Safety officers denied on-duty death benefits

Defining ‘competent medical evidence’
Congress said that the presumption of a line-of-duty death could be overturned "by competent medical evidence to the contrary," but didn't explain what that meant.

The Justice Department has interpreted this phrase to mean that claims should be denied if there is evidence of a non-duty-related medical factor or event that would have independently caused the stroke or heart attack. That evidence has to rise to "a degree of medical probability" that the other factor was "a substantial factor" in causing the heart attack or stroke, under the Justice Department’s interpretation.

The first draft of the regulations from the Bush administration in September 2005 would have used criteria from the Framingham heart study and known risk factors from the American Heart Association and the American Stroke Association to determine whether the officer was already at risk. Because such risk factors include not just medical conditions – including high blood pressure, high cholesterol and obesity -- but being male, older than 40 and nonwhite, the firefighters union and others argued that use of the criteria would have made it practically impossible for anyone to collect benefits for heart attacks or strokes.

The union lobbied hard for changes, and the Justice Department removed the specific criteria from the final rules issued in August 2006. The union declared a victory.

But the new rules left a void: They don't say what the Department of Justice will use to determine the medical probability.

The suspicions of firefighter advocates were raised when the Justice Department began asking claimants to provide 10 years of medical records.

A history of risk factors
Chief Tilton's records show a history of risk factors for heart problems. At age 58, he was 5 feet 9 inches tall and weighed 343 pounds at his last checkup. He had been diagnosed with high blood pressure, high cholesterol (both of which were well controlled by prescription medication), severe sleep apnea and had a family history of heart problems, according to the report on his death by the Centers for Disease Control, which investigates many firefighter fatalities.

A widow's story Jo Ann Tilton, widow of Katy, Texas, Fire Chief Gary Tilton, describes her efforts to qualify for line-of-duty benefits after he died of a heart attack on Oct. 20, 2004.

Chest discomfort in 2001 had caused him to have a stress test, which he passed with "no chest pain or shortness of breath with good exercise tolerance." His fire department required no periodic medical evaluations or physical agility tests "for budgetary reasons," the CDC found.

On top of that, he had recently survived cancer. Two months before he died, he underwent surgery for colon cancer, and was undergoing chemotherapy at the time of his attack.

"Before you say, 'Oh my, no wonder he had a heart attack,' I will tell you that he was doing great with the chemo," his wife, Jo Ann Tilton, told MSNBC.com this week. "His blood work was all normal (which is not always the case with chemo). I have a detailed deposition from our doctor describing my husband's health. Several times the doctor has stated that the chemo did not contribute to his attack," she said.

"This is one of the things that makes this ordeal so hard: It is considered a line of duty death, but there are people out there who would say that he would have had a heart attack no matter what the circumstances. I have come to grips with those folks by knowing that my husband lived as a hero and he is being honored for that life.

"Yes, he may have had a heart attack one day, but I am convinced that it would not have necessarily been that day."

/ U.S. Fire Administration The decline in firefighter line-of-duty deaths in the U.S. has stalled. The number of deaths has leveled off at about 100. This chart does not include 343 firefighter deaths on Sept. 11, 2001.

Postscript: U.S. Sen. John Kerry, D-Mass., responded to this article by sending a letter to the Department of Justice's inspector general, requesting an investigation into the slow pace of decisions under the Hometown Heroes Act.

"It’s wrong to think that the families of first responders who die in the line of duty would be abandoned by their government," Kerry said in a written statement on Mar. 22. "Endless excuses, constant delay, promising one thing then doing another — these are unacceptable examples of a government in Washington that doesn’t have the right priorities. Congress didn’t pass the Hometown Heroes Act so the Administration could pass the buck. The Department of Justice must change its policy and change it now."

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