Deputy will get full compensation for injury time off, appeals court says

David Yates Aug. 31, 2009, 10:00am

After years of litigation, a new trial and several trips to an appeals court, a Jefferson County sheriff's deputy will recover the full pay he claims he is owed for time lost after a work-related injury.

As the Record reported in December 2007, Deputy James VanDevender lost a suit against the county and Sheriff Mitch Woods in 2004.
VanDevender appealed and on Nov. 29, 2007, was granted a new trial by justices on the Texas Ninth District Court of Appeals.

In a retrial in August 2008, Judge Bob Wortham, 58th District Court, entered a declaratory judgment in which he found that Article III, Section 52e of the Texas Constitution entitled VanDevender to receive his full salary benefit during the period of incapacity.

The new verdict led the county and Sheriff Woods to appeal, questioning whether or not the Texas Constitution requires the payment of salary continuation benefits to VanDevender during a second period of disability following the term of office in which the original injury occurred, court papers say.

While VanDevender's injury occurred in one term of office, the period of incapacity at issue in the suit occurred in a subsequent term of office, after VanDevender was re-appointed as a deputy sheriff, court papers state.

"We hold that the trial court did not err in holding that article III, section 52e of the Texas Constitution does not bar VanDevender from recovering salary continuation benefits during his 2001 term of office for an incapacity that resulted from an on-the-job injury that occurred during his prior term of office," states the appellate opinion authored by Justice Charles Kreger on Aug. 31.

"We overrule (the) issue and affirm the judgment of the trial court."
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.

He sued Woods and the county 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.

Former 58th District Judge James Mehaffy 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.

The Court of Appeals agreed that the case should go back to the trial court.

"The parties agree that, in the interest of justice, the case should be remanded to the trial court for a new trial on causation and any other remaining issues. The motion meets the requirements for agreed disposition of civil appeals. We vacate the judgment of the trial court and remand the cause to the trial court for a new trial. Costs shall be assessed against the incurring party," Justice David Gaultney wrote in the first appeal.

Case background

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 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 Sherif Wood's current term expires, whichever occurs first."

In August 2002, VanDevender, represented by union attorney Richard Aman for the Combined Law Enforcement Agencies of Texas, filed a lawsuit, naming Woods in his capacity as sheriff and Jefferson County as defendants. The defendants were represented by Assistant District Attorney Tom Rugg.

The original complaint asserted 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, 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."

After the ruling, VanDevender,pleaded for a new trial but was denied by Mehaffy.

Jefferson County District Court Case No. A167-686
Appeals Case Nos. 09-04-00477-CV and 09-08-0037-CV

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