Off-duty rescue personnel face tough choices when deciding to respond
Writing Nov.1 in the online edition of The Albuquerque Journal, Judge Alan M. Malott raises a question that we have explored before. In fact, we discussed one of the cases here, that of the widow of police officer Kevin Schulz, who was off duty when he drowned during the rescue of a 12-year-old boy.
This opinion piece at ABQJournal.com asks the question “How much is required of off-duty first responders?”
The first case it mentions is that of an off-duty police officer who declined to get involved in a domestic dispute which left a woman dead, killed by a former boyfriend. Tragic, to be sure, but no workers’ comp questions are involved.
The next case mentioned is that of Schulz and his widow, who is still fighting for workers’ comp benefits from the 2002 drowning accident.
Case goes back to appellate court
“The other case involved an off-duty officer who jumped into the Rio Grande to save a drowning child. He saved that child, but drowned himself. The workers’ compensation insurer denied benefits to his widow and family on the grounds that the officer was off duty, so his death was not work related. That position was upheld before the Workers’ Compensation Administration and the case is now in our Court of Appeals after the state Supreme Court ruled on a technical matter earlier this year.”
The judge mentions the widespread attention both cases received then says that one argument is that “an off-duty officer has no responsibility to act in an emergency and, if they do so to their peril, the consequences will not be covered by workers’ compensation because that system is not designed or intended to reward meritorious conduct.”
We’ve covered similar arguments regarding volunteer firefighters here, involving a case in which the ruling was that the rescuer needed to be alerted through proper channels before responding, and here, a case which affects not only VFDs in much of West Virginia but also many homeowners’ insurance rates.
‘Off the clock’?
Judge Malott also brings up the “other argument” that’s always tied to first-responders whom society expects to react as trained professionals, regardless of the situation: “But are police and emergency personnel ever really ‘off the clock’ if faced with an emergency? The answer depends upon the public policy we seek to effect.”
The next paragraph is so thoughtful, perhaps indicative of the judge’s experience in jurisprudence, that we’re breaking out each of his sentences as single, independent thinking-points:
- Workers’ compensation is a complicated area of law, and represents a legislative compromise between common-law concepts of negligence and the social need for a relatively quick and inexpensive means of protecting citizens who are injured on the job.
- The employer is shielded from responsibility for pain and suffering and other traditional damages while the employee is not faced with a lengthy court battle over traditional defenses to an injury claim and has access to prompt medical care.
- Like every compromise, there are times workers’ compensation looks better on paper than in everyday life.
- Like every legislative system, workers’ compensation law should be reviewed now and then to see if it’s in accord with the needs and policies of our society.
Woman attacked en route to parking spot
Following those cogent points, the judge brings up a case of female worker who got attacked on her way from the office to her assigned parking spot. As he writes, the denial of benefits was based on the idea that “she had technically left her job duties before the attack.”
Here’s the excerpt:
Not so very long ago, an employee who was attacked while walking to her assigned parking space was denied workers’ compensation benefits because she had technically left her job duties before the attack. On appeal, that decision was overturned because the employee was going to an assigned parking space and was where her employment required her to be when injured. Many other cases have addressed the scope of the phrase “on the job” to reflect the realities of the marketplace and the wide range of job requirements we all face daily.
So the appeals court got it right. That time. But we’ve also seen cases in which the carrier tried to contest the case when a clocked-out employee was injured by a fall while going to the restroom. And state law in Florida protects employees one the way to and from work. Unfortunately, laws are not consistent among the various states, which makes another good reason to retain an experienced, trained attorney to handle the vagaries of workers’ comp law.
What kind of system do we want?
As for emergency workers, the judge sums it up this way:
So, do we want a workers’ compensation system that recognizes the actual risks, and responsibilities we put on those licensed to protect us, or one that discourages them from considering a lifesaving function until they check their schedule for the week? Is the focus best placed on those who protect us in the worst of circumstances, or employers and their insurance companies? There are many opinions. I have one, too. But you can Judge for Yourself.
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Frequently enough, a worker’s compensation case may be so complex as to demand legal representation. However, sometimes what seems like a cut-and-dried situation to an injured worker may result in a smaller award than envisioned–or even a denial. Have you, a friend or a loved one been injured on the job? Whether you’re merely seeking answers about your rights or believe a lawsuit may be necessary, be sure to seek counsel with attorneys trained and experienced in workers’ compensation. Here’s some resources:
