Safety officers denied on-duty death benefits

Medical reviews cause delays
Other claims are being held up as the Justice Department searches the medical records for pre-existing medical conditions. The law says that the presumption in favor of the claims can be overturned by "competent medical evidence," but didn't specify what that meant. Families of some firefighters say they have been required to provide 10 years of medical records.

The Justice Department spokeswoman said that only 20 cases have so far begun the medical review process, while about 180 or so haven't reached that stage. The department rewrote the rules for the entire benefit program for public safety officers, postponing any action until September 2006, and delays since then have been caused by the complexity of the cases, she said.

"With few exceptions, PSOB (Public Safety Officer Benefits) death claims involve diverse facts and documents; complex legal issues; beneficiary uncertainties; and frequent outreach to claimants and agencies," said the spokeswoman, Sandra Gunn. "Additionally, if a claim fails to meet the Hometown Heroes Act criteria, it gets processed under the criteria applicable to all other PSOB claims; thus, processing can be extensive and time-consuming, because different tracks must be followed in many cases."

With heart attacks recognized as the leading cause of on-the-job deaths of firefighters, the Hometown Heroes Act easily passed the Congress with support of both parties. President Bush signed the law in a ceremony on Dec. 15, 2003, and both he and Vice President Dick Cheney have used their support for the law as a sure-fire applause line in speeches before fire and police organizations.

But those organizations said this week that the Bush administration's Justice Department has turned the intent of Congress on its head, seeking any reason to deny the claims instead of giving them the positive presumption that the legislation intended. Justice took nearly three years to write rules for the program, and began deciding claims only in recent weeks.

"The Justice Department has been beyond difficult from day one," Harold A. Schaitberger, the general president of the International Association of Fire Fighters, told MSNBC.com. "They've made it pretty clear they don't like the law. I don't think this is about regulatory issue, medical issues, issues of potential fraud. They've done everything in their power to disregard the law, they have stonewalled it. I think it's showing a complete disrespect for the memories of firefighters and law enforcement officers who have laid it on the line for their communities."

‘Some sort of political payback’

The White House President Bush signs the Hometown Heroes Act on Dec. 15, 2003.

Schaitberger said it was his view that the administration was holding up the payments as "some sort of political payback" for the union supporting Al Gore in 2000 and John Kerry in 2004.

The Public Safety Officers Benefits' Program became law in 1976, providing death and disability payments primarily to police officers killed in the line of duty. Congress added coverage for firefighters in 1984 and for emergency medical personnel in 1986. In 2002, after the Sept. 11 terrorist attacks, police and fire chaplains were added.

The Hometown Heroes Act of 2003 extended the same benefits to victims of heart attacks and strokes on the job. The death benefit, which is adjusted each October for inflation, is now $295,194. To qualify, the victim had to have been involved in "nonroutine stressful or strenuous work" in law enforcement, fire protection, prison security or disaster relief, among other duties. And the heart attack or stroke had to occur within 24 hours of such activity. Contractors, such as those widely used by the Forest Service to fight wildland fires, are not eligible for the benefits.

Etheridge, the legislation’s sponsor, said the goal of the bill was fairness. "If you go in a building and a beam falls on your head, or if you go in a building and come out and have a heart attack and die, either way you're dead,” he said. "… If a soldier dies in battle, we don't check to see what condition that soldier was in when they lost their life."

Widow's claim hinges on judgment calls
The intent of the Congress is being tested by cases such as that of Fire Chief Gary Tilton, from Katy, Texas, just west of Houston.

Courtesy of Tilton family Gary Tilton died on Oct. 20, 2004, after directing traffic at the scene of an accident.

On Oct. 20, 2004, Tilton was at a church supper when he was called to a traffic accident at a major intersection. He stood directing traffic and other operations for nearly an hour. Witnesses said the chief, age 58 and overweight, "appeared pale, was breathing a little hard, and sweating," but felt well enough to go home. Three hours later his wife found him collapsed in the shower after suffering a heart attack. He died that night.

The Tilton family's claim is still pending with the Justice Department, but his case demonstrates two judgment calls that the government, so far, has not made in favor of any claimants.

First, was the chief's work "nonroutine stressful or strenuous" activity? The law didn't define that phrase, though the Congress made a point of saying that it didn't include "actions of a clerical, administrative or nonmanual nature." So if the chief had keeled over while pushing papers at the office, he would not have been covered.

The Justice Department rules for the program say that the phrase requires "non-negligible physical exertion" and requires the officer to be involved in a situation that would:

• pose, or appears to pose, "significant dangers, threats or hazards (or reasonably foreseeable risks thereof), not faced by similarly situated members of the public in the ordinary course; and
• "provoke, cause, or occasion an unusually-high level of alarm, fear, or anxiety.

Justice will have to decide: Does directing traffic at a major intersection in the Texas heat qualify?

The Harvard study of 449 heart attack deaths among firefighters nationwide found that 32 percent died when they were involved in fire suppression or other activity at a fire. But less stressful duties were associated with higher-than-expected risk of heart attack as well: 13 percent occurred while responding to an alarm; 17 percent in returning from an alarm; 13 percent in physical training; 9 percent in emergency medical services and other nonfire emergencies; and 15 percent in a fire-station or while performing nonemergency duties.

The second issue open to debate, in Tilton’s case, is whether he was at high risk of a heart attack because of pre-existing medical conditions.

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