By Judge Alan M. Malott
The Albuquerque Journal
ALBUQUERQUE, N.M. — Today we look at two recent cases involving off-duty police officers which frame the question: What, if anything, do we expect of an officer faced with an emergency outside regular working hours?
In one case, a young woman was attacked by her former significant other when she went to retrieve her belongings from their former home. Her friends contacted a police officer who lived a door or two from the scene for help. The officer refused to get involved as he was not on duty at the time. The young woman was killed by her former paramour.
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.
Both cases have received a lot of media attention, for obvious reasons. Arguments have been made 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.
Instead officers, and apparently other emergency personnel for that matter, should look to the many other benefits available through their jobs. Workers’ compensation is only for those who are squarely “on the clock” when injured. 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.
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.
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.
There is an argument, certainly, that the unique job requirements of a police officer, firefighter or paramedic, and the responsibilities they take on when they pursue these service careers, require a broader definition of “on the job” than the auto mechanic, retail cashier or the person whose main occupational query is “Do you want to supersize that?”
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.
Alan M. Malott is a judge of the 2nd Judicial District Court. Before joining the court, he practiced law throughout New Mexico for 30 years and was a nationally certified civil trial specialist. If you have questions, contact Judge Malott at P.O. Box 8305, Albuquerque, NM 87198 or e-mail to: alan@malottlaw. com. Opinions expressed here are solely those of Judge Alan M. Malott individually and not those of the court.
Copyright 2010 Albuquerque Journal