RENDERED: JUNE 13, 2019

TO BE PUBLISHED

2018-SC-000638-WC

LETCHER COUNTY BOARD OF

EDUCATION

APPELLANT

ON APPEAL FROM COURT OF APPEALS

V. CASE NO. 2018-CA-000788

WORKERS COMPENSATION BOARD NO. 15-WC-01407

ROGER HALL; HONORABLE CHRISTINA APPELLEES

HAJJAR, ADMINISTRATIVE LAW JUDGE;

AND WORKERS’ COMPENSATION BOARD

OPINION OF THE COURT BY JUSTICE KELLER

AFFIRMING

Roger Hall (Hall) developed mesothelioma after being exposed to asbestos

over the course of his employment as a teacher at Letcher County High School

in Letcher County, Kentucky. He initiated a claim for benefits pursuant to

Kentucky Revised Statutes (KRS) Chapter 342, the Workers’ Compensation

chapter. After reviewing the relevant evidence, an Administrative Law Judge

(ALJ) denied Hall’s claim. He appealed to the Workers’ Compensation Board

(Board), which unanimously reversed the ALJ’s determination. The Letcher

County Board of Education (Letcher County) appealed to the Court of Appeals,
which unanimously affirmed the Board’s decision. He now appeals to this

Court.

I. BACKGROUND

Hall was employed as a teacher at Letcher County High School beginning

in 1976 until he retired in 2003. Over the course of his career, he physically

worked in two different school buildings—the old high school, and the new high

school. The boiler room located in the old high school building was used as a 

breakroom for teachers. It contained furniture and vending machines.

Hall was subsequently transferred to the new Letcher County High

School, which was completed in 1992 and was located across the street from

the old school, which then became the elementary school. However, he and

other teachers continued to use the boiler room at the old high school as a 

breakroom/lunchroom. Hall remained employed at the new high school until

his retirement in 2003. He occasionally worked as a substitute teacher until

2014.

Hall filed his Form 102-OD on September 4, 2015, alleging that he

developed mesothelioma in his abdominal area after being exposed to asbestos

over the course of his employment. Hall had been treated by multiple

physicians across the county as a result of this exposure. He underwent two

hernia surgeries, one cyto-reductive surgery and chemotherapy.

The ALJ concluded that Hall’s mesothelioma was caused by his exposure

to asbestos during his course of employment. However, the ALJ ultimately

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determined that Hall’s claim was untimely filed pursuant to KRS

342.316(4)(a) which provides:

The right to compensation under this chapter resulting from an

occupational disease shall be forever barred unless a claim is filed

with the commissioner within three (3) years after the last injurious

exposure to the occupational hazard or after the employee first

experiences a distinct manifestation of an occupational disease in the

form of symptoms reasonably sufficient to apprise the employee that

he or she has contracted the disease, whichever shall last occur; and

if death results from the occupational disease within that period,

unless a claim therefor be filed with the commissioner within three

(3) years after the death; but that notice of claim shall be deemed

waived in case of disability or death where the employer, or its

insurance carrier, voluntarily makes payment therefor, or if the

incurrence of the disease or the death of the employee and its cause

was known to the employer. However, the right to compensation

for any occupational disease shall be forever barred, unless a

claim is filed with the commissioner within five (5) years from the

last injurious exposure to the occupational hazard, except that, in

cases of radiation disease, asbestos-related disease, or a type of

cancer specified in KRS 61.315(1 l)(b), a claim must be filed

within twenty (20) years from the last injurious exposure to the

occupational hazard.

(Emphasis added).

In applying this provision, the ALJ determined that although Hall had

satisfied the three-year manifestation date, he failed to timely file his claim

within twenty years of his last exposure to asbestos. The ALJ specifically

found that Hall’s last injurious exposure to asbestos occurred in 1990,

when the asbestos insulation was removed from the boiler room.

Therefore, his workers’ compensation benefits claim was dismissed.

The Board reversed based on testimonial evidence indicating that

although much of the asbestos was removed from the boiler room in 1990, the

boiler room tiles—which also contained asbestos—were not removed until Hall

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retired in 2003, or sometime subsequent thereto. Therefore, the Board held

that the statute of limitations was satisfied, and that Hall’s claim could

proceed. Letcher County appealed, and the Court of Appeals unanimously

affirmed. Having reviewed the record and the law, we affirm the Court of

Appeals.

II. STANDARD OF REVIEW

The ALJ has the sole discretion to determine the quality, character, and

substance of the evidence and may reject any testimony and believe or

disbelieve various parts of the evidence regardless of whether it comes from the

same witness or the same party’s total proof. Paramount Foods, Inc. v.

Burkhardt, 695 S.W.2d 418, 419 (Ky. 1985). The claimant has the burden of

proof to prove that he or she is entitled to compensation under KRS Chapter

342. The issue in the present case, however, is whether the statute of

limitations bars Hall’s claim. We addressed the relevant standard of review in

Lizdo v. Gentec Equipment:

Having asserted that this claim was barred by the statute of

limitations, the burden was on the employer to prove the elements

of the defense. Although KRS 342.285 provides that an ALJ is the

designated finder of fact, a finding that is unreasonable under the

evidence is subject to reversal on appeal.

74 S.W.3d 703, 705 (Ky. 2002) (citing Special Fund v. Francis, 708 S.W.2d 641,

643 (1986)). We defined this standard more precisely in Francis as follows:

When the decision of the fact-finder favors the person with the

burden of proof, his only burden on appeal is to show that there

was some evidence of substance to support the finding, meaning

evidence which would permit a fact-finder to reasonably find as it

did.

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A finding which is unreasonable under the evidence presented is

“clearly erroneous” and, perforce, would “compel” a different

finding.

Francis, 708 S.W.2d at 643.

Therefore, we must determine whether the ALJ’s dismissal of Hall’s claim as

untimely filed is clearly erroneous under the evidence and compels a different

result.

III. ANALYSIS

A. THE ALJ ERRED BY FINDING THAT HALL’S CLAIM WAS BARRED

UNDER KRS 342.316(4)(a).

Letcher County’s primary argument here is that the ALJ correctly

determined that Hall’s claim was untimely because he filed his claim for

benefits more than twenty years after his last date of exposure. In support of

this central argument, Letcher County also argues that the Board erroneously

applied a de novo review of the ALJ’s findings, that the Court of Appeals

erroneously applied a substantial evidence standard of review, and that a

compelling evidence standard should have been applied in both instances. As

previously noted, the proper standard of review here is a clearly erroneous

standard which, if satisfied, would compel a different result. We will now

address the relevant evidence.

Hall testified that he and other teachers used the boiler room for

breaks and to eat lunch. According to Hall, he would spend up to an

hour a day in the boiler room. He further testified that although he was

never officially informed that the school contained asbestos material, he

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discovered that the boiler room had asbestos after speaking with two school

employees and Elwood Cornett, who was the state worker who inspected the

school for asbestos.

Medical records from Dr. Fred Rosenblum, a pulmonary specialist,

indicated that Hall was exposed to asbestos which was present in both

insulation and. floor tiles. In his medical report, Dr. Rosenblum noted that

floor tiles containing asbestos were present in the school and were not removed

until after Hall’s diagnosis. Dr. Rosenblum’s report also noted that Hall “gives

a very convincing history of being exposed to asbestos while working at Letcher

high school and there is an appropriate lag time.” The report concluded that

asbestos containing materials at the school were causally related to Hall’s

condition.

Marion Whitaker, a maintenance supervisor at the Letcher County High

School, was in charge of Letcher County’s asbestos management policy. His

testimony indicated that there were asbestos tiles in the school at the time Hall

retired. Documentary evidence further confirmed that the tiles contained

asbestos. In reversing the ALJ, the Board cites to the following evidence:

[I]t appears from records filed as Exhibit 16 that significant

amounts of tile containing asbestos remained in the school after

1990 and were eventually removed by Letcher County during the

period Hall was teaching at Letcher County High School and

thereafter .... There are at least nine notations, between July 10,

2001, and August 18, 2003, indicating tile was worn, missing,

removed, or replaced.

Even though we are unable to determine from the records exactly

where in the school this asbestos was located, it is clear from

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Whitaker’s testimony there was asbestos found in the boiler room

and the boiler equipment.

Contrary to the Board’s recitation of the record, some of this

evidence is not entirely clear. For example, it is unclear whether each

notation in Exhibit 16 cited by the Board is actually referencing tile.

However, many of the notations do clearly reference the removal or

replacement of a significant amount of tiling and other asbestoscontaining material. Furthermore, it is not entirely clear from Whitaker’s

deposition that the tile he was referencing was located in the boiler room.

However, his testimony does clearly indicate that there was asbestoscontaining tile in the school at the time Hall retired in 2003 and that

there was still asbestos tiling in the school at the time of Whitaker’s

deposition in 2016. Whitaker further testified that even though the tiles

posed a “minimal” risk of exposure once sealed, they were nevertheless

considered to be a “problem.”

We note that the issue here is not whether Hall’s exposure to the

tiles caused his mesothelioma. Rather, “the statute requires only that

exposure could independently cause the disease—not that it did in fact

cause the disease.” Miller v. Tema Isenmann, Inc., 542 S.W.3d 265, 271

(Ky. 2018). See also Childers v. Hackney’s Creek Coal Co., 337 S.W.2d 

680, 683 (Ky. 1960). It is abundantly clear from the evidence that

Letcher County failed to eradicate all asbestos containing material from

the school building. It is also clear that this material, including tiling,

was present in the school until 2003 and beyond. This evidence compels

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reversal of the ALJ’s order. Moreover, barring some clear evidence that Hall

was not, or could not have been, exposed to the remaining asbestos material,

Letcher County cannot meet its present burden. In the absence of such

evidence, the ALJ’s decision here is clear error.

IV. CONCLUSION

For the foregoing reasons, the opinion of the Court of Appeals is affirmed.

This case is remanded to the ALJ for further proceedings consistent with this

opinion.

All sitting. All concur.

COUNSEL FOR APPELLANT:

Barry Lewis

Lewis and Lewis Law Offices

COUNSEL FOR APPELLEE, ROGER HALL:

Daniel Fayne Dotson

COUNSEL FOR APPELLEE, WORKERS’ COMPENSATION BOARD:

Michael W. Alvey

Workers’ Compensation Board

COUNSEL FOR APPELLEE, HON. CHRISTINA HAJJAR:

Honorable Christina Hajjar

Administrative Law Judge

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