Update: A police officer’s widow in New Mexico will receive workers’ comp death benefits even though he died while he wasn’t officially on duty.
We first told you about this case about a year ago. Officer Kevin Schultz with the Pojoaque Tribal Police Department saved a 12-year-old boy from drowning while chaperoning a church youth group. Schultz had taken the day off to be a chaperone.
Immediately after saving the boy, Schultz collapsed. It’s suspected he may have hit his head on a rock in the river while rescuing the boy.
His wife, Cheryl, filed for workers’ comp death benefits. A workers’ comp judge denied the benefits for two reasons: She waited more than a year to apply for them, and her husband wasn’t on duty at the time of his injury.
In its ruling earlier this year, the New Mexico Supreme Court said there was no problem with the late filing because it was caused by an assurance from the police chief that he would take care of things for Cheryl Schultz. It’s only when that didn’t happen when she realized she had to act on her own.
The state supreme court sent back to a lower court the issue of whether Officer Schultz’s death arose out of and within the course of his employment.
A three-judge panel of the New Mexico Court of Appeals took up the case.
On its face, it may seem like New Mexico’s workers’ comp laws would prohibit Cheryl Schultz from receiving the death benefits since her husband was off duty when he was injured.
But the New Mexico court found other states have taken up the question of whether police officers are technically always on duty when it comes to awarding workers’ comp benefits:
- Ohio: An off-duty police officer visiting a bank on a personal errand was shot by a bank robber while attempting to prevent a robbery. The court held the officer was entitled to workers’ comp for his injuries.
- Arizona: An off-duty police officer was killed while moonlighting as a hotel security guard as he was investigating a robbery at the hotel. Survivor benefits were awarded.
Courts in Missouri, Texas and Pennsylvania have also awarded workers’ comp injury or death benefits in cases when an officer was off-duty when injured. The theory: Police officers are never truly off duty, even when they’re outside of their department’s jurisdiction.
New test
The New Mexico court came to the conclusion that the traditional test of whether an injury arose out of and in the court of employment was inadequate for determining whether an injured off-duty officer or his survivors were entitled to compensation.
The court ruled emergency actions that on-duty police officers would take in the course of their employment that are taken by off-duty police can be considered reasonably incidental to their job responsibilities.
In this specific case, the court said rescuing a child in danger of drowning is among those risks to which common sense dictates an on-duty officer faced with a similar circumstance would be expected to take. So there was a sufficient connection between the incident involving Schultz and his duties as a police officer.
Schultz’s employer argued he wasn’t in the course of his employment because he was acting outside the scope of his training. Schultz hadn’t been trained in a swift-water rescue. The court rejected this argument because the employer couldn’t point to a regulation that prohibited officers from taking action beyond their specific skill sets.
So the court ruled in favor of Cheryl Schultz’s application for workers’ comp death benefits. The case will now go back to a workers’ comp judge to determine exact benefits. Up to $300,000 in death benefits and $7,500 in funeral expenses are potentially available.
The police department hasn’t commented on the decision other than to say it’s reviewing it.
In an editorial, the Albuquerque Journal said although this will raise workers’ comp costs, awarding benefits to Cheryl Schultz is “a reasonable thing to do.”
Now, unless you work for a government body, you most likely don’t employ police officers. But there is some take-home for other businesses in this case: Exceptions to workers’ comp laws are usually narrow.
The court developed a test for potential cases involving “off-duty law enforcement officers.” Awarding death benefits to them isn’t automatic. The off-duty officer must have been performing a task reasonably expected of an on-duty officer. And the case says nothing about what the outcome would have been if the rescuer were an off-duty firefighter, emergency medical technician (EMT), doctor or nurse, not to mention an off-duty lifeguard.
So while the court did create an exception to the normal circumstances to deny workers’ comp benefits, it made the exception a narrow one.
What do you think about the court’s decision? Let us know in the comments below.
(Schultz v. Pojoaque Tribal Police Dept., Court of Appeals of NM, No. 28, 508, 8/19/13)
