Langham: Police Officers, Course and Scope

Friday, January 27, 2017 | 0

A recent case from Texas is an interesting illustration of workers' compensation compensability, particularly as it relates to police officers. 

Judge David Langham

County of El Paso v. Orozco involved a deputy sheriff and traveling. It was decided in December 2016. What is or is not compensable in workers' compensation is defined by state laws, so the fact that there is a particular outcome in Texas does not mean it would be the same elsewhere. Nonetheless, it is interesting to consider. 

In workers' compensation, we depend upon definitions. I have lamented that some do not appreciate that the devil is in the definitions.

Injuries and illnesses happen to us all. I am struggling right now with a peculiar pain my shoulder. I am not sure when it started or what I was doing. I just noticed that it hurts, and only when I reach for items in a particular way. I cannot tell if it is getting worse, getting better or whether I am just getting used to it. Did I hit it, strain it or am I just getting old? Is it related to my work? 

Two questions workers' compensation would ask about an injury is whether the it "arises from" my employment, and whether I was acting in "the course and scope of employment" when the injury occurred. Workers' compensation struggles with these two definitions, each intended to limit workers' compensation liability to that which is related to employment, as opposed to all of the other potential causes. 

This discussion gets complicated when employees travel or perform work at locations other than a clearly identified employer premises. A legal maxim was developed and many states have codified it, called the "going and coming" rule. The upshot is that most of us are not covered by workers' compensation during the time we travel from our home to the workplace each day, nor after work while we travel from the office/job back home. There are exceptions, though. 

Deputy Orozco died in an automobile accident while travelling home. He had been at an “extra-duty” assignment, where he was paid by a local school to maintain order at its premises. A multitude of police do this daily at various locations across the country. In the Florida panhandle, it is common to encounter police cars with flashing lights in front of churches when services end and many will try to turn onto a busy road. This deputy was in uniform and was driving "a marked patrol unit." 

The court noted that the deputy's regular duties included "patrolling the county, enforcing traffic laws and answering calls," but as a member of the crisis negotiating team he was "on-call 24 hours a day." Therefore, arguably, this deputy could be "on duty" at any moment, and perhaps unpredictably. 

In September 2005 the deputy was working at a college campus in "secondary employment." He was allowed to wear his official uniform and drive his county-owned patrol car. The type of assignment was one in which "the actual or potential use of law enforcement powers is anticipated." Thus, though he was not being paid by the county, he was permitted to exhibit the authority of the county in various ways. When the duty ended, he contacted the county dispatcher and told them he was heading home. 

His drive home was not uneventful, however. As he drove on the interstate, a vehicle in opposing traffic lost a wheel. 

In millions of miles of driving, I have seen a lot. I have never seen a vehicle lose a wheel and believe the odds against witnessing this are simply astronomical. I am not saying it cannot happen, just that it seems rare to me. Google "car loses wheel," though, and you will find stories and video. 

This wheel "bounced over the center divider and struck Ruben’s windshield, tragically resulting in his death." There is simply no way to describe this event as anything but an "accident."

If the odds are long against the loss of a wheel or seeing a vehicle lose a wheel, the odds of it striking another car have be even longer. And the odds of it striking the driver specifically are even longer. It is tragic and sad, but sometimes there will be injury even when the odds are long and every reasonable precaution is taken. Safety training and accident prevention are critical, but still accidents can happen. 

The deputy's widow sought workers' compensation benefits. The Texas Division of Workers’ Compensation, which adjudicates disputes similarly to the Florida's Office of Judges of Compensation Claims, heard the claim. The testimony established that while the deputy was "driving home he was required to take any action necessary, and to respond to 'anything that he observed on the way.'” Both the "sheriff and his chief deputy agreed that Ruben was in the course and scope of his employment at the time of his accident."

However, the sheriff conceded that the deputy was not paid for his time driving home, and that whether he was "on duty" or "off duty" was a "fine line."

The trial judge concluded that the deputy was in the course and scope of employment, and ordered benefits for the widow. The county appealed to the Appeals Panel of the DWC, which disagreed, concluding that the deputy "was not acting in furtherance of law enforcement at the moment of the accident."

The panel said he had completed his assignment and was "merely on his way home." During that trip, the deputy was not performing an “on-duty work assignment.” 

The widow sought a judicial review of the panel decision, and thus the case was heard by the Texas Court of Appeals, Eighth District. Both the widow and the county asked the court to summarily decide whether the deputy was "in the course and scope of his employment for the county" when this accident occurred. 

The court noted that at the time of the accident, the deputy was returning home.  He was paid for his assignment by a university, not the county. He had not been contacted by the police dispatcher to respond to a call or to engage in police duties. He was not responding to an emergency such as a citizen in need of assistance. He was not engaged in a law enforcement duty of preserving the peace. 

The court concluded that "at the time of the accident," the deputy was not "performing a task of crime deterrence and enforcement of traffic laws simply because he was driving down the interstate in a marked patrol vehicle." It said that there was "nothing which would distinguish (deputy) Ruben (Orozco), at the moment of the accident, from any number of other commuters." It therefore held that the deputy's "activity was not in the course and scope of his employment," and thus the accident was not compensable. 

As I read the opinion and drafted this post, I was reminded of another deceased police officer. KATC.com reported in January regarding a suicide attempt by a man on a New Orleans bridge in Louisiana. After a significant standoff, the man shot himself. The standoff began when authorities sought to take him into custody as a suspect in two killings. 

He was accused of killing a woman and "an off-duty police officer" who had stopped to assist her. The Chicago Tribune reported that the woman was pregnant. Allegedly, the shooter had fired at a woman named Simone Veal, who fled in a car. The shooter pursued her until she was involved in a collision. The off-duty officer, Michael Louviere, had finished his shift at 6 a.m. and was driving home to another jurisdiction when he came upon the scene. He "stopped to help."

Similar to the Texas deputy, Louviere  was returning home, had not been contacted by the police dispatcher to respond to a call or to engage in police duties. But, he also was 
responding to an emergency such as a citizen in need of assistance, engaged in a law enforcement duty of preserving the peace. 

Without a doubt, the outcome for Louviere and the pregnant woman is tragic. 

Two points are worth consideration. First, would these last two conclusions be sufficient to bring his actions within the "course and scope" of his employment, despite his being out of his jurisdiction and off the clock?

Second, remember that the determination of "course and scope" is made by reference to state law. Therefore, the decision regarding the compensability of Louviere's injury and death will be made according to Louisiana's definitions of "course and scope" and "arising out of," not Texas'. 

The devil is in the definitions, of that there is no doubt. And there may be motivation in them as well, for better or worse. When a police officer witnesses a vehicle accident do we want her/him to question geographic jurisdiction? When a police officer sees a pregnant woman in need of help, do we want her/him to stop, or to head home because he or she is off the clock? Does it make sense that there is perhaps a distinction between stopping to render aid and suffering a one-in-a-million accident on a highway?

These are the kinds of situations that challenge workers' compensation, and all who struggle to comprehend and apply how it works. It is as challenging for the veritable handful who struggle with how workers' compensation "should" work.

David Langham is deputy chief judge of the Florida Office of Judges of Compensation Claims. This column was reprinted, with his permission, from his Florida Workers' Comp Adjudication blog.