Investigations

City of Austin sues firefighter with cancer over workers' comp

AUSTIN (KXAN) — An Austin firefighter is now turning to KXAN after months of meeting with city leaders to share her story. 

“We’ve repeatedly heard that, 'We’re working on it,' and nothing’s really been done. And so at this point, we felt like we needed to take other steps to get the message out there," Austin Fire Department Lt. Carrie Stewart said. 

Stewart was diagnosed with cancer, the number one killer of firefighters nationwide, three years ago. After filing a worker's comp claim, she is now defending herself in a lawsuit the city filed. KXAN Investigates found Stewart is not alone. 

Standing at a table in the Austin Firefighters Association headquarters, boxes full of binders, stacked with documents in front of her, Stewart said, "It took a while to come up with all of this, it was many hours sitting at my kitchen table and putting all of these documents together and compiling all of the research." 

It was hours that Stewart spent building her case.

"These are the areas where we were able to show links between my cancer and firefighting," she said, pointing to a page. 

Stewart was diagnosed with breast cancer in 2015, 15 years into her service with AFD. 

"I have to say that that fear with the unknowns of cancer —  [scarier] than anything I've ever faced on the job," she said. 

Within her documentation, a letter from Texas Oncology states, "There is certainly a possibility that her risk for cancer has been affected by her nightshift work as a firefighter and her exposure to carcinogens during her job." 

Stewart said, "We fight different scenarios at work and now we're fighting cancer, and then we find that we're fighting the cities that we work for as well... I just want to make sure that my care and my family are covered in the future." 

The Texas Department of Insurance-Division of Workers' Compensation ruled in Stewart's favor, determining her cancer was work-related. The city then filed a petition for judicial review, to declare "that her particular injury is not work-related" and that "she is not entitled to benefits" from the city. 

The city went on to write, "The [International Agency for Research on Cancer] has determined that firefighters may have increased risk for developing certain cancers," such as lung cancer, but not breast cancer, like Stewart's diagnosis. The city also sued her for attorney fees. 

"We're still all just amazed and shocked and feel a little bit betrayed," Stewart said. 

Brad McClellan, Stewart's attorney, laid out the significance of the events — the way he sees it. 

“To have the state, not just one judge, but the first judge ruled in Carrie’s favor, a 3-judge appeals panel refused to reverse that judge’s decision, and the city continued on into the courthouse and serves a firefighter of our city with a lawsuit. It’s almost unbelievable on the facts of this case," McClellan said. 

It's a case McClellan says he's seeing mirrored in other parts of the state.

"Texas firefighters are under attack on these cancer claims. Across the state of Texas, most of their claims have been denied. And a number of firefighters have been taken to court, just like Carrie. In the Dallas area, the Houston area, and it's wrong and it needs to stop," he said. 

Referencing a similar case in Baytown, outside of Houston, Stewart said, "We are kind of creating a network of people who've had to go through this and we can help each other through it too."

They're helping each other as they fight for help from the cities they serve. 

In a statement, a city spokesperson told us:

"The City does not seek to reclaim benefits paid out to an individual firefighter through this request for judicial review. We are seeking judicial review of an administrative finding by the State’s Division of Workers’ Compensation that exposure to shift work is a cause of cancer.  The City is using the judicial review process set out in state law in an effort to overturn a finding that is inconsistent with the medical evidence presented during the administrative process." 

As for AFD, a division chief said it was in a meeting with the city's risk management division in October last year that he asked the city representative what the official stance was on compliance with the State presumptive law.

It was at this time, the division chief says this person stated, "Why would we want to cover initial claims? Because if they died we would have to pay the beneficiary." 

The division chief went on to say in a statement provided to KXAN, "It is my personal belief that cost savings to reflect better performance measures was more important than taking care of the worker. It was clear that there was a concerted effort to deny claims and push them to personal insurance when state law clearly outlined that they should have been covered." 

“I think that’s a pretty profound statement to make," said Austin Firefighter Association President Bob Nicks. "What that’s telling is they don’t care about the firefighter, they don’t care about us at all. They care about trying to save money. And that is a terrible, terrible way to treat your employees. Especially in a high stakes job like firefighting.”

On Wednesday, a city spokesperson said, "The City is aware of these alleged statements and we are currently reviewing the matter. We have nothing further to add pending the completion of the inquiry and the presentation of findings." 

If Stewart's story sounds familiar, it's because KXAN heard from another Austin firefighter last year. 

Crockett Foster is now retired and battling stomach cancer. The city also denied his worker's compensation claim, saying in that case, Foster missed the state deadline to file for it within one year of his diagnosis. He's continuing to fight for benefits, heading to Dallas with his attorney before the end of the year. McClellan is also representing Foster.

Last month, KXAN showed how AFD is trying something new to clean firefighting gear of cancer-causing chemicals. Decontamination kits are placed on firetrucks. After every fire or hazardous materials call, the gear is hosed down and scrubbed on site.

The gear goes in a separate bag. The Safety Support Team then takes the gear and specifically inspects it and deep cleans any remaining carcinogens from it. The goal is to get gear as clean as possible. They've already cleaned more than a hundred sets of gear, in just over a month.

AFD has even brought in in cancer-detecting dogs. The highly-trained animals can smell cancer cells in people. If they are alerted to cancer, the firefighters go to a doctor to confirm whether or not they have the disease.