Workers' comp and the off-duty cop

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By Merilee Dannemann

The workers’ compensation safety specialist visited a restaurant. While there, he discussed with employees the importance of shoveling snow from the parking lot for the safety of restaurant guests.
He reported this to a vice president of his company, a friend of mine. My friend asked if I noticed what the safety specialist did wrong.
“Of course,” I said. “He represents the work comp insurer. He should not promote risking employees’ safety to protect customers. The customers are somebody else’s problem.”
“You got it,” my friend said.
This does not imply that workers’ compensation specialists should encourage employees to let customers slip in the snow, but that their business is the employees.
Which is one reason why workers’ compensation is so topsy-turvy for emergency first responders.
The Kevin Schultz case has finally been decided by the Court of Appeals, in favor of the late Officer Schultz and his family.
Schultz was a Pojoaque Pueblo police officer who, on a church picnic, jumped into the Rio Grande to save a boy struggling in the water. He saved the child, but died himself.
This happened in 2002, and the case has been bouncing through the court system, partly due to a couple of technical glitches. The initial ruling by a workers’ compensation judge was that Schultz was not on duty and therefore outside the course and scope of his job.
This is not a question of whether he was heroic. Clearly, he was. It’s about the hard reality of insurance and what type of coverage his employer was paying for. The court decision says employers of police officers are — and have been — paying for more than we thought they were.
Emergency first responders follow different rules from the rest of us.
A guiding principle of the workers’ compensation system is that employers take responsibility for creating safe working conditions, and employees follow safety rules and procedures.
If you drive a car for work, your employer should provide a car with good tires and good brakes, and you should wear your seat belt and drive safely.
The employer’s incentive is that if you get hurt on the job, the employer pays the costs, through increased future insurance premiums. Your incentive is that getting hurt — well, hurts.
Police officers’ jobs involve inherently dangerous situations. Their employers can’t control that. Instead, they protect officers from those hazards by such means as training, equipment and rules of conduct, like not drinking alcohol on the job.
The employer has much less control when the officer is not on the job.
The officer might be drinking, might not have equipment, and might not be trained for the situation.
We can reasonably assume that the Schultz decision will not lead off-duty New Mexico police officers to take reckless risks. Nevertheless, some rule changes could be forthcoming as police departments adapt to this new responsibility, and it will cost us taxpayers some money.
A different but comparable theory led New Mexico to pass special legislation a few years ago for firefighters. This law (Senate Bill 303, 2009) provides that if a firefighter develops one of certain diseases, it is presumed to be work-related, even after retirement.
That’s because firefighters run into burning buildings without knowing — or ever finding out — what toxic substances they might be exposed to. Multiple chemical exposures over a career can lead to illness. (This law applies only to employed professional firefighters, not volunteers.) Firefighters, too, are public employees and the extra cost of covering those illnesses will come from our tax dollars.
It’s fair enough that we provide protection for people who risk their lives for public safety. We just have to be prepared to pay for it.

Contact Merilee Dannemann through triplespacedagain.com.