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Palumbo family denied firefighter cancer benefits promised under Palumbo Act

Posted: 12:17 PM, May 02, 2019
Updated: 2019-05-03 10:14:13-04
Mike Palumbo

BEACHWOOD, Ohio — Three years after our exclusive 5 On Your Side investigation sparked a change in state law, we found Ohio towns and cities often battle awarding workers’ compensation benefits to firefighters diagnosed with cancer after the state approves them, including the Beachwood fire captain the law was named for in 2017.

Reopening wounds

“Missing him is hard,” said Chrissy Palumbo. “Grief is overwhelming.”

It’s been two years since her husband, Michael Palumbo, a Beachwood fire captain, died from brain cancer.

“The void is really present,” she said. “You can’t escape that.”

She and their five children struggle to move on, in part, because of how the cities Palumbo spent his life protecting from harm have reacted to his death.

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"To have it all rehashed… it reopens old wounds,” she said.

When Mike lost his battle on May 24, 2017, Chrissy filed claims for death benefits from Beachwood, where he worked full-time for 25 years, and Willowick, Mike’s hometown, where he worked part-time for 27 years.

Both cities fought her claims.

She was stunned. The Ohio law that allows firefighters and their families to receive help from municipalities after a cancer diagnosis is named the Michael Louis Palumbo Jr. Act., in honor of her husband.

“I would hope they [the cities] realize that the Michael Palumbo Act should apply to Michael Palumbo and his family,” she said.

View a timeline recounting the events and news reports that have led to this point below. Click here to view the timeline full-screen.

Sharing his story

For years, Ohio was among the handful of states that failed to acknowledge the link between cancer and fighting fires, leaving firefighters without workers' compensation benefits as they battled the potentially deadly disease.

Despite years of request for help, legislation to award firefighters what are known as presumptive cancer benefits through workers’ compensation claims was mired in bureaucracy.

The Ohio Municipal League, a lobbying group representing towns and cities, opposed the bill, telling state lawmakers it would cost as much as $75 million.

Then, in 2106, as he battled brain cancer, Palumbo decided to share his story with 5 On Your Side Investigators, as part of our report on the connection between fighting fires and cancer.

“If they need a face to put to it, I'm willing to be that face,” he said. “Firefighters need to be covered.”

INITIAL REPORT: OH fails firefighters facing cancer

Knowing his cancer was aggressive, Palumbo said he wanted to retire to spend more time with his wife and children.

“It's a great job,” he said. “But my family is more important.”

Instead, he kept working to help cover the costs of his cancer.

Less than a year after our interview, a struggling Palumbo at his side, former Ohio Governor John Kasich signed a bill awarding workers’ compensation benefits to firefighters with cancer.

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The legislation was renamed the Michael Louis Palumbo Jr. Act.

Read the full legislation here.

Five months later, Palumbo lost his toughest battle.

“It took a lot of courage for him to go public,” said Chrissy Palumbo. “Looking back, it was definitely worth it, not just in what was finally accomplished, but in the love and support he received in a time that was so difficult.”

Since the Palumbo Act took effect April 6, 2017, 124 claims for cancer benefits have been filed by firefighters, according to the Ohio Bureau of Workers’ Compensation.

View the report from the Ohio BWC here.

So far, the BWC has approved 87 claims, which makes those firefighters eligible workers’ compensation benefits, including short-term disability, permanent disability and death benefits for their loved ones.

“When I hear of somebody being approved, it makes me so happy,” said Chrissy Palumbo.

She remains perplexed by why she and her children are not among them.

“I have loyalty to them,” she said. “Where’s their loyalty to my family?”

Beachwood’s response

When state lawmakers renamed part of I-271 in honor Michael Palumbo in April 2107, Beachwood Mayor Martin Horwitz showed up for the dedication.

He even posed for pictures in front of a firetruck with Chrissy Palumbo.

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When 5 On Your Side Investigator Sarah Buduson asked him why he denied Palumbo’s claim before a recent city council meeting, the mayor was suddenly camera shy.

“I'm not going on camera right now,” he said. He then walked away. In emails, Horwitz said he would not comment because our questions involved a “pending legal matter.”

Beachwood, which is self-insured, denied Palumbo’s claim under the Palumbo Act after she filed it in 2017.

Palumbo appealed to the Ohio Industrial Commission, which oversees disputes regarding workers’ compensation.

She lost her first appeal and is waiting for a second hearing to be scheduled in the case.

In documents provided to 5 On Your Side Investigators, Beachwood argued Palumbo was not exposed to the type of fires that lead to glioblastoma, the aggressive form of brain cancer that took his life.

Willowick’s response

Willowick made similar arguments in their appeal against Palumbo’s claim.

The Ohio Bureau of Worker’s Compensation, which insures most state municipalities, approved Palumbo’s claim in Willowick.

But, like most claims, the city appealed the decision. During an Ohio Industrial Commission, Willowick won their appeal.

Palumbo is also waiting for a second hearing to be scheduled regarding the claims.

Like Beachwood, Mayor Rich Regovich refused to explain the city’s decision to appeal because it is a pending legal matter.

“I cannot talk about it at this time,” he said, during a recent council meeting. “We’re in the middle of litigation. I can’t, uh, comment on ongoing litigation, so…”

These documents detail how Beachwood and Willowick fought against Palumbo's claims.

Fighting firefighters

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We found similar battle for Palumbo Act benefits being fought around Ohio.

In 59 cases, or two-thirds, of the approved claims filed, firefighters’ employers appealed BWC’s decision.

In other words, as they battle cancer, firefighters must also do battle with their employers for benefits a state entity approved.

"I'd say to them, ‘Shame on you’,” said OH Rep. Tom Patton (R-District 7), regarding the appeals by municipalities.

For years, Patton worked to pass the legislation that eventually became the Palumbo Act.

“Your responsibility by law, by the intent of the law, was to protect these people, and yet, you want to fight it?” he said. “I can’t tolerate that. I’m sorry.”

“Time is on their side”

After Morgan Gierman lost his first wife, the mother of his seven children, to colorectal cancer, he thought he had seen the last of the deadly disease.

“I maintained this facade that cancer is not going to happen to me, in this family, because of what we went through,” he said.

Then, in 2016, the Jackson Township firefighter was diagnosed with bladder cancer, which studies have linked to fighting fires.

“It was a big moment of ‘Wow! What has happened here to my life, my family, and my career’?” he said. “To this day, I do not encourage my sons not to be firefighters because I don’t want this to happen to them.”

He soon filed for presumptive benefits under the Palumbo Act. The BWC approved his claim.

Then, Jackson Township, where he has served for thirty years, appealed the state’s decision three times, leading to a fight that dragged on for more than two years.

“You don’t want to feel abandoned by the system or your employer,” he said. “But you feel like you are, in a sense, because they are fighting against you.”

First, attorneys for the city argued Gierman’s cancer was diagnosed before the Palumbo Act took effect.

“We [firefighters] were grandfathered in… and that was in black and white,” he said. “It just felt like it was a waste of time.”

He won.

During their second appeal, the township argued Gierman was ineligible due to his medical history. His father smoked when he was a child.

Again, the township lost.

“I’m not a smoker,” he said. “I’ve never been a smoker and I don’t have a family history of bladder cancer.”

“Good health runs in the Gierman family on both sides,” he said.

After losing a third time during a hearing with the Ohio Industrial Commission, the city stopped fighting Gierman’s claim. The next step was a more expensive legal battle in the court of common pleas.

“Time, that’s not on my side anymore, time is on their side,” he said. “And that, I think that is where it can become hurtful. And even in some cases, depending on your point of view, offensive.”

We reached out to Jackson Township Administrator Shane Farnsworth several times. He declined our requests for an on-camera interview and written statement.

“In my case, you could say [the Palumbo Act] is working because I did win,” said Gierman. “I don’t necessarily have a problem with making sure everything is legitimate. I think it is responsible in respects to how to manage tax dollars. I check and verify things when I spend money, I think they should too.”

“But fighting it and fighting it just to keep fighting it?” he said. “I don’t agree with that part.”

A war of attrition

So why are towns and cities fighting occupational cancer benefits for their firefighters?

“I think they’re just trying to fight a war of attrition, said Steve Westcott, the Ohio director for the Firefighter Cancer Support Network, which helps first responders diagnosed with cancer.

“[Municipalities] are trying to get the firefighters that are sick to either quit or give up... or ultimately wait until they pass away.”

Westcott said their motivation is most likely to save money.

“[Municipalities] are trying to just basically skirt the entire process that BWC has already put in place,” he said. “It’s disgusting.”

Westcott said the Palumbo Act was tightly written to limit the number of claims.

The law presumes a firefighters’ cancer was caused by their job, but only if they were exposed to known carcinogens and spent at least six years assigned to hazardous duty.

Firefighters do not qualify for the presumption if any of the following apply:

· There is evidence the firefighter incurred cancer before becoming a member of a fire department
· Their exposure to cigarettes or another tobacco product was a significant factor in the cause of the cancer
· There is evidence other conditions presenting an extremely high risk for the development of the cancer alleged, was probably a significant factor in the cause or progression of the cancer
· There is evidence that the firefighter was not exposed to an agent classified by the IARC as a Group 1 or 2A carcinogen
· The firefighter is age 70 or older

The cancer connection

Westcott is also a cancer survivor. He beat leukemia not once, but twice, after spending years fighting fires.

“It was pretty terrifying,” he said. “Because I knew the odds with a second time were not in my favor.”

Presumptive benefits were not available when he was diagnosed with cancer. He said his own fight was made more difficult by the financial challenges accompanying his cancer diagnosis.

“It’s a huge stressor, first off,” he said. “Instead of focusing on healing and getting better and recovering from all the treatments and medications and procedures, you also have, in the back of our mind, am I going to be able to pay my mortgage?”

During his fight with the disease, Westcott began researching the link between fighting fires and cancer.

He found a growing body of scientific evidence showing fighting fires increases a person’s risk of several types of cancer.

“There’s no doubt whatsoever,” said Westcott, regarding the link.

“I could pull books and research studies that would fill this entire building that show the links, that show the chemicals involved, the types of cancer that put us at a higher risk that there is a clear link from firefighters getting cancer,” he said.

The most significant study was done by the National Institute for Occupational Safety and Health, a part of the CDC, in 2013.

Read a summary of the study here.

View the full study here.

In 5 On Your Side Investigators initial report, we interviewed Dr. Tom Hales, who was on the team that analyzed 60 years of data from more than 30,000 firefighters.

“There is an association between firefighting and cancer and that association does appear to be causal,” he said. “We found that firefighters have increased risk for all cancers and that increased risk was primarily driven by six types of cancers.”

“Those were what we call oral cancers; gastrointestinal cancers; respiratory cancers (lung) and genital, urinary cancers (bladder, prostate, kidney),” said Hales.

In 2006, University of Cincinnati researchers also concluded firefighters had a higher risk of non-Hodgkin's lymphoma, prostate, and testicular cancer after researchers reviewed 32 studies related to firefighters’ cancer risk.

Westcott now teaches firefighters’ classes on cancer prevention.

In the meantime, the BWC has taken steps to limit firefighters’ exposure to carcinogens.

Fire departments can apply for a Firefighter Exposure to Environment Elements Grant (FEEEG) Program for up to $15,000 to purchase the following types of protective gear:

· Diesel exhaust systems (local source (tailpipe) capture; not general dilution/filtration ventilation)
· Extractors/Washing machines for turn-out gear
· Hoods with barrier protection
· Washable gloves (structural firefighter glove or one that meets the requirements of NFPA 1971)

Between July 1, 2017 to March 31, 2019, BWC paid $5,866,816.30 from FEEEG funds to 568 Ohio fire departments.

See a breakdown of how those funds were distributed here.