A reader responding to last week’s “4 Trending Nuggets for the Fire Officer” said that the decline of fireground and responding deaths are offset by the rise of cancer deaths. He makes a great point, but the classification of cancer as a cause for a line-of-duty death classification is different for each state. Some states are still fighting to avoid legislation that creates a presumption of certain cancers due to firefighting.
Texas has provided a rich and troubling history of how organizational resistance works. The Texas Legislature unanimously passed a change to state law that requires the government to presume, if firefighters are diagnosed with cancer and meet certain criteria, their illness was caused by exposure to carcinogens on the job.
Of the 117 worker compensation cancer claims filed by firefighters since 2012, 91% have been denied, according to the Texas Department of Insurance. (Despart 2018)
This in part due to activities by the Texas Intergovernmental Risk Pool (TIRP). TIRP is a public entity risk pool providing workers’ compensation, liability, and property coverages to more than 2,800 Texas local governments.
TIRP opposed the firefighter cancer presumption when the legislature was developing the statue. With the legislation passed, TIRP says that Texas administrative law only presumes three types of cancers are related to firefighting: testicular, prostate and non-Hodgkin’s lymphoma.
For example, Battalion Chief Patrick Mahoney filed for worker compensation due to thyroid cancer in Baytown, this is the city’s response:
“The City of Baytown has paid all of the benefits they were ordered by the state agency to pay to Mr. Mahoney and continue to do so. The state agency charged with addressing these types of disputes has taken inconsistent positions on the types of cancer covered under the applicable law. The City has the right to appeal the state agency’s decision to District Court. The City has chosen to exercise that right and Mr. Mahoney continues to be afforded all benefits he is due, pending the outcome of the City’s appeal,” the statement said. (Powell 2018)
The December 2018 Texas Department of Insurance biennial report for the Texas Governor and Legislature provided a brief analysis “Emerging Issue: Firefighter and EMT Cancer Presumption.” (starts at page 47 of the report)
“Firefighters, EMTs, and their beneficiaries argue that any cancer that can be tied to on-the-job exposures documented by IARC are presumed to be work-related. As a result, the statutory presumption language in Texas Government Code, Chapter 607 is interpreted in different ways by different parties in the workers’ compensation system.”
I recommend you read “87% of Texas firefighters denied workers’ comp for cancer” by Celeste Monforton, DrPH, MPH to get a more detailed analysis of the implications.
A Fort Worth denial of worker’s compensation claim for Captain Kevin Teague, 46, who died of pancreatic cancer, provides a description of the process facing Texas firefighters (Mitchell 2019)
A board-certified medical expert in internal medicine with a sub-specialty in medical oncology determined that Teague did not have a disease that may be caused by exposure to heat, smoke, radiation or a known or suspected carcinogen as determined by the International Agency for Research on Cancer (IARC), according to the city’s claims administrator.
Due to the determination that Teague’s risk of pancreatic cancer was not more than the general population’s and the pending change in legislation, the difficult decision was made to deny his workers’ compensation claim, the city’s statement says.
Oppose and Appeal Until We Win
Our last example is Mission firefighter Homer Salinas, diagnosed with renal cell carcinoma in 2017:
- Texas Municipal League Intergovernmental Risk Pool (TIRP) denies the claim.
- Appeals to the Texas Department of Insurance (TDI) – TDI ruled in Salinas favor
- TIRP appeals the TDI ruling (Garcia 2019)
There were dozens of examples of this type of behavior by TIRP against firefighter claims publicized in the media. The resulting publicity would show some mayors hiding behind TIRP and elected officials claiming they were unaware of these activities.
Senate Bill 2551 submitted to amend Section 607.055
Sen. Juan “Chuy” Hinojosa introduced Senate Bill 2551 in 2019 to amend 607.055 by :
- Listing 11 types of cancer: stomach, colon, rectum, skin, prostate, testis, brain, non-Hodgkin’s lymphoma, multiple myeloma, malignant melanoma, and renal cell carcinoma.
- Eliminate this statement: ” … type of cancer that may be caused by exposure to heat, smoke, radiation, or a known or suspected carcinogen as determined by the International Agency for Research on Cancer.”
“It’s a very unfair process that was being abused by the municipalities,” Hinojosa said. “This bill clarifies it and establishes a defined procedure by which they will receive their benefits without having to go through a long process.” (Garcia 2019)
The legislation was signed by the governor on June 10, 2019. It is effective immediately but will not impact cases filed before June 10th.
The Challenge Continues
Many of you know that it requires constant vigilance when it comes to state and local legislation that affects emergency service health, safety, and welfare. There is no reason not to believe that TIRP will develop other methods to protect their client’s assets and other elected officials may introduce legislation to dull or reverse the impact of Senate Bill 2551.
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Despart, Zach (2018 August 9) Fighting cancer on two fronts: Despite Texas law, firefighters denied workers comp for treatment. Houston Chronicle
Powell, Nick (2018 July 13) City of Baytown sues cancer-stricken firefighter to avoid paying insurance claims. Houston Chronicle
Monforton, Celest (2018 December 18) “87% of Texas firefighters denied workers’ comp for cancer” thepumphandle.org
Brown, Cassie (2018 December 1) Texas Department of Insurance, Division of Worker’s Compensation Biennial Report To The 86th Legislature. Austin, TX: Texas Department of Insurance.
Mitchell, Mitch (2019 May 31) Fort Worth denies workers’ comp claim for firefighter who died of pancreatic cancer. Fort Worth Star-Telegram
IARC (2018) Firefighting. Lyon, France: International Agency for Research on Cancer.
Garcia, Berenice (2019 May 31) Bill aimed to help firefighters with cancer passes Texas Legislature. The Monitor