City Opposing Workers’ Comp Claims For Firefighters With Cancer

TOLEDO, OH — Leukemia. Prostate cancer. Colon cancer.

Toledo firefighters have been diagnosed with all three, and more, after working a job that puts them at risk of exposure to hazardous materials, including carcinogens — substances that cause cancer.

And despite a state law that says, in general, firefighters who file for workers’ compensation related to cancer treatments should be presumed to have gotten the disease through their work as firefighters, the city of Toledo is fighting a handful of these claims in Lucas County Common Pleas Court.

As a result, Toledo attorney Chuck Boyk said, people who have devoted their careers to public service are victimized twice — once from the cancer and again from the city.

One of Mr. Boyk’s clients, Brian Cook, a former Toledo firefighter, was diagnosed with prostate cancer in September, 2017, when he was 55 years old, according to court records. During his career, he was exposed to “diesel engine exhaust, asbestos, smoke, and dust from burning wood, hydrochloric acid, formaldehyde, burning plastics, burning chemicals, and other carcinogenic substances.”

Mr. Boyk said the Ohio Bureau of Worker’s Compensation approved Mr. Cook’s claim and ruled in his favor every time the city attempted to appeal. Finally, the only option the city had left was to file an appeal in court.

The city has appealed a number of local claims, including claims from Mr. Cook, Darryl Murphy, Kevin Gutierrez, and a recent claim from Jennifer Hill, the appeal for which was filed Oct. 2. The exact number of current cases wasn’t immediately available.

The problem, Mr. Boyk said, is that the state passed the presumption law in 2017, but nobody wants to take financial responsibility.

“My understanding of the big picture is most cities are trying to fight these claims,” he said.

According to BWC data, 138 claims have been approved from April 6, 2017, to Aug. 31 for firefighters who have been diagnosed with cancer as a result of their jobs. Of those claims, 94 have been appealed by the employer.

Workers’ compensation functions like insurance, said Toledo attorney Marc Williams-Young. Depending on the details of the deal with BWC, an organization — public or private — could see premiums increase as reported injuries increase.

And cancer is an expensive injury, he said. According to the bureau, total medical and indemnity payments for these claims so far is approximately $9.2 million.

A proposal to pay out these claims from the BWC’s surplus fund was introduced in the Ohio legislature in September, 2019, and has since been in committee. Meanwhile employers continue filing appeals to claims approved by BWC.

“Now everybody is trying to pass the buck,” Mr. Boyk said.

Dale Emch, Toledo law director, declined to comment on any specific case but said the city supports firefighters having access to the workers’ compensation system and has “tremendous sympathy for any firefighter who contracts cancer or any serious illness while on the job.”

“These are people who put their lives on the line for us and who help city residents every day,” he said. “We’re just following the process that’s available to us under the law so that we can perform our due diligence. This process allows us to learn more about the claims so we can make informed decisions.”

Dan Desmond, vice president of Local 92, also declined to comment on the cases, only saying that the union is aware of them and of the proposal to put the financial responsibility on the state.

“Anecdotally there have been some issues with this law being funded,” he said.

Mr. Williams-Young has two firefighter cases that have been filed in court. Mr. Murphy filed a claim for acute myeloid leukemia in 2017, and Mr. Gutierrez filed a claim for colon cancer in 2019. Mr. Gutierrez’s jury trial has been set for December.

Hazards are built into the job, Mr. Williams-Young said, and while it isn’t the fault of the firefighter, it’s also not the fault of the city.

“[Firefighters are] on call and they walk into places not knowing what they’re going to be exposed to,” he said. “Injuries happen on the job. That’s why worker’s comp exists.”

From The Toledo Blade