FIREFIGHTERS WORKERS’ COMPENSATION CANCER CLAIMS – HB 482

As cancer deaths among firefighters soar, their families must fight for compensation. A proposed law, HB 482, resembles cancer legislation already enacted in 30 states is now before the Missouri General Assembly. J.R. Boyd, one of the partners at Boyd Kenter Thomas & Parrish was recently interviewed regarding workers’ compensation firefighters cancer claims.

By Mike Hendricks / The Kansas City Star – February 27, 2017

February 27, 2017

Heather Winship was left to raise two boys by herself after her husband, Rick Winship, died from cancer in 2015. He had a 26 year career with the Independence Fire Department before dying of throat cancer that had spread to his liver and brain. -Keith Myers

 Fire Capt. Rick Winship died in a hospital bed, not in a raging inferno or a tragic accident while racing to an emergency scene.

But his death was in the line of duty all the same, his widow says. The fast-spreading cancer that killed him two years ago was, Heather Winship believes, a result of exposure to toxic soot and smoke during his 26-year career with the Independence Fire Department.

Proving that won’t be easy as she seeks workers’ compensation survivor benefits. The system, as it stands now in Missouri, is stacked against firefighter cancer claims, The Star found in a monthlong look at the hurdles firefighters and their families face seeking compensation for cancers that even the government acknowledges are likely job related.

The same is true in Kansas and about a dozen other states. And on the federal level, the newspaper found, a federal death benefit for public safety officers who die in the line of duty has, likewise, never been paid out in cancer cases other than those directly attributed to toxic exposures related to the 9/11  World Trade Center disaster and cleanup.

But the families of firefighter cancer victims are hopeful that could change as cases like Winship’s become more common here and across the nation. A growing body of evidence shows that firefighters are at greater risk to contract certain cancers than the public at large.

“Cancer is an epidemic with us,” said Jeff Strawn, a fire department captain in Columbia and Missouri representative for the nationwide Firefighters Cancer Support Network.

Some within the American fire service contend that cancer is now responsible for more line-of-duty deaths than all other causes combined because of the increased toxicity of today’s fires.

A 2015 federal study found that firefighters are twice as likely to suffer from testicular cancer and malignant mesothelioma, for instance. They have higher rates for many other malignancies, as well — cancers of the lung, colon and urinary tract, to name just a few — in part because buildings today are filled with furnishings and other objects made entirely of synthetics that produce a poisonous cloud when they burn.

“Today’s residential fires have more in common with hazmat events,” according to one report.

When inhaled or absorbed through the skin, these toxins can trigger cancer over time, scientists say. Fire departments across the country, including the one in Independence, have publicly acknowledged that risk and are increasingly taking precautions to lessen exposures.

Yet while their fire departments ring the alarm bell, local governments’ legal departments balk at paying cancer claims to firefighters and their survivors. In Missouri, Kansas and other states, the burden of proof that job exposures caused cancer falls on the firefighters or their survivors.

The same burden applies to the U.S. Justice Department program that is supposed to help the families of fallen public safety officers.

Burn to death or die of smoke inhalation? Your family is entitled to a onetime $343,589 payment from Uncle Sam, as well as college tuition assistance.

Die from job-related cancer, and your survivors are likely to get nothing from that fund unless the deceased worked on the pile at the World Trade Center.

Few then bother trying to collect. Out of the 40 non- 9/11  cancer death claims filed with the Public Safety Officers’ Benefits Program since 2010, 28 were denied, one was withdrawn and 11 are pending, the Justice Department said in response to The Star’s request for information.

To many survivors, that’s galling.

“Firemen are having 9/11s  every day across this country,” said Linda Goddard of Springfield, whose 42-year-old firefighter husband, Aaron, died in 2015 after a gruesome bout of cancer that ravaged his esophagus, stomach and bowels. “I know it’s horrible to say, but in a way, it would have been easier had he died in a fire.”

Many in the fire service find the justice department’s reluctance to approve death benefits in firefighter cancer cases especially frustrating given that other federal agencies, notably the Centers for Disease Control and Prevention, are at the forefront of substantiating the cancer link to firefighting. The U.S. Fire Administration even provides fire departments with money to buy gear and special washing machines to launder that gear to minimize the risk.

“This is not right,” Heather Winship said. “Here they’ve worked so hard, make minimal money, and there’s no compensation for their lives, their struggles?”

Debating the cause

A proposed law that would address this issue on the state level, at least, is now before the Missouri General Assembly.

It resembles so-called presumptive cancer legislation already enacted in more than 30 states. Introduced by a Republican legislator and part-time firefighter, Rep. Shane Roden’s bill gives firefighters and their survivors the benefit of the doubt when trying to collect workers’ comp benefits for a cancer disability or death.

“Basically right now,” Roden said, “workers’ comp says you have to prove which fire you were at, where you were exposed to the material and prove that you got cancer from being a firefighter.”

Under HB 482, most cancers would automatically be classified as job related unless the employer can prove otherwise or claim mitigating factors, like tobacco use. Eligibility would be limited to firefighters who had at least five years of service, are under age 70 and haven’t been retired for more than 20 years.

Only one hearing has been held so far, and lobbyists for local governments have expressed opposition, fearing the change would hurt their budgets, as many are self insured. The Missouri Municipal League says it’s unfair to automatically assume that firefighters are getting cancer from exposure to toxic air and debris at fire scenes, when the disease might be hereditary or from an exposure off the job.

“Our main contention is that there’s no proof that it’s causing the cancer,” said league deputy director Richard Sheets. If the bill wasn’t so broad, local government might at least be willing to consider it.

“There’s a possibility we can talk about a particular cancer that’s caused by a particular type of incident,” he said, “but it’s got to be very, very narrow, because there’s a lot of cancers out there.”

The perception that cancer is now the No. 1 fatal threat within the fire service is of recent vintage, which is one reason presumptive cancer legislation has yet to be enacted nationwide.

Currently, heart attacks from strenuous duty are officially the No. 1 cause of firefighters’ deaths in the line of duty nationwide. But it took years for Congress to recognize the connection and pass the 2003 legislation that guaranteed federal benefits to the survivors of public safety officers who die from heart attacks and strokes.

Now, if a fatal cardiac event or stroke occurs within 24 hours of a physical training exercise or emergency call, it’s automatically assumed to have occurred in the line of duty.

Cancer, on other hand, progresses over years, and the cause is not easily traced. Therefore, neither the federal government, the National Fallen Firefighters Foundation nor the industry standard-writing group, the National Fire Protection Association, even keeps track of firefighter cancer deaths.

Only the union representing most full-time career firefighters in North America, the International Association of Fire Fighters, has been full-throated in its contention that cancer exceeds heart attacks, traffic accidents and traumatic injuries as the top cause of job-related fatalities.

“Cancer is a looming personal catastrophe for all our members, and we are just beginning to understand the magnitude of the problem,” union president Harold Schaitberger said last year in support of legislation that would establish a federal registry of firefighter cancer deaths.

The union believes that information could build a case for federal presumptive cancer legislation that might also be adopted by states without the presumption now.

Nearly 60 percent of the names added to the union’s national memorial in Colorado Springs, Colo., since 2002 were firefighters who died of cancer.

“Over the years, we’ve had quite a few retirees that passed away as a result of cancer,” said Kansas City, Kan., Fire Chief John Paul Jones. “We have retirees who are dealing with cancer now, and we also have several of our department members battling cancer now who are still on the job.”

Off the charts

The perceptions of a cancer epidemic within the fire service was for years based mostly on anecdotes. The scientific evidence pointed that way, but it was spotty. Then came the 2015 report by the federal National Institute of Occupational Safety and Health, considered the authority on firefighter fatalities.

The multi-year NIOSH study was the largest and longest ever. It looked at the health histories of nearly 30,000 firefighters at three metropolitan fire departments — Chicago, Philadelphia and San Francisco — and found that firefighters were more likely to get cancer than the general population. “Certain kinds of cancers are off the charts for firefighters,” said Eric Johnson, executive director of Supporting Heroes, a charity that helps the families of police, fire and other first responders in Missouri and two other states.

The NIOSH study found that firefighters had higher rates of skin, colon and prostate cancer, as well as non-Hodgkin’s lymphoma. Even breast cancer rates are higher among female firefighters, the study found. That was something of an aha moment for former Kansas City firefighter Krista Graham, who had a double mastectomy in 2010, six years after retiring on disability with a neck ailment. The hormone therapy she undergoes to keep her cancer at bay contributes to her chronic pain. “I’m disabled as hell,” said Graham, 53, who thinks her cancer could have been the result of her dozen years at the Kansas City Fire Department. “I have about five hours a day functioning.” She never filed a workers’ comp claim asking the city to help cover her medical costs.

But the NIOSH study has provided others with the ammunition they need to pursue claims. “The uptick in the number of cases has really exploded over the last several years,” said J.R. Boyd, a labor and workers’ comp attorney based in Independence.

According to the Missouri Department of Labor, just eight claims for compensation were filed by firefighters with a nature of injury listed as cancer. Of those eight claims, one was voluntarily dismissed by the employee, and the remaining seven are pending with the division.

But Boyd thinks more cases have been filed.

During his first 15 years representing employees in benefit cases, he never came across a firefighter cancer case. Now he has a dozen cases filed or in the process of being filed. He recently tried the first of those on behalf of a Gladstone fire captain who died at 54 after a six-year cancer battle.

Another client is Heather Winship, the widow whose firefighter husband died from cancer in early 2015. In many ways the Winship case is typical of those now rising up. Fit and seemingly in good health, Capt. Rick Winship was 53 when he learned he had throat cancer, which had spread to his liver and brain.

The leading risk factors for throat cancer are tobacco or heavy alcohol use, but her husband didn’t smoke, nor was he a drinker, his widow said. However, he was exposed to untold amounts of toxic soot and gasses during his quarter century on the Independence Fire Department. Given six months to live at best, Winship was gone six weeks after that prognosis.

Now his devastated wife of 13 years is on her own to raise their twin boys and wage the legal fight Rick set in motion shortly before his death. She thinks she and her children deserve the same workers’ compensation survivors’ benefits they would automatically get had Rick died at a fire: roughly two-thirds of his salary for life. But Independence city government, which declined to comment on pending litigation, is not likely to write those checks without a fight. No employer would, Boyd said, and open the floodgate for more claims.

So he’s busy documenting every instance over the course of Rick Winship’s career where he might have been exposed to the poisons that could have led to his early death. If the evidence is convincing enough, Boyd said, it could lead to one of the first successful workers’ comp cases of its type in Missouri.

No amount of money, however, will fill the hole that Heather Winship has in her heart or give her boys the time they should have with their dad.

“He’s missing out on so much,” she sobbed. “It’s not right.”

Mike Hendricks