Cheney v. City of Gladstone

• Citation: 576 S.W.3d 308
• Decision Date: 04 June 2019
• Docket Number: WD 81939
• Parties: David CHENEY (Deceased), Donna Cheney, Spouse, Respondent, v. CITY OF GLADSTONE, Appellant.
• Court: Court of Appeal of Missouri (US)

576 S.W.3d 308

David CHENEY (Deceased), Donna Cheney, Spouse, Respondent,

v.CITY OF GLADSTONE, Appellant.

WD 81939

Missouri Court of Appeals, Western District.

Opinion filed: June 4, 2019

EDWARD R. ARDINI, JR., JUDGE

The City of Gladstone ("the City") appeals the judgment of the Labor and Industrial Relations Commission ("Commission") granting death and burial benefits under Missouri’s Workers' Compensation Act to Donna Cheney on behalf of her deceased spouse, David Cheney. The Commission determined that David Cheney suffered a compensable injury by occupational disease arising out of and in the course of his employment as a firefighter with the City. We affirm.

Factual and Procedural Background

In 1981, David Cheney and Donna Cheney were married. That same year, David Cheney attended the police academy and became a police officer. David Cheney began working for the City of Gladstone as a public safety officer a year later. At the outset of his employment with the City, he served as both a police officer and firefighter. In the early 1990s, the departments split, and David Cheney worked exclusively as a firefighter.

In 2008, after a nearly 28-year career as a firefighter, David Cheney, at age 48, was diagnosed with follicular non-Hodgkin’s lymphoma

("NHL").¹ David Cheney immediately began treatment and was not actively employed thereafter. Following his diagnosis, David Cheney filed his claim for workers' compensation benefits, alleging that his NHL was caused by his work as a firefighter, during which he was exposed "to smoke, gases, carcinogens, and inadequate oxygen." In 2009, David Cheney retired from the City as a fire captain and continued receiving treatment until his death on May 22, 2014. Following David Cheney’s death, Donna Cheney was substituted as the claimant in this case. A final hearing on the claim was held on February 2, 2017.

At the hearing,² Donna Cheney and two of David Cheney’s former colleagues, Kenneth Potter and David Cline, testified. Another former colleague, David Rierson, testified by deposition. The parties also submitted exhibits and other deposition testimony, including testimony and reports from medical experts.

Firefighter witness testimony

Kenneth Potter worked for the City, including as a public safety officer and firefighter, from 1983 to 2011. David Rierson was employed by the City as a public safety officer, paramedic, and firefighter from 1989 through 2008, and worked with David Cheney "pretty much exclusively on the same shift" for nearly 15 years. When David Cheney, Potter, and Rierson started with the City in the 1980s, they worked both as police officers and firefighters. Shifts for firefighters were 24 hours on, 48 hours off. Police officers worked eight-hour shifts. In the early 90s, the departments split, and Potter, Rierson, and David Cheney then worked exclusively for the fire department. David Cline worked for the City as a firefighter and paramedic from 1996 until 2003. While he was with the City, he worked with and was trained by Potter, Rierson and David Cheney. Potter, Rierson, and Cline provided testimony explaining their duties and experiences working with David Cheney as firefighters for the City.

When the four men began working for the City, they were each issued one set of firefighting gear. They were also provided a self-contained breathing apparatus ("SCBA"). The SCBAs were very heavy and restrictive, so the firefighters typically only wore them while actively suppressing a fire. The firefighters did not wear the SCBAs during the ventilation³ or overhaul phases,⁴ even though they would encounter smoldering materials, including household chemicals, plastics, insulation, and electronics, during those stages. In the mid-1990s, the City instituted a policy requiring that firefighters wear their SCBAs during the overhaul phase when the carbon monoxide levels were above 50 parts per million. The detectors used to determine the amount of carbon monoxide did not test for the presence or levels of other fumes or gasses. Firefighters did not wear their SCBAs if the carbon monoxide level was under 50 parts per million, even if some carbon monoxide was detected.

Potter, Rierson, and Cline described how, while fighting fires, particulates from the smoke would adhere to their gear and SCBAs. This black soot would also amass on the firefighters' skin and around their eyes, nose, ears, and mouth. Potter and Cline testified that they often saw black soot on David Cheney’s face following a fire call. All three firefighters stated that it was common for firefighters to expel black mucous from their nose for several days after a fire.

The firefighters rarely washed their gear at the station but would spray it off with a hose at the firehouse when it became covered with insulation or other heavy debris after a fire call.⁵ The firefighters kept their gear in their personal vehicles as they were expected to respond to calls when off duty.⁶

There were two fire stations in the City of Gladstone. Both stations had living quarters in addition to the garage bays where the firetrucks were parked. When the firetrucks were running, the living quarters would fill with diesel exhaust.⁷ In addition, the firefighters kept their gear next to their beds when they slept at the station. As a result, the firefighters were exposed to both the fumes from the diesel exhaust and their gear when sleeping.

In the 1980s and 1990s, firefighter safety training primarily focused on avoiding thermal injuries and carbon monoxide exposure. Cline testified that the emphasis has changed in recent years: "Today in the modern environment, you can't pick up a trade magazine in the fire service that doesn't address the cancer

risk to firefighters." Cline stated that "the big goal that you see everywhere now is to limit your exposure to known carcinogens and smoke because of occupational cancers." Cline noted that specific chemicals such as acrolein, benzene, and cyanide are present in the smoke and fumes encountered by firefighters. Cline explained the dangers of inhaling these chemicals:

Carbon monoxide is a chemical asphyxiant that attaches to your hemoglobin

in your blood, and your body cannot properly take in oxygen and expel carbon dioxide. Hydrogen cyanide is the exact same thing; it’s only about 300 times stronger than carbon monoxide. So you're creating tissue damage. More and more firefighter heart attacks are linked to those two – exposure to those two elements alone. And then you get into acrolein and especially benzene that are known carcinogenic materials, and those products are a byproduct of combustion from hydrocarbons, synthetic materials that are in the smoke. Those are proven carcinogenic materials that have been identified in typical house fire smoke.

Cline additionally noted that benzene is a byproduct of diesel combustion, and it is important to "limit anyone’s exposure to diesel exhaust as much as possible." Potter and Rierson also testified to the increased awareness in recent years within the firefighting community to the dangers posed to firefighters from exposure to fumes and airborne particulates.

Medical expert testimony

Donna Cheney’s first medical expert, Dr. James E. Lockey, is a board-certified physician in pulmonary medicine and occupational and environmental medicine. He works and teaches at the University of Cincinnati College of Medicine where the focus of his research is occupational and pulmonary disease

and occupational medicine. At the time of trial, Dr. Lockey had participated as either an author or co-author on over 130 peer-reviewed publications, including a meta-analysis of 32 studies analyzing the cancer risk for firefighters, which was published in the Journal of Occupational and Environmental Medicine in November 2006. Based on their work, Dr. Lockey and his colleagues concluded that there were "four cancers ... that were properly related to the job task of being a firefighter," including NHL. The research specifically found that firefighters had a "high relative risk at 1.51 [times the rate of non-firefighters]" of developing NHL, which "was statistically significant."

Dr. Lockey elaborated on his findings:

... The potential exposures to firefighters is very complex and it can vary from one fire to the next based on what is being burnt, the combustion temperature, the duration a firefighter would spend in the fire, what gets deposited on their skin, et cetera.

And it is known that firefighters are exposed to known carcinogens, including asbestos, benzene, black soot and diesel exhaust. They also have a potential exposure to trichloroethylene, which is a known carcinogen and has been associated with Non-Hodgkin’s Lymphoma

in certain studies.

What we did was an observational study. It would be very difficult to characterize what one single agent may be responsible for the cancer, but it has been documented through this meta-analysis

through this observational study, that if you work as a firefighter the risks are substantially higher than if you are in the general US population.

Dr. Lockey further noted that a subsequent study published through the National Institute of Occupational Safety and Health ("NIOSH") similarly found that "there was an increased risk for Non-Hodgkin’s Lymphoma

, particularly in people that had 20 years or longer duration of employment as a firefighter."

Based on his research and review of David Cheney’s medical records, Dr. Lockey determined that "Mr. Cheney’s employment as a firefighter was the prevailing factor in relationship to any other factor that caused his Non-Hodgkin’s Lymphoma

or follicular lymphoma and the associated disability related to that condition."⁸

Donna Cheney also offered the report of Dr. P. Brent Koprivica. Dr. Koprivica is board certified in preventative medicine and occupational medicine. He also has a master’s degree in public health, focusing on occupational and environmental medicine. Dr. Koprivica reviewed David Cheney’s...