Excerpts from the Houstonchronicle.com:
On Kevin Leago’s July CT scan, his torso looks like it has been riddled with birdshot. Dark splotches speckle his liver, his pancreas, his spine, marking where his neuroendocrine cancer has spread. The pain in his bones has left the 38-year-old Houston Fire Department senior captain unable to work since the end of May. Within 30 days, he will exhaust all his sick and vacation time, leaving him with no income. His doctors say his best shot at survival is a new treatment that is not offered at the hospital covered by Leago’s city health insurance.
Workers compensation benefits would provide Leago a paycheck while he is ill and allow him to transfer to any hospital that accepts him, but the city of Houston denied his claim. The city’s third-party administrator argued Leago’s cancer is unrelated to his 17 years of service in the fire department, despite a Texas law requiring the government to presume that firefighters’ cancers are caused by exposure to carcinogens on the job.
In the past six years, more than nine in 10 Texas firefighters with cancer have had their workers comp claims denied, according to state statistics. Union leaders and state legislators say cities have ignored Texas’ presumptive cancer statute, and face few consequences for denying claims. The result, they say, is that firefighters often see their personal savings evaporate even as they compromise on their care. All seven HFD members with cancer who have filed workers comp claims since 2016 have been denied, according to the firefighter’s union.
The Texas Legislature in 2005 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. The statute shifts the burden from firefighters having to prove their cancer was caused by firefighting to their employers, who must prove it was not. Legislators wrote the law to help doctors, lawyers, insurance providers and union representatives avoid wrangling over individual cases so firefighters can receive benefits quickly.
The state firefighters union and lawmakers say cities have subverted the law by denying workers comp claims from firefighters who qualify. Of 117 workers comp cancer claims filed by firefighters in the state since 2012, 91 percent have been denied, according to the Texas Department of Insurance.
Firefighters are substantially more likely to win benefits on appeal, prevailing in 64 percent of cases over that same period. Yet, less than one-fifth of firefighters disputed their denied claims, daunted by the prospect of spending months or years sparring with insurers in court while simultaneously battling cancer.
A Houston attorney who has represented dozens of firefighters in their appeals, said the workers comp process has become so arduous that firefighters with cancer are unlikely to get a claim approved without an attorney. The lawyer said a 2011 Texas Supreme Court ruling further puts firefighters at a disadvantage. That decision exempted workers comp administrators from bad faith claims. Previously, cities could have been held liable for dismissing a worker’s claim without evidence.
A memo written by the Texas Intergovernmental Risk Pool, which handles workers comp for more than 2,700 Texas municipalities, outlines the strategy firefighters say cities use to dodge the cancer presumptive law. The memo states Texas law presumes only three types of cancer are caused by firefighting: testicular, prostate and non-Hodgkin’s lymphoma. The risk pool cites a 2007 paper that states dozens of studies have linked firefighting to those three illnesses. Dr. Robert Deuell, a physician and former state senator from Greenville who wrote the presumptive cancer statute, said that interpretation of the law is incorrect.
Firefighter unions say cities are ignoring a wealth of research that links their occupation to other forms of cancer. The presumption statute states it applies to “cancers 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. The IARC’s published research on cancer in the fire service is 559 pages long. It cites scores of academic papers, including a meta-analysis of 32 studies that concluded 12 cancers were possibly or probably caused by firefighting.
Even if firefighters eventually win their workers comp cases on appeal, they risk provoking lawsuits from the cities that employ them. The city of Baytown sued firefighter Patrick Mahoney, who has thyroid cancer, after he won workers compensation benefits on appeal. Mahoney sought workers comp because the city’s insurance plan does not cover cancer treatment.
The city of Houston sued 23-year HFD veteran Margaret Roberts in 2015 after she appealed and won a workers compensation claim for her blood and bone cancer. Roberts died in 2017, but the city’s suit against her estate continues.
Kevin Leago feels fortunate doctors caught his cancer in the first place. Unlike the Austin, Dallas, San Antonio, and El Paso fire departments, HFD does not send its firefighters for regular physicals, where illnesses can be detected. Leago discovered he was sick after the ambulance he was driving collided with another vehicle in October 2012. Doctors ordered a CT scan to survey his broken back and wrist, and discovered a tumor in his pancreas. He was 32, and his wife, Breck, was 7 months pregnant.
A surgery in 2013 removed his spleen, 22 lymph nodes, and 70 percent of his pancreas, and the cancer vanished for nearly five years. It returned in the fall of 2017, and he went under the knife again. When Leago fell ill after extinguishing a routine fire in May, a CT scan revealed the cancer had spread throughout his body. The fentanyl patches he wears soothe the aching in his bones, but are so strong he cannot work or drive.
Leago does not smoke and is physically fit, and believes the most likely explanation for his cancer is exposure to carcinogens — including benzene, formaldehyde, and asbestos — his body regularly absorbed on fire calls. He cannot pinpoint a blaze that was particularly hazardous, and researchers have been unable to conclusively link pancreatic cancer to firefighting.
The Kelsey-Seybold Clinic, where Leago receives chemotherapy, does not offer PRRT. MD Anderson Cancer Center 2,000 yards east on Holcombe Boulevard does perform the treatment.
Leago finds purpose in his fight for benefits. Though his treatments leave him fatigued and nauseous, he still finds time to consult with his attorney and the firefighters union about his worker’s comp appeal strategy. By having his denial overturned in court, he hopes to create a path for other firefighters to follow with their own claims.
“I want people to be able to take my experience, and use that, and do them some good in the future,” he said.
