Michael D. Falkouski, a volunteer assistant fire chief in the Albany suburb of Rensselaer, was awakened at 2:30 a.m. on Jan. 23, 2005, in the middle of a blizzard. There had been an explosion and a bad fire; a man was severely burned.
Arriving at a fire, Michael D. Falkouski had a heart attack.
Mr. Falkouski, 59, dug out his sport-utility vehicle and navigated unplowed roads, listening on his scanner to the dire details of the scene he was headed to: The fire hydrants were frozen, and few emergency workers had made it through 10 inches of snow to respond.
He collapsed in cardiac arrest upon arriving at the scene, and died of a stroke that afternoon.
But when his wife of 38 years, Susan, applied for a new death benefit that pays about $300,000 to relatives of emergency workers who die of strokes or heart attacks within a day of answering a call, she was denied. “The Department of Justice said they considered what he did routine,” Mrs. Falkouski explained.
Congress created the benefit in December 2003. Since then, the Justice Department has granted 10 claims, denied 42, and is processing about 200. Half of the families whose claims were rejected, including Mrs. Falkouski, have filed appeals.
Families of emergency workers who die in a fire or other disaster were already eligible for benefits. The 2003 legislation, called the Hometown Heroes Survivors Benefits Act, expanded coverage to deaths within 24 hours of “nonroutine stressful or strenuous physical law enforcement, fire suppression, rescue, hazardous material response, emergency medical services, prison security, disaster relief, or other emergency response activity” or a training exercise involving “nonroutine stressful or strenuous physical activity.”
But in the context of emergency-services work, the definition of routine is a matter of debate. Is responding to a raging blaze just part of the job? How about an earthquake, or a terrorist attack?
The Justice Department’s regulations implementing the law define “nonroutine stressful physical activity” as on-duty work that “entails non-negligible physical exertion” and poses hazards “not faced by similarly situated members of the public” in the course of an ordinary day. Sandra Gunn, a department spokeswoman, refused to expand on that, discuss individual cases, or detail the circumstances of the claims that had been approved, saying that the cases involve complex legal issues and often require medical review.
Representative Bob Etheridge, a North Carolina Democrat who sponsored the legislation, said in an interview last week that the department was “just intentionally misinterpreting Congress.”
During Congressional debate on the bill in 2003, Senator Patrick J. Leahy, a Vermont Democrat, gave examples of routine activities — typing on a computer, talking on the telephone, cleaning a fire truck — and those to be considered nonroutine — struggling with a suspect, assisting with medical treatment, performing search and rescue, or putting out a fire.
He confronted Attorney General Alberto R. Gonzales about the denials during a contentious Senate Judiciary Committee hearing about other matters last month, accusing the department of using “its regulatory authority to shift the burden of proof from the government to the families.”
Mr. Gonzales did not address the substantive question of whether claims were being improperly denied, but promised to speed up the process, saying, “It’s taken us too long, and I apologize to the families.”
Scores of claims were delayed when the Justice Department’s original draft regulations to implement the law were rejected by Congress, because, according to Representative Etheridge, “They were absolutely 100 percent diametrically opposed to what the legislation says.”
New regulations were approved in September 2006. By March 2007, the first 34 families to receive responses to their claims were all denied, according to Senator Charles E. Schumer, a New York Democrat who is also on the Judiciary Committee.
“They have to twist themselves into a pretzel to avoid having to give the widows what is due them,” Mr. Schumer said of the Justice Department. “In area after area, this administration and this department put bean-counting ahead of the real needs of people.”
The new benefit was intended to address the fact that flames and smoke are not the only killers of emergency workers. For example, in a study of 1,144 firefighter deaths between 1994 and 2004, the New England Journal of Medicine found that 45 percent of them were from “cardiovascular events.” While 32 percent of those occurred during actual firefighting, 31 percent happened while responding to or returning from an alarm, and the rest during nonemergency duties, responding to emergencies other than a fire, or exercising.
