Eligibility of National Guardsmen under Workmen’s Compensation

Subject:

Requested By: Lieutenant J. S. Powell Benefits and Safety Officer North Carolina Department of Crime Control and Public Safety

Questions: Is a North Carolina National Guardsman who is attending a summer training camp as required by Federal law and who receives full time duty pay plus the payment of all medical expenses from the federal government as a result of an injury sustained at the camp also entitled to receive workmen’s compensation benefits from the State?

 

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2. Notwithstanding the payment for disability and medical expenses by the federal government, should the North Carolina Department of Crime Control and Public Safety submit an Industrial Commission Form 19 (Employee’s report of injury to Employer) when a guardsman is injured while attending summer training camp as required by federal law?

    

3. Assuming that a member of the North Carolina National Guard receives an injury by accident under such circumstances and conditions as would entitle him to benefits under the provisions of both the Workmen’s Compensation Act as well as under G.S. 127A-108, what guidelines should be used in computing those benefits?

    

Conclusions: No. G.S. 97-2(2) expressly excludes from the provisions of the North Carolina Workmen’s Compensation Act members of the North Carolina National Guard who are injured by accident when called into service of the United States.

 

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2. No. While it might be advisable for the Department of Crime Control and Public Safety to prepare a Form 19 and place it in its own files for record keeping purposes. G.S. 97-92 does not require the filing of such a form with the Industrial Commission under circumstances when the National Guardsman is not considered an employee of the State of North Carolina for purposes of the Workmen’s Compensation Act.

    

3. All payments of benefits, inclulding payments of medical expenses, should first be computed under the provisions of the Workmen’s Compensation Act. The payments as provided under G.S. 127A-108 should then be computed for payment, deleting threfrom the amounts paid under the Workmen’s Compensation Act.

    

G.S. 97-2(2), in pertinent part, provides: "The term "employee" shall include members of the North Carolina National Guard, except when called into the service of the United States, . . . and members . . . shall be entitled to compensation for injuries arising out of and in the course of the performance of their duties at drill, in camp, or on special duty under orders of the Governor." (Emphasis added)

G.S. 97-2(2) therefore specifically provides that a member of the North Carolina National Guard is not considered a State employee for purposes of the Workmen’s Compensation Act while called into the service of the United States.

32 U.S.C. 318 provides that a member of the National Guard is entitled to hospital benefits pay and allowances, pensions and other compensation provided for a member of the Regular Army of the United States of corresponding grade and length of service whenever he is called or ordered to perform training under Sections 502 and 503 of this Title and is disabled in the line of duty from disease or injury while so employed.

32 U.S.C. 502 and 503 provide that under regulations of the Secretary of the Army a member of the National Guard shall be required to attend or participate in various drills or field exercises as set out therein.

Under the facts presented, the injured National Guardsman has received his full time duty pay, payment of medical expenses plus other extended benefits from the federal government as a result of an injury received while attending a required two-week summer training camp. The federal government, has apparently treated the guardsman as being called or ordered to attend the camp by the Secretary of the Army pursuant to 32 U.S.C. 318, 502 and 503.

Therefore, since the guardsman is being treated by the federal government as if he has been called into the service of the United States and is being provided his full pay and other benefits as a result of his injury, it follows that under G.S. 97-2(2) he should not be considered a State employee and entitled to receive duel benefits under the provisions of the North Carolina Workmen’s Compensation Act. Certainly, our Workmen’s Compensation Act was not intended to provide a National Guardsman, or any other employee, double benefits.

G.S.

97-92, in pertinent part, provides: "(a) Every employer shall hereafter keep a record of all injuries, fatal or otherwise, received by his employees in the course of their employment on blanks approved by the Commission." (Emphasis added)

G.S.

97-92, therefore, requires an employer to file a Form 19 whenever an employee is injured in the course of his employment with the employer. However, since under the facts presented herein the National Guardsman would not be considered a State employee under the provisions of the Workmen’s Compensation Act at the time of his injury, the Department of Crime Control and Public Safety should not be required to complete and file an Industrial Commission Form 19 with the Commission. It might be advisable, however, to complete and retain a Form 19 in the file on the guardsman, for purposes of future reference to the circumstances of this incident and

the denial of benefits to him by the Department.

G.S.

127A-108, which provides for certain benefits to a member of the North Carolina National Guard who without fault or negligence on his own part is disabled through illness, injury, disease contracted or incurred while on duty or by reason of his duty in the service of the state, provides, in pertinent part, as follows: "Nothing herein shall in anyway limit or condition any other payment to such member as by law may be allowed: Provided, however, any payments made under the provisions of Chapter 97 of the General Statutes or under federal statutes . . . shall be deducted from the payments made under this section."

G.S.

127A-108 specifically provides that any payments made under the provisions of Chapter 97 of the General Statutes, the North Carolina Workmen’s Compensation Act, shall be deleted from any payments made under this section. It follows, therefore, that Chapter 97 should be considered the primary provider over the provisions of G.S. 127A-108 in cases involving job-related injuries for guardsmen and that, therefore, payments should first be computed and made under that chapter. The payments as provided under G.S. 127A-108 should then be computed, deleting therefrom as credit any payments previously made under Chapter 97.

Rufus L. Edmisten Attorney General

Ralf F. Haskell Assistant Attorney General