Workers’ comp benefits upheld for fireman killed by cancer

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The Court of Appeals Western District has upheld the workers’ compensation benefits granted to the widow of a firefighter in a Kansas City suburb who died of cancer.

David Cheney was a 27-year veteran of Gladstone’s fire department when, in 2008, he was diagnosed with follicular non-Hodgkin’s lymphoma. In a workers’ compensation claim, he alleged that his illness had been caused by exposure to “smoke, gases, carcinogens and inadequate oxygen” during his employment. Cheney died in 2014, after which his wife, Donna, became the claimant.

The Division of Workers’ Compensation denied the claim. Cheney appealed to the Labor and Industrial Relations Commission and won a reversal. The city of Gladstone then appealed to the Western District, where on June 4, Judges Thomas H. Newton, Anthony Rex Gabbert and Edward R. Ardini Jr. upheld the decision to grant Donna Cheney death and burial benefits for her late husband.

J.R. Boyd of Boyd Kenter Thomas & Parrish in Independence, who represented Cheney, said this was the first time that Missouri appellate judges had directly addressed whether a firefighter’s cancer was a compensable injury.

“This is undoubtedly going to send a shockwave through the state and serve as a wakeup call that municipalities need to step up and protect these firefighters,” said Boyd, who added that representatives from other municipalities attended oral argument.

The city’s attorney, Kip A. Kubin of Martin Pringle in Overland Park, Kansas, did not respond to a request for comment.

The central issue before the panel was whether the commission had sufficient evidence to find that occupational exposure had been the prevailing factor in the late fireman’s illness. The panel found the evidence to be sufficient.

The city had argued there was no recognizable link between non-Hodgkin’s lymphoma, or NHL, and Cheney’s work as a firefighter. The city’s expert physician, Neel Shah, testified at the commission’s hearing that while age, race and weight appear to be influencing factors, the exact cause of NHL remains unknown. He also said that no peer-reviewed literature establishes a causal connection between firefighting and NHL.

Yet James E. Lockey, a physician who testified for Cheney at the hearing, dis-agreed with Shah’s overall conclusions. Lockey is a professor emeritus at the University of Cincinnati College of Medicine, where he has focused on occupational and pulmonary disease. He testified that in his research, he had observed a recognizable link between NHL and firefighting — specifically between NHL and the inhalation of carcinogenic fumes such as asbestos, benzene, black soot and diesel exhaust, the same kind of fumes Cheney inhaled while working for the city.

Lockey said that according to his research, exposure to such fumes rendered firefighters 1.51 times more likely than the general population to have NHL. Lockey further pointed to a more recent study by the National Institute of Occupational Safety and Health in which researchers came to a similar conclusion.

Lockey said he reviewed Cheney’s medical records and found that his occupational exposure had been a prevailing factor in his illness.

Writing for the panel, Ardini concluded: “The Commission found this evidence credible and persuasive, and we defer to this finding.”

Boyd said he hopes that municipalities now will do their own investigation in cases such as Cheney’s and then do the right thing, instead of initiating costly legal battles for themselves and the firefighter families affected.

“If you determine there aren’t any risk factors outside of the work-related exposures, take care of that firefighter,” Boyd said. “Take care of that family.”

The case is Cheney v. City of Gladstone, WD81939.