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 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
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.”


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.


web_boyer_9212Boyer’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.


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 workman’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
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.

Hobbs not inclined to play governor when Ducey’s away

Secretary of State-elect Katie Hobbs (Photo by Katie Campbell/Arizona Capitol Times)
Secretary of State-elect Katie Hobbs (Photo by Katie Campbell/Arizona Capitol Times)

When Doug Ducey crosses state lines, it will be “Governor Katie Hobbs” to you.

Much has been said about how Hobbs’ election to secretary of state catapulted a Democrat to the front of Arizona’s line of succession. But a lesser-known provision of the state Constitution also stipulates Hobbs will serve as acting governor anytime Ducey leaves Arizona.

That means, among other gubernatorial powers, Hobbs will have the ability to sign executive orders, and hire and fire state employees when Ducey is absent.

At least, in theory.

No secretary of state in modern history has stirred controversy by abusing gubernatorial powers when serving as Arizona’s acting governor.

But it’s not unheard of. In 1928, Secretary of State James Kerby fired a member of the Arizona Industrial Commission when Gov. George W.P. Hunt was in Washington, D.C.

Hunt was livid, according to a biography of the governor written by David Berman, a professor at Arizona State University.

The rumor at the time was that Kerby fired Henry McCluskey, a friend of Hunt’s, to get back at the governor for reneging on a promise not to seek re-election. Supposedly, Hunt had told Kerby months earlier he would not run again, prompting Kerby to jump into the governor’s race.

Later that year, the Arizona Supreme Court upheld Kerby’s ouster of McCluskey because he was neglecting his work on the Industrial Commission and because he was appointed as a commissioner on the Colorado River Commission, which was a violation of state law that stipulated members of the Industrial Commission could not profit from holding another office.

Hunt and Kerby were both Democrats, and still had a tiff. Hobbs and Ducey are from opposing parties, which could create more friction between the state’s top two elected officials.

The Arizona Constitution states that when the governor leaves the state, “the power and duties of the office shall devolve upon the same person as in case of vacancy.” That person is the secretary of state.

If the secretary of state is also out of Arizona or unable to fill in as acting governor, then the duties carry down the line of succession to the state’s attorney general. Next in line is the state treasurer followed by the superintendent of public instruction.

Ducey left Arizona at least twice in the past week, according to the governor’s public schedule, meaning Secretary of State Michele Reagan was technically in charge. He visited Mexico for a trade summit and attended the inauguration of the country’s new president Andrés Manuel López Obrador. He also attended funeral services for former President George H.W. Bush in Washington, D.C.

Ducey, who maintains he is still the state’s top brass even when he’s traveling, dismissed the idea that Hobbs will do more than serve as a placeholder when he is out of Arizona.

Ducey told the Arizona Capitol Times that he forged a strong relationship with Hobbs when she was in the Legislature, so he trusts her not to co-opt his job when he’s gone.

“Part of any relationship is built on trust and confidence, so I’m hopeful that soon-to-be Secretary Hobbs and I can work closely and that it won’t be those types of game-playing or unpleasant surprises,” Ducey said.

Similarly, Hobbs has not expressed any interest in co-opting the governor’s duties when he is gone.

In a press conference just days after her victory in the secretary of state’s race, Hobbs said the constitutional provision crafted in 1912 was written long before email, cell phones and other technological advances that help keep the governor informed while he’s traveling.

Hobbs also said she thinks it’s unlikely Ducey will leave much of anything for her to act on in his stead.

“The governor is not going to leave me when there’s pressing policy that he feels strongly about,” she said.

Attorney General Mark Brnovich raised the question of how much power the acting governor really has when he filled in for Ducey for a day in 2015. Brnovich jokingly asked his Twitter followers what he should do as governor when Ducey was on vacation in California and Reagan was out of town at a conference.

Upon realizing he may have struck a nerve, Brnovich walked back his joke, saying he had full confidence in Ducey to manage Arizona while across state lines.

Reagan and previous secretaries of state have been called on to sign emergency legislation or other urgent documents while the state’s governor has been absent. Typically, the governor is aware of the situation and gives his or her blessing for the secretary of state to act.

The 1928 Arizona Supreme Court case involving Kerby and Hunt, though it dealt with the fallout from Arizona’s secretary of state serving as acting governor, did not directly address the amount of power bestowed to an acting governor.

But high courts in other states have addressed the issue.

In 1979, California’s Supreme Court ruled the state’s lieutenant governor has complete gubernatorial power when the governor leaves the state after former Republican Lt. Gov. Mike Curb made appointments, signed bills and created commissions while former Democratic Gov. Jerry Brown campaigned for president. The court case stemmed from when Brown tried to withdraw one of Curb’s judicial appointments.

Curb boasts of making 431 appointments and signing at least 30 proclamations and bills while serving as acting governor.

But in 1991, the Missouri Supreme Court ruled opposite of California that the lieutenant governor does not become acting governor on the “temporary casual absence” of the elected governor.

Industrial commission hears input on proposal to prevent overpriced medication

(Stock/Karen Foley Photography)
(Stock/Karen Foley Photography)

The Arizona Industrial Commission met July 1 to hear public comment on proposed changes to this years fee schedule that are intended to prevent doctors from prescribing and dispensing more expensive medications for profit. 

The issue dates back to 2018, when Sen. Karen Fann, R-Prescott, proposed SB 1111, which was designed to wrap up some loose ends from the opioid special session on workers compensation statutes. 

In the bill was language that would have limited how much medication and when a doctor could dispense from their office instead of a traditional pharmacy. 

Some lawmakers had problems with the language and it was eventually removed on the floor and replaced with language that directed the industrial commission to address the problem.

The commission then included many of the changes from the bill in this year’s fee schedule, but the specific amount of medication and the amount of time were different. 

The proposed changes say that insurance carriers, self-insured employers or the commission itself is only responsible to pay for the medication in certain circumstances.

Those cases require that the prescription is dispensed by the practitioner following an industrial injury, the prescription is limited to no more than a one-time 10-day supply, the prescription is dispensed seven days from the injury, and the medication conforms to dosages that are commercially available in pharmacies accessible to the public. 

Doctors can still prescribe and disburse more medication, but they would not be reimbursed for it. 

This means that doctors who distribute the medication out of their office are not accessible to the general public and they could not dispense the medication. 

Industrial Commission Chairman Dale Schultz said at the meeting that “there is abuse when it comes to the dispensing of medications” for workers compensation.

“This abuse is felt in many areas and every day,” he said. 

Schultz spent a majority of the first 30 minutes of the meeting reading slides titled “Myths and Misinformation” in which he denied speculation from the public that the changes would benefit insurance companies or that the meetings were held in secret.

“How secret can you be when you post all this crap on the website,” he said. 

But Rep. Regina Cobb, R-Kingman, spoke to the commission and said she felt the changes were a benefit to insurance companies and said the ICA was working closely with them.

“I didn’t talk to anyone but the industrial commision, and then I got calls from insurance companies,” Cobb said. 

She also argued that the proposed changes to the fee schedule should not have been addressed in the fee schedule and should have at the very least been a separate proposed rule. 

Cobb also took issue with the proposed changes and their similarity to Fann’s 2018 bill and should have gone through the Legislature. 

Schultz said that the process did not ignore the Legislature and said that the commission was merely doing what it was instructed to do by the Legislature.

Rep. Aaron Lieberman, D-Paradise Valley, also spoke against the proposed changes and said the commission could address the problem with resources they already have, including the official disability guidelines. 

Lieberman said many doctors do not want to work with patients who are suffering from chronic pain, and removing the ability for them to distribute medicine out of their offices will prevent doctors from taking the patients. 

“This policy seems to throw the baby out with the bathwater,” Lieberman said. 

Rep. Raquel Teran, D-Phoenix, also spoke briefly against the policy, saying only that “I strongly oppose this proposition.”

Commission Director James Ashley said that although three legislators spoke against the changes, many who were planning on speaking retracted their letters to the commission and said they now support the changes. 

There was a long line of people in support of the changes who made their way to the podium. including the City of Surprise Risk Manager Brian Carmichael, who said the high costs are unacceptable. 

“I thank you for protecting the money of all of us in the state,” he told the commissioners. 

Other businesses voiced their support for the changes, including American Airlines, Southwest Airlines, Fry’s Food Stores, and others. 

The public comment period for the proposed changes ends on July 8.

Correction: The original version of this story erroneously reported that the fee schedule was intended to prevent doctors from over prescribing and prescribing more expensive opioids. 

Inflation drives minimum wage raise


Workers at the bottom of the Arizona wage scale appear to be in line for a pay hike of $26 a week.

And you can credit — or blame — inflation.

New figures reported Tuesday by the Bureau of Labor Statistics show that prices as measured by the Consumer Price Index for urban consumers, have risen 5.3% between August 2020 and last month.

What makes that important is that laws approved by voters in 2006 and again in 2016 require annual inflation adjustments based on the August figures.

The official calculations won’t come until later this week when the Arizona Industrial Commission, which is in charge of such things, makes the pronouncement.

But tacking that 5.3% figure onto the current $12.15 an hour minimum translates out to 64.4 cents. Rounded to the nearest nickel, as the law requires, puts it at 65 cents and pushes the minimum up to $12.80.

By contrast, the federal minimum wage, which can be adjusted only with congressional action, has been stagnant at $7.25 an hour since 2009.

How many workers might be affected is unclear.

The most recent data compiled by the state Office of Economic Opportunity, from last year, shows a series of occupations where at least 10% of workers earn less than $12.15. That was at a time when the minimum wage was just $12.

The biggest category is in food preparation and service. And those workers make up about 8.5% of the state economy.

But Steve Chucri, president of the Arizona Restaurant Association which opposed both voter initiatives, said the latest scheduled increase won’t have as big an effect as might be anticipated, at least not immediately. The issue, he said, is supply and demand.

It starts with what Chucri said has been a bounce in customers.

“I think this is probably going to be the busiest June on record for Arizona restaurants,” he said. “A lot of people stayed here.”

At the same time, however, there are more eating places looking for help than people willing to do the job.

“We had a lot of people leave our industry,” he said, some going back to school and others pursuing a different line of work.

What that did is drive up wages, to the point where Chucri said some restaurants were paying $24 an hour to hire someone to wash dishes.

But he said this 65-cent-an-hour wage boost — and others that will follow annually — will make a difference.

“Now there’s a new floor,” he said, which will set the minimum that eating establishments can pay even when there are more people looking for work.

Other industries also are likely to be affected.

Another group with starting wages that are less than the new minimum are those in what are called health care support occupations, everything from pharmacy aides to physical therapy aides.

Then there are all the folks who now are earning more than $12.15 but less than the new minimum. They, too, are in line for a raise.

And, on top of that, you add in the people who currently are being paid $12.80 who may argue that they are entitled to be paid more than the minimum.

Arizona voters mandated in 2006 that the state have its own minimum wage not tied to the federal figure. That set the bottom of the pay scale here at $6.75 an hour, $1.60 higher than what federal law mandated at the time.

Plus there were inflation adjustments.

A decade later, voters decided to turbocharge the raises, imposing a $10 minimum with automatic increases up to $12 as of 2020.

Last year, with inflation at just 1.3%, that gave workers at the bottom an extra 15 cents an hour.

What’s driving this year’s inflation figure is the cost of fuel.

BLS reports that gasoline prices are up 41.9% over a year earlier.

There also has been a 21.1% increase in the cost of piped gas, versus a 5.2% hike in electricity.

Grocery prices, while rising, are up just 3.0% year over year. But the cost of eating out has risen by 4.7%.

The other big hike has been the price of used cars and trucks, up 31.9%.

At least part of that might be attributed to the fact that there are fewer new vehicles available, with supply chain issues holding up computer components and other parts that manufacturers need. New car prices are up 7.6% year over year.

Shelter prices, including rent and what the BLS calls the owners’ equivalent rent of residences, are up 2.8% nationally.

Of note, that figure is significantly less than for the Phoenix metro area, for which the agency does a separate computation. There, shelter costs are up 6.4% in the past year, a reflection of the tight housing market in Arizona and rising rents and home prices.

The latest state minimum wage hike comes as voters in Tucson are set to decide in November whether to impose their own $15-an-hour minimum wage by 2025.

That would start with setting the floor at $13 on April 1, going to $13.50 in 2023 and $14.25 in 2024 before hitting the target. After that, as with the state minimum, adjustments would be made based on inflation.