By Milan Simonich
Las Cruces Sun-News
SANTA FE, N.M. — Nobody disputes the saddest and most inspirational part of this story.
Off-duty police officer Kevin Schultz jumped into the Rio Grande River and saved a 12-year-old boy from drowning.
Schultz’s bravery cost him his own life. He helped the boy to the river’s edge, then collapsed facedown in shallow water.
A medical examiner said Schultz may have hit his head on a rock when he rushed into the river, an injury that incapacitated him. Schultz, who was 44, drowned almost a decade ago, on Aug. 17, 2002.
The fight over whether Schultz’s widow, Cheryl, is entitled to workers’ compensation benefits for his death is still grinding through New Mexico’s legal system.
Mrs. Schultz has lost two rounds, but on Wednesday her case goes before the New Mexico Supreme Court. The justices will hear arguments in her lawsuit against the Pojoaque Tribal Police Department and New Mexico Mutual Casualty Co.
Lawyers representing the department and insurance company wrote in their brief to the Supreme Court that Officer’s Schultz’s courage, though admirable, should not factor into the case.
“Respondent does not dispute that worker died a hero. However, worker’s heroism has no bearing on the issues presented for review,” the attorneys stated.
The police department and the insurance company argue that Mrs. Schultz missed the filing deadline to seek workers’ compensation benefits. Their lawyers claim she wants to sidestep the law to win her case.
“Settled New Mexico law establishes that a claim to recover compensation benefits for death of a worker must be filed within one year,” the attorneys stated in their brief.
The allegation of a missed deadline is the company’s main argument against paying a benefit to Mrs. Schultz in her husband’s death. But its lawyers also point out that Kevin Schultz was not on duty as a Pojoaque police officer and that his death occurred outside the boundaries of Pojoaque tribal land.
George Wright Weeth, the lawyer for Mrs. Schultz, counters that the only reason she did not file a claim for workers’ compensation benefits within a year was that tribal police lulled her into a false sense of security. They promised that they were handling all the paperwork on her behalf.
In her lawsuit, Mrs. Schultz says John Garcia, the Pojoaque tribal police chief, assured her on July 28, 2003, that he would submit the workers’ compensation claim. This was still within the one-year deadline for filing.
But in October 2003, Mrs. Schultz discovered that no workers’ compensation claim had been made on her behalf. She then filed a complaint.
It was bolstered by a letter from the lieutenant governor of Pojoaque Pueblo, who said Officer Schultz died in the line of duty. His message was that, even though Officer Schultz technically was not on the job the day he died, his bravery was that of a dutiful policeman.
One of the more peculiar parts of this case is that Pojoaque police were instrumental in helping Mrs. Schultz obtain a financial benefit from the federal government soon after her husband’s death.
Detective Tom Grady sent paperwork to the National Law Enforcement Officers Memorial in Washington, D.C., making the case that Schultz had acted as a heroic police officer. Grady said this would honor Officer Schultz’s sacrifice and establish that he died in the line of duty.
In February 2003, Schultz’s name and heroic deed were added to the national memorial.
In addition, Mrs. Schultz learned that she would receive a monetary award from the U.S. Department of Justice under a public safety officers’ benefit program. The job that Kevin Schultz had with Pojoaque tribal police was funded through a grant from the Bureau of Indian Affairs.
Given the help that Mrs. Schultz received from the police department in that instance, she had no reason to doubt the chief’s sincerity in saying he would file the workers’ compensation claim, Weeth said.
“Since she received federal line-of-duty benefits, she believed she qualified for state workers’ compensation benefits,” Weeth stated in his brief.
Thus far, the courts have ruled against Mrs. Schultz.
A workers’ compensation judge in 2008 struck down her claim on two grounds.
One was that the statute of limitations barred her claim from being considered. The other was that the accident in which her husband died “did not arise out of or in the course of employment.”
She appealed. The state Supreme Court decided that the merits of her case should be heard by the New Mexico Court of Appeals.
But last year, the Court of Appeals ruled that her complaint had not been timely. It did not address whether Officer Schultz’s death occurred in the course of his job as a police officer.
Richard J. Shane and Tiffany L. Sanchez, lawyers for the insurance company and tribal police department, said Mrs. Schultz missed more than one filing deadline for benefits.
Even if the clock did not start ticking until July 28, 2003, when she said the police chief told her he would submit the paperwork for workers’ compensation benefits, she still did not meet established deadlines, they said in their brief.
They also said Officer Schultz actually had taken a day off work to chaperone the youth group on a picnic, and therefore was not acting as a police officer when he dived into the river to help the boy.
Weeth said Mrs. Schultz is a victim, a woman under pressure who had reasonably believed her husband’s police department was looking out for her interests.
“The conduct of the employer twice led widow to believe compensation would be paid,” Weeth said.
Weeth maintains that same conduct by the police department should prohibit it from raising the claim that Mrs. Schultz missed the statutory filing deadline.
Long ago, in October 2003, the U.S. Coast Guard posthumously honored Officer Schultz with its Silver Life Saving Award. At that point, Mrs. Schultz called her husband “a common Joe” who reacted instantaneously to help a boy who was in trouble.
Her legal battle with the tribal police and insurance company was only beginning then, but one certainty had been established.
She said Officer Schultz would have had a hard time living with himself had he not gone into the river that day.
Copyright 2012 Las Cruces Sun-News, a MediaNews Group Newspaper