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Fighting for Death Benefits, CLEAT Continues to Battle for Survivors

COURTESY OF CLEAT

 

CLEAT’s Chris Jones with Tanner Claborn and Paula Claborn Henderson. Tanner and Paula are the surviving son and spouse of Harris County Pct. 4 Deputy Constable F. Scott Claborn who was killed in the line of duty on February 19, 2004. Deputy Claborn was killed when his marked patrol car, with emergency lights flashing, was struck from behind by a drunk driver. The Claborn’s have been in running battle with Harris County over survivor benefits, including worker’s compensation and health insurance.

By Chris Jones

During the early morning hours of February 19, 2004, Harris County Precinct 4 Deputy Constable Frank Claborn was sitting in his marked patrol car on Beltway 8 with the emergency lights displayed. He was doing something only a peace officer is authorized to do, operating an authorized emergency vehicle while escorting a road construction crew and directing traffic around a construction site. Something as routine as this soon turned tragically wrong when Donald Lee Fincher, intoxicated and driving over the speed limit, slammed into the back of the officers’ patrol car, killing him instantly.

What has not been routine is the level of effort by Harris County to avoid taking care of one of their own. Harris County has consistently challenged Deputy Claborns’ death as not being in the line of duty. And the officer’s boss, Constable Ron Hickman has publicly supported the officer’s killer.

There is a grey area when officers are hurt or killed while working second jobs. The question is whether the injury or death is considered “in the line of duty”. Generally, the rule of thumb is that if the officer was performing a duty that is inherent to their duties as a peace officer, such as effecting an arrest, as opposed to an ancillary duty for the private employer, then they are covered. For example, an officer may not be covered if they tripped and fell on a slippery floor while working for a grocery store, but if they were hurt while arresting a shop lifter, then they would be covered. It goes back to the old adage that an officer is on duty 24/7 and have a duty to act to protect the public. In Deputy Claborn’s case, he was operating an emergency vehicle, with overhead lights on, at the time of his death, something that only a peace officer is authorized to do.

Regardless, Harris County denied worker’s compensation benefits to the deputy’s wife, Paula, and his 11 year old son, Tanner. The family appealed and won twice during administrative appeals. The county wasn’t happy with that outcome so they sued the family in civil court. However, the Claborns’ prevailed and received workers compensation.

The county also failed to support the families claim for line of duty death benefits. They argued against the payment of benefits. The Employees Retirement System of Texas, the state agency charged with making determinations with regards to death benefits eligibility under Chapter 615 of the Government Code, initially denied benefits and the family had to appeal to a state administrative law judge. Ultimately the family prevailed and the state paid the death benefits and also issued a determination letter stating that the survivors were eligible for all benefits authorized under Chapter 615.

The county also dropped the family from the county’s health insurance plan, even though Chapter 615 provides that survivors are entitled to continued health insurance coverage. CLEAT became involved in 2009 when S.B. 872 passed and we helped the family re-apply for insurance coverage. They were again turned down because Ms. Claborn and Tanner were not on the county’s insurance plan at the time of death. They were instead on the plan offered by Ms. Claborn’s employer. One of the provisions of S.B. 872 was to allow survivors to continue on the public employers insurance plan, even if the spouse remarried or had insurance available through another employer. The idea was to make sure the family were covered, regardless of their employment situation which can unexpectedly change. The county argued that in order for this new provision was to apply, the spouse and/or dependents had to be insured at the time of death which was ridiculous because the whole purpose of the new provision to cover people who had elected not to be covered.

So CLEAT had to return to the legislature this year with S.B. 423. This bill again made it clear that if the family was “eligible” for coverage at the time of an officers death they could “purchase” or “continue to purchase” the insurance offered by the public employer. The bill passed and became law immediately when it was signed by Governor Perry on May 12, 2011.

The Claborn’s have now filed another request for insurance with the county under the provisions of S.B. 423. Paula Claborn has since remarried, and she and Tanner are currently covered under her husband’s insurance, but he is employed by a school district and with the cuts to the education budget, they are concerned about layoffs and the ability to keep their insurance if that should happen, especially since Tanner has juvenile diabetes. The Claborn’s have not yet received a response to their new request for insurance benefits.

Tanner Claborn, 17, the surviving son of Harris County Pct. 4 Deputy Constable F. Scott Claborn is pictured with the wreckage of his father’s patrol car. The Claborn’s retained the wreckage and use it as a display during drunk driving presentations at area schools.

As a side note to this case, after the death it came to light that the family of the suspect were friends and politically connected to the Precinct 4 Constable, Ron Hickman. The family were outraged to learn that instead of supporting his officer, Constable Hickman contacted the D.A.’s office and asked that the suspect be granted probation in the case. After Fincher was sentenced to prison, Constable Hickman wrote a letter to the parole board urging that the suspect be granted early release. The family reported this to media which resulted in news stories and public outcry against the Constable’s actions. One can only wonder if this had any impact on the county’s steadfast refusal to provide benefits to the family.

The family retained Deputy Claborn’s patrol car after the accident and use it as a display at DWI presentations at area schools. Tanner is now 17 and is a senior at Magnolia West High School. He plans to study Criminal Justice at Sam Houston State University, using the college tuition exemption offered under Chapter 615. He also hopes to attend law school and become a lawyer.

LIMITED OPPORTUNITY TO RE-APPLY FOR BENEFITS

S.B. 423 made a number of changes to the death benefits statute, Chapter 615, Government Code. First, law enforcement agencies now have a statutory duty to file death benefit claims with the Employees Retirement System of Texas for the families of officers killed in the line of duty. If a survivor did not receive a lump-sum death benefit they were entitled to because of the untimely filing of a claim, they may re-apply for this death benefit until September 30th of this year.

Also, if a survivor has been denied health insurance coverage, the bill allows them to re-apply for coverage until September 1, 2012. Call or e-mail me if you have any questions regarding these benefit provisions.

Montgomery County Police Reporter