David Cheney v. City of Gladstone

Issued by THE LABOR AND INDUSTRIAL RELATIONS COMMISSION

(Reversing Award and Decision of Administrative Law Judge)

**Injury No.:** 08-066683

**Employee:** David Cheney (deceased)

**Claimant:** Donna Cheney (surviving spouse)

**Employer:** City of Gladstone

**Insurer:** Midwest Public Risk of Missouri

This workers' compensation case is submitted to the Labor and Industrial Relations Commission (Commission) for review as provided by § 287.480 RSMo. We have reviewed the evidence, read the briefs, heard the parties' arguments, and considered the whole record. Pursuant to § 286.090 RSMo, the Commission reverses the award and decision of the administrative law judge.

At the hearing before the administrative law judge on February 2, 2017, the parties asked the administrative law judge to resolve the following issues: (1) occupational disease; (2) whether employee's condition of non-Hodgkin's lymphoma arose out of and in the course of his employment; (3) medical causation; (4) whether the firefighter presumption pursuant to § 287.067.6 RSMo. applies; and (5) determination of dependency benefits under § 287.240 RSMo., including death benefits and burial expenses.

The administrative law judge concluded as follows: (1) the credible evidence is that employee's condition of non-Hodgkin's lymphoma did not arise out of and in the course of his employment; (2) medical causation by exposure in the course of employee's work was not proven; (3) the firefighter presumption pursuant to § 287.067.6 does not apply; and (4) dependency issues, death and burial benefits were not addressed, as the administrative law judge found no compensable occupational disease.

Employee filed a timely application for review alleging the administrative law judge erred: (1) in failing to properly apply the firefighter presumption rule under § 287.067.6; and (2) in failing to properly apply the established case law regarding the burden of proof in an occupational disease case.

For the reasons set forth below, we reverse the award and decision of the administrative law judge.

David Cheney, Jr. (hereinafter "employee") was born on August 13, 1959. He served with the Kansas City Police Department in 1981, later joining the Gladstone Department of Public Safety as a police/firefighter. In the early 1990's he was assigned to the Fire Division and retired after a 28-year career at the rank of captain.¹ He also served with the Smithville Area Fire Protection District as an Assistant Chief/Fire Inspector. He married claimant Donna Cheney on March 25, 1981, and they remained married and lived together up to the time of his death. She has not remarried. Employee was a non-smoker. Employee developed non-Hodgkin's lymphoma.

¹ Employee's deposition testimony established that he attended the police academy in 1981, served as a police officer for about a year, and then moved to the City of Gladstone as a public safety officer, performing both police and firefighting duties for about seven years before assignment to the fire department. (Transcript, pages 3038-3039)

Injury No.: 08-066683

Employee: David Cheney (deceased)

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(NHL), which was diagnosed on January 18, 2008, at the age of 48, and immediately began treatment². His cancer was ultimately considered Stage 4, and he was told to get his affairs in order. He was not actively employed thereafter. Employee filed a Worker's Compensation claim on August 1, 2008. He retired from the fire department on February 1, 2009. Employee underwent radiation, chemotherapy, lymph node removal surgery, and stem cell therapy. According to employee's deposition testimony, insurance paid for most of his treatment, aside from deductibles and co-pays. Mr. Cheney died as a result of non-Hodgkin's lymphoma on May 22, 2014, at the age of 54.

In the course of his duties as a firefighter, employee was exposed to smoke, and the by-products and emissions that came from fires he suppressed and during the overhaul phase when firefighters inspect the aftermath of the fire to identify any remaining hot spots. As recently as two weeks prior to January 15, 2008, employee's duties included responding to fires. The exposures that employee was subjected to in the course of his work included fumes, particulates, and off-gassing³ from the burning of plastics, synthetic fabrics, rubber, tires, fiberglass insulation, metals, paint, lead, motor oils, brake fluid, gasoline, common household items and cleaners, batteries, diesel, poisons, and pressure-treated deck wood. The burning of many of these items is known to produce toxic and carcinogenic chemicals. (Transcript, pages 193, 202)

Some of those substances include acrolyn, asbestos, cyanide, benzene, hydrogen sulfide, hydrogen cyanide, potassium chloride, phosgene gas ("mustard" gas), trichloroethylene, as well as carbon monoxide, and a substance referred to as "black soot." (Transcript pages 87-90, 202, 2772-73) Employee was regularly exposed to diesel fumes in the fire station itself from the vehicles, due to poor ventilation, until approximately 1994 when a Plymovent system was adopted. Diesel fumes were noticeable in all areas of the station, including the kitchen and sleeping quarters. Chief David Rierson's training through the International Association of Firefighters informed him that diesel combustion byproducts include formaldehyde, carbon dioxide, sulfur and benzene. Fine diesel particulate is also released, a known carcinogen, and can accumulate on the skin, according to claimant's expert, Dr. James E. Lockey. (Transcript, page 193, 203-204)5

Employee's duties included routinely cleaning his firefighting equipment after a fire. A layer of black soot was commonly found on the protective clothing used during firefighting. No special equipment or protective devices were provided for the cleaning process, which was typically done by hosing down the firefighting suit/equipment in the firehouse, and allowing the run-off to flow into the drainage system. Employee would also frequently carry his dirty equipment in his personal vehicle and wash it in his home washing machine. Before doing so, the clothing had to be hosed down on the lawn. After washing in the machine, it would then require several cycles without clothes to clean out the debris and residue.

In the overhaul phase of the firefighting process, employee and others typically did not wear self-contained breathing apparatus, unless the carbon monoxide level was above a certain limit.

² References to the disease throughout the transcript are NHL and "follicular NHL." Employee's treating doctor, Dr. Phillip Bierman, states a diagnosis of follicular NHL. (Transcript page 2923) Our references to NHL, as related to employee's diagnosis are meant to identify follicular NHL.

³ We adopt the administrative law judge's definition of "off-gassing" as: when materials within a structure fire, or any fire, are combusted and put out but are still hot enough to melt and smolder, causing the continued off-gassing of smokes, gases, and other carcinogens." (ALJ Award, page 8)

⁴ Many of these identified substances were established by the testimony of Dr. James Lockey and of three highly experienced fire chiefs familiar with employee's working conditions. The chiefs were educated in the hazards caused by fires through research literature and training by the International Association of Fire Chiefs, which included research on firefighter cancers. (Chief Kenneth Potter, Chief David Rierson, Chief David Cline)

⁵ Employee worked as a shuttle bus driver between 1978 and 1980.

Injury No.: 08-066683

Employee: David Cheney (deceased)

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There was no requirement that firefighters do so in this phase. During the fire suppression stage, decreased oxygen was sometimes experienced because of limitations on oxygen tanks.

Fire Chief David Rierson, a witness for claimant, and former co-worker of employee with 31 years in the firefighting field, exhibited significant knowledge in the risks and hazardous exposures of the occupation, based on his experience, education and training. He identified the heightened risks between the firefighting profession and exposure to toxic chemicals. His observation has been that firefighters are at greater risk than the average public in regard to combustion, particulates, and carcinogens found at firefighting scenes. (Transcript, page 2786) Chief Rierson and Chief David Cline also experienced and observed that particulate from firefighting and overhaul phases would collect on the skin.

Employee's occupational exposures were the cause and prevailing factor in his development of NHL according to the medical opinion of Dr. James E. Lockey, M.D. Dr. Lockey is Board Certified in pulmonary disease and occupational medicine and is a Professor in Environmental Health at the University of Cincinnati College of Medicine. Dr. Lockey's research has included the effects of diesel exposure. We find his opinion persuasive that employee's follicular NHL was related to his job duties as a firefighter. (Transcript, pages 189-190) His opinion was based on his research, described as a meta-analysis of 32 published research studies of the cancer risks for firefighters. He and colleagues published their findings in the Journal of Occupational and Environmental Medicine in November 2006, entitled, "Cancer Risks Among Firefighters." The meta-analysis comprehensively addressed the total number of study participants in the 32 separate studies, comparing rates of various types of cancer to the general population. The conclusion of Dr. Lockey and his colleagues was that firefighters are 1.51 times more likely to develop NHL than the general population. The study concluded that NHL was "one of four tumors" that were more likely than not related to occupational exposures for firefighters and that there was a "high relative risk" for the profession. (Transcript, page 200) Dr. Lockey also relied on a study by the National Institute of Occupational Safety and Health (NIOSH), published within two years prior to his deposition date in August 2014. The NIOSH study reviewed cancer rates in firefighters from three major U.S. cities over more than 50 years and found firefighters, (especially those with at least 20 years on the job), faced an increased risk of developing NHL. (Transcript, pages 191-192) The doctor testified that certain studies have associated trichloroethylene, (a chemical to which employee was potentially exposed), as linked to NHL. (Transcript, page 202) Dr. Lockey's testimony was persuasive as to the causal link and elevated risk between the occupational exposures of firefighters and cancers, such as NHL. We also find persuasive his opinion that employee's occupational exposure was a prevailing factor over any other factor in the development of NHL. Employee's exposures to carcinogenic substances were potentially through bodily systems including the hematopoietic, respiratory, pulmonary, coronary, lymphopoietic systems, and skin contact. (Transcript, pages 185, 200, 204)

Dr. P. Brent Koprivica, M.D. examined employee on January 25, 2011. Dr. Koprivica is Board Certified in Preventative Medicine and Occupational Medicine. In addition, he has a Masters in Public Health with an emphasis in occupational and environmental medicine. In his report, he opined that employee's exposure to risks as a firefighter was a direct, proximate and prevailing factor in the development of NHL. In evaluating the medical records of employee at the time of performing the independent medical examination, Dr. Koprivica found no significant past medical history relative to the current medical condition. Dr. Koprivica opined that employee's exposure to chemical and gaseous risks as a firefighter was the direct, proximate and prevailing

6 This study was published in the journal in Volume 48, # 11, November 2006.

Injury No.: 08-066683

Employee: David Cheney (deceased)

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