August 19, 2013 – Cheryl Schultz on behalf of Kevin Schultz (deceased) v. Pojoaque Tribal Police Department, and New Mexico Mutual Casualty Company, No. 28,508

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
Opinion Number:
Filing Date: 	AUGUST 14, 2013
NO. 28,508
CHERYL SCHULTZ on behalf of
KEVIN SCHULTZ (deceased),
Worker-Appellant,
v.
POJOAQUE TRIBAL POLICE
DEPARTMENT, and NEW MEXICO
MUTUAL CASUALTY COMPANY,
Employer/Insurer-Appellees.
APPEAL FROM THE WORKERS’ COMPENSATION ADMINISTRATION
Helen L. Stirling, Workers’ Compensation Judge
Academy Compensation Clinic, P.C.
George Wright Weeth
Albuquerque, NM
for Appellant
Riley, Shane & Keller, P.A.
Richard J. Shane
Kristin J. Dalton
Albuquerque, NM
for Appellees

OPINION
FRY, Judge.
{1} 	In this workers’ compensation case, the issue before us is whether Officer
Kevin Schultz’s accidental death arose out of and within the course of his employment
with the Pueblo of Pojoaque Tribal Police Department (Employer). 	The workers’
compensation judge (WCJ) concluded that Officer Schultz’s death did not arise out
of and in the course of his employment because he was off-duty, outside his
jurisdiction, and on a personal day trip near the Rio Grande at the time of the accident.
Because of the unique nature of law enforcement duties, we conclude that law
enforcement officers may recover workers’ compensation benefits in some instances
for off-duty injuries occurring in response to circumstances reasonably calling for
police officer assistance. 	Accordingly, because we also hold that there was a
sufficient nexus between Officer Schultz’s actions in undertaking the rescue of a
drowning child and the duties of his employment as a police officer, we reverse.
BACKGROUND
{2} 	The tragic facts of this case are not in dispute. Officer Schultz drowned while
saving a twelve-year-old boy who had fallen into the Rio Grande. Officer Schultz
responded to the child’s cry for help and jumped into the swift-moving water to rescue
him. While Officer Schultz was able to get the child to safety, he did so at the peril

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of his own life and suffered an unknown injury in the course of the rescue that
rendered him unable to save both himself and the child.
{3} 	On the day of the rescue, Officer Schultz was off-duty and voluntarily
chaperoning a church youth group trip to a recreational area on the Rio Grande near
Pilar, New Mexico. There were four adult chaperones on the trip, including Officer
Schultz and his wife, Cheryl. 	The child Officer Schultz rescued was one of the
children under their supervision. Officer Schultz was not “on-call” that day, nor was
he in uniform, although his badge and department-issued pager and firearm were
found on his body. The incident also took place outside the boundaries of the Pueblo
of Pojoaque reservation. Nevertheless, whether Officer Schultz believed his duty to
rescue the child arose from his responsibilities as a police officer, a chaperone, or
some measure of both, the parties agree that Officer Schultz died a hero.
{4} 	Consistent with public expectations that police officers may be required to act
in their official capacity while off-duty, Officer Schultz’s sacrifice was honored at
both the national and local levels. Officer Schultz is recognized on the National Law
Enforcement Officers Memorial and the State of New Mexico Law Enforcement
Memorial, both of which require for inclusion a finding that the officer died in the line
of duty. Cheryl and the couple’s son were also awarded survivor benefits under the
Public Safety Officers’ Benefits Act. See 42 U.S.C. § 3796(a) (2006) (providing for

1The WCJ also concluded that Cheryl’s claim was barred by the statute of
limitations. [RP 325] Discussion of the procedural issues related to Cheryl’s
complaint and initial appeal can be found in our Supreme Court’s prior decisions in
this case. See Schultz ex rel. Schultz v. Pojoaque Tribal Police Dep’t, 2010-NMSC-
034, 148 N.M. 692, 242 P.3d 259; Schultz ex rel. Schultz v. Pojoaque Tribal Police
Dep’t, 2013-NMSC-013, __ P.3d __.
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survivor benefits where the public safety officer “died as the direct and proximate
result of a personal injury sustained in the line of duty”). 	Indeed, the lieutenant
governor of the Pueblo of Pojoaque sent Cheryl a letter recognizing that “[y]our
husband, Kevin Schultz, died in the line of duty” and that the “Pueblo of Pojoaque
will do anything necessary for you to receive survivor’s benefits, [workers’]
compensation or any other benefits available to you and your grieving family.”
{5} 	Cheryl subsequently filed a workers’ compensation claim for medical and
survivor benefits against Employer and its insurer, New Mexico Mutual Insurance
Company. Following the trial, the WCJ barred recovery by concluding, in part, that
Officer Schultz’s death did not arise out of and occur in the course of his
employment.1
DISCUSSION
Standard of Review
{6} 	Because the material facts in this case are not in dispute, we review de novo.
See Losinski v. Drs. Corcoran, Barkoff, & Stagnone, P.A., 1981-NMCA-127, ¶ 4, 97
N.M. 79, 636 P.2d 898 (“Where [the] facts are not in dispute, it is a question of law

4
whether an accident arises out of and in the course of employment.”). In reviewing
this issue, we are mindful that the Workers’ Compensation Act (WCA) represents a
“delicate balance between the rights and interests of the worker and the employer.”
Gonzalez v. Performance Painting, Inc., No. 32,844, slip op. ¶ 9 (N.M. Sup. Ct. May
30, 2013). Thus, “any judicial analysis under the [WCA] must balance equally the
interests of the worker and the employer without showing bias or favoritism.” 	Id.
(alteration in original) (internal quotation marks and citation omitted).
{7} 	Given the unique nature of law enforcement duties, including the fact that in
some circumstances an off-duty police officer may be required to respond in an
official capacity to incidents arising in the officer’s presence, courts have struggled
with determining the compensability of off-duty police officer injuries using
traditional interpretations of the “arising out of and in the course of employment” test.
Below, we discuss the traditional analysis, the unique risks faced by police officers
both on- and off-duty, application of the traditional “arising out of and in the course
of employment” test to off-duty police officer injuries, and why the traditional
analysis is an inadequate benchmark for determining the compensability of off-duty
police officer injuries. We conclude by formulating the proper inquiry for injuries to
off-duty police officers responding to incidents reasonably calling for police

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assistance and hold that Officer Schultz’s death arose out of and in the course of his
employment.
The Historical “Arising Out of and in the Course of Employment” Test in New
Mexico
{8} 	“For an injury to be compensable it must be caused by an accident ‘arising out
of and in the course of employment.’ ” Velkovitz v. Penasco Indep. Sch. Dist., 1981-
NMSC-075, ¶ 2, 96 N.M. 577, 633 P.2d 685 (quoting NMSA 1978, Section 52-1-9
(1973)). 	“Arising out of” and “in the course of employment” are two distinct
requirements. 	Hernandez v. Home Educ. Livelihood Program, Inc., 1982-NMCA-
079, ¶ 9, 98 N.M. 125, 645 P.2d 1381. The “arising out of” prong relates to the cause
of the accident. Id.; see Velkovitz, 1981-NMSC-075, ¶ 2 (“For an injury to arise out
of employment, the injury must have been caused by a risk to which the injured
person was subjected in his employment.”); Kloer v. Municipality of Las Vegas, 1987-
NMCA-140, ¶ 3, 106 N.M. 594, 746 P.2d 1126 (“The term ‘arising out of’ the
employment denotes a risk reasonably incident to claimant’s work.”). 	Typically,
accidents satisfying this prong will include those occurring during acts the employer
has instructed the employee to perform, acts incidental to the worker’s assigned
duties, or acts that the worker had a common law or statutory duty to perform.
Ramirez v. Dawson Prod. Partners, Inc., 2000-NMCA-011, ¶ 14, 128 N.M. 601, 995
P.2d 1043. The term “course of employment,” on the other hand, “relates to the time,

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place, and circumstances under which the accident takes place.” 	Velkovitz, 1981-
NMSC-075, ¶ 2. 	We have stated before that “an injury occurs in the course of
employment when it takes place within the period of employment, at a place where
the employee may reasonably be, and while the employee is reasonably fulfilling the
duties of employment or doing something incidental to it.” Kloer, 1987-NMCA-140,
¶ 7. In order for a claimant to be awarded compensation, both of the requirements for
“arising out of” and “in the course of employment” must co-exist at the time of the
injury. Garcia v. Homestake Mining Co., 1992-NMCA-018, ¶ 6, 113 N.M. 508, 828
P.2d 420.
{9} 	New Mexico’s use and construction of the “arising out of and in the course of
employment” standard in workers’ compensation jurisprudence is not novel. See 1
Arthur Larson & Lex Larson, Larson’s Workers’ Compensation Law § 3.0, at 3-1, -4
(2012) (referring to the “arising out of and in the course of employment” standard as
the “almost-universal coverage formula” with the “arising out of portion construed to
refer to causal origin, and the course of employment portion to the time, place, and
circumstances of the accident in relation to the employment” (internal quotation marks
omitted)). Although the term is used in both workers’ compensation and tort cases,
the differing policy objectives generally weigh against recognizing an overlap
between the two diverging constructions of this single phrase. 	See Ovecka v.

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Burlington N. Santa Fe Ry. Co., 2008-NMCA-140, ¶¶ 11-13, 145 N.M. 113, 194 P.3d
728; Lessard v. Coronado Paint & Decorating Ctr., Inc., 2007-NMCA-122, ¶ 9, 142
N.M. 583, 168 P.3d 155.
Off-Duty Police Officers and the “Arising Out of and in the Course of
Employment” Standard
{10} 	A distinctive body of workers’ compensation law has arisen surrounding
injuries to off-duty police officers. This is because police officers fulfill a unique role
in society that coincides with increased responsibilities and a greater sense of duty to
their employment than the average citizen. Luketic v. Univ. Circle, Inc., 730 N.E.2d
1006, 1011 (Ohio Ct. App. 1999) (stating that a police officer’s duty to protect the
public “is distinctive in nature and quantitatively greater than the risk common to the
public”). 	This sense of duty can arise both from official dictates of police officer
conduct or from societal expectations that the amount of authority with which we
imbue police officers corresponds to our reliance that they at all times effectively
fulfill their mission to protect and serve the public. Jordan v. St. Louis Cnty. Police
Dep’t, 699 S.W.2d 124, 126 (Mo. Ct. App. 1985) (“In a sense, a police officer is never
off-duty.”); see Lane v. Indus. Comm’n of Ariz., 178 P.3d 516, 521 (Ariz. Ct. App.
2008) (“[F]ew other fields of employment require the employee, during nonworking
hours, to risk his or her own safety to protect others.”). Rarely do a police officer’s
duties begin and end at the time clock. City of El Dorado v. Sartor, 729 S.W.2d 430,

8
432 (Ark. Ct. App. 1987) (“[I]t is the nature of police work that an officer might at
any time be called into duty, either by his superiors or by what he observes.”).
{11} 	Often, however, the nature of law enforcement duties and the varying
environments where an officer may be called upon to exercise those duties have
created difficulties in applying the traditional “arising out of and in the course of
employment” analysis to off-duty activities that result in injury. 	See Cooper v.
Dayton, 696 N.E.2d 640, 646, 648 (Ohio Ct. App. 1997) (noting the difficulty in
applying the traditional workers’ compensation factors, such as “time, place, and
circumstances,” to an instance where a police officer was moonlighting as a grocery
store security guard and was injured attempting to arrest shoplifters). In some cases,
the circumstances surrounding the off-duty officer’s injury call for the officer to act
in a role consistent with a primary responsibility of crime interdiction. For example,
in Luketic, an off-duty police officer visiting a bank on a personal errand was shot by
a bank robber while attempting to prevent a robbery. 730 N.E.2d at 1008. The court
held that the officer was entitled to workers’ compensation for his injuries, despite the
officer being on injury leave and outside his jurisdiction at the time of the incident.
Id. at 1011; see City of Phoenix v. Indus. Comm’n of Ariz., 742 P.2d 825, 830 (Ariz.
Ct. App. 1987) (affirming an award of survivor benefits to the family of an off-duty
police officer who was killed while moonlighting as a hotel security guard where the

9
officer was shot while investigating a robbery that occurred at the hotel). In more
difficult cases, the off-duty officer’s injury arises while rendering assistance to
members of the public but not necessarily in ways that implicate police-specific
duties. For instance, in Spieler v. Village of Bel-Nor, the off-duty police officer was
returning from a party with his date when they came upon a car accident outside his
jurisdiction. 62 S.W.3d 457, 458 (Mo. Ct. App. 2001). The officer approached the
accident to check on the passengers and then used his date’s cellular phone to call 911.
Id. While standing in the street, the officer was struck by a passing car and severely
injured. Id. The court affirmed the award of workers’ compensation benefits. Id. at
461; see Lane, 178 P.3d at 518-19 (awarding benefits to an off-duty police officer who
was shot when, following a mountain bike excursion with his friends, random
strangers began firing on the group when the officer was attempting to pull an
imperiled friend to safety); Traveler’s Ins. Co. v. Hobbs, 222 S.W.2d 168, 170-71
(Tex. Civ. App. 1949) (affirming the award of workers’ compensation benefits where
an off-duty police officer was walking with his wife and was struck by a car on the
basis that the officer assumed the role of a police officer prior to being struck by
pushing his wife out of the way of the vehicle).
{12} 	While these cases present widely different factual scenarios consistent with the
myriad of risks faced by police officers on a daily basis, the ultimate determination

10
in most cases is typically rooted in statutes or police department regulations
compelling or authorizing the off-duty action, or, at the least, an implicit expectation
that police officers will take some action not required of the general public when
emergencies arise. See Lane, 178 P.3d at 520 (stating that the police department code
of conduct requiring officers to act in an official capacity if confronted with an
incident “requiring police action . . . [to] safeguard life, property, or prevent the escape
of a felon” exposed the officer to “an increased risk of being injured by gunfire if a
crime or other threat to life occurred in his presence than would be faced by a
similarly situated non-officer” (omission and alteration in original) (footnote and
internal quotation marks omitted)); Spieler, 62 S.W.3d at 459 (“An officer reading
[the provisions of the police manual] would certainly think his superiors would expect
him to stop at the scene of an accident, wherever occurring, to determine whether
people at the scene needed immediate assistance, and to call for such assistance when
necessary.”); Luketic, 730 N.E.2d at 1011 (“[The a]ppellant had a legal and moral
duty, pursuant to statutory authority and his oath as a police officer, to protect the
public and attempt to prevent a violent felony. This duty placed [the] appellant in his
‘zone of employment’ when he was shot while intervening in the armed bank robbery,
notwithstanding that [the] appellant was off duty and outside his jurisdictional
authority as a police officer.”). 	Courts construing these statutory and regulatory

11
provisions to encompass a police officer’s conduct at the time of the injury have
concluded either that there was a benefit flowing to the employer from the officer’s
actions or that the officer’s conduct furthered the interests of the employer so as to
justify the award of compensation. 	See City of El Dorado, 729 S.W.2d at 432
(concluding that an off-duty officer involved in an altercation with a belligerent man
at a bar “was motivated by the public interest, and that the attack upon his person, and
the subsequent disturbance of the peace . . . constituted a serious criminal offense or
threat to life . . . [and] that the City of El Dorado obtained a benefit from the
appellee’s actions”); Municipality of Bethel Park v. Workmen’s Comp. Appeal Bd.,
636 A.2d 1254, 1259-60 (Pa. Commw. Ct. 1994) (holding that an unofficial policy
encouraging off-duty officers to investigate criminal activity was sufficient to
conclude that the officer was acting “in furtherance of the [e]mployer’s interests when
he suffered his heart attack” after investigating a potential disturbance near his
backyard).
{13} 	However, insofar as these cases purport to apply the traditional arising out of
and in the course of employment test, they remain largely unpersuasive. Many of the
statutory or police department provisions that have been relied upon speak only
generally of a police officer’s duty to act. See City of Pittsburgh v. Workmen’s Comp.
Appeal Bd., 529 A.2d 1196, 1197 (Pa. Commw. Ct. 1987) (“All members, although

2We note that in some jurisdictions, a finding of a direct or indirect benefit to
the employer or that the employee’s actions at the time of the injury furthered the
interests of the employer is a prerequisite to compensability. 	See, e.g., City of El
Dorado, 729 S.W.2d at 431-32; Cooper, 696 N.E.2d at 644.
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relieved from actual performance of duty, are still held to be on duty at all times and
must be prepared to act immediately . . . in all cases needing immediate action coming
to their attention.” (internal quotation marks and citation omitted)); see also Lane, 178
P.3d at 523 (“Off[-]duty officers shall act in an official capacity if they observe an
incident requiring police action . . . if such action will safeguard life[.]” (omission in
original) (emphasis, internal quotation marks, and citation omitted)). Similarly, the
benefit flowing to the police department from an off-duty officer’s actions seems an
attenuated basis on which to ground compensation where it is members of the public,
specifically those receiving the police officer’s assistance, who actually benefit from
the officer’s decision to take action. 2
{14} 	While we recognize, in accordance with these cases, that regulations governing
off-duty officer conduct can aid in determining the parameters of the compensability
of an officer’s off-duty injury, especially in circumstances where an officer is
instructed not to act, we believe that an overly technical or singular focus on such
provisions fails to account for the amount of discretion the public expects an off-duty
officer to exercise in the face of a potential emergency. 	The immediacy of action

13
often called for in such circumstances would hardly permit officers the time to
consider whether they are obligated to act under their respective police department
regulations and, thus, whether the circumstances would entitle them to compensation
should they be injured. See City of Pittsburgh, 529 A.2d at 1197 (“[W]e would [be]
loath to hold that [the] claimant should sit by idly while a fellow officer must fend for
himself against a crowd of ruffians because he would go uncompensated if seriously
injured because of his entry into a fracas.”). 	Instead, police officers just act.
Therefore, placing too much emphasis on often broadly worded regulations to support
a finding of an attenuated benefit to the employer in order to fit the officer’s actions
into traditional workers’ compensation jurisprudence, which was developed in
accordance with more traditional employment environments, would dampen the
reliance our society places on police officers to respond to circumstances in which we
expect them to intervene. See Tighe v. Las Vegas Metro. Police Dep’t, 877 P.2d 1032,
1035 (Nev. 1994) (“[T]he unique nature of law enforcement requires us to distinguish
it from other types of traditional employment.”).
{15} 	Instead, what we gather from these cases is an implicit recognition that the
traditional interpretations of the “arising out of and in the course of employment”
standard are inadequate benchmarks for determining whether an injured off-duty
police officer is entitled to compensation. 	Given the unique nature of law

14
enforcement duties and the various circumstances calling for the exercise of those
duties, strict application of the “time, place, and circumstances” factors or attempts to
delineate what risks off-duty police officers are likely to face incidental to their
employment 	strains 	the 	function 	these 	factors 	have 	served 	in 	our 	workers’
compensation law in other contexts. Therefore, we think it is necessary to reexamine
our application of the “arising out of and in the course of employment” standard in the
context 	of 	off-duty 	law 	enforcement 	officers 	injured 	while 	responding 	to
circumstances that reasonably call for immediate police assistance.
Formulation of the Proper Inquiry
{16} 	Traditionally, the “arising out of” prong has looked to the causal connection
between 	the 	risk 	giving 	rise 	to 	the 	injury 	and 	the 	worker’s 	employment
responsibilities. See Velkovitz, 1981-NMSC-075, ¶ 2. As noted above, construing this
prong too narrowly would threaten to introduce unforeseen and potentially inequitable
results due to the seriousness of the risks both on- and off-duty police officers
encounter on a routine basis. However, given the small distinction between society’s
expectations of an on- and off-duty police officer faced with an emergency, the focus
under this prong should be the nature of the incident in relation to risks generally
faced by on-duty officers in which they would be expected to respond, albeit with due
regard for those actions or circumstances in which an off-duty officer has been

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instructed 	not 	to 	act 	or 	intervene. 	This 	inquiry 	would 	therefore 	include 	a
determination of the reasonable expectations of an on-duty officer confronted by the
same 	or 	similar 	circumstances, 	regardless 	of 	whether 	an 	on-duty 	officer’s
responsibility to act would arise from statute, police department regulation, or a
common 	sense 	expectation 	that 	the 	circumstances 	surrounding 	the 	incident
necessitated a response.
{17} 	The “in the course of employment” prong, on the other hand, considers “the
time, place, and circumstances under which the accident takes place.” Id. Similar to
the “arising out of” requirement, traditional interpretations of the “in the course of
employment” prong are difficult to apply to a type of employment that recognizes
little distinction between the responsibilities of its on-duty and off-duty workers. It
is therefore nearly impossible to formulate adequate parameters on the time, place, and
circumstances factors sufficient to encompass the various occasions, locales, and
circumstances where an off-duty officer’s injury could take place and still entitle him
or her to compensation.
{18} 	We believe that when determining a police officer’s eligibility for injuries
sustained in circumstances not traditionally arising from or in the course of predictable
employment activities, the proper focus should be on the circumstances giving rise to
the accident, specifically the nature of the officer’s actions and the manner of their

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performance in relation to a similarly situated on-duty officer. That is not to say that
some inquiry into the time and place of the accident is irrelevant. But given that the
issue before us concerns an off-duty police officer, the “time” factor is of little analytic
value insofar as this factor relates to injuries occurring on duty, where we have already
concluded that police officers are entitled to recovery for off-duty injuries in some
circumstances. See, e.g., Municipality of Bethel Park, 636 A.2d at 1255-56, 1259-60
(affirming the award of the compensation benefits where an officer suffered a heart
attack after investigating a potential criminal activity during his vacation leave time).
Furthermore, consistent with previously cited case law, we decline to place an explicit
jurisdictional limitation on an off-duty police officer’s entitlement to compensation.
See, e.g., Jordan, 699 S.W.2d 12; Luketic, 730 N.E.2d 1006; City of Pittsburgh, 529
A.2d 1196;. We note, however, that the more attenuated the officer’s law enforcement
relationship to the jurisdiction in which the accident arises, the more relevant the place
of the accident should become to the workers’ compensation judge’s conclusion.
Nevertheless, the relationship between the circumstances of the incident and the off-
duty officer’s response in relation to a similarly-situated on-duty officer should remain
paramount.
{19} 	In sum, the “arising out of” and “in the course of employment” standard for
injuries to off-duty police officers occurring in response to an incident that reasonably

17
called for police assistance constitutes a case-by-case, pragmatic determination of the
nexus between the nature of the incident giving rise to the accident and the resulting
injury and the person’s duties as a public safety officer. Stated generally, determining
the connection between the incident and the employment is the goal of any “arising
out of and in the course of employment” analysis. See 2 Arthur Larson & Lex Larson,
Larson’s Workers’ Compensation Law § 29.0 (2012) (“In practice, the ‘course of
employment’ and ‘arising out of employment’ tests are not, and should not be, applied
entirely independently; they are both parts of a single test of work-connection[.]”).
But given the unique expectation placed upon police officers to officially act while
off-duty in some circumstances, we must recognize the various, and often serious,
risks faced by police officers when fulfilling their broader duty to protect and serve
the public. In our view, emergency actions that on-duty police officers would take in
the course of their employment that are taken by off-duty police officers can be
considered reasonably incidental to their employment responsibilities. Thus, to the
extent our conclusion broadens the traditional construction of the arising out of and
in the course of employment standard in this unique employment context, it does so
in accordance with the “special, unpredictable[,] and emergency situations that are
typical of police work[,]” Pounds v. Board of Trustees of Fire and Police Disability
and Retirement Fund, 749 P.2d 1227, 1229 (Or. Ct. App. 1988), and the recognition

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that police officers “are often under a continuous duty to protect the public, even when
not at work.” Davis v. United States, 50 Fed. Cl. 192, 201 (2001).
Officer Schultz’s Death Arose Out of and in the Course of His Employment
{20} 	Turning to the circumstances surrounding Officer Schultz’s death, we conclude
that there was a sufficient nexus between the incident—the rescue undertaken by
Officer Schultz—and his duties as a public safety officer to support an award of
compensation.
{21} 	The arising out of prong is satisfied here by the critical nature of the incident.
The extent of a police officer’s duty to protect and serve the public is not limited to
crime prevention. See Spieler, 62 S.W.3d at 459-60 (“[T]he interdiction of felonies
does not fully define the duty of police officers in providing protection to members
of the public who need assistance, wherever they find them.”). Rendering assistance
to a child in danger of drowning is among those risks to which common sense dictates
that an on-duty officer faced with a similar circumstance would be expected to
respond. Furthermore, we note that Officer Schultz was not prohibited by Employer
regulations from undertaking the rescue in his official capacity. 	The regulations
caution officers against acting outside their jurisdiction but state that an officer can
initiate extra-jurisdictional action in “circumstances so serious that immediate action

19
must be taken.” No one can seriously dispute that the circumstances giving rise to
Officer Schultz’s death required immediate action.
{22} 	Employer argues, however, that Officer Schultz’s death was not in the course
of his employment because he was acting outside the scope of his training in
undertaking a swift-water rescue. 	Under the circumstances in this case, we reject
Employer’s argument to the extent that it asks this Court to second-guess Officer
Schultz’s decision to enter the water in order to save the child. There may be some
circumstances in which a police officer’s response to an emergency would be so
incongruent with the expected response of a similarly situated on-duty officer as to
remove the officer’s actions from his or her “course of employment.” This could be
evidenced, in part, by deviations from police department regulations, training, or other
specific instructions. But Officer Schultz’s response does not fall into that category.
Employer points us to no regulation that prohibits its police officers from taking
action beyond their specific skill set. 	Rather, the regulations invest officers with
discretion in their response to incidents and directs officers to “[a]ct promptly with
energy, firmness, and decisiveness at . . . any situation requiring police attention.”
{23} 	It is also apparent that for Officer Schultz to have taken any other action than
to attempt to personally rescue the child would have been the equivalent of taking no
action at all. Simply stated, notifying the proper authorities, especially dispatching

20
persons with swift-water rescue skills, would likely have resulted in the child’s death.
Although there was conflicting testimony as to whether Officer Schultz could have
been subject to discipline for not taking action that day, we note that the regulations
consider “[c]owardice or failure to perform police duties because of danger” a
dereliction of duty. Thus, we are confident that Officer Schultz exercised the same
degree of discretion and decisiveness as would a similarly situated on-duty officer
under the circumstances, despite his lack of swift-water rescue training.
{24} 	The WCJ focused on three key factors in concluding that Officer Schultz’s
death did not arise out of and in the course of his employment. The WCJ found it
determinative that Officer Schultz had requested the day off and was not on call, that
the accident was outside his jurisdiction, and that Officer Schultz was not in an area
where his employment required him to be because the purpose of the trip was purely
personal. We disagree that these factors preclude compensation in this case.
{25} 	First, although some courts have utilized an officer’s “on-call” status as a basis
for 	awarding 	compensation, 	Officer 	Schultz’s 	status 	as 	not 	“on-call” 	is 	not
determinative of the issue before us. Society generally expects an off-duty officer to
act in circumstances reasonably calling for immediate police assistance when such
matters come to his or her attention, unless specifically instructed to refrain from
taking the action that led to the injury. See Stebens v. K-Mart Corp., 1983-NMCA-

21
044, ¶ 5, 99 N.M. 720, 663 P.2d 379 (“The fact that a worker, at the time of injury,
was disobeying an instruction from his employer may, under some circumstances,
deprive him of the right to compensation[.]”); see also Tighe, 877 P.2d at 1035
(stating that “police[ officers] may be at any moment ‘called’ into duty by events
taking place in [their] presence, whether or not [they] are technically off duty”
(quoting 1 Arthur Larson, Larson’s Workmen’s Compensation Law § 16.17 (1993))).
Depending on the circumstances, the officer’s responsibility to act may involve the
off-duty officer personally intervening or simply taking action to notify the proper
authorities. See Spieler, 62 S.W.3d at 458 (awarding compensation where an off-duty
officer was injured while notifying the authorities of a car accident). Regardless of
the officer’s chosen means of intervening, an off-duty officer’s decision to act in
emergency matters coming to his or her attention, as opposed to the officer being
dispatched in accordance with “on-call” status, is not ultimately conditioned on
whether the officer was expected to be available to the employer for other
emergencies and, thus, neither should the officer’s ability to recover when the officer
is injured in the course of personally initiating such action. 	Instead, the relevant
inquiry when an off-duty officer chooses to respond to such an incident is that stated
above—whether there is a nexus between the circumstances surrounding the officer’s
decision to act and the duties of the officer’s employment.

22
{26} 	Second, it is not determinative that the accident occurred outside Officer
Schultz’s jurisdiction. See Jordan, 699 S.W.2d 124; Luketic, 730 N.E.2d 1006; City
of Pittsburgh, 529 A.2d 1196. Employer has not directed us to a case in which this
fact has been material to the court’s determination. Arguably, whether a police officer
is injured while acting outside his or her jurisdiction could be material when the police
officer is acting in a law enforcement capacity without authorization to do so. 	See
Cooper, 696 N.E.2d at 648 (“[G]iven [the worker’s] statutory responsibility as a peace
officer to stop crime, his ‘place of employment’ for law enforcement purposes
reasonably could be viewed as anywhere he lawfully exercises his authority.”). But
that was not the case here. Officer Schultz took action in an emergency to rescue a
child in need of immediate assistance and was authorized to do so by Employer’s
policies permitting off-duty and extra-jurisdictional action in “circumstances so
serious that immediate action must be taken.”
{27} 	Third, Officer Schultz’s reason for being at the river and whether he had a
personal motivation to undertake the rescue as a chaperone on the trip is similarly
immaterial. 	See Lane, 178 P.3d at 521, 523 (noting the officer’s testimony that he
would have attempted to rescue his friends despite his employment as a police officer
and concluding, “[W]e decline to hold that when an employee is injured under such
circumstances, that injury becomes noncompensable merely because the worker may

3It is unclear whether the WCJ’s use of this phrase was intended to reference
a separate analysis under NMSA 1978, Section 52-1-19 (1987). To the extent that it
does, we emphasize that the circumstances surrounding Officer Schultz’s death did
not warrant a “going-and-coming” analysis. 	Ramirez, 2000-NMCA-011, ¶ 7
(explaining that “workers injured while traveling between home and work are
generally not eligible for compensation” (internal quotation marks and citation
omitted)). Furthermore, New Mexico courts have long considered the phrases “while
at work” and “in the course of employment” as synonymous, and we have already
concluded that Officer Schultz’s death occurred in the course of his employment. See
Whitehurst v. Rainbo Baking Co., 1962-NMSC-126, ¶ 20, 70 N.M. 468, 374 P.2d 849;
McKinney v. Dorlac, 1944-NMSC-017, ¶ 12, 48 N.M. 149, 146 P.2d 867.
23
have taken the same action in the absence of the employment-related duty”). While
we agree with the WCJ that other chaperones may have taken the same action as
Officer Schultz, the fact is that it was Officer Schultz who undertook the rescue. It is
not dispositive that an off-duty police officer may have both an official and a personal
motivation in taking the action that led to the injury. See id. at 523.
{28} 	The WCJ’s conclusion on this point highlights the inadequacy of strictly
applying traditional workers’ compensation factors to the exceptional duties of police
officers. The WCJ stated that being a police officer may “bring with it a higher duty
to act in an emergency . . . but that does not convert to one’s being at work or in any
place where their employer’s business requires their presence anytime they take some
emergency action.” However, rarely will an off-duty officer facing an emergency be
simultaneously in a location where “their employer’s business requires their
presence.”3 It is the nature of emergencies that they are often unanticipated, and it is

24
the nature of police work to render assistance when and where the need arises. Strict
application of this traditional analysis would thus defeat recovery in nearly every
instance, and it would disregard the expectations of police departments and the public
that some circumstances will call for an off-duty police officer’s response regardless
of why the officer is in the best position to provide the assistance.
{29} 	We therefore hold that Officer Schultz’s death arose out of and in the course of
his employment as an officer for Employer. If it is our expectation as a society that
police officers put themselves in harm’s way, sometimes irrespective of their on-duty
status, then it should also be our expectation that such officers be compensated when
they are injured in the course of doing so. See Davis, 50 Fed. Cl. at 208 (“The grave
physical risks facing public safety officers are imminent whenever an officer is under
a duty to take actions to protect the public. . . . 	[T]he potential for physical risk
pervades their daily lives, both on and off the clock. Placing officers under such a
continuous duty with its inherent risks confers a significant benefit on society.”). We
caution, however, that our conclusion should not be construed as holding that all off-
duty police officer injuries are compensable. 	We agree with the court in Jordan,
which stated, “In a sense, a police officer is never off-duty. . . . That does not mean,
however, that a police officer is covered by the [w]orker[s’ c]ompensation [l]aw at all
times regardless of the circumstances of the injury. 	There must be a correlation

25
between the injury sustained and the employment.” 	699 S.W.2d at 126 (citations
omitted). For instance, in appropriate circumstances, the traditional application of our
“going-and-coming” rule will be the proper standard for analyzing the compensability
of an off-duty officer’s injury. 	See § 52-1-19; see, e.g., Kunze v. Columbus Police
Dep’t, 600 N.E.2d 697, 699-700 (Ohio Ct. App. 1991) (holding that an off -duty
police officer is not entitled to police officer exception to the “going-and-coming” rule
when they are involved in an accident driving home). Similarly, our conclusion does
not affect this Court’s previous holding in 	Meeks v. Eddy County Sheriff’s
Department, 1994-NMCA-134, ¶ 14, 118 N.M. 643, 884 P.2d 534 (holding that the
police officer was not entitled to the workers’ compensation benefits “for suffering
an injury from self-directed, off-duty athletic activity”). 	Instead, our holding is
limited to emergency circumstances to which an off-duty law enforcement officer
responds, providing those circumstances are the kind to which an on-duty officer
would respond.

26
CONCLUSION
{30} 	For the foregoing reasons, we reverse the WCJ’s judgment and remand for
proceedings consistent with this Opinion.
{31} 	IT IS SO ORDERED.
CYNTHIA A. FRY, Judge
WE CONCUR:
___________________________
JONATHAN B. SUTIN, Judge
J. MILES HANISEE, Judge