SafetyNewsAlert.comWorkers' comp: Was officer on duty at time of his death? » Safety News Alert

Workers’ comp: Was officer on duty at time of his death?

August 31, 2012 by Fred Hosier
Posted in: Fatality, In this week's e-newsletter, Injuries, Special Report, Workers' comp


Officer Kevin Schultz died saving a 12-year-old boy from drowning. His widow seeks workers’ comp death benefits. The questions facing New Mexico’s Supreme Court: Did she file paperwork on time and was Schultz “on duty” at the time of his death?

Schultz had taken a day off to chaperone a church youth group on a picnic. At the picnic, he jumped into the Rio Grande River near Pilar, NM, and saved a boy from drowning.

Immediately after the officer helped the boy to the river’s edge, he collapsed face-down in shallow water.

A medical examiner says Schultz may have hit his head on a rock when he rushed into the river.

Now, his wife, Cheryl Schultz, is seeking death benefits.

She’s lost two rounds so far.

A workers’ comp judge struck down her claim on two grounds:

  1. The statute of limitations barred her claim because she filed more than a year after her husband’s death, and
  2. His death didn’t arise out of or in the course of employment.

A state appeals court also denied benefits, ruling Cheryl Schultz didn’t file paperwork on time. But the appeals court didn’t address whether her husband’s death arose out of or in the course of his employment.

Did he die in line of duty?

Now, the New Mexico Supreme Court has heard arguments in the case.

Cheryl Schultz tried to refute both findings of the workers’ comp judge.

The officer’s widow says the chief of the Pojoaque Pueblo police department had assured her he would take care of filing the proper workers’ comp paperwork.

It was 14 months after her husband’s death when she found out he hadn’t.

In a deposition, the police chief said he couldn’t remember whether he had made that promise or not.

Cheryl Schultz also argues that a police officer is truly never off duty.

In fact, a letter to federal officials from the lieutenant governor of Pojoaque Pueblo said Schultz had died in the line of duty.

The Department of Justice, the National Law Enforcement Officers Memorial, the Coast Guard and the New Mexico Department of Public Safety have all declared that Kevin Schultz died in the line of duty.

There’s no word on when the state supreme court will issue its ruling. It could take months.

News reports say the justices pelted Pojoaque Pueblo’s attorney with questions and “appeared to indicate an unease with the way the workers’ compensation system had worked — or didn’t work — in this case.”

Cheryl Schultz’s attorney says in other states, similar cases have had positive outcomes for the family of the deceased.

The amount of workers’ comp benefits in question: $307,000.

Should the court award death benefits to Cheryl Schultz? Let us know what you think in the comments below.

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43 Responses to “Workers’ comp: Was officer on duty at time of his death?”

  1. TedBean Says:

    She should get benefits. A police officer is always on duty, and it does not serve the public to rule otherwise. Every department I have seen plays an active role in seeking benefits for widows and orphans of fallen officers. The widow had every reason to expect her husband’s department had provided similar protections.

  2. Donna E. Keil Says:

    Of course she should get WC benefits. If he had stopped an assault or robbery and was killed by the perpetrator that day, there never would have been an argument as to whether he was on duty or not. I’d like to know how many other police departments would have NOT filed the proper paperwork in this instance. I would think most would have.

  3. Guest Says:

    “Schultz had taken a day off to chaperone a church youth group on a picnic.”

    End of story right there as far as I am concerned. She is still eligible for the life insurance. The only reason that this is an issue is that the benefits for being killed “in the line of duty” are vastly more than the normal life insurance payout will be. The guy is obviously a hero, but that doesn’t matter in this case. This is the correct decision.

  4. Jason B Says:

    IMO, No WC benefits should be awarded. I understand the train of thought involving “always on duty” but… like the second paragraph states, he had taken the day off.

    If police officers and other EMS personnel are “always on the clock” in terms of risk, then they should never be allowed to drink alcohol or engage in any risk taking activities. That is just not practical.

  5. Aida Says:

    The widow may have a case against the church. I also think the widow has a case against the police chief for not filing the paperwork in time in that she would have had the opoportunity to take care of this in a timely manner. However, he was not on duty at the time of this horrible accident, so the police department is not liable.

    And if there was a chance that the children would have been swimming, the church should have taken precautions to keep the kids from the potential of drowning, i.e., only allowed the children to swim in a restricted area, assess the river for safety, etc.

  6. alecfinn Says:

    If someone is like a cop and can be called on duty during any dangerous situation why would they not be eligible for WC or their survivors get the benefits?

    We expect Cops Drs Nurses Firemen to help us if they are on duty or not so where is the problem?
    If he had not saved the victim what would have happened when someone found out he is a Cop?
    It cannot be both ways either they are on call and can come off being off duty to handle a dangerous or a situation where someone needs rescuing that should be covered by WC. If it is not then they should not be expected to step up in these situations when they are off duty so they can walk away for dangerous situations in spite of their training. They should not be criticized even though their training may be the only thing that can save someone.

    This is so like the Drs and Nurses that got sued for helping in an accident or when someone is injured and the treatment went bad. Something that can happen in a hospital I have seen Nurses and Drs not approach a victim/patient in distress until paramedics or the police put them on Hospital property because of the law suits.

    These things cannot be both ways to expect professionals to help but then in essence punish them for helping sends a really bad message.

    The same can be said for the 9-11 heroes at the trade center to say they are not eligible for benefits because they were off duty and reported to work? Or that in spite of the overwhelming evidence that they are suffering from negative exposures to chemicals and other life threatening things ranging from mental illness to lung cancer because it may not be caused by 9-11? The same for our Service People (Army Navy Marines Air-force etc.) if they are not on duty they should not participate in actions where they are needed?

    No wonder things get so out of wack and so many hold back from helping! Put yourself in their shoes. If I help I can be in essence punished and have my whole future destroyed by trying to help…

  7. sheralroh Says:

    She should absolutely be entitled to WC benefits and anything else she can get. She lost her husband while he was performing a heroic act of saving a child. How petty can the police dept. get. Every police officer I know considers themselves available to handle an emergency at all times, whether they have clocked into “work” or not. Seriously, get a grip. WC benefits are handed out to losers defrauding the system, why not give it to a legitimate claim.

  8. Deb C. Says:

    Workers Comp. is for being injured while you are on the clock. I understand he was a policeman, but he took a day off to chaperone this outing. What if he was a truck driver and took the day off and the very same thing happened, would it be a workers comp claim…no. Sorry workers comp does not apply.

  9. Willy Says:

    I’m not going to state if she should or shouldn’t. What if a maintenance/safety director, such as myself, who took the day off to go to a church outing, have died after saving a drowning boy. Would my wife be able to claim WC? If you are thinking no that would be discrimination because I’m on call all the time even though I may be out of the office for the day. If they needed me to go in on my day off or half way through my day off I would have to.

  10. Aida Says:

    No one discounts the fact that he is a hero. However, he was not acting in his capacity as a police officer at the time of the accident, he was acting as a chaperone at a church outing. This isn’t the police department being petty, it is the police department not having any jurisdiction over his actions when he’s not at work. What if he would have died helping his next door neighbor with something at their house? It’s the same thing; the police department does not control what he does on his days off, so they cannot be held accountable when something terrible happens to him.

    Her case should be against the church, not the police.

  11. TedBean Says:

    Deb C doesn’t understand that being a cop is different from other kinds of work. Some years ago, I worked in a city where police believed their department would not support them. Officers told me that if they heard about a fight or robbery in progress, they would finish whatever they were doing before responding and then take the report when the risk of injury was past. A study showed that the primary strssor for police was not criminals, but dealing with the bureaucracy. Pay the widow so that the next time you’re in trouble, the nearest officer doesn’t weigh his economic risks before coming to your aid.

  12. Willy Says:

    Why does an off duty police officer or his/her family deserve WC for trying to help someone and the ordinary Joe or perhaps a homeless person does not get anything if they were trying to help someone in the same manner? No one will ever know if the officer tried to help because of his position or because he felt it was the human thing to do like a lot of other people would do themselves. He went to save the life of a child without regard for himself. I know it’s a sad situation but the wife needs to move on and just be proud for what her husband did.

  13. Willy Says:

    If some one died helping her child survive from a brutal circumstance I’m sure she would be fighting not to pay the family of the one that passes helping her child live.

  14. Willy Says:

    It’s pretty sad if you think about it that she wants a payoff for her husband saving a life. I’m suprised that she isn’t going after the family of the child with the defense “if only your child wasn’t drowning my husband would still be alive”. What is this world coming to? He saved a childs life. Blessings for him.

  15. alecfinn Says:

    Just as an exercise suppose the story was this and how would it be if this were true?

    Off Duty Cop calls 911

    Off duty Police Officer John Doe had taken the day off to chaperone a group of children on a church picnic. One of the children had problems while swimming in the river and was drowning. Mr. Doe saw the situation and called 911 reporting a child drowning in the river. It took Emergency services 5 and a half minutes to get to the scene and they were too late as the 12 year old had drowned.

    When Mr. Doe was interviewed and asked why he had not tried to save the child. He responded that all of the Police Officers were informed that when off duty they were to report any emergency responses to 911 and for their safety they are to not intervene. Mr. Doe expressed deep regret and anguish as he has a 12 year old child and the thought of any child or person not being helped in their time of need terrified him.

    Not long ago off duty Police Officer Jane Doe (no relation to Officer John Doe and both worked different shifts and sections of our city) was gunned down when she tried to stop a robbery at an all night deli she was getting milk for her children from.

    She is survived by her husband and two children a girl of 6 and a boy of 8. Her husband was a stay at home dad and they were dependent of her salary to live. As she was not on duty her family will not receive the death benefits of an on duty Officer. Her family will also not receive Workman’s Compensation benefits for an on duty Police Officer. The Police Department is taking up collections in order to help her family during their time of need.

    The Police Chief when interviewed regarding the above expressed deep regret that all of the Officers had been advised to this course of action for their own protection. When the Police Union was contacted they also expressed deep regret that the Officers had to be advised as to this course of action. Neither the Union or The City Management would make any…

  16. Justin Says:

    One question I have is this… If he did not save the boy, would he have fallen under some legal obligations for not having done so? Perhaps do to training and being of authority? I can not think of one officer that I know (not to say there is not one) that can go out without his badge and sidearm. With that being said, is there some obligation that has been placed on him by his department to perform his duties at all times, if this be the case then I think she is elegable in this respect. Now as for the late filing… I don’t believe that she sat around for 14 months waiting for a check in the mail then finally decided to check into it herself, regardless what she was told…

  17. Willy Says:

    alecfinn- you keep refering to policemen. Any one could have been in those predicaments you mentioned above. Any body can have been gun down trying to prevent a robbery. Would that persons family get anything? I do not understand why you think that if a cop that is not on duty is involved they get something but anyone that isn’t a cop gets nothing.

  18. alecfinn Says:

    Willy

    I live and work in NYC I have friends that are cops as well as firemen and other first responders. When I checked with them about this they told me they are indeed expected to help out in emergency situations. Also it states in the article that

    “Cheryl Schultz also argues that a police officer is truly never off duty.
    In fact, a letter to federal officials from the lieutenant governor of Pojoaque Pueblo said Schultz had died in the line of duty.

    The Department of Justice, the National Law Enforcement Officers Memorial, the Coast Guard and the New Mexico Department of Public Safety have all declared that Kevin Schultz died in the line of duty.”

    According to what other first responders have shared with me is they are expected to intervene in dangerous situations. Police officers are expected that if a felony is going down and they do not intervene they can be fired. That may be only here is NY but I think not. So if they are held to a higher standard they should also receive the benefits of that standard.

    If a civilian had intervened and lost their life there would have been collections and other supports by the city state and local agencies. Also the topic here was a Police Officer and the officer’s wife (In my opinion) trying to get what should be hers.

    I am a civil servant my father was a fireman and I have many police and peace officers who are close friends. So perhaps I am ummm more in support of taking care of our civil servants (including the armed services) that stand up and try to help everyone, many times it is a thankless and dangerous task. In addition in general civilians are not expected to intervene in these situations but if they do and get injured or killed I think they should be recognized as well as rewarded for their valor.

  19. michael Says:

    i am a capable, responsible person, husband, dad, caregiver for an elderly parent and a small business owner. with all that said, i would not have given a second thought about attempting the rescue.
    if i had died, my wife, grown kids, grandchildren, mother and 20 employees would receive nothing. my business would suffer, possibly 20 people would be out of a job. life happens, we all take chances
    every minute. it is crappy when bad stuff happens but where in the life manual does it state that humans
    should be compensated for everything and by whomever or whatever means has the deepest pockets. this is a tragic situation i hope this mother and her children have a strong community support system to get them on their feet. this is not the ‘fault’ of the police department, this is not the ‘fault’ of him or his chosen profession, this is probably not the ‘fault’ of the church or the ‘fault’ of the drowning kid. it is the fault of living life. who should pay for that?

  20. Willy Says:

    alecfinn Thanks for responding. I know the article is about a police officer. I was just trying to get an opinion on why they (especially an off duty one) was treated so different than an ordinary civilian who may react the same way the officer did. And because you are related to and friends with many I can see why you answer the way you do.
    But I tell you there are many who want to serve in the military or become a police officer etc that have the same strong ethics, that are refused entry into such organizations that still would risk their lives for the life of another as a civilian. Anyone risking their life whether a cop, military, fireman etc. do it because they want to not because they have to. That’s why they applied for those positions to begin with. And I’m sure just like any civilian who died risking their life for another, the wife of this officer received collections and other support from state and local agencies as well.

  21. alecfinn Says:

    Michael and Willy

    I have some very strong feelings about this (guess they come out in my posts) but Willy I agree that a civilian stepping in losing their life and the ramifications of that are severe and unnecessarily so. I truly think as society we do not take care of our heroes enough. In particular the fallen heroes be they be First Responders, the Military of the common person who steps up and tries to make things better then suffers because of their stepping up.

    I also feel strongly that if you are held to a higher standard then should some negative thing happen to you that should be taken care of such as Police Firemen and others). The emergency responders be they military civilian etc that are expected to intervene to protect us should if they lose their life in that or as a result of that act need to have their loved ones taken care of because they can no longer attend to this should have access to the supports needed (be it life insurance mental health medications etc).

    Daily we see such waste ranging from human to environmental to financial. We sort of turn our backs on that with a shrug but to turn our backs on our hero’s to me is a horror. The way the 9-11 hero’s our Military and others are treated when they need any kind of help is to me appalling. These folk have put it all on the line for the rest of us and then are treated as if they are less than human because they have or developed problems (physical or mental).

    Some of that energy and costs that are just wasted could be put to a better use by helping our hero’s in their time of need.

    I’ll put away my soap box now…….I’m sure you can see I feel strongly about this.

  22. Deb C. Says:

    I think you are missing the point. This police officer was not on duty, he was on his own time, and even though what he did was admirable, it just is not covered under WC.

  23. VJ Says:

    Interesting conversations. It seems a lot of people feel a great deal of sympathy for the family but before the city will spend 100′s of thousands of dollars from their budget they want a definitive answer on their actual liability and I completely understand that. I don’t know what police are taught in their academy about a “duty to act” or if this department ever covered that.

    As a trained and certified EMT, I know that the duty to act only covers you in certain circumstances. Coincidently I was listening to NPR yesterday and a woman was speaking to the moderator and described a situation where she and her boyfriend, both EMT’s, drove past an accident scene because they saw that someone was on the scene with a cell phone to call 911. EMT’s work off specific protocols under the authority of a physicians medical license. I remember early in my Paramedic school, the instructor made the comment that there are 2 types of Paramedics, “those that have been sued and those who are going to be sued”.

    So I’m wondering how a Police officer handles that? Obviously if a Police officer is in another town he doesn’t have the authority to pull over a speeder and issue a citation. Does he? So he can’t really have a duty to act in that case. If he was in another town having a meal with his family and a bank robbery took place nearby, I don’t know if he’d have a duty to act there either. If he was chaperoning a church picnic in a town that otherwise pays him to be a police officer then maybe I could see that he was acting in the line of duty. If it happened out of the town’s jurisdiction then how is the town responsible for this money?

    Regardless, he was a very brave man it seems and I’d offer my condolences to his family.

  24. Andrea Says:

    I’m really confused about this.
    If my husband (whom is NOT a public worker)saved a drowning child and died in the process i would never even consider filing for WC. Why is it that if you work for the public your supposed to be treated differently than others. I guarantee my husband does much more dangerous work and we don’t have anywhere close to the benefits public employees receive. Stop wasting everyone’s time with this outrageous claim.

  25. Mike Says:

    I have worked in the safety profession for 20 yeas. I am also a Volunteer Fire Fighter, EMT, Fire Investigator in Centeral New York, and I have a duty to act. If I don’t and it is found out that I didn’t without extenuating circumstances I could loose my certifacitations. Being a volunteer there are no time clocks so it shouldn’t matter. As for this situation this officer has training, has the physical ability to perform the task at hand(swimming). I believe she should get the benifits she is entitled to recieve.
    Just a foot note. Look on a patol car and see what it says, TO PROTECT AND SERVE. Not To Protect And Serve Only On Duty. Just my opinion.

  26. alecfinn Says:

    Andrea

    It is not all public workers…….Police and Fire Dept personnel are expected (even if off duty) to assist by their employer that is why WC was filed for.

    I agree if it happened to your husband there is no safety net and there is something very wrong about that……We want folk to stand up but there is no safety net should things go wrong.

    That I think is a major mistake in our society in general.

  27. Joe Says:

    You guys are still missing the point here. “He took the day off to chaperone a group of kids” At that point his responsibility is the kids and that has nothing to do with his work. Even if he saw a robbery in progress, he is responsible for those kids and better not leave that watch. Could you imagine the out cry if he took off chasing someone, left those kids alone, and something happened to those kids?
    Yes police and fireman have a duty to protect and serve but there are deffinately times when that does not fall back into work related circumstances.
    I will throw this one out to explain my point further. Lets say this officer had the day off, no other obligations, and was at a park enjoying the sun shine. He notices a child in distress so he acts, as many of us capable parents would, to help save the child from what ever the situation. He gets ingured, ABSOLUTELY covered by workmans comp.

  28. alecfinn Says:

    Thank You Mike!!!!!!!!

  29. alecfinn Says:

    Mike

    Also I think it is not said near enough

    Thank You for your service.

    It is appreciated

  30. Willy Says:

    Mike and Alecfinn Why would a citizen, in the position that the off duty officer in Mike’s example, doesn’t get the same benefit? It seems that you two think that if a citizen were to help a child in that manner they should get nothing because they are not in a uniform position. That’s kinda discriminating isn’t it? Please do not give me the “they are not trained to do it” stuff. Because an everyday lifeguard not on the clock could be in that position or even a boy scout who is trained to act who has earned his merit badge in lifesaving could also be in that position. Or anyone else who has training could be in that position.

  31. Mike Says:

    I think we’re getting off track, there should be a benifit for anyone who does a heroic deed and is injured or killed, it should not matter. This would cause a whole other group of issues, it would take someone most likley the goverment to deside who would get the benifit and if it didn’t benifit a politition most likely would never happen. So sad to say in these day but every one wants somthing for nothing or is sue happy.

  32. alecfinn Says:

    I thought I made myself clear as a Police Officer or a Person who answers and goes to emergency calls in a Fire House is expected to answer even if they are off duty. As I am not employed on that level but work in a facility I do not know all the fine points of that.
    I do know that the First Responders that react to an emergency situation are expected to attend that emergency if they are on duty or not. Because of that these folk should receive any benefits they would on a straight shift.
    As for the civilian who helps in an emergency situation and suffers something negative because of that I sincerely believe they should be taken care of. If they lose their lives or are damaged and cannot take care of their families then their families should be taken care of. That I think is a major problem we have as a society. Because of that just how many folk have left an emergency area instead of helping because they were uncomfortable with might happen. And if something happened to them who would take care of them and if necessary who would step in and care for their family?
    Local folk and their friends would help for a while but many injuries can take years to recover from. And there is no way someone would be helped other than by welfare or other agencies that most feel is demeaning to apply for. That I do know as I had my own experience with that and it is about as insulting and demeaning and anyone can get. That behavior continues and it is on so many levels and it is very hard to meet the requirements for the help physically and mentally. To have to ask for something in a situation such as this you are made to eat crow and you are raked over the coals in a very nasty manner.
    So yeah I think Hero’s need to be taken care of if they be Police Officers Fire Department Personnel Emergency Responders Our Military and Civilians. We say we honor these people but it is they that have a real nightmare when they are hurt damaged or killed when being Heroic.

  33. Aida Says:

    What this incident points out is the need for anyone working in the public sector as a policeman or fireman to clarify with their county police or fire department and/or their union what constitutes a worker’s comp compensable event, and what does not. That way, the policeman or fireman may make an informed decision whether to chaperone a church group in the first place.

  34. Joe Says:

    To alecfinn: You are clearly missing the point to the question at hand. This officer had made prior obligations that had nothing to do with his work, or line of work, and those obligations made him “Off Duty/Out of Service”.

  35. alecfinn Says:

    I will repeat the meat of what I have been saying

    First Responders Police Fire Control Personnel Etc are expected to intervene when there is an emergency any kind and as such they need to be taken care of.

    And Quote the above

    “Cheryl Schultz also argues that a police officer is truly never off duty.

    In fact, a letter to federal officials from the lieutenant governor of Pojoaque Pueblo said Schultz had died in the line of duty.

    The Department of Justice, the National Law Enforcement Officers Memorial, the Coast Guard and the New Mexico Department of Public Safety have all declared that Kevin Schultz died in the line of duty.”

    Which is in line with my research

  36. Aida Says:

    Would you guys quit repeating the same thing over and over again? I think we got it the first 10 times you wrote a comment.

  37. Joe Says:

    Alecflin - You can repeat what your beliefs are as long as you want. Yes, you have people that agree with you in the same line of thinking also. The fact of the matter is that this officer did not die in the “line of duty”. He died in the line of being a “chaperone for a group of church children”. If he wasn’t already slated as a “chaperone” and this unfortunate accident happened then yes it’s possible to fall back onto the “Died in the line of duty” idea.
    I guess it’s because of the difference of opinons that this is being questioned here to begin with.

    With the line of thinking that an officer is always on duty: Does that mean that I can call the police department and request an off duty officer be present at our next school field trip? After all they are still on duty?

  38. Willy Says:

    Alecflin As you state “they are expected to intervene” not required.

  39. alecfinn Says:

    Aida Thank You

    Joe Willy

    Experts where he was working said he was on duty my friends that are Police, Peace officer and Fire Fighters that here are also Hazardous Emergency Management all would respond as he did and would be considered on the job.
    I would like to work in a place where an expectation is voluntary but we consider that an order or requirement……I have posted too much and am tired.

  40. Joe Says:

    Just because all of these people, and other officials, say it’s right doesn’t make it right.

  41. David B Says:

    No wonder all major cities are going bankrupt, with the pension and workmans comp claims for police/firemen there is no way any city can survive. They are hardly “thankless” jobs, paying significantly more than any comparable civilian jobs plus full retirement at 20 years, banked sick time, padding hours, “comp” time, plus all the other financial tricks the unions have mastered over the years. A police officer in Fort Worth shots himself while cleaning a gun at home over the weekend and the family demands workmans comp compensation as if he was shot in the line of duty, it will never end. The entitlement society where poor, minority, military, police, firemen, and all public workers feel they are special and deserve to break the bank.

  42. alecfinn Says:

    So then Drs should not be sued for emergency care provided in the street during a crisis? That I can agree with same for Nurses. Also the same for all First Responders.

    If Emergency Responders are treated like private sector employees then Yes no WC.
    However just think if you need someone to haul your A** out of trouble and an Emergency Responder is there but walks away its Okay? Because they are not on duty?

    A Dr, Nurse, First Responder or Police Officer lets a emergency that causes a loss of life happen because these folk are off on lunch on the telephone? That is okay?

    I was private sector and I now work harder for less have less resources with more hours. Plus I got hurt OTJ still have to pay for parts of my treatment even though it is supposed to be covered by WC. It can take 10-15 years to be reimbursed.

    No Civil Servants are not all to blame for cost overruns but there are bad in all business however no more so than in the Private Sector.

    Before making statements about things look deeper than the News like the laws and requirements that Cities States and the Federal Government have to fulfill.

    We can look back at what the last Administration did cutting and deregulating now look at the collapse and then there is not to mention how great the public behaves………..

  43. Aida Says:

    If a doctor or nurse responds to an emergency on their time off and are not paid for it, then they are protected against lawsuits by the Good Samaritan Clause. If they (or any of us, for that matter) would take money for giving CPR then they become a paid professional for our services.

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