Before Donna Cheney and her late husband, Dave, took on the city of Gladstone, no Missouri municipality had ever been ordered to pay workers’ comp benefits to a firefighter who claimed that his or her cancer was job related.
Firefighters contract certain forms of the disease at higher rates than the general population. But Missouri is one of only a dozen states where the burden has been on first responders to prove their cancer was brought on by years of exposure to toxic soot and gasses — either inhaled or absorbed through the skin — while battling blazes or even working at the fire station.
No longer, perhaps, thanks to the relentless efforts of the Cheneys and their attorney. Last month they won a decade-long legal battle with the city and its insurance company.
“It’s been a long, long 10 years,” Donna Cheney said.
In addition to receiving back payments dating to Dave’s death in 2014 at age 54, Donna Cheney will get a weekly check for the rest of her life. It willalleviate much of the financial strain her family has suffered since her husband was diagnosed with stage four non-Hodgkin lymphoma in January of 2008.
She’s quick to stress that the fight her husband began was never strictly financial. The Cheneys always wanted their cause to have lasting benefits for other members of the firefighting profession.
“The money will help me. It will make a huge difference in my life, but the fact that we won this case and I can step up and say that we need to take care of the firefighters, we need to have these guys protected,” Cheney said, that’s what she wanted most of all.
“Cities and municipalities need to step up and understand cancer is killing our firefighters and we have to do something about it,” she said.
They may have little choice but to step up. Cheney v. City of Gladstone set a precedent, according to Independence employment law attorney J.R. Boyd, who represented the Cheneys throughout the prolonged litigation.
Kansas City has voluntarily awarded workers’ comp benefits to firefighters with cancer claims, he said. But this is the first decision on the books that will uphold the rights of other Missouri firefighters to receive compensation for job-related cancer, although Boyd believes a law would help even more.
“My hope is that Donna’s story of perseverance in the face of immense tragedy,” Boyd said, “serves as the impetus to convince Missouri’s legislature that they need to adopt measures to protect Missouri’s firefighters and their families from the devastation that cancer wreaks upon their lives.”
Gladstone’s city manager did not respond on Friday to requests for comment on the case.
Initially, an administrative law judge upheld the city’s denial of the Cheneys’ request for workers’ comp benefits. But the Missouri Labor and Industrial Relations Commission overruled him in 2018,convinced by the evidence presented that exposure to cancer-causing agents on the job was the “prevailing factor” that caused Dave Cheney’s disease.
That decision was upheld last month by the Missouri Court of Appeals in Kansas City. As no further appeal is likely, the Cheney case will help other Missouri firefighters and their survivors get compensation for work-related cancers.
And it will lead to unexpected budget hits on cities across the state that have professional fire departments, as well as higher insurance premiums next year for those that buy policies, says the head of Gladstone’s insurance provider.
“You would not have seen a decision like this 20 years ago,” said Terry Norwood, president and CEO of Midwest Public Risk, the Kansas City-based, non-profit risk pool that insures Gladstone and 180 cities, school districts and other governmental bodies in Kansas and Missouri.
“I think the unintended consequence is it puts a burden on small insurance carriers and units of local government that are self-funded.“
Heart attacks and other cardiovascular conditions are the leading causes of death for American firefighters. Cancer is said to be a close second, if it hasn’t already taken the top spot.
Firefighters are twice as likely as other Americans to get testicular cancer and malignant mesothelioma, which typically grows in the lung tissue of people who’ve inhaled asbestos. They areone and a half times more likely to get the disease that killed Dave Cheney, which attacks the lymph nodes and the rest of the lymphatic system.
Gladstone’s expert witness testified that non-Hodgkin lymphoma has no known cause. But at least two major studies published in recent years concluded that it was one of four cancers “that were more likely than not related to occupational exposures for firefighters,” the labor and industrial relations commission said in its ruling.
Fires have grown more toxic since the days when homes were mostly filled with wood, cotton and other natural materials. Modern fires cook up a nasty stew of cancer-causing soot and gasses, byproducts of the burning plastic and other synthetics inside today’s buildings.
During most of the 28 years he put out fires for the city of Gladstone, Dave Cheney and the guys he worked with were never told those chemicals could kill them.
When fighting fires, they kept their masks on, breathing the air stored in the tanks strapped to their backs. But once the blaze was out, believing they were out of danger, they took those masks off while dousing flareups and smoldering ash. During this “overhaul” period, they also often shed their heavy, fire-resistant coats.
So they were simultaneously inhaling poisonous chemicals and absorbing them through their skin and hair follicles.
That exposure to toxins continued back at the firehouse. Gladstone firefighters were issued only one set of protective clothing when Cheney was there, and so it was rarely washed.
“The soot and the chemicals on that gear is deadly,” Donna Cheney said. Not only was it harmful to touch, the heavy coat and pants smelled of all those contaminants. Her husband kept his firefighting outfit in the trunk of his car and would occasionally spray the garments off with a hose before running them through the washer at home.
Afterwards, Donna would run the washer empty for two more cycles to make sure the crud didn’t get on the family’s clothes.
Dave Cheney began feeling nauseous quite often in the fall of 2007, but his doctor chalked it up to stress. Two of the Cheneys four sons were in the Marines deployed to Iraq at the time.
Then in January 2008, he called Donna to say he needed to go to the hospital right away. His chest and jaw hurt. Was he having a heart attack?
But that wasn’t it. At age 48, he was diagnosed with follicular non-Hodgkin lymphoma, a slow growing cancer that attacks the infection-fighting cells of the immune system. A doctor gave him a couple of weeks to live, but he survived another six years, thanks to six rounds of chemotherapy and two bone marrow transplants.
“It extended his life,” Donna said, “but there was not any time that we weren’t having some type of treatment or some type of antibiotics. It was a very stressful time for him.”
While out on disability that first year, he filed for workers’ compensation benefits to help pay the family’s bills. Gladstone denied his claim. That left him little choice but to retire from the department when the disability payments ran out, and begin collecting his pension early.
That same year, 2009, the couple hired Boyd.
“Donna was a real trouper throughout the continuation of that case,” he said.
It would not have been such a struggle in three dozen other states, where firefighters are presumed to have gotten certain cancers from exposure on the job. To avoid paying disability and survivor benefits, city governments have to prove that the firefighters filing a claim got their disease due to other risk factors, such as smoking and alcohol abuse.
The burden of proof is reversed in Missouri, Kansas and a dozen other states.
In Missouri, firefighters must establish “a direct causal relationship” to get benefits, which requires lots of documentation. And then the statute covers only cancers affecting the lungs or respiratory tracts, not cancer of the lymphatic system, the kind that killed Dave Cheney.
“It’s as worthless as a butter knife in a gunfight,” Boyd said.
Efforts to improve the law have failed in the Missouri legislature the last several sessions. Until that happens, the Cheney decision should give other firefighters and their survivors a better shot at receiving compensation for work-related illnesses.
After all, Donna Cheney said, fire departments across the country are acknowledging the risks of firefighters contracting cancer on the job by changing policies with cancer in mind. Independence, for instance, now requires that its firefighters wear their air masks at a blaze until they are ready to return to the station.
But before hopping aboard the fire trucks, they are supposed to remove their outer gear for later decontamination and use baby wipes to remove any toxic residue around their jaws, arm pits and groin areas.
The Kansas City department has a similar policy and hands out clean heat-resistant hoods after each blaze.
Not every fire department is doing all that’s recommended to protect fire crews from cancer risks, but most are doing what they can to raise funds to underwrite those efforts. Until recently, Kansas City, Kan., firefighters made do with one set of protective gear, but now are being issued a second set and extractors have been installed in most stations.
Donna Cheney says more work needs to be done but is encouraged by the growing focus on cancer prevention within the fire service.
“This was important to my husband, David, this was important to me, that we need to make the changes necessary,” she said. “We need to change the laws so these people are protected. We need to change the rules so that we do things to protect them.”