Southern California police injured in Las Vegas shooting denied workers’ comp

By Jordan Graham, The Orange County Register (TNS)

Wednesday, Oct. 25, 2017 | 9:48 a.m.

As bullets rained down on a Las Vegas concert crowd this month, killing dozens, many of the 200-plus Southern California police officers attending the festival shifted instantly into law-enforcement mode.

They sprang to action — shepherding people to safety, performing CPR and helping local authorities secure the area — sometimes getting gunshot wounds or injuries in the process.

But as those wounded officers have begun filing for public-employee benefits to cover the long-term medical care some might need to recover from the trauma, local cities and counties are asking themselves whether they're required or even allowed to pay to treat off-duty police who chose independently to intervene in an out-of-state emergency. And due to some muddy language in California's labor code, it's unclear whether the municipalities will have to pony up.

On Monday, Orange County rejected workers' compensation claims from four sheriff's deputies injured in the shooting, paving the way for a court battle that could force appellate judges to eventually decide an untested issue touching several counties and cities in Southern California.

In Los Angeles County, which is considering whether to grant claims from two of its deputies shot Oct. 1 at the Route 91 Harvest festival, officials acknowledged they have no policy on how to handle such requests and said they expect the issue will result in litigation. Several other officers from Southern California law enforcement departments also plan to file claims in the near future, according to police unions, potentially forcing as many seven other municipalities -- including San Bernardino and Riverside counties -- to soon consider similar questions.

If the claims are approved, it could put taxpayers on the hook for years of medical expenses, allow officers to retire early on disability and guarantee injured officers paid time off in the short term. If officers begin to claim injuries related to PTSD suffered during the shooting -- as two deputies in Orange County did -- it also could open the door for scores of additional filings.

In San Bernardino County, which employs 11 deputies who attended the festival, including Sgt. Brad Powers, who was shot in the leg in Las Vegas, the deputies' union has initiated talks with the sheriff's department to advocate that Powers be treated as an on-duty injury.

A year ago, when San Bernardino County faced a high number of workers' compensation claims following a terrorist attack that killed 14 people and injured 22 others, most of them county employees, the county faced criticisms after some victims said they were denied medical treatments. In response, state Assemblywoman Eloise Gomez Reyes (D-San Bernardino) authored a law that required workplaces impacted by an act of domestic terrorism to hire a nurse case manager to help employees with their claims.

Steve Nyblom, a manager in Los Angeles County's risk management branch, which is weighing claims from two local deputies shot in Las Vegas, said a similar legislative intervention may be needed to clarify the labor code in light of the looming disputes.

"There is that vague issue, subject to interpretation, and issues relating to legislative intent should be clarified by the legislature," Nyblom said.

Had all those officers been shot and injured while responding to a mass-killing in California, they likely would be taken care of without dispute. But because they were shot in Nevada instead, their life-saving efforts could cost them dearly.

California's labor code states that public agencies are required to pay benefits to off-duty police officers injured while engaging in "protection or preservation of life or property, or the preservation of the peace anywhere in this state," even if the officer "is not at the time acting under the immediate direction of his employer." Out-of-state events are not mentioned, spurring multiple interpretations of the law.

"The statute does not allow counties to cover off-duty conduct outside of states," Orange County Supervisor Todd Spitzer said, expressing a view shared by county lawyers. "These police officers went into their instinctive training mode... and I don't think they should be punished because they trusted their instincts. But it requires a legislative fix to the statute to extend workers' benefits for out-of-state conduct."

However, local workers' compensation attorneys disagree with Orange County's interpretation of state law. And the union representing Orange County's sheriff's deputies has said that if the county denied its members' claims, the agency would be abandoning officers who were acting in accordance with their department's training.

"The sheriff's department has an expectation of its sworn members to take whatever actions are necessary to preserve life wherever they're at," said Tom Dominguez, president of the Association of Orange County Deputy Sheriffs. "If they deny the claims, then the message that they're sending to their peace officers is not to take action when it is certainly warranted."

"Everybody's watching what happens with these cases," Dominguez added.

Three worker's compensation lawyers offered the Southern California News Group three distinct interpretations of the state code, each of which would permit local agencies to extend benefits to the officers injured in Las Vegas.

One attorney said a separate labor statute allows agencies to voluntarily extend benefits regardless of obligation. A second lawyer said the law about off-duty claims didn't exclude out-of-state injuries because it didn't mention them at all. And a third said an extra comma in the phrasing of the law suggests there are no geographical limitations on benefit coverage if police are attempting to save lives when injured.

"When it comes to the (phrase) 'preservation of life,' there is no restriction on where that officer might be," said John Ferrone, a partner at the West Lake Village-based law firm Adams Ferrone & Ferrone, which represents several Southern California police unions.

"It makes sense to us that the legislature meant protection of life would not have any limitation, because if police are out of state trying to save lives, do we want to limit it as a public policy?" Ferrone said.

California's police officers are not uniformly trained to intervene in crimes while off work, according to the state's Commission on Peace Officer Standards and Training. But the commission stated that local agencies may have their own policies about off-duty engagement.

The Orange County Sheriff's Department said its academy includes training that teaches deputies how to decide whether to respond to some incidents while off duty. But the department did not respond to questions about whether it instructs officers on how to intervene in out-of-state or life-threatening situations. Dominguez said the department's training does not differentiate between in-state and out-of-state responses for officers.

In Bakersfield, where 14 local officers attended the Las Vegas musical festival, including officer Aaron Mundhenke, who was shot in the hip, the local police union has advised its members to seek legal advice if they are considering filing claims. But the union president, Officer Ramon Chavez, said he understands the city's potential predicament, "because there are 14 people, and if all these officers go out on stress, if they cover one, they'll probably have to cover everybody else."

Though Orange County has denied its deputies' claims, two county supervisors have proposed creating a policy to provide paid time off for off-duty employees who are wounded while trying to save lives in out-of-state "mass casualty" events. The sheriff's union remains concerned that the plan wouldn't cover the long-term medical care.

"If the county believed the law was on the side of these applicants, these claims would not be rejected," Orange County counsel Leon Page said. "But there's no wiggle room, there's no discretion."

"There's no ill will here," Page said. "We just think the law is clear."