Heroic off-duty police officer who died rescuing child is entitled to workers’ compensation benefits, says NM Court of Appeals

Officer Kevin Schultz of the Pojoaque tribal police department died a hero. While acting as a chaperone for a church youth group, he jumped in the Rio Grande to save a child who was drowning, but was unable to save himself.

Although the Pojoaque tribal government initially told Officer Schultz’s widow that it would help her obtain any benefits, including workers’ compensation benefits, to which she might be entitled, the tribal government apparently had a change of heart, and argued that she was not entitled to workers’ compensation benefits. This case has spawned four previous appellate decisions, two from the Court of Appeals, and two by the Supreme Court.

Yesterday, in an opinion by Judge Cynthia Fry, the Court of Appeals held in Schultz v. Pojoaque Tribal Police Department that Officer Schultz’s widow is entitled to recover workers’ compensation benefits. (N.B., I printed the opinion yesterday, but for some reason it is not on the Court’s website this morning.  I will post a link when it becomes available again). UPDATE (Aug. 22, 2013): I’ve now linked to the opinion.

The tribe argued that because Officer Schultz was off-duty, not in uniform, and supervising a non-work related church event outside the boundaries of the Pojoaque tribal lands, his death was not caused by an accident “arising out of and in the course of employment,” as required by the New Mexico Workers’ Compensation Act.

Judge Fry explained that due to the “unique nature of law enforcement duties,” officers may recover workers’ compensation benefits in “in some instances for off-duty injuries occurring in response to circumstances reasonably calling for police officer assistance.” The traditional factors used to decide whether an injury arose out of and in the course of employment — e.g. the time and place of the accident, whether the worker was serving the employer’s interests at the time of the accident — are inadequate in light of the expectations that society has even for off-duty police officers.

Instead, Judge Fry said, the focus should be on the nature of the off-duty officer’s actions and the circumstances of the particular case, viewed in light of society’s expectation that police officers will act to protect the public. “If it is our expectation as a society that police officers put themselves in harm’s way, sometimes irrespective of their on-duty status, then it should also b4e our expectation that such officers be compensated when they are injured in the course of doing so.”

Although the Court’s opinion stresses that this expansion of the “arising out of and in the course of” test is limited by the “unique” nature of a police officer’s duties, it is easy to imagine others who might also have a claim to workers’ compensation benefits even when they’re off duty.

For example, suppose a physician employed by a hospital, on his day off and miles from his place of employment, witnesses an automobile accident, stops to help the survivors, and is himself injured while doing so. Do we as a society expect off-duty physicians to render aid to the injured and dying, such that the doctor is also entitled to workers’ compensation benefits?  It will be interesting to see whether this decision is limited to its facts, or whether creative workers’ attorneys will find ways to expand its rationale to other contexts.

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