Schultz ex rel. Schultz v. Pojoaque Tribal Police Dep't

Decision Date19 August 2013
Docket NumberNo. 28,508.,28,508.
Citation317 P.3d 866
PartiesCheryl SCHULTZ on behalf of Kevin SCHULTZ (deceased), Worker–Appellant, v. POJOAQUE TRIBAL POLICE DEPARTMENT, and New Mexico Mutual Casualty Company, Employer/Insurer–Appellees.
CourtCourt of Appeals of New Mexico

OPINION TEXT STARTS HERE

Academy Compensation Clinic, P.C., George Wright Weeth, Albuquerque, NM, for Appellant.

Riley, Shane & Keller, P.A., Richard J. Shane, Kristin J. Dalton, Albuquerque, NM, for Appellees.

OPINION

FRY, Judge.

{1} In this workers' compensation case, the issue before us is whether Officer Kevin Schultz's accidental death arose out of and within the course of his employment with the Pueblo of Pojoaque Tribal Police Department (Employer). The workers' compensation judge (WCJ) concluded that Officer Schultz's death did not arise out of and in the course of his employment because he was off-duty, outside his jurisdiction, and on a personal day trip near the Rio Grande at the time of the accident. Because of the unique nature of law enforcement duties, we conclude that law enforcement officers may recover workers' compensation benefits in some instances for off-duty injuries occurring in response to circumstances reasonably calling for police officer assistance. Accordingly, because we also hold that there was a sufficient nexus between Officer Schultz's actions in undertaking the rescue of a drowning child and the duties of his employment as a police officer, we reverse.

BACKGROUND

{2} The tragic facts of this case are not in dispute. Officer Schultz drowned while saving a twelve-year-old boy who had fallen into the Rio Grande. Officer Schultz responded to the child's cry for help and jumped into the swift-moving water to rescue him. While Officer Schultz was able to get the child to safety, he did so at the peril of his own life and suffered an unknown injury in the course of the rescue that rendered him unable to save both himself and the child.

{3} On the day of the rescue, Officer Schultz was off-duty and voluntarily chaperoning a church youth group trip to a recreational area on the Rio Grande near Pilar, New Mexico. There were four adult chaperones on the trip, including Officer Schultz and his wife, Cheryl. The child Officer Schultz rescued was one of the children under their supervision. Officer Schultz was not “on-call” that day, nor was he in uniform, although his badge and department-issued pager and firearm were found on his body. The incident also took place outside the boundaries of the Pueblo of Pojoaque reservation. Nevertheless, whether Officer Schultz believed his duty to rescue the child arose from his responsibilities as a police officer, a chaperone, or some measure of both, the parties agree that Officer Schultz died a hero.

{4} Consistent with public expectations that police officers may be required to act in their official capacity while off-duty, Officer Schultz's sacrifice was honored at both the national and local levels. Officer Schultz is recognized on the National Law Enforcement Officers Memorial and the State of New Mexico Law Enforcement Memorial, both of which require for inclusion a finding that the officer died in the line of duty. Cheryl and the couple's son were also awarded survivor benefits under the Public Safety Officers' Benefits Act. See42 U.S.C. § 3796(a) (2006) (providing for survivor benefits where the public safety officer “died as the direct and proximate result of a personal injury sustained in the line of duty”). Indeed, the lieutenant governor of the Pueblo of Pojoaque sent Cheryl a letter recognizing that [y]our husband, Kevin Schultz, died in the line of duty” and that the “Pueblo of Pojoaque will do anything necessary for you to receive survivor's benefits, [workers'] compensation or any other benefits available to you and your grieving family.”

{5} Cheryl subsequently filed a workers' compensation claim for medical and survivor benefits against Employer and its insurer, New Mexico Mutual Insurance Company. Following the trial, the WCJ barred recovery by concluding, in part, that Officer Schultz's death did not arise out of and occur in the course of his employment.1

DISCUSSIONStandard of Review

{6} Because the material facts in this case are not in dispute, we review de novo. See Losinski v. Drs. Corcoran, Barkoff, & Stagnone, P.A., 1981–NMCA–127, ¶ 4, 97 N.M. 79, 636 P.2d 898 (“Where [the] facts are not in dispute, it is a question of law whether an accident arises out of and in the course of employment.”). In reviewing this issue, we are mindful that the Workers' Compensation Act (WCA) represents a “delicate balance between the rights and interests of the worker and the employer.” Gonzalez v. Performance Painting, Inc., 2013–NMSC–021, ¶ 9, 303 P.3d 802 (2013). Thus, “any judicial analysis under the [WCA] must balance equally the interests of the worker and the employer without showing bias or favoritism.” Id. (alteration in original) (internal quotation marks and citation omitted).

{7} Given the unique nature of law enforcement duties, including the fact that in some circumstances an off-duty police officer may be required to respond in an official capacity to incidents arising in the officer's presence, courts have struggled with determining the compensability of off-duty police officer injuries using traditional interpretations of the “arising out of and in the course of employment” test. Below, we discuss the traditional analysis, the unique risks faced by police officers both on- and off-duty, application of the traditional “arising out of and in the course of employment” test to off-duty police officer injuries, and why the traditional analysis is an inadequate benchmark for determining the compensability of off-duty police officer injuries. We conclude by formulating the proper inquiry for injuries to off-duty police officers responding to incidents reasonably calling for police assistance and hold that Officer Schultz's death arose out of and in the course of his employment.

The Historical “Arising Out of and in the Course of Employment” Test in New Mexico

{8} “For an injury to be compensable it must be caused by an accident ‘arising out of and in the course of employment.’ Velkovitz v. Penasco Indep. Sch. Dist., 1981–NMSC–075, ¶ 2, 96 N.M. 577, 633 P.2d 685 (quoting NMSA 1978, Section 52–1–9 (1973)). “Arising out of” and “in the course of employment” are two distinct requirements. Hernandez v. Home Educ. Livelihood Program, Inc., 1982–NMCA–079, ¶ 9, 98 N.M. 125, 645 P.2d 1381. The “arising out of” prong relates to the cause of the accident. Id.; see Velkovitz, 1981–NMSC–075, ¶ 2, 633 P.2d 685 (“For an injury to arise out of employment, the injury must have been caused by a risk to which the injured person was subjected in his employment.”); Kloer v. Municipality of Las Vegas, 1987–NMCA–140, ¶ 3, 106 N.M. 594, 746 P.2d 1126 (“The term ‘arising out of’ the employment denotes a risk reasonably incident to claimant's work.”). Typically, accidents satisfying this prong will include those occurring during acts the employer has instructed the employee to perform, acts incidental to the worker's assigned duties, or acts that the worker had a common law or statutory duty to perform. Ramirez v. Dawson Prod. Partners, Inc., 2000–NMCA–011, ¶ 14, 128 N.M. 601, 995 P.2d 1043. The term “course of employment,” on the other hand, “relates to the time, place, and circumstances under which the accident takes place.” Velkovitz, 1981–NMSC–075, ¶ 2, 96 N.M. 577, 633 P.2d 685. We have stated before that “an injury occurs in the course of employment when it takes place within the period of employment, at a place where the employee may reasonably be, and while the employee is reasonably fulfilling the duties of employment or doing something incidental to it.” Kloer, 1987–NMCA–140, ¶ 7, 106 N.M. 594, 746 P.2d 1126. In order for a claimant to be awarded compensation, both of the requirements for “arising out of” and “in the course of employment” must co-exist at the time of the injury. Garcia v. Homestake Mining Co., 1992–NMCA–018, ¶ 6, 113 N.M. 508, 828 P.2d 420.

{9} New Mexico's use and construction of the “arising out of and in the course of employment” standard in workers' compensation jurisprudence is not novel. See 1 Arthur Larson & Lex Larson, Larson's Workers' Compensation Law § 3.0, at 3–1, –4 (2012) (referring to the “arising out of and in the course of employment” standard as the “almost-universal coverage formula” with the “arising out of portion construed to refer to causal origin, and the course of employment portion to the time, place, and circumstances of the accident in relation to the employment” (internal quotation marks omitted)). Although the term is used in both workers' compensation and tort cases, the differing policy objectives generally weigh against recognizing an overlap between the two diverging constructions of this single phrase. See Ovecka v. Burlington N. Santa Fe Ry. Co., 2008–NMCA–140, ¶¶ 11–13, 145 N.M. 113, 194 P.3d 728;Lessard v. Coronado Paint & Decorating Ctr., Inc., 2007–NMCA–122, ¶ 9, 142 N.M. 583, 168 P.3d 155.

Off–Duty Police Officers and the “Arising Out of and in the Course of Employment” Standard

{10} A distinctive body of workers' compensation law has arisen surrounding injuries to off-duty police officers. This is because police officers fulfill a unique role in society that coincides with increased responsibilities and a greater sense of duty to their employment than the average citizen. Luketic v. Univ. Circle, Inc., 134 Ohio App.3d 217, 730 N.E.2d 1006, 1011 (1999) (stating that a police officer's duty to protect the public “is distinctive in nature and quantitatively greater than the risk common to the public”). This sense of duty can arise both from official dictates of police officer conduct or from societal expectations that the amount of authority with which we imbue police officers corresponds to our reliance that they at all times effectively fulfill their...

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