Okla. widow wins unusual 'firefighter' workers' comp. appeal
The fire chief and his wife allegedly sent a letter falsely claiming the deceased was a firefighter
By Randy Ellis
OKLAHOMA CITY, Okla. — The widow and son of a Bartlesville man who died during firefighting training have been awarded more than $503,000 in federal and state death benefits despite testimony he never was really with any fire department.
Thomas Russell "Rusty" Topping died tragically in 2008 after registering at a state training facility as a volunteer for the Barnsdall fire department.
The Barnsdall fire chief, Pete O'Dell, testified in workers' comp court that Topping wasn't actually a volunteer.
"Don't even know him," the fire chief said.
That didn't stop the Oklahoma Court of Civil Appeals from recently upholding the award of more than $200,000 in workers' compensation benefits to Topping's widow and son. They previously had received a $303,000 federal death benefit through the Justice Department's Public Safety Officers' Benefits program. Both awards were linked to paperwork listing the Barnsdall volunteer fire department as his employer.
Topping, a 28-year-old Bartlesville water department employee, died on May 31, 2008, following participation in live burn training exercises at the OSU Fire Training School.
So what prompted the court to conclude the Barnsdall fire department was Topping's employer?
A bizarre letter of recommendation is at the heart of the issue.
The fire chief and his wife told a workers' compensation court judge it all started several years ago when Bartlesville firefighter Johnny Kelley, a friend of both Topping and O'Dell, came to the fire chief and asked if he would write a letter to help Topping get a job with the Bartlesville Fire Department.
O'Dell said he agreed to do it.
"Rusty Topping is a volunteer fireman on our fire dept. for approx. 8 years & 3 months," the wife of the fire chief wrote in an undated letter she crafted with the aid of her husband. "He has attended all required classes, meetings & work shops. He has the skills to operate 5 ton, 21/2 ton, 3/4 ton & pumper fire trucks. He has completed drivers course & does maintenance on all fire trucks. He works well with other firemen & does more than his share. -- Pete O'Dell, President"
Although it sounded impressive, none of that was true, O'Dell told the court.
A couple years or so later, the O'Dells said they were surprised when they read in a newspaper article that Topping had died following live burn training exercises at the OSU Fire Training School.
They said they also were surprised to learn that Topping had listed the Barnsdall volunteer fire department as his sponsoring agency.
Events quickly snowballed.
"We were bombarded with grief cards and everything," said Jean O'Dell, the fire chief's wife.
At the request of the fire department's insurance carrier, CompSource, Jean O'Dell said she sent in a letter saying the Barnsdall Rural Fire Department sponsored Rusty Topping.
She testified they received a federal death benefit packet, which they gave to the deceased man's father, longtime Bartlesville firefighter Larry Topping, to give to the widow.
Jean O'Dell said at the request of the widow, her fire chief husband signed a document and forwarded it to an official with the Oklahoma State Firefighters Association to fill out and process. It was left up to the state firefighters association to fill in information about the employing organization, the widow's testimony indicated.
Why didn't the O'Dells stand up at the time and tell officials Topping wasn't a Barnsdall firefighter?
"We were just trying to help the family," she said. "I figured it was probably trying to get some life insurance or something like that."
"We were receiving hundreds of consolation cards from fire departments everywhere, and how are you going to stand up and tell a mother that her son is not a firefighter that had just passed away? We was trying to help in every way we could."
The widow, Billie Topping, is now Billie Kelley, having remarried the Bartlesville firefighter who reportedly requested the letter of recommendation in Rusty Topping's behalf.
Billie Topping testified she was married to Rusty Topping less than two years and knew him about 10, but had never known him to do any firefighting with the Barnsdall Fire Department.
She testified she received a $303,000 federal firefighter's death benefit.
The widow's workers' compensation claim initially was rejected by workers' compensation Judge Owen T. Evans.
However, that decision was overturned by a three-judge panel consisting of Judges Eric W. Quandt, David P. Reid and Margaret Bomhoff. The vote to award benefits was 2-1, with Judge Bomhoff dissenting.
Judges Quandt and Reid questioned whether the O'Dells' actions were fraudulent.
"I'm saying why go to this enormous elaborate scheme, which I would call fraud, to create these documents for a guy they've never met?" Quandt said. "Why shouldn't this panel refer the O'Dells to the workers' compensation fraud unit? Because this is outrageous to me. This isn't right."
In the end, the three-judge workers' compensation panel ruled the fire department was the employer and workers' compensation benefits should be paid. They based their decision on what the O'Dells had written down, as opposed to what they said in court.
The Court of Civil Appeals upheld that decision Aug. 14.
(c)2014 The Oklahoman
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