worked approximately fifty days as a substitute teacher. He believed
he last worked as a substitute teacher approximately three years prior to his
deposition and worked between ten and twenty days. He quit because of the
difficulty working as a substitute teacher. Hall denied having exposure to
asbestos or agent orange while in the military between 1972 and 1974. However,
after his deposition, on January 28, 2016, Hall filed an affidavit explaining
he had reviewed his deposition and his testimony should be supplemented with
the following:
6) At the very end of page 12, on lines
24 and 25, I testified that was in the United States Army from 1972 to 1974 and
I was then asked at the top of page 13 on lines 1, 2 and 3: ‘And did you have
any type of exposures to any harmful substances such as asbestos or any dust
exposure, Agent Orange exposure?’
7) Reading this question weeks after it
was asked of me reminded me that as I was listening to the question and I first
heard about the word ‘asbestos’ I started thinking about the ways I was exposed
to asbestos in the Army but the question then added the words “Agent Orange”
and I recall my mind shifting to that toxic substance which I have been keenly
aware of since my time in the Army in the 1970s; with the end of question asked
me whether I was exposed to Agent Orange, my immediate reaction was ‘No,’ I was
not exposed to Agent Orange.
8) Had I been less nervous and if the
proceeding hadn’t been proceeding so quickly, I would have stated that ‘I was
not exposed to Agent Orange but I was exposed to asbestos dust while in the
Army.
9) While I was in the Army, at the two
Forts where I was stationed – Fort Jackson in South Carolina and Fort Lee in
Virginia – I was frequently exposed to asbestos when workers on those bases
performed maintenance, renovations and repairs to the buildings and used
asbestos-containing construction products such as wallboard and joint compound,
floor and ceiuling [sic] tiles and pipe and heating system insulation.
Hall testified the old high school
was the first building in which he taught. In 1989 or 1990, Hall began teaching
in a Quonset hut located outside the main school building. He moved in to the
new high school in approximately 1992 or 1993. The furnace/boiler room located
in the old Letcher County High School served as the break room and teacher’s
lounge.[2]
After the new high school was built, the grade school moved in to the old high
school building. He believes there is still asbestos in the old high school.
Hall was in the Quonset hut when the new high school was opened. After the new
high school was built, the teachers still went to the old high school to use
the lounge as there was no lounge in the new school. The boiler room continued
to serve as the teacher’s lounge. When the boiler room was first used as a lounge,
there was only a bench; over the years, tables and vending machines were
installed. At times, Hall ate lunch in the boiler room. Hall testified that out
of his workday which extended from 8:00 a.m. to 3:30 p.m., he spent 30 minutes
for lunch and 21 minutes in breaks in the boiler room for a total of 51 minutes
per day. Hall testified he was never informed by Letcher County that he had
been exposed to asbestos. He found out about the presence of asbestos when he
“began to talk to people.”
Hall testified he has mesothelioma of
the abdominal cavity. He was first diagnosed with peritoneal mesothelioma in
the second week of November 2014. Hall first learned he possibly had
mesothelioma when Dr. Tin Tran at Whitesburg Appalachian Regional Hospital
(“Whitesburg ARH”), after aborting a third surgery to repair a hernia, told his
wife that Hall had eight months to live if something was not done.
Hall testified his first hernia repair
surgery performed by Dr. John Pellegrini occurred approximately seven years
ago. At that time there was no mention of peritoneal mesothelioma. Three years
later, a second surgery was performed at Whitesburg ARH by Dr. Pellegrini,
which entailed repairing the previous hernia site and repairing a hernia at
another site. There was no mention of mesothelioma during that surgery. Dr.
Tran aborted the proposed third surgery because he believed Hall had
mesothelioma.
A biopsy of a tissue sample was then sent
to Mayo Clinic in Florida which revealed he had mesothelioma. After informing
Hall’s wife of the biopsy results, Dr. Tran obtained an appointment for Hall at
Vanderbilt. Hall denied receiving a previous diagnosis of mesothelioma. He went
to Vanderbilt where tests confirmed the presence of mesothelioma. While at
Vanderbilt, he was informed the surgeons at Vanderbilt would perform the
surgery, but he needed a local doctor. Unhappy with this information, Hall went
to Pikeville Medical Center and was seen by Dr. Vickie Morgan, an oncologist.
Dr. Morgan provided options to him which included surgery at Medstar to be
performed by Dr. Sugarbaker whom Hall characterized as one of the best surgeons
for this type of surgery.
Hall testified cyto-reductive surgery
was performed on March 5, 2015, and Dr. Sugarbaker established a chemotherapy
program to be administered at Pikeville Medical Center under the care of Dr.
Morgan. As to how he contracted mesothelioma, Hall provided the following
testimony:
Q: Mr. Hall, we took a break and I was
just getting ready to ask you, did I understand you to say earlier that after
the surgery and after the diagnosis of mesothelioma, you started, did you say,
doing some investigating?
A: Yeah, I started talking to people
because my family is not cancer prone. Never in my life would I have thought
that I would ever have cancer. And when I was told that, that was a shock. I
would have never, ever believed that I would have such a thing as mesothelioma.
So the thing with me was where would I have gotten that. I don’t know how much
you know about it, but my wife – they call them educated in that, and having it
in the abdomen – there’s two types. One is in the lungs which you breathe that
stuff in. Having it in the abdomen, you ingest it. So how, what was the most
likely way it was ingested. I sat in that furnace room with an asbestos furnace
and ate lunch and snacks and drank colas. So I started asking and talking to
people and found out, yes, that school has asbestos in it, according to those
people.
Hall testified Estill Blair
(“Blair”), a janitor at the school, said there was asbestos on school property.
He was also told by Danny Taylor, a teacher and coach, that there was asbestos
on school property. When his wife spoke with Elwood Cornett (“Cornett”), who Hall
believed was either a state inspector or contractor, she was informed there was
asbestos on school property. Hall testified he first talked with Blair between
the time of his diagnosis and the surgery. He testified he was never in the boiler
room when the work was performed to remove the asbestos. While at the school,
he was never informed an asbestos inspection was being conducted. It was only
later that he became aware of the inspection. Hall testified he never went in
to the boiler room after he retired in 2003. He explained that in 2003, the boiler
room in the old high school still served as the lounge. Before surgery, he
notified Letcher County he had mesothelioma and asked about the boiler room. He
talked with Marion Whitaker (“Whitaker”) the maintenance supervisor for the
Letcher County Board of Education, and Jimmy Cornett, the principal of the high
school, and told them that he had mesothelioma.
Letcher County introduced Whitaker’s February 2016
deposition. Whitaker testified he has served as maintenance supervisor since
November 1996. He is responsible for maintenance and repair of all Board owned
facilities which includes all buildings, grounds, and everything located in or
on the grounds. His job also encompasses the reporting requirements for
asbestos inspection and monitoring. He testified Cornett, an outside
contractor, conducted the first inspection for asbestos and generated the first
inspection report. Cornett worked for Kentucky Valley Educational Co-Op and
performed inspections for several boards of education in the area after enactment
of the Asbestos Hazard Emergency Response Act (“AHERA”).[3]
Cornett later started a company which removed the asbestos he located in the
schools.
Whitaker introduced eighteen
exhibits.[4] The
boiler room is described as locations HA #48 and #50. The reports concerning
the boiler room reveal asbestos was located in the “caulking from sections of
boiler” and in the “corregated [sic] sheet found on front of boiler sheet metal.”[5]
Exhibit 7 reveals the boiler section insulation and the corrugated sheet were removed.
As noted by the ALJ in her decision, Exhibit 9 reflects Cornett certified the
ceiling tiles and acoustic tiles had been sampled previously, and all tiles
that sampled positive had been removed and replaced under the “asbestos in
schools rule.” Exhibit 13 relates to the re-inspection by Cornett in 1992 which
reveals there was no change from the previous inspection. There is no reference
to the boiler room. Exhibit 14 is a 1992 letter from the architect, William B.
Richardson, certifying the buildings he designed
were
asbestos free. Exhibit 15
is a re-inspection performed by Cornett in April 1995 reflecting there is no
change in the existing management plan. Exhibit 16 contains the certifications
by Cornett from December 8, 1989, through December 22, 1997. On all of the
inspection reports generated after removal of the asbestos in HA #48 and #50, Cornett
responded “none” to the following statement:
Periodic surveillance was conducted at
the above location on ____. All asbestos contained building material identified
in the management plan was visually inspected and changes in the condition of
the material are noted as follows.
Exhibit 16 also reflects Whitaker
conducted his first inspection on June 17, 1998. His inspection reports provide
the following:
Periodic surveillance was conducted at
the above location on 6-17-98. All
Asbestos Containing Building Material identified in the management plan was
visually inspected and changes in the condition of the material are noted as
follows: None. Tile worn at entry to HA
#4.
Periodic surveillance was conducted at
the above location on 01-08-99. All
Asbestos Containing Building Material identified in the management plan was
visually inspected and changes in the condition of the material are noted as
follows: None. Tile missing in hallway
at HA #11.
Periodic surveillance was conducted at
the above location on 08-31-99. All
Asbestos Containing Building Material identified in the management plan was
visually inspected and changes in the condition of the material are noted as
follows: None.
Periodic surveillance was conducted at
the above location on 12-29-99. All
Asbestos Containing Building Material identified in the management plan was
visually inspected and changes in the condition of the material are noted as
follows: None. Worn at entry to Rm. #6.
Periodic surveillance was conducted at
the above location on 08-25-00. All
Asbestos Containing Building Material identified in the management plan was
visually inspected and changes in the condition of the material are noted as
follows: None.
Periodic surveillance was conducted at
the above location on 3-26-01. All
Asbestos Containing Building Material identified in the management plan was
visually inspected and changes in the condition of the material are noted as
follows: None.
Periodic surveillance was conducted at
the above location on 07-31-01. All
ACBM identified in the management plan was visually inspected and changes in
the condition of the material are noted as follows: Removed BIA 34. 07-10-01.
Periodic surveillance was conducted at
the above location on 01-31-02. All
ACBM identified in the management plan was visually inspected and changes in
the condition of the material are noted as follows: Nothing written.
Periodic surveillance was conducted at
the above location on 07-17-02. All
ACBM identified in the management plan was visually inspected and changes in
the condition of the material are noted as follows: Nothing written.
Periodic surveillance was conducted at
the above location on 12-18-02. All
ACBM identified in the management plan was visually inspected and changes in
the condition of the material are noted as follows: Tile missing at end of primary hallway.
Periodic surveillance was conducted at
the above location on 03-26-03. All
ACBM identified in the management plan was visually inspected and changes in
the condition of the material are noted as follows: Removed 3.93 sq. ft. from rear corner of BIA 27.
Periodic surveillance was conducted at
the above location on 07-01-03. All
ACBM identified in the management plan was visually inspected and changes in
the condition of the material are noted as follows: Tile worn thru in several doorways.
Periodic surveillance was conducted at
the above location on 08-09-03. All
ACBM identified in the management plan was visually inspected and changes in
the condition of the material are noted as follows: 16 sq. ft. removed left rear corner of BIA #20. Room #13. Entire floor
encapsulated under new tile.
Periodic surveillance was conducted at
the above location on 08-18-03. All
ACBM identified in the management plan was visually inspected and changes in
the condition of the material are noted as follows: 5 sq. ft. Replaced in doorway of BIA #17, 2 sq. ft. Replaced in BIA #24
outside doorway of BIA #17.
Periodic surveillance was conducted at
the above location on 08-18-03. All
ACBM identified in the management plan was visually inspected and changes in
the condition of the material are noted as follows: 3 sq. ft. Replaced in doorway of BIA #18.
Periodic surveillance was conducted at
the above location on 08-18-03. All
ACBM identified in the management plan was visually inspected and changes in
the condition of the material are noted as follows: 9 sq. ft. Replaced in doorway of BIA #04.
Periodic surveillance was conducted at
the above location on 08-18-03. All
ACBM identified in the management plan was visually inspected and changes in
the condition of the material are noted as follows: 4 sq. ft. Replaced along window wall of BIA #03.
Periodic surveillance was conducted at
the above location on 12-29-03. All
ACBM identified in the management plan was visually inspected and changes in
the condition of the material are noted as follows: Nothing written.
Periodic surveillance was conducted at
the above location on 9-14-04. All
ACBM identified in the management plan was visually inspected and changes in
the condition of the material are noted as follows: Entire hallway encapsulated with new VCT-BIA 24 & 25. BIA #17
encapsulated with new VCT. 3 yr. reinspection.
Periodic surveillance was conducted at
the above location on 01-11-05, 7-08-05,
12-13-05, 7-25-06, 1-12-07, 6-15-07, 1-5-08. All ACBM identified in the
management plan was visually inspected and changes in the condition of the
material are noted as follows: Nothing
written.
Periodic surveillance was conducted at
the above location on 07-07-08. All
ACBM identified in the management plan was visually inspected and changes in
the condition of the material are noted as follows: Kitchen floor tile removed – BIA #2. Non-ACBM.
Periodic surveillance was conducted at
the above location on 1-05-09, 7-22-09,
12-14-09, 7-20-10, 1-04-11, 7-01-11, 1-5-12, 6-28-12, 01-08-13, 6-19-13,
1-24-14, 9-11-14. All ACBM identified in the management plan was visually
inspected and changes in the condition of the material are noted as follows: Nothing written.
Periodic surveillance was conducted at
the above location on 01-12-15. All
ACBM identified in the management plan was visually inspected and changes in
the condition of the material are noted as follows: Replaced: 4 ½ s.f. Rm. #107.
18 s.f. Cafeteria. 6 s.f. Rm. #115. 6 s.f. Rm. #112.
Periodic surveillance was conducted at the
above location on 09-29-15. All ACBM
identified in the management plan was visually inspected and changes in the
condition of the material are noted as follows: Replaced: BIA#’s. 03 - 14
s.f., 08 – 1 s.f., 09 – 1 s.f., 13 – ½ s.f., 14 – ½ s.f., 15 – 8.5 s.f., 17 – ½
s.f., 18 – ½ s.f., 19 – ½ s.f., 26 – 2.25 s.f., 30 – ½ s.f., 32 – 1.5 s.f., 40
– 2.25. s.f. Replaced by J & M Monitoring 4-26-15 & 9-27-15.
(emphasis added).
Exhibit 17 contains Cornett’s
credentials, and Exhibit 18 relates to the inspections performed in 1989, 1998,
2001, 2004, 2007, 2008, 2010, and 2013.
Whitaker testified Cornett was the
person initially hired to handle the inspections and asbestos removal, and his
first inspection occurred on September 12, 1988. Whitaker testified about each
exhibit and indicated the exhibits pertained to inspection reports, laboratory
analysis, findings of asbestos in each building, and whether asbestos was friable
or non-friable. As noted previously, the exhibits reveal asbestos was removed from
the boiler room and where the asbestos was disposed. Whitaker testified Exhibit
11 was a notice to the employees and parents of the asbestos plan and where it
could be found and reviewed. He testified Exhibit 16 was the periodic
inspection survey and reports performed every six months to ensure no
deterioration of existing material. These inspection reports were signed by
Cornett and later by Whitaker. He noted the material in the boiler was abated
in August 1990.
Whitaker testified the building in
which Hall first worked had been a high school and is currently Letcher County
Elementary. He believed it was built in 1959. He described the boiler as a “coal
fired sectional hot water boiler,” and the boiler room was approximately 20 x
30 with a 10-foot ceiling. The boiler was approximately 7 or 8 feet wide, 6
feet high, and 10 to 12 feet long located in the middle of the room. The boiler
was removed during a 2003 renovation and given to Harlan County schools for
parts.
Whitaker testified AHERA requires the
schools to identify and manage any material containing asbestos. The records he
introduced reveal Cornett took samples in the summer of 1988, and some test
results were positive for asbestos in various locations. As a result, all
friable asbestos was removed and non-friable was left in the building. He
provided the following definition of what constitutes friable asbestos:
“Friable is any building material that can be reduced to dust by hand pressure
between your fingers. If you can squeeze it and grind it into dust.” To his
knowledge, there were no more positive results after the removal of the
asbestos by Cornett.
Whitaker testified the boiler room
served as a teacher’s lounge. A table was placed in the room, and teachers were
permitted to smoke in the room. Asbestos was found in the boiler equipment and
in tiles located in other parts of the building. He agreed the boiler room
continued as a teacher’s lounge after the new high school was built. However,
he testified everything containing asbestos was removed from the boiler. He
also testified they had removed some floor tiles “in the elementary school and
at Letcher.” Some floor tiles remained. Regarding the presence of asbestos,
Whitaker testified the floor tile was considered to be extremely minimal and
was left alone. As long as it was waxed and sealed, the exposure to asbestos
was considered minimal. He explained the boiler contained friable asbestos, but
the floor tile was non-friable.
After Whitaker’s deposition, Hall filed portions of the exhibits
introduced by Whitaker evidencing asbestos was found in the boiler room and not
removed until August 2, 1990. Hall also introduced a statement signed by numerous
employees indicating the boiler room at the school was used by the teachers as
a lounge, and some of the employees took breaks and ate their lunch in the room
with no knowledge or notice of asbestos. They stated there was also a soda
machine and table and chairs in the area as well as the furnace.
Hall filed a DVD representing it
contained 2015 news footage from WYMT. The DVD showed the following:
1. DVD+R containing:
(a) 2015 WYMT news footage showing
broken tiles and small pieces of tile which contain asbestos at Letcher School
making it friable asbestos (Located under DVD RM Drive, DCIM 124__03).
(b) Photos of broken tiles and small
pieces of tile at Letcher School.
Much of what is on the
DVD has no relation to Hall.[6]
Pursuant to Letcher County’s motion seeking to require Hall
to specify the date of last employment or date of last exposure, CALJ Gott
entered a March 31, 2017, Order directing Hall to supplement his Form 101 with
the alleged date of last employment or last exposure within ten days.[7]
On April 10, 2017, Hall filed a supplement to his Form 101
stating he returned to the school several times after he retired on July 1,
2003, and several times in 2004 to substitute teach. He believed he returned to
serve as a substitute teacher for a short period of time in 2012 or 2013. Hall
reiterated his testimony concerning his years of employment, the fact the boiler
room served as a break room, and he and his wife’s actions after he received
the diagnosis of mesothelioma. After receiving the diagnosis, they requested
and received documents from which he learned asbestos was discovered in 1988
but only partially removed in 1990. Hall also noted asbestos was discovered in
the boiler room, but the employees were neither notified nor was the room
closed. Hall asserted he was exposed to and breathed asbestos fibers for many
years at Letcher County High School on a daily basis which led to his
diagnosis. He asserted Letcher County cannot dispute he had exposure during his
employment.
On May 3, 2017, Letcher County filed a motion to compel
asserting Hall’s April 10, 2017, response did not satisfy the CALJ Gott’s order
and a date of last exposure must be established.
On May 8, 2017, Hall again filed a response to the motion
to compel stating he believed he worked two days during the pay period ending
April 18, 2014, at Letcher Middle School. He stated he returned as a substitute
teacher at various schools within Letcher County’s system. He again set out his
employment history and reiterated much of that contained in his previous
supplement to the Form 101 filed on April 10, 2017.
On May 23, 2017, the ALJ entered an order sustaining
Letcher County’s motion in part and noting Hall stated he last worked two days
during the period ending “April 18, 2016 [sic].” However, the ALJ noted it was
not clear whether he was alleging he entered the boiler room on at least one of
the two dates he worked in “April 2016 [sic].” Thus, Hall was granted ten days
to “specifically state whether he is alleging his last date of exposure is on
or about April 2016 [sic], or some other time period.”
On June 9, 2017, Hall filed a response to the Order stating
he entered the boiler room on the last date he worked in “April 2015.” Thus,
his last date of exposure is “April 2015.” Hall stated: “However, on the
Plaintiff’s last date of exposure, the furnace room was at that time the grade
school office. The furnace had been removed from that room but the friable
asbestos was still present in the room as well as throughout the building.”
At the August 29, 2017, hearing, Hall was questioned only
by Letcher County’s attorney. Hall again testified he retired in 2003 and
afterwards worked as a substitute teacher throughout the county. On some occasions,
he worked in the older building. Hall did not work for Letcher County from 2004
through 2010. He did not teach again until 2014 when he taught approximately
twelve or fourteen days. He estimated a couple of those days he worked in the
older building. He testified that if the printout shows he taught in 2011, he
would not dispute it. He believes he taught a few days in 2014 and last worked
on April 18, 2014.
On September 5, 2017, Hall filed a Notice of Correction
stating he was correcting his last date of employment to be approximately April
18, 2014, which were based on a printout from Letcher County showing he worked
two days during the pay period ending April 18, 2014, at Letcher Middle School.
In the October 24, 2017, Opinion and Order, after setting
forth the stipulations and summarizing the lay and medical testimony, regarding
the issue of the statute of limitations, the ALJ entered the following findings
of fact and conclusions of law:
The ALJ finds that Plaintiff met his burden to prove that he
developed mesothelioma and that his exposure at work caused the mesothelioma
based upon his testimony and the report of the University Evaluator, Dr.
Rosenblum, and Dr. Paul Sugarbaker, who indicated that mesothelioma was
confirmed during a third hernia repair on November 10, 2014. However, Defendant
asserts that the claim is barred by the statute of limitations/repose set forth
in KRS 342.316(4)(a) which states:
4) (a) 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….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 or asbestos-related disease, a claim must be filed within
twenty (20) years from the last injurious exposure to the occupational hazard.
The ALJ finds that Plaintiff first experienced a distinct
manifestation of an occupational disease in the form of symptoms reasonably
sufficient to apprise him that he contracted the disease when he underwent the
third hernia repair on November 10, 2014, and peritoneal mesothelioma was confirmed.
Plaintiff filed his claim on September 4, 2015. Thus, he filed it within three
(3) years within the manifestation date. Thus, Plaintiff met the first prong of
the statute.
Since this is an asbestos claim, the next issue is whether he
filed his claim within twenty (20) years of his last injurious exposure to the
occupational hazard. Having asserted that this claim was barred by the statute
of limitations, the burden shifts to the employer to prove the elements of the
defense. Lizdo v. Gentec Equip., 74 S.W.3d 703, 705 (Ky. 2002). Thus,
the Defendant must prove that Plaintiff did not sustain an injurious exposure
to asbestos after 1995 in order to succeed on its defense.
“Injurious exposure” means conditions which could cause the
disease over some indefinite period of time. South East Coal Co. v. Caudill
(Ky. 1971) 465 S.W.2d 62. In addressing the issue of causation, an expert
medical witness is not required to use any particular “magic words,” including
the words “reasonable medical probability.” The “reasonable probability”
requirement relates to the proponent’s proof burden. The ALJ must determine
whether the evidence is of sufficient quality and substance to rise to the level
necessary to prove causation. Union Underwear v. Scearce, 896 S.W.2d
(Ky. 1995) See also Turner v. Commonwealth, 5 S.W.3d 119 (Ky.1999).
The ALJ finds that Defendant met its burden to prove that the
asbestos was removed in 1990 from the furnace room, and that Plaintiff
sustained no injurious exposure thereafter. There is insufficient evidence that
Plaintiff sustained an injurious exposure to asbestos following the removal of
the friable asbestos from the furnace room and other parts of the building in
1990. Whitaker testified that although some floor tiles which contained
asbestos still remained in the building, as long as they were waxed and sealed,
there was minimal exposure to asbestos. This is supported by the Response
Action Form dated July 9, 1989, which indicated that care will be taken to
eliminate activities that might result in the tile becoming friable. The school
thereafter continued to conduct inspections of the floor tile and to
remove/replace any tile that appeared to be worn. Further, in a report, Elwood
Cornett confirmed that ceiling tiles and acoustic tiles have all been sampled
previously and all that sampled positively have been removed and replaced under
the Asbestos in Schools Rules.
Although Plaintiff alleged he continued to work in the
building after 1990, Plaintiff’s application and the more definite statements
thereafter only alleged exposure to asbestos in the furnace room. In one
response, he mentioned friable asbestos in the building, but there is not
sufficient evidence of friable asbestos in the building after 1990. Plaintiff
alleged the date of injury as “gradual” and alleged that he sustained an injury
due to exposure to asbestos on a daily basis. He related that the asbestos was
discovered by samples in 1988, but not removed until 1990, and he asserted that
the break room where asbestos was discovered was never closed, and they
continued to eat in that break room. Defendant filed a motion for a more
definite statement to require Plaintiff to state his last date of exposure. On
April 5, 2017, Plaintiff stated that he was exposed during his 27 years of
teaching at Letcher High School, and he referred to the documents showing that
asbestos was discovered at the school in 1988, but not partially removed until
1990, nor were employees notified of its discovery. He alleged that Plaintiff
continued to take his breaks in the furnace room and eat his lunch there, and
the room was not closed. Defendant filed a motion to compel, and Plaintiff
filed a response and referred to a pay period ending May 18, 2014, but again,
Plaintiff referred to the exposure in the furnace room where he took breaks. In
a third response, Plaintiff alleged that friable asbestos was still present in
the room, as well as throughout the building. This is the only allegation of
asbestos exposure after 1990. He stated that his last date of exposure was on
or about April 2015, when he did enter the furnace room. (His testimony at the
hearing was that his last date was in May 2014). However, Whitaker testified
that there were no positive reports in the building after 1990. Thus, the ALJ
finds that Plaintiff was not exposed to conditions that could cause the disease
after 1990.
The evidence submitted by Plaintiff of a news report from
WKYT is not testimony and cannot be relied upon as evidence. However, the
videos and pictures of the broken tiles were considered, but there was
insufficient evidence that those specific broken tiles contained asbestos, that
they were broken when Plaintiff was working there, that Plaintiff was exposed
to broken tiles that contained asbestos while he was there, and that such
exposure was sufficient to constitute an injurious exposure. Defendant’s
evidence was that any tiles that contained asbestos that appeared to be worn
were replaced rebuts this theory.
This ALJ acknowledges that the university evaluator, Dr.
Rosenblum’s opinion should be given presumptive weight. Dr. Rosenblum relied on
Plaintiff’s history of exposure to find that Plaintiff’s mesothelioma was
caused to his occupational exposure to asbestos. Dr. Rosenblum mentioned that
the floor tiles, which he stated “were apparently made with asbestos” were not
removed until after the diagnosis. However, Dr. Rosenblum considered
Plaintiff’s asbestos exposure as a whole in considering causation, and did not
address which occupational exposure caused the mesothelioma, nor did he
differentiate between the friable and non-friable asbestos in the building.
Further, he did not consider Defendant’s evidence that there were no positive
reports of friable asbestos after 1990.
Dr. Rosenblum also indicated that there was no other asbestos
exposure history. However, Plaintiff filed an affidavit specifically indicating
that he had significant exposure to asbestos while in the army. Dr. Rosenblum
had an incomplete history of Plaintiff’s asbestos exposure, his opinion did not
address the floor tiles specifically, and it is unclear if Dr. Rosenblum had
any information about the floor tiles other than the fact that they “apparently
contained asbestos”. Neither party took a deposition of the university
evaluator, and thus, while the ALJ does find that Dr. Rosenblum’s opinion is
sufficient to find that Plaintiff had mesothelioma due to exposure while
working for Defendant, his opinion is insufficient to address the critical
issue of whether Plaintiff was injuriously exposed after 1990.
Based upon the foregoing,
the ALJ finds that Plaintiff’s claim was filed more than 20 years after his
last injurious exposure, and it shall be dismissed pursuant to KRS 342.316.
Hall filed a petition for reconsideration asserting the ALJ
failed to recognize friable asbestos was found in the boiler room and the
boiler room was still used in 2003 when he retired. Hall asserted all asbestos
was not removed as testified by Whitaker. Rather, Letcher County only removed
what it considered friable asbestos and all other material containing asbestos
was left. He contended this included but was not limited to chalk boards, tile
floors, and ceiling tiles. Hall contended it was very obvious he continued to
have asbestos related exposure during his employment up until he retired and
even during the time he returned to substitute teaching as late as 2014. Hall
took issue with the ALJ’s statement that Dr. Rosenblum had an incomplete
history of his asbestos exposure, and her statement that it was unclear whether
Dr. Rosenblum had any information about the floor tiles other than the fact
they apparently contained asbestos. Hall asserted Dr. Rosenblum clearly stated
there was an appropriate lag between the exposure and the disease which the ALJ
failed to take into consideration. He maintained if his condition was due to asbestos
exposure prior to his employment with Letcher County, the lag time would not
have been appropriate between the exposure and the disease. He did not seek
additional findings of fact.
As previously noted, in the December
6, 2017, Order, the ALJ overruled Hall’s petition for reconsideration finding
it to be a re-argument of the merits of the claim.
In seeking reversal, Hall relies on the University
Evaluation report of Dr. Rosenblum. Hall observes the boiler room also served
as a break room and it is undisputed there was asbestos located in that room.
Hall contends the floor tiles were apparently made with asbestos, were present
the entire time he was there, and were not removed until after his diagnosis.
He notes Dr. Rosenblum concluded his condition is causally related to his work
environment. Hall acknowledges he filed an affidavit stating he had exposure to
asbestos while in the Army. However, the ALJ failed to recognize the symptoms
of mesothelioma do not usually appear for twenty to thirty years after the
first exposure to asbestos. Thus, if the exposure in the Army caused his
disease, the symptoms would have occurred much sooner than 2014. In Hall’s view,
his exposure came from his employment with Letcher County which was clearly
recognized and understood by Dr. Rosenblum.
Hall cites to Whitaker’s testimony regarding
friable asbestos that was removed from the boiler room in 1990; however, he
notes the floor tiles were not removed but were waxed and sealed. Hall contends
he filed photographs showing broken floor tiles and pieces of tile, thereby
making it friable asbestos. He also filed the 2015 WYMT news footage showing
broken floor tiles and pieces of tile containing asbestos at the Letcher school.
Hall argues he met his burden of showing exposure to material containing
asbestos until the date of his last employment in April 2014. Consequently, the
ALJ erred in finding the date of his last exposure was in 1990.
As the claimant in a workers’
compensation proceeding, Hall had the burden of proving each of the essential
elements of his cause of action. Snawder v. Stice, 576 S.W.2d 276 (Ky. App.
1979). Since Hall was unsuccessful in establishing he filed his claim within
twenty years from his last injurious exposure to the occupational hazard, the
question on appeal is whether the evidence compels a different result. Wolf
Creek Collieries v. Crum, 673 S.W.2d 735 (Ky. App. 1984). “Compelling
evidence” is defined as evidence that is so overwhelming no
reasonable person could reach the same conclusion as the ALJ. REO Mechanical
v. Barnes, 691 S.W.2d 224 (Ky. App. 1985). The function of the Board in
reviewing the ALJ’s decision is limited to a determination of whether the
findings made by the ALJ are so unreasonable under the evidence that they must
be reversed as a matter of law. Ira A. Watson Department Store v.
As
fact-finder, the ALJ has the sole authority to determine the weight,
credibility and substance of the evidence. Square
D Co. v. Tipton, 862 S.W.2d 308 (
The ALJ relied upon Whitaker’s
testimony that there were no positive reports of asbestos in the building after
1990 to find Hall was not exposed after 1990 to conditions which could cause
the disease. The ALJ also found Dr. Rosenblum’s opinion is sufficient to find
Hall contracted mesothelioma due to exposure while working for Letcher County. However,
the ALJ found Dr. Rosenblum’s opinion was insufficient to address the critical
issue of whether Hall was exposed to asbestos after 1990, because Dr. Rosenblum
merely stated the floor tiles “apparently were made with asbestos.” According
to the ALJ, Dr. Rosenblum only considered Hall’s asbestos exposure as a whole
but did not address which specific occupational exposure caused the disease or
differentiate between friable and non-friable asbestos. Buttressing the ALJ’s
opinion is her belief that Dr. Rosenblum did not consider Letcher County’s
evidence indicating no positive reports of friable asbestos after 1990. Just as
important to the ALJ was the fact that Dr. Rosenblum was not aware of Hall’s
affidavit indicating he had significant exposure to asbestos while in the Army.
This led the ALJ to believe Dr. Rosenblum had an incomplete history of Hall’s exposure.
The ALJ’s conclusions, however, miss
the mark. There is no question, based on Whitaker’s testimony and the documents
introduced at his deposition, the floor tiles within the Letcher County school
building, including those in the boiler room which Hall frequented, contained
asbestos. Consequently, the documents introduced by Letcher County and
Whitaker’s testimony establish Hall’s last date of injurious exposure to
asbestos was at least the date of his retirement. Important to the resolution
of this issue is what constitutes “injurious exposure.”
The
Kentucky Supreme Court in Miller v. Tema Isenmann, Inc.,
2016-SC-000449-WC, rendered March 22, 2018, To Be Published, defined injurious
exposure as follows:
KRS 342.0011(4) defines “injurious exposure” as “that
exposure to occupational hazard which would, independently of any other cause
whatsoever, produce or cause the disease for which the claim is made.”
We have held the statute requires only that exposure could
independently cause the disease—not that it did in fact cause the disease. “All that is required ... is that the
exposure be such as could cause the disease independently of any other
cause.” Childers v. Hackney's Coal Co., 337 S.W.2d 680, 683 (Ky. 1960) (emphasis added).
For Miller to prevail on his claim of occupational disease, he
was required to present evidence of a “fitness to induce conviction in the
minds of reasonable [persons].” Smyzer, 474 S.W.2d at 367. This evidence must demonstrate a “causal connection between
the conditions under which the work is performed and the occupational disease,”
KRS 342.0011(3), and demonstrate workplace conditions that
could cause Miller's cancer, Childers, 337 S.W.2d at 683.
Slip
Op. at 4. (emphasis added).
The
Supreme Court observed that although the parties disagreed on how many employees
were exposed to MOCA, they agreed some employees tested positive for actual
exposure to MOCA during the course of Miller’s employment. Therefore, the
Supreme Court concluded:
This amounted to objective
proof that during Miller's tenure at TEMA, there existed conditions through
which workers were exposed to MOCA. By the admission of TEMA's own plant
manager, at least two or three TEMA employees had tested positive for MOCA
exposure. As such, the evidence demonstrates that TEMA employees were exposed
to a workplace environment in which injurious exposure to MOCA was a reality.
Slip Op. at 5.
The Supreme Court noted the record contained testimony from both parties
that workplace conditions existed which carried the risk of MOCA exposure and
concluded by re-emphasizing KRS 342.0011(4) and the case law requires only
exposure which could independently cause the disease and not that it did,
in fact, cause the disease.
Here,
Dr. Rosenblum unequivocally noted in his history that, in 1998, there was
asbestos insulation that was not repaired until 1990. In addition, the heating
pipes in the classrooms were insulated with asbestos. Further, the floor tiles
in the school, which were made with asbestos, were in the school the entire
time Hall was present and were not removed until after his diagnosis. Therefore, we believe Dr. Rosenblum concluded the
asbestos within the floor tiles of the boiler room were, in part, the cause of
Hall acquiring mesothelioma.
In explaining the causal relationship
between the factors in the work environment and his diagnosis, Dr. Rosenblum
stated the asbestos present in the workplace did not appear to be in dispute.
He also noted there was an appropriate lag time between exposure and disease. We
agree Dr. Rosenblum erroneously stated there was no other asbestos exposure
history, since Hall’s affidavit firmly demonstrates he was exposed to
significant amounts of asbestos from 1972 to 1974 while in the military.
However, the main thrust of Dr. Rosenblum’s opinions is that asbestos in the
floor tile and other building materials can and did cause Hall to contract
mesothelioma.
The ALJ declined to rely upon the
opinions of Dr. Rosenblum in determining the date of last injurious exposure
because she believed he had an incomplete history of Hall’s asbestos exposure, “did
not address the floor tiles specifically,” and believed the record was unclear
whether Dr. Rosenblum had any information about the floor tiles other than they
“apparently contained asbestos.” However, Dr. Rosenblum’s opinions are critical,
as they unequivocally establish exposure to asbestos in the workplace as being
the cause of the mesothelioma, exposure to asbestos causes mesothelioma, and
Hall contracted mesothelioma due in part to exposure to asbestos in floor tiles.
Stated again, among the materials within the school Dr. Rosenblum identified as
containing asbestos were the floor tiles. Dr. Rosenblum’s opinions were not
contingent upon drawing a distinction between friable or non-friable asbestos
or whether the floor tiles containing asbestos were broken. Significantly, the
standard for determining the date of last injurious exposure is whether the
exposure could cause mesothelioma. See
Miller v. Tema Isenmann, Inc., supra. Dr. Rosenblum is clear that
asbestos in floor tiles could cause mesothelioma.
The ALJ accepted Dr. Rosenblum’s
opinions that the mesothelioma was caused by Hall’s exposure to asbestos in the
school. However, the ALJ erroneously relied upon Whitaker’s testimony in
concluding Hall’s last injurious exposure was in 1990. Without question,
Whitaker is not a doctor nor was there a showing he had any expertise regarding
the degree or quantity of exposure to asbestos needed to cause mesothelioma. After
reviewing Whitaker’s testimony, we conclude his testimony does not constitute
substantial evidence supporting the ALJ’s finding Hall’s last injurious
exposure to asbestos occurred in 1990.
During his deposition, Whitaker testified
that, to his knowledge, there were no positive results for asbestos after
Cornett’s removal was completed. However, Whitaker’s testimony reveals materials
which initially tested positive for asbestos were not removed. In fact, it
appears from the 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. The records contained in Exhibit 16 demonstrate Whitaker
noted Asbestos Containing Building Material (“ACBM”), identified in the
management plan, were regularly removed from July 10, 2001, through August 18,
2003, and all of the ACBM removed in Letcher County Elementary during this
period appear to be floor tiles. There are at least nine notations, between
July 10, 2001, and August 18, 2003, indicating tile was worn, missing, removed,
or replaced. In fact, seven of the nine notations appear to reflect tile was
removed from the Letcher County Elementary School building and replaced. On
September 14, 2004, there is a notation indicating the “entire hallway was
encapsulated with new VCT-BIA 24225” and “BIA 17 encapsulated with new VCT.” Even
though we are unable to determine from the records exactly where in the school this
asbestos was located, it is clear from Whitaker’s testimony there was asbestos
found in the tile in the boiler room and the boiler equipment.
Whitaker testified “the jacket was
removed from the boiler and all the insulation,” was analyzed, and any
determined to contain asbestos was removed at that time. However, he later testified
exposure to asbestos in the floor tiles was minimal, therefore the floor tiles
were not removed. Whitaker’s testimony is as follows:
A: We have removed some
floor tile in Arlie Boggs Elementary and at Letcher.
Q: Okay. So the floor tile
was there. Is it still there today?
A: Still there.
Q: Okay. So it still hasn’t
been removed?
A: Not in its entirety. Some
of it has.
Q: Okay. During that period
of time, were you, I guess, openly and frequently discussing with Elwood
Cornett about the asbestos in that building?
A: Yes.
Q: Okay. And it was
certainly determined to be a problem, wasn’t it?
A: Well, the floor tile was
considered to be – I don’t know what the word is.
Q: Minimal?
A: Minimal, extremely
minimal.
Q: Okay.
A: That was the reason that
it was initially left intact, that as long as it was waxed and sealed that –
Q: Where it couldn’t get
out?
A: That it was very minimal.
Q: Was that same true of the
boiler room and that other equipment?
A: No. No, the boiler was a
friable asbestos whereas floor tile is non-friable.
The above testimony establishes the floor tile in the boiler room contained
asbestos, but because it was assumed to be non-friable, it was left intact. Therefore,
Hall was clearly exposed to asbestos in the floor tile even after asbestos was
removed from the boiler and other areas within the boiler room. Hall’s
unrebutted testimony establishes he was in the boiler room through June 2003,
the month he retired.
In summary, the ALJ erred in
rejecting Dr. Rosenblum’s opinions, the only medical opinions in the record, in
resolving the statute of limitations question. Whitaker’s testimony
conclusively establishes the floor tiles contained asbestos, but because the
floor tiles were presumed to be non-friable and exposure minimal, the tiles
were not removed. Whitaker’s testimony regarding the floor tiles containing
friable or non-friable asbestos has no probative value regarding the issue in
question, as he was not shown to have the expertise to discuss the properties
of asbestos and what constitutes friable and non-friable asbestos, nor does he
have the expertise to negate Dr. Rosenblum’s opinions that exposure to floor
tile containing asbestos can cause mesothelioma. Assuming, arguendo, Whitaker could offer an opinion as to what constitutes
friable asbestos, he was not shown to have the expertise to opine only friable
asbestos causes mesothelioma. Nor was he shown to have the expertise to offer
an opinion as to the type and quantity of asbestos which could cause
mesothelioma. Consequently, since Whitaker admitted the boiler room floor tiles
contained asbestos and there is no question asbestos causes mesothelioma, Hall
was injuriously exposed to asbestos until he retired in June 2003.
We emphasize, once again, the ALJ
accepted Dr. Rosenblum’s opinion that Hall contracted mesothelioma “due to
exposure while working for Letcher Co.” The fact that Dr. Rosenblum said the
tiles apparently contained asbestos does not make his opinions any less
probative given Whitaker’s testimony the tiles indeed contained asbestos and
were left intact since, because in his opinion, the asbestos in the tiles was
non-friable. Since there is no dispute the tiles within the boiler room
contained asbestos, were not removed in 1990, and remained in the boiler room
until Hall retired, Hall’s last injurious exposure as defined by the Supreme
Court in Miller is no earlier than the date of his retirement in 2003.[8] As
noted by the Supreme Court, the pertinent statutory and case law only require that
the exposure could independently
cause a disease. Here, the opinions of Dr. Rosenblum unequivocally establish
asbestos could cause mesothelioma and
Hall could contract mesothelioma from
the floor tiles in the boiler room consisting in part of asbestos.
Accordingly, that portion of the October 25, 2017, Opinion
and Order finding Hall was not injuriously exposed after 1990 is REVERSED. This claim is REMANDED to the ALJ for a finding that
Hall filed his claim within twenty years from the last injurious exposure to
the occupational hazard. Further, since the ALJ found Hall’s mesothelioma to be
work-related, the ALJ shall also enter a decision on the merits resolving all
other contested issues identified in the February 12, 2016, BRC order.
ALL CONCUR.
COUNSEL
FOR PETITIONER:
HON DANIEL F DOTSON
178 MAIN ST STE 1
WHITESBURG KY 41858
COUNSEL
FOR RESPONDENT:
HON W BARRY LEWIS
P O BOX 800
HAZARD KY 41702
ADMINISTRATIVE
LAW JUDGE:
HON CHRISTINA D HAJJAR
657 CHAMBERLIN AVE
FRANKFORT KY 40601
[1] The claim was originally assigned to Hon.
Udell Levy, Administrative Law Judge. The claim was reassigned to Hon. Douglas
Gott, Chief Administrative Law Judge (“CALJ Gott”), who later assigned it to
the ALJ.
[2] Hereinafter, we will refer to the
furnace/boiler room as the boiler room.
[3] Whitaker testified AHERA went into effect in
1987 and required school boards across the country to perform inspections for
asbestos.
[4]Exhibits 1 through 12 pertain to the asbestos inspection performed by Cornett at multiple schools including those belonging to the Letcher County school system, the results of the inspections, the analysis of the material tested, and the removal of various materials during the period from 1988 through 1992.
[5] See documents contained in Exhibit 1.
[6] Most of what is on the DVD relates to
children’s pageants, people on hikes in the woods and at a swimming pool, and a
clothing store. However, at the end of the DVD are ten pictures of floor tiles.
Those pictures are undated and do not identify the location of the tiles shown
in the pictures. Some of the pictures have either a heading or a partial
heading to the effect “teacher files lawsuit claiming asbestos in school caused
cancer.” There is nothing in the pictures representing they are of actual tiles
contained within any structure owned by Letcher County and thus provide no
probative value. The last portion of the DVD is taken from You Tube and is from
the news station WYMT with the heading “former Letcher County teacher files
lawsuit claiming asbestos in school caused cancer. In this news cast, Hall is
interviewed. In addition to the interview, there is a picture of the former
break room which is now an office. Wendy Rutherford, the principal at Letcher
Elementary School engaged in the following exchange:
Rutherford - We always kind of knew it was here and I guess we just
assumed it was being taken care of the way it was intended to be taken care of.
WYMT Reporter – In the seven years Wendy Rutherford has worked at
Letcher Elementary the custodians have followed protocol cleaning and waxing
the tiles in order to prevent exposure.
Rutherford – You know this hall that is in the building is original to
the building and it was built in the 50s.
WYMT Reporter – The hallway was recently sealed but some classrooms
and the cafeteria still have the old tiles.
Rutherford – You know it is something that I think we need to address.
I think just for the safety of our students and staff, and to relieve any fears
that people have, I think this is the right call for our board to remove the
tiles.
[7] The record is silent as to why ALJ Levy did
not enter an Order regarding Letcher County’s previous motion for more definite
statement.
[8] Nothing contained in the exhibits reflects
the tile in the boiler room was ever removed.