Despite Presumption Law, Ohio Cities Fight FFs' Cancer Claims

Dayton Daily News, Ohio

Dayton has fought workers' compensation claims filed by several city firefighters who developed cancer, even though Ohio law presumes cancer among firefighters in many cases is caused by on-the-job exposure.

City leaders say they recognize firefighting is hazardous work that can lead to serious illness — and owe it to taxpayers to take necessary steps to ensure these claims should be approved based on medical evidence.

Dayton fire union officials say the attempts to deny these claims are unconscionable and betray the men and women who put their lives on the line for the good of the community.

"We are nothing to the city but a number," said Jim Burneka Jr., health and safety director for the Dayton Firefighters Local 136, who battled thyroid cancer and is in a legal fight with the city over his workers' compensation claim. "They don't care about us, they don't care about our families or our health — all they care about is money."

The city must appeal employees' cancer claims to get their medical records, which is critical information that is not available at the time when claims are filed, said Ken Couch, Dayton's human resources director.

"The city must contest the (firefighter) cancer claim at the outset while it gathers the employee's medical information to determine if an appeal was appropriate," Couch said. "The city cannot wait until after it obtains the medical information and then appeal, since by that point the claim is approved, and Ohio law will not let the city contest the claim."

Other Ohio cities have fought firefighters' workers' compensation claims alleging occupational-related cancers, including Toledo, Cincinnati and Euclid, a Cleveland suburb.

The Ohio Bureau of Workers' Compensation has received more than 250 claims in the past five years from firefighters who say they contracted the disease from their jobs, and the bureau estimates employers appealed more than 90 of those claims.

The bureau approved 186 claims, denied 53 and 15 were withdrawn.

The Bureau of Workers' Compensation has paid out more than $19 million for firefighter cancer claims.

Firefighter Cancer Law

In 2017, Ohio enacted a law recognizing cancer as a work-related illness for firefighters, joining more than 30 states that have made firefighters who develop cancer eligible for workers' compensation benefits. The Dayton Fire Department currently has more than 300 uniformed staff, including firefighters, paramedics, EMTs and fire officials, according to the department's 2021-2025 strategic plan.

Studies have shown firefighters are at increased risk of certain types of cancer, and cancer is the leading cause of death for them.

The Michael Louis Palumbo Jr. Act, named after an Ohio firefighter who died of brain cancer, creates the presumption that firefighters' cancer diagnoses are job-related if they were exposed to certain carcinogens while performing official duties and worked at least six years of "hazardous duty." It does not apply to firefighters 70 or older, or those who have not been assigned to hazardous duty in more than 20 years.

The law says the presumption can be rebutted if there is evidence firefighters were not exposed to carcinogens; developed cancer before joining the fire department; or had significant cancer-exposure risks outside of work, such as smoking or using tobacco.

The law also says claims can be denied if a "preponderance of competent scientific evidence" shows exposure to the types of carcinogens alleged did not or could not cause a firefighter's cancer.

Claims in Dayton

Since the state law went into effect, 11 current and past Dayton firefighters submitted workers' compensation claims asserting their cancer diagnosis was work-related, and a 12th claim is pending, according to the fire union.

Dayton appealed all 11 claims to a district hearing officer with the Ohio Industrial Commission, the fire union said, and the city appealed nearly all of the claims it lost to the next level of a staff hearing officer.

If employers lose those appeals, they can appeal to the Ohio Industrial Commission, but the commission rarely accepts those cases.

After that, employers can file administrative appeals: Dayton appealed about half a dozen appeals it lost to the Montgomery County Common Pleas Court, according to court records.

Cancer is killing Dayton firefighters, and the city is persecuting these workers while spending tens of thousands of dollars on internal and outside legal counsel to contest their workers' compensation claims, said Kraig Robinson, president of Dayton Firefighters Local 136, in a letter sent to Dayton's mayor and city commissioners last summer.

"Even after firefighters have died from their cancer, the city of Dayton has continued to fight their claims and has dragged several of our grieving widows into formal court hearings," the letter states, also noting that four of the firefighters who developed cancer have died.

Robert Hetzer Jr. died of pancreatic cancer in 2018.

Robert O'Grady died of liver and lung cancer in 2019.

Douglas Borgerding died of lung and brain cancer in 2020.

Roderick Longpre also died that same year from liver cancer.

The cumulative effect of repeated exposure to carcinogens can take years or even decades off Dayton firefighters' lives, Robinson wrote.

City Response

In a response letter to the union president, Dayton City Manager Shelley Dickstein wrote that state law has a "rebuttable presumption" that seeks to ensure Bureau of Workers' Compensation firefighter cancer claims are evaluated and approved or rejected based on medical evidence.

The city relies on medical experts from its managed care organization to make decisions on appeals that are based on a review of employees' medical records and personal history, she says in the letter.

Most claims are conditionally granted, which means city employees can begin receiving workers' compensation benefits and treatment as their cases go through the appeals process, Dickstein says in the letter.

"We are aware of no firefighter that has been denied treatment due to a city appeal after the (district level) hearing," she wrote.

The Bureau of Workers' Compensation assigns work-related cancer claims up to $300,000 and twice that amount for death claims, Dickstein says in the letter, and such costs are added to the city's workers' compensation retroactive bill every year.

"For 2018, firefighter cancer claims account for over 82% of our total retro bill," she wrote. "Anything other than due diligence in reviewing these claims is a disservice to the taxpayers of Dayton."

Dayton is enrolled in the Bureau of Workers' Compensation Retrospective Rating Program, in which the state agency evaluates premiums annually and adjusts them based on incurred losses.

Medical professionals working for the city in some appeals have argued firefighters likely contracted cancer due to genetic predisposition, lifestyle decisions and other non-occupational reasons.

Legal Fight

Burneka, 42, has worked for the Dayton Fire Department for more than two decades, responding to about 480 fires by his count.

He estimates he has spent more than 600 hours at car, trash and structure fires, and was exposed to diesel fire engine fumes and contaminated personal protective equipment.

Burneka said he was fortunate to catch his thyroid cancer early. His health outlook is generally positive because it was a less aggressive form of the disease.

Still, he was off work about two months, and he said some firefighters with cancer need to take about a year off for treatment and recovery.

Burneka filed for workers' compensation, but the city appealed the district and staff hearing officers' decisions approving his claim. The Ohio Industrial Commission refused to hear the city's appeal, but the city filed an administrative appeal in Montgomery County Common Pleas Court.

In court documents, the city claims Burneka's medical condition was not causally related to his employment, and the city has asked the judge to dismiss his claims.

Burneka said a medical professional working on behalf of the city whom he never met or spoke to produced a medical report alleging his cancer was linked to obesity. He hired his own medical expert to rebut the city's claims and attest the cancer was caused by exposure to carcinogens.

Burneka wants his sick time reimbursed, as well as costs like surgery, doctors' visits, medication and other expenses his insurance covered.

Burneka is frustrated and disheartened that the city has gone to great lengths to fight his claim and those of other sick firefighters, including by paying an outside law firm.

Green & Green, a local law firm, has represented the city in its workers' compensation administrative appeals in common pleas court.

"Instead of being able to concentrate on just beating cancer and staying alive and being around to live and be there for their families, now these firefighters have to fight the very city that they served and protected for 20, 25, 30 years," Burneka said. "It's a slap in the face."

'No Other Option'

State law gives the city no choice but to contest cancer claims at the beginning of the process as it gathers appropriate medical information, said Couch, Dayton's HR director.

District and staff hearing officers are not medical experts, he said, and if the city's medical provider disagrees with firefighters' doctors, the city has to appeal the matter to the courts.

Employees who prevail at the district or staff officer hearing level are allowed to get treated on their claims while the city goes through the appeals process, Couch said.

Also, "if the city prevails, the employee may treat on the claim through the city's Anthem insurance," Couch said. "Employees are always able to treat for medical conditions that occur while they are city employees, the only question, is whether BWC or Anthem pays for those claims, and does the employee have any deductibles during this period."

The city pays all of its workers' compensation claims out of taxpayer dollars, Couch said, and the city is potentially responsible for up to $300,000 per individual claim.

"As the custodian of city tax dollars, it would be grossly negligent to not defend the city against a claim that is ultimately determined to not be work-related," he said.

Cities and jurisdictions want to avoid paying large workers' compensation bills, but fighting these claims sends an awful message to sick employees and their fire safety forces, said Karen Turano, a workers' compensation attorney and partner with Connor, Kimmet & Haffenstein LLP.

Turano has represented firefighters in more than 100 cancer-related workers' compensation claims, including members of the Dayton Fire Department.

Going through the appeals process is time consuming and emotionally exhausting, she said, and appeals that end up in the courts also put a financial burden on workers because there are litigation expenses, often between $4,000 to $6,000.

Doug Borgerding, a Dayton firefighter of nearly 35 years, died in January 2020 after developing lung cancer, which spread to his brain.

Borgerding, 62, retired as a fire captain. He contracted cancer from doing his job, said his son, Sam Borgerding, who is a member of the Dayton firefighters union. After he died, his wife, Alison Borgerding, had to fight the city to get workers' compensation death benefits.

Sam Borgerding said this experience was hard on his mother, especially during a time when the pain of losing her husband was still fresh.

"I don't think that someone should have to go through that after your spouse spent half their life serving the city of Dayton," he said. "She talks to me about it to this day, about how it kept her up at night worrying if everything is going to be OK."

Sam Borgerding plans to be a lifelong firefighter, and he expects this means he will develop cancer one day. He said he hopes he and other firefighters will not have to fight to get benefits they believe they deserve from serving the community in this dangerous line of work.