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April 27, 2018 201501407

Commonwealth of Kentucky 

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

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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. Hamilton, 34 S.W.3d 48 (Ky. 2000).

          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 (Ky. 1993). Similarly, the ALJ has the discretion to determine all reasonable inferences to be drawn from the evidence. Miller v. East Kentucky Beverage/Pepsico, Inc., 951 S.W.2d 329 (Ky. 1997); Jackson v. General Refractories Co., 581 S.W.2d 10 (Ky. 1979). The ALJ 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 adversary party’s total proof. Magic Coal Co. v. Fox, 19 S.W.3d 88 (Ky. 2000). Although a party may note evidence that would have supported a different outcome than that reached by an ALJ, such proof is not an adequate basis to reverse on appeal. McCloud v. Beth-Elkhorn Corp., 514 S.W.2d 46 (Ky. 1974). The Board, as an appellate tribunal, may not usurp the ALJ’s role as fact-finder by superimposing its own appraisals as to the weight and credibility to be afforded the evidence or by noting reasonable inferences that otherwise could have been drawn from the record. Whittaker v. Rowland, 998 S.W.2d 479, 481 (Ky. 1999). So long as the ALJ’s ruling with regard to an issue is supported by substantial evidence, it may not be disturbed on appeal. Special Fund v. Francis, 708 S.W.2d 641, 643 (Ky. 1986).

          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.