Firefighters say cities are breaking workers’ comp law

Andy Brunelle used to worry about getting burned.

The 54-year-old firefighter in Phoenix with nearly 20 years on the job worried about the same things his buddies did — falling through a roof, getting trapped in a burning building. Unusual workplace hazards were the norm in his business, and he was vigilant.

“The whole cancer thing was not on the radar,” he said.

It is now.

Brunelle is fighting leukemia, which affects the blood and bone marrow. And his workers’ compensation claim was denied despite his condition being among those that are supposed to be presumed a result of his work.

In 2017, the Legislature passed a bill to expand the list of cancers that are legally presumed to be a result of firefighters’ workplace conditions. HB2161 sailed out of both chambers with nearly unanimous support from lawmakers who sought to protect firefighters across Arizona from the financial burden of diseases such as leukemia, melanoma and testicular cancer, among others.

But firefighters say cities are breaking that law.

THE BURN

The danger firefighters run into doesn’t end when the flames have been doused and the smoke has cleared.

In a fire, your home becomes a cesspool of carcinogens.

The bedding that keeps you cozy at night, the drapes decorating your windows, the couch you snuggle on with loved ones – all contain chemicals that become hazardous in a fire. Even the chemical fire retardant that coats the foam in your chair cushions releases carcinogens when it burns and decomposes.

And your garage is another story entirely.

Brian Moore, vice president of member benefits for United Phoenix Firefighters, said anything could be in there – pesticides, gasoline, pool chemicals and other household items turn toxic when burned. Perhaps your vehicle catches fire in the garage, releasing significant amounts of plastics and synthetic materials and rubber compounds, all of which emit carcinogenic chemicals when burned.

The law states that “[A]ny disease, infirmity or impairment of a firefighter’s health that is caused by” a host of diseases is presumed to be an occupational disease.

Before 2017, those diseases included brain, bladder, rectal and colon cancer, lymphoma, leukemia, adenocarcinoma — a cancer that forms in the glands before spreading to the rest of the body — and mesothelioma. But Sen. Paul Boyer, R-Glendale — a representative at the time — introduced HB2161 to expand the list. It now includes cancer of the buccal cavity and pharynx, esophagus, large intestine, lung, kidney, prostate, skin, stomach and testicles, non-Hodgkin’s lymphoma, multiple myeloma and malignant melanoma.

Yet some cities across the state have denied firefighters’ workmen’s compensation claims after they were diagnosed with the very diseases covered in law.

When a firefighter is diagnosed with one of the 20 types of cancer covered by the law, he or she files a workers’ compensation claim. Once received, the city, effectively the firefighter’s employer, allows an insurance company to handle the claim. The only exception is Phoenix, which allowed a third-party administrator to handle these claims.

Once the claim is filed with the state, the city has 21 days to accept or deny it.

The result is almost always an immediate denial, Moore of the United Phoenix Firefighters said.

And once the claim is denied, the firefighter has 90 days to file an appeal, launching a battle in court on top of the ultimate battle for life.

Andy Brunelle’s worker’s compensation claim was denied despite the presumption in state law that the type of cancer he has was related to his occupation. PHOTO COURTESY OF ANDY BRUNELLE

Brunelle lost his appeal, too.

Arizona Industrial Commission Administrative Law Judge Michelle Bodi wrote on September 18 there is no disputing Brunelle’s diagnosis.

“There is, however, conflict in the evidence regarding the carcinogenic nature of the materials [Brunelle] was exposed to while fighting fires, if any, and the effect of those materials, if any, on [Brunelle’s] development of [chronic lymphocytic leukemia],” Bodi wrote.

He looks at his job differently now.

“I am just so hyper-aware of how we are so overexposed on every single shift,” he said. “We’ll risk a lot to save a lot.”

THE DENIAL

But when he needed help, the city of Phoenix denied his claim.

Boyer said he was aware of one case in which the Phoenix City Council overturned a denial.

Brian Beck Jr. — a 31-year-old, third-generation firefighter who was diagnosed in 2018 with stage IV malignant melanoma, which was included in the 2017 expansion of the law – was originally denied his claim.

Bryan Jeffries, president of Professional Fire Fighters of Arizona, said Beck’s case should have been clear-cut.

“We send out people into these really dangerous situations and expose them to this toxic soup of chemicals, and then say, ‘Sorry, you’re insurance claim was denied,” Jeffries said.

But shortly after Phoenix received a letter from the Attorney General’s Office alleging “certain municipalities” weren’t adhering to the law, the City Council went into executive session to discuss Beck’s case. The result – they accepted his claim.

Jeffries said he doesn’t know what was said, “but their position on that claim has changed since that executive session.”

Whether that shift came in time to help Beck is another story.

On March 1, Beck’s sister, Melissa Dal Pra, wrote to Boyer. Her brother had undergone multiple surgeries, two rounds of immunotherapy treatment, clinical trial injections, and after all that, they learned the cancer had spread to his brain. Beck had just completed 14 brain radiation treatments by the time she wrote to the lawmaker.

Dal Pra appealed to Boyer for a streamlined process, noting that firefighters like her brother are facing time-sensitive diseases.

“Currently, my brother is now struggling with private insurance to pay for treatments when he should be using all of his energy to fight the big fight. For his life,” Dal Pra wrote.

THE SALVE

Boyer’s expectation when he sponsored the 2017 legislation was simple: He expected cities to follow the law, and that hasn’t changed, he said.

The 2017 law does allow firefighters’ claims to be rebutted by a preponderance of the evidence that there is a specific cause of the cancer other than an occupational exposure, like a smoking habit.

But if firefighters meet all the requirements in law — they were on duty for at least five years, are younger than 65 and were not diagnosed more than 15 years after retirement — they expect to be covered under the law. Boyer said that legally, it’s on the employer, the cities, to prove otherwise.

“The burden shouldn’t be on the firefighters,” Boyer said.

In 2017, the League of Arizona Cities and Towns registered as neutral on the bill, though lawmakers characterized testimony from league lobbyist Alex Vidal as having been clearly opposed to the law change.

“The league is in an impossible position right now,” Vidal told the House Health and Human Services Committee on February 8, 2017. “The firefighters are asking for an expansion of presumption benefits. … But ultimately, it’s the cities and towns that pay for it.”

At the time, he said some member cities, the larger ones anyway, took no real issue with the expansion. But smaller towns and rural areas were vehemently opposed, fearing they may not be able to afford to cover the firefighters’ claims.

A single claim could run into the millions of dollars for one individual over the course of a lifetime, Vidal argued.

His fiscal argument did not go over well with lawmakers.

“You’re talking about money. You’re not talking about lives or health,” said Rep. Jay Lawrence, R-Scottsdale.

Vidal told Lawrence the fiscal impact was “very murky,” and beyond that, he accused firefighters of making their health an issue of politics. Why stop at firefighters, he asked.

“Who gets presumptions and why? We feel that the process is very politicized right now,” Vidal told the committee.

Rather than take an expansion to the Legislature, the league proposed a process through the Arizona Industrial Commission. Vidal said that would allow both sides to present their evidence for whether the diseases covered in law should be expanded, and the commission could make its recommendations to the Legislature.

Lawrence wondered aloud how many more firefighters would die in that time. Vidal’s argument failed.

Studies have shown that firefighters receive cancer diagnoses at a rate much higher than the general population. The National Institute for Occupational Safety and Health published a study in 2013 backing up this claim, on top of the National Center for Biotechnology Information finding in 2006 that there is a correlated link between firefighters who have been diagnosed with multiple myeloma, as well as at least a “probable association” of firefighters who have any of non-Hodgkin lymphoma, prostate and testicular cancer.

Yet the protections purportedly given to firefighters in 2017 are not having the intended effect.

THE SCAB

If the cities still won’t comply, Boyer said action will have to be taken.

“I would like to sit with the respective city managers and mayors to get their understanding,” he said.

And if they still refuse, then he said he would look into a “1487 complaint.”

A 2016 law, passed as SB1487, allows any state legislator to ask the attorney general to investigate an “official action” taken by the governing body of any city, county or town the legislator alleges violated state law or the state Constitution.

But the Arizona Attorney General’s Office has already taken notice.

On April 16, Government Accountability Unit Chief Evan Daniels sent a letter to the League of Arizona Cities and Towns Executive Director Ken Strobeck claiming unnamed cities and towns are illegally denying workers’ compensation claims to the firefighters.

Attorney General Mark Brnovich’s spokesman Ryan Anderson said “phones have been lighting up from firefighters” sharing their stories and pleading for help ever since.

Because the Attorney General’s Office cannot represent individuals, Anderson said the office would discuss internally what it can do to ensure firefighters are being treated fairly.

Strobeck declined to provide a copy of his response to Daniels’ letter, but it was obtained through a public records request to the Attorney General’s Office.

In it, Strobeck homed in on a typo in the bill number included in Daniels’ letter, which was clarified in a follow-up letter that Strobeck did not acknowledge in his response.

Strobeck’s letter in response to the Attorney General’s Office said cities and towns “are aware of their responsibility” under the law. But he did not address the concerns of the denied claims, citing the lack of names of cities allegedly breaking the law or the firefighters who had been slighted.

“I am concerned that a letter of this nature would be transmitted without any facts to determine if the allegations can be substantiated,” Strobeck wrote.

As of May 8, the Attorney General’s Office has had one follow-up meeting with the league and third-party providers, Anderson said.

Phoenix, which is no longer part of the league, received its own notice from the Attorney General’s Office.

Julie Watters, city spokeswoman, said Phoenix has been following the law and approved several claims.

“The city takes the health and safety of all employees very seriously and these are decisions that are deeply vetted,” Watters said.

In any case, help doesn’t reach everyone in need.

Flagstaff firefighter Wes Forbach with his wife Evenstar. Forbach’s worker’s compensation claim was denied despite the presumption in state law that the type of cancer he has was related to his occupation. PHOTO COURTESY OF WES FORBACH

Wes Forbach, a 34-year-old firefighter in Flagstaff who has been with his crew for 12 years, was diagnosed with testicular cancer in February 2017. It was actually his second case of testicular cancer – he went through an unrelated, trauma-induced bout with cancer when he was in high school.

The 2017 diagnosis meant he had to set aside sperm to give him and his wife, Evenstar, a chance at kids one day, and he’ll be on hormone-replacement therapy for the rest of his life. But it never made him regret the work he does every day.

“It’s a little bit of a bummer. It’s a downer because it has irrevocably changed my life. … Do I regret it? Absolutely not.”

He shows up on the worst day of someone’s life and makes a difference, he said. Like the woman whose cat he pulled from her burning home–“the look on her face was very gratifying.”

Like Brunelle, Forbach’s compensation claim was denied despite testicular cancer also being included in statute.

“We’re straightforward people here at the fire department. We figure [the law] is what it is, and when that’s not the case, when politics and attorneys get involved, it’s surprising,” he said.

He said the city told him there was not enough evidence to prove a solid link between his job and his disease despite the law.

“Why that matters when we have a presumptive cancer law in place, I don’t know,” he said.