Injured, Sick, Widowed, and Sued

Cities are filing lawsuits to claw back first responders’ hard-won workers’ compensation.

by

Photo credit: Christopher Lee/Texas Observer

In the quiet but growing border community of Mission, a flag above Fire Station No. 3’s front desk advertises the community’s historic claim to fame as a citrus-growing powerhouse: “Mission Fire Department: Home of the Grapefruit.” 

The small firehouse is kept scrupulously clean except for traces of diesel fumes that have settled on the walls of the parking bay, on lockers full of protective gear, and on door frames leading into living quarters. This station is one of five in this city, where approximately 70 firefighters serve a population of 85,000. 

Behind the front desk, there’s a makeshift shrine to Ignacio “Nacho” Cantu, a Mission firefighter who died of cancer at just 36. In the hall, a bulletin board holds photos of other local firefighters, at least seven of whom have been diagnosed with cancer over the past 12 years—including Lieutenant Homer Salinas, who’s currently stationed here.

Salinas, a soft-spoken father of three adult children, knows he is lucky. In 2017, he discovered that he had a potentially deadly kidney cancer called renal cell carcinoma. But the tumor was caught and treated early, and Salinas has mostly recovered. 

Rather than dwelling on his illness, he prefers to look to the future. When Salinas first became a firefighter, coming back dirty from a fire was a badge of honor. “Now we know it’s all cancer,” he said, and these days veterans like him teach rookies that clean gear is the best gear. “I hope it will help other generations.”

Firefighters have a higher risk of kidney cancer, according to multiple scientific studies. In particular, renal cell carcinoma is linked to benzene exposure—an occupational hazard tied to fire trucks’ diesel exhaust, and potentially also to smoke firefighters encounter during fires. When doctors first found Salinas’ tumor, his union encouraged him to file for workers’ compensation through the Texas Municipal League Intergovernmental Risk Pool (TMLIRP), their city’s carrier. 

Before he even began treatment, TMLIRP denied coverage, saying his cancer was not work-related. He appealed the decision. Given documented links between firefighting and kidney cancer, a hearing officer at the Texas Department of Insurance ruled in Salinas’ favor, and he and his regular health insurance provider were eventually reimbursed. 

In the meantime, Salinas received some unexpected paperwork: The City of Mission, his hometown and employer of 20 years, was suing him in district court to overturn that decision. He was shocked.

But what Salinas found even odder was that Mission officials said they had never been informed that TMLIRP lawyers were suing him under the city’s name. “They didn’t let the city know; they didn’t let anybody know—they just filed.”

TMLIRP is an obscure government agency that provides workers’ compensation coverage to approximately 215,000 employees of more than 2,800 cities and other government agencies across Texas. Rather than hiring a third-party insurer, cities that belong to TMLIRP pay into a risk pool and are considered “self-insured.” Despite the designation, TMLIRP is also its own government agency with staff and contractors who decide which claims to accept or deny. According to a sample workers’ compensation agreement provided by TMLIRP, by signing the agreement, member cities give TMLIRP the power to act as the cities’ agent in handling claims.

“All decisions in individual cases shall be made by the Fund through the Fund staff and Contractors, which includes the decision to appeal or not to appeal a Texas Workers’ Compensation Commission’s final ruling and decision,” the agreement reads.

Member cities have the right to consult with TMLIRP on decisions involving their employees and to have objections heard by the agency’s board of directors. The board, however, has final say.

The Department of Insurance, the state agency that oversees workers’ compensation, handles initial disputes. It first sends insurers and claimants through an informal review conference, and then a formal, contested case hearing. Even if workers prevail in that lengthy administrative process, they can still end up being sued by their own cities—a fact that can give first responders and their families, often publicly hailed as heroes by local officials, serious emotional whiplash on top of medical and financial burdens.

Mission firefighter Homer Salinas on a fire truck three years after being hit with a lawsuit over this workers’ compensation Christopher Lee/Texas Observer

Years later, Salinas is still embroiled in a legal battle. Normally, city councils vote on whether to file lawsuits. But not in this case. Although Mission is listed as plaintiff, Salinas was told that local officials had nothing to do with the lawsuit. 

“Shame on these municipalities and shame on TML,” said Mike Silva, president of the Mission Fire Fighters Association.

TMLIRP has also sued the families of deceased first responders in the name of member cities. In 2017, the City of Pearland near Houston sued Lucy Lugo Ekpanya—the common-law widow of the city’s only police officer to be killed on duty in 40 years—to halt benefits she had been deemed eligible to receive as the officer’s spouse and the mother of his young child. 

TMLIRP initially denied Lugo Ekpanya’s claim, though she won benefits in an appeal through the Department of Insurance. Because Salinas and Lugo Ekpanya are such prominent figures, their cases have become unusually public. But statewide, prior to the COVID-19 pandemic, cities that are self-insured through TMLIRP denied benefits more often than other Texas insurers, according to statistics from the Department of Insurance: In 2019, TMLIRP rejected 19 percent of the 3,751 workers’ compensation claims it received, or nearly one out of five. Texas insurers, on average, rejected 14 percent of claims. 

First responders make up the bulk of municipal workers’ compensation claims. Last year, 69 percent of the claims TMLIRP received came from people in “justice, public order, and safety” occupations, which includes firefighters, police officers, and EMTs (as well as employees of courts and jails). While the workers’ compensation system in Texas is notoriously unfriendly to workers, first responders benefit from a legal presumption in many cases that their injuries or illnesses were caused by their work. During the pandemic, denial trends reversed, likely because the state legislature passed a law creating a presumption that first responders who get COVID-19 contracted that virus at work. Last year, TMLIRP rejected 10 percent of claims, while Texas insurers overall rejected 25 percent. Even with added protections, some injured or ill first responders or the families of those killed on the job still get denied.

“An individual is fighting for their life,” Silva said. “No firefighter should go through a difficult time trying to maneuver a workers’ comp claim that is owed to them.”

Lucy Lugo Ekpanya met her husband Endy Ekpanya in 2010, when she was working at a local Montessori school. Endy would pick up his 4-year-old cousin and the two eventually exchanged phone numbers. They were family oriented from the beginning, going on dates with Endy’s little cousin and Lucy’s 4-year-old sister in tow. 

Within months, Endy asked Lucy to marry him. She said yes. But both were working overtime to save money for a house, Endy was finishing dual master’s degrees in business and criminal justice, and they didn’t prioritize making things official. The two kept working, studying, saving, and, in 2014, they had a son. A couple of years later, they bought their dream house in a brand new subdivision. It had four bedrooms, which they hoped to fill with more children. 

Their home was near Endy’s new job as a police officer with the City of Pearland. Still busy working overtime and now parenting an active toddler, Endy and Lucy never found time to organize a formal wedding ceremony. They considered themselves married already anyway.  

“We didn’t know that we had limited time together,” Lucy said.

Just six months after moving into this new house in 2016, Endy was finishing a night patrol shift and was headed to another call when a drunk driver rammed into the driver’s side of his patrol car. The driver, returning home from work at a strip club, was traveling 90 mph on the wrong side of the road. She survived, but Endy died at the hospital from his injuries.

The Pearland Police Department helped Lucy navigate the aftermath, including helping her file for workers’ compensation benefits. Because Lucy and Endy had agreed to be married, represented themselves publicly as a married couple—including listing each other as spouses on life insurance policies—and shared a child and a mortgage, they were considered married under Texas common law. State authorities awarded benefits to Lucy and her child for the loss of Endy’s income and helped cover funeral costs.

TMLIRP, however, disputed their relationship status. First, the dispute went through the state’s case hearing and appeal process. The Department of Insurance ruled in Lucy’s favor, deciding she was indeed entitled to lifetime death benefits as the widow of a first responder. At that point, faced with single parenthood, Lucy decided to leave work to focus on caring for their two-year-old. 

“It was a blessing to have the benefits, to be able to stay home with my little guy,” she said.

But mother and son weren’t left in peace for long. In August 2017, about a year after Endy’s death, TMLIRP sued Lucy in the City of Pearland’s name to stop her death benefits. 

“When I got hit with that lawsuit, I was overwhelmed; I was sad; I was confused,” she said. “I didn’t know where it was coming from.”

Teddy bears given to Endy Ekpanya and Lucy Lugo Ekpanya’s son, wearing outfits made to look like Endy’s old uniforms Christopher Lee/Texas Observer

The city’s lawsuit was a sharp contradiction to everything Lucy had experienced up to that point. The whole community had rallied around her after Endy’s death. Lucy got invitation after invitation to attend local events and was treated as the widow of a hero. A member of Congress had successfully petitioned to rename a Pearland post office after Endy, and a state legislator rededicated a section of the road where he was killed in his honor. 

But on the heels of all this support, the lawsuit questioned Lucy’s relationship with her husband. In court, an attorney for TMLIRP referred to the couple as “roommates,” Lucy said. 

“They made me feel like I was nobody,” she said. “They made me feel like Endy and I were not family.”

By then, Lucy had filed her own lawsuit against the strip club where the driver who killed Endy worked and had been drinking on the job before the crash. In addition to suing to stop future benefits, Pearland and TMLIRP also filed a separate claim to recoup what they had already paid Lucy through a share of any settlement money from the club.

After a year of fighting the city and TMLIRP lawsuit, Lucy and her lawyers opted to settle—solely to protect her child, they said. She no longer receives lifetime benefits as a spouse; her son will receive benefits only until he turns 18 or until he’s 25 if enrolled in college.

Of course, no money could replace the loss of her husband beside her.

Lucy keeps a room in her house filled with Endy’s things, including his police officer’s hat, a commendation he received as a rookie, and an oversized plaque with his photo signed by every member of Pearland’s police department. A friend turned one of his uniforms into a pillow. The memorial room gives Lucy comfort and reminds her son, now 8 years old, that he had a father, she said.

She’s still grateful to have received any benefits and doesn’t begrudge the city or the insurer’s attempts to recoup some losses from the drunk driver’s employer, which ultimately settled its case. But Lucy wishes Pearland and TMLIRP had not sued and its lawyers had not attacked her in such a public and personal way.

“I just don’t think it’s something, as a widow, I should have gone through,” she said.

Her lawyers, Jonathan Kieschnick and Greg Hill, both told the Texas Observer that several prominent Pearland officials claimed they had no choice in the matter.

The city manager, city attorney, and members of the city council were all privately against suing his client, said Hill, who is now a judge and was a former Pearland city council member. He was flabbergasted that city officials didn’t simply vote to settle the matter quietly instead of suing a grieving widow. “But they told us their hands were tied.”

Both men questioned whether that’s true, saying that the city never showed proof that they had ceded all control to TMLIRP.

“There’s always discretion,” Kieschnick said.

Pearland officials maintain that they were not involved in the decision. 

“We really don’t have anything to say about it,” the city’s Director of Communications Joshua Lee said. “We just pay for the insurance.”

The City of Pearland has since left TMLIRP for a different workers’ compensation insurer, though Lee did not respond to a question about whether the Lugo Ekpanya case was a factor. Hundreds of municipalities continue to use TMLIRP to insure city employees.

Mission officials have not responded to the Observer’s requests for comment, but City Manager Randy Perez previously told Texas Border Business that while TMLIRP has discretion to sue in the city’s name: “We were not aware that they would go in this direction and we had absolutely no advance notice of their decision. Clearly we are disappointed and we are looking at every option at our disposal to make this right for Homer.”

According to Salinas, Perez accompanied the firefighter to a board meeting of TMLIRP to object to the risk pool’s actions against him. The board of directors, however, decided to proceed with the lawsuit over the city’s objections.

In a response to questions from the Observer, TMLIRP Staff Attorney Jennifer O’Sullivan said the agency has sued no other municipal employees to recoup benefits in the last three years. She did not respond to a question about whether some city officials’ opposition to the lawsuits filed against Salinas in December 2018 and against Lugo Ekpanya in 2017 played any role.

Insurers have a clear incentive to dispute claims like these: “Once you stop paying claims, you pile up a lot of money,” said Mike Doyle, an attorney based in Houston who has represented other first responders in workers’ compensation cases.

Leander Police Officer Jerod Kostecka has become a TMLIRP sleuth in the years after he repeatedly injured his knee on the job. In 2016, he fell backward off an open porch while trying to arrest someone, then had to get a microfracture surgery, kicking off a months-long recovery. By 2019, Kostecka was finally in the process of returning to patrol duty and attended a jiu jitsu training session for police officers. While practicing a move with another officer, Kostecka felt his knee pop. The next day, it was swollen—he knew he had reinjured it.

In the nearly three years since, he’s been fighting to get more treatment. At first, TMLIRP disputed whether his injury happened at work, but a hearing officer ruled in Kostecka’s favor. Then, the insurer disputed the extent of his injury and the sort of treatment he needed. 

Kostecka has seen 11 different doctors—orthopedic specialists he found on his own as well as designated workers’ compensation doctors. Nearly all agree that he has a serious injury that requires treatment to prevent further damage and regain the full use of his leg. But according to medical guidelines approved by the state Legislature for use by Texas insurers, at 46, he’s too young for a knee replacement. Citing his age, an independent-review doctor who did not physically examine Kostecka denied his request.

“When you’ve got to fight tooth and nail just to get coverage to get your injury taken care of, there’s something wrong with that,” Kostecka said.

Over the course of his prolonged dispute with TMLIRP, Kostecka put his experience as a criminal investigator to use, taking it upon himself to research the byzantine workers’ compensation process—including delving into lawsuits the agency has filed against others. He’s made public record requests to the state’s Office of Injured Employee Counsel to see how many others had their claims denied, pulled data from the Department of Insurance, and researched health issues faced by first responders. The documents and evidence he’s collected cover a conference room table. 

One fact outrages Kostecka in particular: the surplus funds that TMLIRP has saved and invested but isn’t paying out to workers. According to its most recent annual report, TMLIRP paid out $86.5 million in workers’ compensation last year. The risk pool also reported that “the financial condition of the Workers’ Compensation Fund is strong,” with a net position—its market value after expenses—of $104.6 million at the end of the 2020-2021 fiscal year. If the agency’s financial condition is so strong, Kostecka questioned why it needed to deny and fight so many claims.

He’s also confounded by the relationship between TMLIRP and the Texas Municipal League (TML), a nonprofit association that advocates for Texas cities. TML’s Form 990, which the IRS requires, lists an intergovernmental risk pool worth $6.9 million as one of its investments (TML did not respond to a question on whether this refers to TMLIRP). TML leaders have spoken out about workers’ compensation issues before, indicating that they share involvement in running the risk pool. In 2019, the year state legislators were debating a bill expanding the list of cancers that are presumed to be work related for firefighters like Salinas, TML’s Executive Director Bennett Sandlin wrote an op-ed for WorkCompCentral addressing the issue. 

“Cancer claims for firefighters are some of the most difficult claims we deal with at TMLIRP,” he wrote. “When we must make decisions based on our reading of the law rather than our compassion for the firefighters who have protected us and our neighbors.”

The two organizations share a name and a building, but TML’s general counsel Bill Longley wrote in an email that they are separate entities and directed the Observer’s questions to TMLIRP. While TML is a nonprofit, it’s an unincorporated voluntary association made up of independent member cities and Longley said it is not required to provide access to financial records like other nonprofits. 

According to TMLIRP’s last annual report—published separately from TML reports—the risk pool’s purpose is to serve the financial interests of its member cities, not to help injured employees or the families of those killed on the job. According to the same report, the agency’s mission is to “offer and provide Texas municipalities and other units of local government with a stable and economic source of risk financing and loss prevention services.”

For Kostecka, TML’s involvement with TMLIRP’s workers’ compensation practices casts a pall over the association’s nonprofit status. “It just comes down, in my mind, to dollars and cents: what the insurance carrier wants to pay and what they don’t want to pay,” he said.

Jerod Kostecka outside the Leander police station, where he’s been on modified duty for three years while fighting for workers’ compensation to approve knee surgery after an on-the-job injury Christopher Lee/Texas Observer

In his own workers’ compensation case, Kostecka “followed their procedures to the letter,” he said. 

He is still waiting to get a date for his contested case hearing with the Department of Insurance on his reinjury case. He actually did receive workers’ compensation for his 2016 on-the-job injury, and recently got retroactively approved for financial assistance over lost wages during that time through a separate program for disabled police officers run by the Texas Attorney General’s Office. Despite TMLIRP and the state recognizing the officer’s previous injury in the same knee, the risk pool is fighting his claim now.

While in limbo, he’s been assigned to lighter duty at the police station. It’s better than not working at all, but Kostecka supports three young children almost entirely on his income as a police officer (his wife works one day a week, and homeschools their kids the rest of the time). Without going on patrol, he’s unable to work overtime or earn a promotion, he said. And without full use of his knee, Kostecka—a self-described “Texas born and raised outdoorsman”—is unable to take his kids hiking and fishing like he used to. 

“Every weekend I was off, we would be doing some kind of adventure with Dad. I just can’t do it anymore,” he said.

If the hearing officer doesn’t decide in his favor—or if TMLIRP pays the claim but later sues him—Kostecka has a back-up plan, one that would involve sacrificing a nearly 20-year career that he cares deeply about. He’ll move his family to Arkansas and become a chicken farmer, he said. In between seeing doctors, meeting with his lawyer, and talking to other first responders across the state, Kostecka is already looking for land.

After a similar three-year wait, Salinas’ case is still pending in Hidalgo County court. TMLIRP missed the deadline for designating an expert witness and has since sat on the case, according to Matt Bachop, Salinas’ attorney. Salinas believes that because he’s been so outspoken, the agency is dragging out his case simply to make an example of him and scare other firefighters off from filing claims. TMLIRP had the opportunity to schedule a hearing on June 1, but made no move to do so, Bachop said. The agency did not comment on Salinas’ case.

“It’s going to be a fight,” Salinas said, but he and his lawyers have faith that he’ll eventually win.

The cancer, the disputed workers’ compensation claim, and the lawsuit have all galvanized Salinas to become an activist. He’s helped nearly a dozen other firefighters with their workers’ compensation cases, and his case spurred Mission into creating a stopgap local policy in 2018 that gives paid leave to first responders who have been denied by TMLIRP. In 2019, Salinas and his union helped pass a state bill expanding the list of cancers that firefighters can be presumed to have gotten because of workplace hazards. 

For all this, he is considered a hero not just locally but by firefighters nationwide. His victories, though, are bittersweet. While Salinas has already forced some systemic changes in state and local policies, some of his fellow firefighters died waiting for benefits. 

“I helped a lot, but also lost some good friends,” he said.

In Leander, Kostecka hopes that if first responders can’t get further legislative change, perhaps his city and others can adopt local policies similar to Mission’s. Some think city officials and insurers themselves need more education on the cancer risks firefighters face. 

“I don’t think it’s lack of compassion,” said Representative Oscar Longoria, who represents District 35, including Mission, in the Texas House. “I just think that they sometimes don’t understand it.”

In 2019, Longoria and four other state legislators introduced a bill that would have penalized insurers, including self-insured cities, for denying first responders medical treatment that should be covered under state workers’ compensation laws. Longoria cited his constituent Salinas’ case as inspiration for the bill. The proposed legislation, however, died in committee.

“I think a lot of members, not just me, understand that there’s an issue,” said Longoria, who added that if cities can’t resolve the issue on their own, he may weigh options for further legislation.

Salinas understands the desire to save taxpayer money, but he’d like to see cities and TMLIRP focus on prevention rather than denying claims or suing first responders after they get sick or injured. He suggested the agency help educate workers about on-the-job risks, and offer cities grants for protective gear and decontamination equipment.

Mission’s fire department has on its own implemented changes that officials hope will prevent future cancer diagnoses and deaths. The city now offers firefighters a thorough annual physical, including cancer screenings. They also have a more rigorous decontamination process with better cleaning equipment for firefighters returning to the station from a call. 

This safer future includes Salinas’ own children. His oldest son became a firefighter against his father’s wishes, pretending for months that he was going to college when instead he was training to become an arson investigator. He was busted when a fellow firefighter commented to Salinas about how well his son was doing in the academy.

Recently, this son—who’s 38 years old—had a health scare of his own: doctors found a tumor wrapped around his thyroid, during the Mission firefighters’ new annual exams. Luckily, the younger Salinas’ tumor turned out to be benign and could be removed, but the family is still on guard.

Now, Salinas’ younger son also wants to follow in his father’s footsteps. He, at least, agreed to college first, but is majoring in—what else?—fire science.