Mass. board denies full benefits for late firefighter's family

A medical panel determined that while fire likely began the cancer process, there was no “definitive certainty” that it caused the firefighter’s death


By Ray Lamont
Gloucester Daily Times, Mass.

GLOUCESTER, Mass. — A widow’s bid for full death benefits that claim her late husband’s death came in the line of duty — even though he died years after fighting the city’s infamous 1998 Fisherman’s Wharf fire — has been denied again.

The Gloucester Retirement Board decision, released after a Wednesday meeting, came despite the findings of a doctor who was part of a three-person medical panel looking into the circumstances of Gloucester firefighter Michael Smith’s death. The panel was convened in 2018 by the state’s Public Employee Retirement Administration after a state Division of Administrative Law Appeals magistrate shot down earlier local and state retirement board findings and ordered an expert investigation.

John Testaverde, plant manager of the Gloucester, Mass., Fisherman's Wharf looks over the charred remains of the wharf, Friday, Aug. 21, 1998, which was destroyed in a four-alarm fire. (Photo/AP, Lisa Poole)
John Testaverde, plant manager of the Gloucester, Mass., Fisherman's Wharf looks over the charred remains of the wharf, Friday, Aug. 21, 1998, which was destroyed in a four-alarm fire. (Photo/AP, Lisa Poole)

In his report, Dr. Aymen Elfiky, a specialist in internal medicine and medical oncology, found that the fire “more likely than not began the processes” that would lead to Smith’s death at age 43 from non-Hodgkin lymphoma. He also noted that firefighters, especially, have “a higher risk of developing lung cancer as a result of accumulated exposures over the course of their careers.” Smith died in July 2012 after two battles with metastatic cancer that his wife, MaryBeth Smith of Essex, has maintained began when he was fighting a smoky, chemically-fueled blaze on Fisherman’s Wharf and the Gloucester harborfront.

But Elfiky did not indicate the fire was a direct cause of Smith’s death, and the panel’s other members found that while it was possible the fire triggered Smith’s cancer, there was no “definitive certainty” the blaze caused Smith’s death. Drs. Karl D’Silva and Douglas Tisdale, also oncology specialists, said Smith’s passing was also caused by radiation from his cancer treatments in the fire’s aftermath.

That argument drew renewed fire Thursday from Gloucester attorney Joseph Orlando Sr., who has been representing MaryBeth Smith and her family in their push to gain the full “killed in the line of duty” benefits. The family now receives 72% of Michael Smith’s final salary as a benefit, while families of firefighters killed in action are entitled to 100% of their loved one’s pay, according to state retirement regulations.

“The only reason he had to undergo (radiation) treatment is because of the fire in the first place,” said Orlando, who noted the board’s initial denial of full benefits seven years ago had come without it seeking any medical advice. That led to an appeal by Orlando and the Smiths, and the decision by the administrative law magistrate to kick the case back to the retirement boards.

“This is not how you treat a hero,” Orlando said, referring to Smith.

“What kind of message is this sending to our firefighters? To our police officers?” he continued. “It seems to me they (retirement board members) are saying, ‘OK, we expect you to protect us and our property, we expect you to lay your life on the line for us, but if something goes wrong, don’t expect to us to take care of your family, because we won’t.’

“It’s frustrating,” Orlando said. “It’s disgusting.”

Heather Acone, assistant executive director for the Gloucester Contributory Retirement System Board, which serves the city’s public employees, said Thursday that board members are not commenting on the decision.

“We are not speaking to anyone about the Smith case,” said Acone, who works under board Executive Director Patricia Ivas. “We’re referring all calls to our attorney (Thomas Gibson of Cambridge).”

Gibson said Thursday he believes the decision “speaks for itself,” and that he and the board stand by the ruling. Retirement board members are chairman and retired firefighter Douglas MacArthur Sr., retired city police officer Kathleen Auld, Juanita Escobar, city Human Resources Director Donna Leete and City Auditor Kenny Costa. Wednesday’s denial of benefits came on a 4-0 vote, with Escobar absent from the meeting.

In its decision, the board noted that it is “certainly aware of the dedication and heroism exhibited by firefighter Smith throughout his career of service to the people of Gloucester.”

“The board is sympathetic to the trauma that firefighter Smith’s family has faced because (his) death was undoubtedly the result of his exposure to toxins throughout his career,” the board’s ruling continues. “The question before the board, however, is whether the 1998 fire was the ... direct cause of firefighter Smith’s death,” adding that none of the three panel physicians definitely said that was the case.

A letter sent Thursday from Ivas to Orlando advises him of his right to appeal for a second time to the administrative appeals law division in Malden.

“That could take another four years,” Orlando said, citing the time between the Smiths’ previous appeal that led to the magistrate’s ruling to convene a medical panel and the decision.

He vowed to keep pushing to win the benefits he believes the Smiths are entitled to receive, noting that the claim, to date, does not include a specific dollar amount for what is now a seven-year gap.

“I think (the board) wants us to just go away, but we’re not,” he said. “What they’re doing is hurting this local family, they’re showing disrespect for this firefighter who truly gave his life for our city, and it’s not right.

“The way they’re interpreting this means that the only way a family can collect these benefits is if a firefighter is carried out of a burning building right to the morgue,” he said, “and that’s wrong.”

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©2019 the Gloucester Daily Times (Gloucester, Mass.)

McClatchy-Tribune News Service

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