It’s been more than 10 years since a Pojoaque Tribal Police officer died while rescuing a 12-year-old boy who was drowning in the Rio Grande, and his widow hasn’t received a dime in compensation.
But Cheryl Schultz has renewed hope after the New Mexico Supreme Court on Thursday ordered her case be sent back to the Court of Appeals, which previously rejected her request on grounds that the statute of limitations had expired by the time she filed the workers’ compensation paperwork.
While the Supreme Court’s decision was a victory for Schultz, yet another court battle lies ahead back in the Court of Appeals. But she’s determined to see it through.
“We’ve had so many hurdles thrown in front of us. The workers’ comp judge threw every hurdle she could in front of us, and we’ve gotten past every one of them,” she said, adding that her fight wasn’t just about the money. “I can’t imagine someone (else) having to go through this again. I’m not willing to let someone go through this, if this case can stop that.”
Schultz said there’s another reason she’s not willing to give up the fight.
“It’s important for our son to see that there are some things worth fighting for,” she said of the couple’s 19-year-old son.
Richard Shane, the attorney representing Pojoaque Tribal Police and its workers’ compensation insurer, New Mexico Mutual Casualty Company, did not return a phone message seeking comment.
The opinion issued by the Supreme Court concluded that the Court of Appeals “misread” the intent of a workers’ compensation mediator, who had dismissed the case without prejudice.
“It appears that the use of the term ‘dismissal without prejudice’ had consequences beyond what the mediator intended,” the opinion states. “… Considering all the circumstances, we conclude that neither the (Workers’ Compensation Act) nor the mediator intended an outright dismissal or that a second complaint would have to begin anew to satisfy the limitation period.”
The court further stated it was satisfied that Schultz’s complaint had been filed in a reasonable period of time. Now it wants the Court of Appeals to consider the merits of the case.
At issue is whether Officer Kevin Schultz died in the line of duty.
According to court documents, the officer had taken a day off in August 2002 to chaperone a group of children from his church on a recreational outing near Pilar.
During that outing, Officer Schultz jumped into the river and saved the boy, but then collapsed face-down in shallow water and drowned. A medical examiner said that the 44-year-old may have struck his head on a rock and become incapacitated.
The Pojoaque police and insurance company’s attorney contended in court papers that while Kevin Schultz’s actions were courageous and admirable, he wasn’t on duty as a Pojoaque police officer at the time of the incident. The filing noted that his death occurred outside the boundaries of tribal land.
Cheryl Schultz said none of that matters.
“When Kevin went to work as a police officer, he signed paperwork assuring that his family would be taken care of if something happened to him, whether he was on call, in or out of uniform,” she said. “I didn’t think it was fair for somebody to deny what he intended for us to have.”
Cheryl Schultz had provided testimony that Pojoaque Police Chief John Garcia told her during a meeting in July 2003 that he would “take care of getting the workers’ compensation paperwork done.” It wasn’t until about two months later – 45 days after the one-year statute of limitations expired – that she learned the paperwork was never filed. That same day, she took it upon herself to file the paperwork.
According to court records, Chief Garcia testified he did not recall telling Schultz that he’d take care of the paperwork but he acknowledged that “if she said that, it must be correct.”
Further bolstering Schultz’s case is an October 2003 letter from the police department to Cheryl Schultz that states that her husband “died in the line of duty” and that the Pueblo of Pojoaque would do what’s necessary to assure she receives survivor’s benefits, workmen’s compensation and any other benefits she’s entitled to.
Until now, the courts have always ruled against Schultz.
A workers’ compensation judge struck down her claim in 2008, saying that not only did Schultz fail to file for compensation within the time limitation, but her husband’s death “did not arise out of or in the course of employment.”
When Schultz appealed, the Court of Appeals agreed that her complaint had not been timely, but did not address the question of whether Kevin Schultz died in the course of his job as a police officer.
The Supreme Court determined that there are provisions in the law the Court of Appeals either overlooked or failed to take into account regarding the statute of limitations. It asks only that the appeals court “determine whether Schultz died within the course and scope of his employment.”
The Journal’s Joline Gutierrez-Krueger contributed to this story.