A Jefferson County sheriff's deputy, who was injured during a kickball game at an elementary school, will have to undergo another appeals process before celebrating his win in a case against Sheriff Mitch Woods, an appeals court ruled.
The Texas Ninth District Court of Appeals is set to hear oral arguments on Jan. 15, 2009.
Deputy James VanDevender sued Jefferson County and the sheriff in August 2002, claiming that he had been improperly denied full salary and benefits for the time he was off recovering from his injury and subsequent surgery.
VanDevender lost his first trial in 2004, but on Nov. 29, 2007, was granted a new trial on appeal, as the Record reported in December 2007.
Former 58th District Court Judge James Mehaffy had ruled in the county's favor in August 2004. VanDevender asked for a new trial but was denied, and then appealed to the higher court. VanDevender and Jefferson County jointly filed an agreed motion for remand back to the 58th District.
After another appeal and a ruling by the Texas Supreme Court remanding the case back to the 58th District Court, the now presiding Judge Bob Wortham ruled in VanDevender's favor, granting his motion for partial summary judgment on Aug. 21.
In accordance with Texas Constitution, Art. III, 52(e), the judge's ruling ordered the county to pay VanDevender $63,426.24 in back pay, court papers say.
Less than two weeks following the ruling, Sheriff Woods appealed the decision on Sept. 5, arguing that the "trial judge erred in its interpretation and application of the constitutional provision," an appeals brief stated.
VanDevender, a Drug Abuse Resistance Education (D.A.R.E.) program officer, injured his shoulder on April 11, 2000, while supervising a kickball game at Highland Park Elementary School in Nederland.
In an affidavit given on April 24, 2003, in support of the trial court's original summary judgment, VanDevender says he was hired by the Jefferson County Sheriff's Department on Sept. 2, 1989, as a certified peace officer and worked as a sheriff's deputy for the department assigned to the D.A.R.E. program.
VanDevender claims that while supervising the game as part of his D.A.R.E. duties, an elementary student ran into him and knocked him down.
"When the student ran into me and I fell, I injured my shoulder," the deputy said in the affidavit.
After the student ran into him at Highland Park Elementary, VanDevender reported that he was off work for several weeks because of the shoulder injury and then returned to duty as a D.A.R.E. officer in August 2000. He was reappointed in January 2001.
The deputy stated he worked in that capacity until March 2001, when the pain in his shoulder would not respond to treatment or medication.
"The pain prevented me from continuing my duties with the Sheriff's Department," VanDevender stated.
He says he then sought additional medical advice and was informed he needed surgery to repair a torn rotator cuff and other muscle damage.
"The condition had been caused by the initial injury but my physician had been unable to diagnose the problem," he wrote.
VanDevender had shoulder surgery in August 2001 and a second operation on his neck a year later.
"Both surgeries were directly related to my on the job injury in April 2000. I have been off from work from March 2001, until the present time (April 24, 2003, the date of the affidavit)," he wrote.
The injuries and surgery kept VanDevender from work for four months. From the date of the injury on April 11, 2000, through August 2000, VanDevender's affidavit says he was paid full a deputy's salary of $678.90 per week.
But in March 2001, VanDevender testified that he was unable to work because of recurring neck and shoulder pain. He said the sheriff's department again paid his full salary for almost an entire year, through Feb. 28, 2002.
"Thereafter, Jefferson County refused to pay me my full salary and, instead, put me on workers' compensation only," he stated in the affidavit.
His workers' compensation payments were $504.17 per week from Feb. 28 to May 25, 2002, when the check was cut to $372 per week.
"I have been receiving that amount ever since May 25, 2002," VanDevender stated in 2003. "I should have been receiving the full $698.90 per week from Feb. 28, 2002. I am asking the court to award me my full salary for those weeks I have been off."
He also asked the court to order Jefferson County to pay all benefits, including pension contributions to the Texas County and District Retirement System, from Feb. 28, 2002, "until I return to work or until Dec. 31, 2004, the date Sheriff Wood's term expires, whichever occurs first."
The original complaint asserts that the Texas Constitution, Art. III, 52(e), requires that sheriff's deputies and other law enforcement officials are to receive "maximum salary continuation for time lost because of injuries sustained in the course of their official duties."
Sheriff Woods and Jefferson County have "refused full salary continuation to plaintiff despite the requirements of the Texas Constitution," the original complaint states.
On April 7, 2004, Judge Mehaffy found that the law was on the side of Jefferson County and that VanDevender "have and recover from the defendants nothing."
Mehaffy wrote that "the fact and law are with the defendants and that the plaintiff has failed to establish his right to the relief prayed for in his original petition."
VanDevender is represented in part by union attorney Richard Aman for the Combined Law Enforcement Agencies of Texas.
The defendants are represented by Jefferson County Assistant District Attorney Tom Rugg.
Trial case No. A167-686
Appeals Case No. 09-04-00377-CV