All opinions are subject to modification
and technical correction prior to official publication in the
NO. COA08-204
Filed: 20 January 2009
FELISA R. BACCUS,
Employee,
Plaintiff
v.
I.C.
File No. 465811
N.C.
DEPARTMENT OF CRIME
CONTROL & PUBLIC SAFETY,
Employer,
SELF-INSURED (KEY RISK
MANAGEMENT SERVICES,
Servicing Agent),
Defendants
Appeal
by defendants from an opinion and award entered 27 November 2007 by the North
Carolina Industrial Commission. Heard in
the Court of Appeals 23 September 2008.
Lewis &
Daggett, Attorneys at Law, P.A., by Griffis C. Shuler and Christopher M.
Wilkie, for plaintiff-appellee.
Attorney General
Roy A. Cooper, III, by Special Deputy Attorney General Sharon Patrick-Wilson,
for defendant-appellants.
HUNTER,
Robert C., Judge.
Defendant
North Carolina Department of Crime Control and Public Safety (“defendant”)
appeals from an opinion and award of the North Carolina Industrial Commission (“the
Commission”) awarding Felisa R. Baccus (“plaintiff”), a former member of the
North Carolina National Guard, workers’ compensation benefits due to injuries
she sustained while participating in military training at Fort Hunter-Liggett
in California. The sole issue on appeal
is whether plaintiff was an “employee” as defined in N.C. Gen. Stat. §97-2(2)
(2007), and consequently, whether the Commission possessed subject matter
jurisdiction. Deputy Commissioner
Crystal Redding Stanback concluded plaintiff was an employee as defined in
section 97-2(2) and awarded her compensation.
The Commission affirmed with some modifications. After careful review, we vacate the opinion
and award.
I. Background
In
2003, plaintiff was a member of the North Carolina Army National Guard and
assigned to a unit and company based out of
On or
about 25 March 2003, plaintiff was “ordered to active duty for training (ADT)”
from 11 May 2003 until 25 May 2003 and instructed to report to
On 8
May 2003, while plaintiff was training at Fort Hunter-Liggett in
Plaintiff
was incapacitated and unable to perform her military or civilian employment
from 8 May 2003 until 5 November 2003.
As a result of her injuries, she received $2,676.80 per month in gross
incapacitation pay from the federal government from 8 May 2003 until 5 November
2003. In addition, upon filing for
severance pay with the Veterans’ Administration of the federal government,
plaintiff was found eligible for benefits based upon a total disability rating
of thirty percent (30%). She was awarded
$330.00 per month in severance pay for approximately one year, after which her
benefits increased to $439.00 per month and continue for the rest of her
life. At the time defendant filed this
appeal, this was the only compensation plaintiff had received as a result of
her injuries. In addition to the federal
compensation, defendant paid plaintiff approximately $273.00 per month for
participating in her monthly/weekend drill for the North Carolina National
Guard from the time she sustained her injuries (8 May 2003) until approximately
June 2004.
Due to
her injuries and physical limitations, plaintiff was discharged from the Army Reserve
effective 13 August 2004; however, she was not simultaneously discharged from
the North Carolina National Guard. She
was later determined to be physically unfit to continue with the North Carolina
National Guard. Since sustaining her
injuries, plaintiff has not been able to return to her civilian employment as a
nursing assistant. With the exception of
a brief period of employment with Church’s Chicken, a job which plaintiff had
to leave due to her physical limitations, she has not returned to civilian
employment in any capacity since 3 February 2004.
In
September 2004, plaintiff filed for state workers’ compensation benefits for
the injuries she sustained on 8 May 2003.
Defendant denied liability asserting that plaintiff “was not on State
active duty under orders of the Governor at the time of the alleged injury;
therefore, she would not be considered an ‘employee’ under the [
II. Analysis
In
order to determine whether the Commission had subject matter jurisdiction, we
must: (1) interpret what “State active
duty under orders of the Governor” means, an issue of first impression for this
Court; and (2) decide whether the training plaintiff was participating in on 8
May 2003, i.e., active duty for training pursuant to 32 U.S.C. §502(f), fits
within that definition.
It is
well settled that to be entitled to maintain a proceeding for compensation
under the Work[ers’] Compensation Act the claimant must have been an employee
of the alleged employer at the time of his injury . . . . Thus, the existence of the employer-employee
relationship at the time of the accident is a jurisdictional fact. . . . [T]he finding of a jurisdictional fact by the
Industrial Commission is not conclusive on appeal even though there be evidence
in the record to support such finding.
The reviewing court has the right, and the duty, to make its own
independent findings of such jurisdictional facts from its consideration of all
the evidence in the record. The claimant
has the burden of proof that the employer-employee relation existed at the time
the injury by accident occurred.
Lucas v. Stores, 289 N.C. 212, 218, 221 S.E.2d 257, 261
(1976) (internal citations omitted). “When
interpreting a statute, we ascertain the intent of the legislature, first by
applying the statute’s language and, if necessary, considering its legislative
history and the circumstances of its enactment.” Shaw v. U.S. Airways, Inc., 362 N.C.
457, 460, 665 S.E.2d 449, 451 (2008) (citations omitted). Further,
“[T]he Workers’ Compensation Act should
be liberally construed, whenever appropriate, so that benefits will not be
denied upon mere technicalities or strained and narrow interpretations of its
provisions. . . . [S]uch liberality should not, however, extend beyond the
clearly expressed language of those provisions, and our courts may not enlarge
the ordinary meaning of the terms used by the legislature or engage in any
method of ‘judicial legislation.’
[Finally], it is not reasonable to assume that the legislature would
leave an important matter regarding the administration of the Act open to
inference or speculation; consequently, the judiciary should avoid ‘ingrafting
upon a law something that has been omitted, which [it] believes ought to have
been embraced.’”
N.C.
Gen. Stat. §97-2(2) provides in pertinent part:
“The term ‘employee’ shall include members of the North Carolina
national guard while on State active duty under orders of the Governor and
members of the North Carolina State Defense Militia while on State active duty
under orders of the Governor.”[Note 1] In its opinion and award, the Commission did
not actually interpret the meaning of section 97-2(2). Rather, it simply noted that the statute had
been amended in 1999 and that it believed defendant’s interpretation was too
narrow. Specifically, the Commission
concluded:
5. The amendment to the statute clarified
the language to specify that it covered more than injuries at drill, in camp,
and while on special duty under orders of the Governor. The amendment clarifies that members of both
the North Carolina National Guard and the North Carolina State Guard are
considered employees under the North Carolina Workers’ Compensation Act while
on State active (not just special) duty under orders of the Governor. It appears that the amendment clarified the
intent of the legislature to make the statute more inclusive, rather than
exclusive. Defendant’s interpretation
would preclude State workers’ compensation coverage for members of the North
Carolina National Guard while at camp or participating in drills even in
On
appeal, defendant argues, as it did below, that “State active duty under orders
of the Governor” only includes those instances where North Carolina National
Guard members are called into service of
the State by the Governor in the event of a state emergency, such as a natural
disaster, and that it does not include training.[Note 2] In all other
circumstances, defendant claims North Carolina National Guard members are
federal employees, paid with federal funds, who exclusively receive federal
benefits. Finally, defendant argues the
current statute is clear and unambiguous and must be implemented according to
the plain meaning of its terms.
Plaintiff
does not make any effort to define “State active duty.” Rather, plaintiff advances the reasoning
contained in the Commission’s conclusion of law number five cited supra,
i.e., that defendant’s interpretation is too narrow, especially because North
Carolina National Guard members who are injured while training in North
Carolina would not be covered under the Act.
Plaintiff further asserts that when a North Carolina National Guard
member receives orders pursuant to 32 U.S.C. §502(f): (1) he or she is under the command and
control of the Governor and (2) the Governor effects said command and control
through orders issued by the State Adjutant General. Consequently, she asserts that orders issued
by the Adjutant General pursuant to 32 U.S.C. §502(f) are “orders of the
Governor.”
The
Workers’ Compensation Act does not define “State active duty” or “under orders
of the Governor.” Consequently, we
review the statute’s legislative history.
Section 97-2(2) was amended in 1999; prior to the amendment, the statute
provided:
The term “employee” shall include members
of the North Carolina national guard, except when called into the service of
the United States, and members of the North Carolina State guard, and members
of these organizations 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.
N.C. Gen. Stat. §97-2(2)
(1991).
Plaintiff
asserts the 1999 amendment was intended to make workers’ compensation coverage
broader and more inclusive for North Carolina National Guard members. She further contends that this Court’s
decisions in Britt v. N.C. Dept. of Crime Control and Public Safety, 108
N.C. App. 777, 425 S.E.2d 11, disc. review denied, 333 N.C. 536, 429
S.E.2d 554 (1993), and Duncan v. N.C. Dept. of Crime Control and Public
Safety, 113 N.C. App. 184, 437 S.E.2d 654 (1993), demonstrate that she is
an employee under the current, more inclusive statutory definition. In those cases, we respectively held
that: (1) a North Carolina National
Guard member, who was injured while completing basic Army training camp (“‘initial
active duty training’”) in Alabama pursuant to 10 U.S.C. §511(d)[Note 3] (Britt, 108 N.C. App.
at 779-80, 425 S.E.2d at 13); and (2) a North Carolina National Guard member
who was injured in a jeep accident while returning to his local unit following
the completion of a routine weekend drill at Fort Bragg (Duncan, 113
N.C. App. at 184-86, 437 S.E.2d at 654-55), were employees within the ambit of
section 97-2(2).
Defendant
argues the 1999 amendment was intended to narrow the provision of
benefits. Specifically, defendant
asserts it was intended to limit workers’ compensation benefits to North
Carolina National Guard members who are injured while responding to a state
emergency, such as a natural disaster or civil unrest, pursuant to a specific
call to “State active duty” by the Governor.
Defendant also asserts that Britt and Duncan are
inapplicable because: (1) they were
decided pursuant to the more inclusive, pre-amendment definition; (2) under
current federal law, National Guard members are members of the Army at all
times; and (3) the 1999 amendment deleted the language stating that National
Guard members are employees while performing their duties at camp or drill.
The
legislative record surrounding the 1999 amendment is scant. After examining
what information is available, it is difficult to definitively conclude whether
the amendment was intended to narrow or broaden the statutory definition. Session Law 1999-418 was entitled: “An Act to Clarify When Members of The North
Carolina National Guard and North Carolina State Guard Are Employees Subject to
the Workers’ Compensation Act.”[Note 4] By stating that its intent was to clarify
rather than to codify, we believe the legislature intended to correct some aspect
of this Court’s interpretations in Britt and Duncan and that
these cases informed “the circumstances of [the amendment’s] enactment.” Shaw, 362 N.C. at 460, 665 S.E.2d at
451. Consequently, we examine the
analysis and reasoning presented in those cases.
In Britt,
108 N.C. App. at 779, 425 S.E.2d at 13, this Court based its conclusion that a
North Carolina National Guard member injured while participating in Initial
Active Duty for Training pursuant to 10 U.S.C. §511(d) was an employee within
the ambit of the Workers’ Compensation Act in part on our Supreme Court’s
decision in Baker v. State, 200 N.C. 232, 234, 156 S.E. 917, 918
(1931). In Baker, our Supreme
Court stated that “the National Guard is an organization of the State militia,
which does not become a part of the United States Army until the Congress
declares an emergency to exist which calls for its services in behalf of the
nation.” Id. Because an emergency situation did not exist
when the plaintiff in Britt was ordered to perform his mandatory
training, the Court essentially concluded that he was not “‘called into the
service of the United States[.]’” Britt,
108 N.C. App. at 778, 425 S.E.2d at 12 (citation omitted). The Court also reasoned that the plaintiff
was covered under the Act given the explicit language stating that National
Guard members were covered for, inter alia, injuries “‘arising out of
and in the course of the performance of their duties’” at drill and in
camp. Id. (citation omitted).
In Duncan,
this Court followed the reasoning advanced in Britt in concluding that a
North Carolina National Guard member injured while returning to his local unit
following a routine weekend drill was an employee as defined by section 97-2(2). There, the North Carolina Department of Crime
Control and Public Safety raised similar arguments to those it advances in the
instant case, specifically that the plaintiff:
Was not an employee as defined in the Workers’ Compensation Act because
he had been called into service of the United States for a weekend drill,[Note 5] was an employee of the federal
government at the time of his injury, and had received federal compensation
benefits from the federal government.
The Court rejected the defendant’s contentions, and because the
Commission had allowed the defendant a “credit” for the incapacitation pay he
had received from the federal government, the Court concluded it was not
permitting “double recovery” by affirming the award of compensation. Duncan, 113 N.C. App. at 186, 437
S.E.2d at 655.
In the
instant case, neither defendant nor plaintiff support their arguments as to
what “while on State active duty under orders of the Governor” means, or
perhaps stated more accurately what the parties contend it does not mean, with
any real discussion of or citation to legal authority. Rather, both support the bulk of their
respective arguments with citation to general web sites containing generic,
unauthoritative information. In considering
the statutory language, the legislative record, and the circumstances of the
1999 amendment’s enactment, including this Court’s decisions in Britt and
Duncan, it seems evident that the phrase “while on State active duty under
orders of the Governor” differentiates between active service to the State of
North Carolina and service to the federal government and includes those
instances when a National Guard member is operating under the Governor’s
command and control pursuant to a specific call to state service. Also, the redaction of the drill and camp
language would appear to indicate that the 1999 amendment was enacted with the
intent of eliminating workers’ compensation coverage for training, i.e., that
it was restrictive in intent.
Keeping
in mind the aforementioned rules of statutory construction, we do not believe
the term “State active duty” is unambiguous and note that the interpretations
respectively advanced by defendant and plaintiff both require us to read words
into the statute that are not there.[Note
6] Given that (1) section 97-2(2)
appears to distinguish between state and federal service, (2) both parties’
arguments implicate the state and federal functions of the National Guard, and
(3) the National Guard involves a unique, dual state-federal structure, we next
consider the broader universe of North Carolina law as well as federal law in
an effort to construe the meaning of “State active duty” in section 97-2(2).[Note 7]
“State
active duty” is not defined in any provision of the North Carolina General
Statutes, the North Carolina Administrative Code, nor the United States
Code. Nevertheless, as discussed infra,
upon reviewing chapter 127A of the North Carolina General Statutes and Titles
10 and 32 of the United States Code, we ultimately conclude that plaintiff was
not “on State active duty under orders of the Governor” when she sustained her
injuries.
A. Additional North
Carolina Law (Chapter 127A)
Chapter
127A specifically deals with the organization and administration of the State
militia, of which the North Carolina National Guard is a part. N.C. Gen. Stat. §127A-3. N.C. Gen. Stat. §127A-16 is the only
statutory provision which both encompasses the power of the Governor to call up
the North Carolina National Guard and also uses the “State Active Duty”
terminology. It provides:
(a) The Governor shall be commander in chief
of the militia and shall have power to call out the militia to execute the
laws, secure the safety of persons and property, suppress riots or
insurrections, repel invasions and provide disaster relief.
(b) The Governor shall have the additional
power, subject to the availability of funding, to place individuals, units, or
parts of units of the North Carolina National Guard in a State Active Duty
status to assist with the planning, support, and execution of activities
connected with the swearing in and installation of the Governor and other
members of the Council of State.
Id. (emphasis added). Thus, pursuant to section 127A-16, at the
very least, “State active duty” does appear to entail a call to state service by the Governor to respond to
an emergency or to assist with certain formal state government activities. Noticeably absent from this section and the
entirety of chapter 127A is any mention of a call to “State active duty” for
the purposes of training. We believe
this absence, combined with the 1999 amendment’s redaction of the “camp” and “drill”
language contained in the prior version of the statute, provides support for
defendant’s argument that “State active duty” does not include training ordered
pursuant to 32 U.S.C. §502(f).
However,
chapter 127A does present some ambiguity as to whether “State active duty”
possesses a specific meaning in and of itself or if it is simply synonymous
with state service in a general sense.
For example, N.C. Gen. Stat. §127A-98 (2007) describes the calling up of the State militia
“to execute the law, secure the safety of persons and property, suppress riots
or insurrections, repel invasions or provide disaster relief” as a call to “active
State service[,]” thus supporting the argument that “State active duty” is
synonymous with state, as opposed to federal, service in a general sense. However, the different awards established for
North Carolina National Guard members and units in chapter 127A support the
argument that “State active duty” is a particular form of the broader category
of State service. [Note 8] Regardless of this ambiguity, however,
chapter 127A, article 8, which is entitled “Pay of Militia,” clearly indicates
that when a North Carolina National Guard member is called or ordered into
state service, he or she is: (1) under
the authority of the Governor; (2) performing service to the State of North
Carolina; and (3) paid by the State with state funds. See, e.g., N.C. Gen. Stat. §§127A-105
– 108 (2007).
B. Dual State-Federal
Structure of the National Guard
Because
of the unique, dual state-federal structure of the National Guard, we next
examine this relationship in an effort to obtain greater clarity as to the
distinction between state and federal service.
The National Guard is the only reserve
component of the United States’ military to also have a non-federal
mission. Serving as the state militia,
the National Guard’s unique dual military role has been explained as follows:
Perhaps the most unique aspect of the National Guard is that
it exists as both a federal and state force.
As a federal force, the Guard provides ready, trained units as an
integral part of America’s field forces.
In its state role, the National Guard protects life and property and
preserves peace, order, and public safety under the direction of state and
federal authorities. No other reserve
military force in the world has such an arrangement, and the National Guard’s
dual allegiance to state and nation has often been the subject of much
controversy and misunderstanding . . . .
National Guard troops serve at the direction of the state governors
until the president [sic] of the United States orders them to active duty for
either domestic emergencies or overseas service.
Robert L. Martin, Military
Justice in the National Guard: A Survey
of the Laws and Procedures of the States, Territories, and the District of
Columbia, 2007 Army Law. 30, 32 (2007) [hereinafter, Martin, Military
Justice] (footnote omitted; alteration in original). Since 1933, all persons who have enlisted in
their State national guard, i.e., “the National Guard of the various States”
have also been required to enlist in the federal component of the Guard, i.e., “the
National Guard of the United States.” Perpich
v. Department of Defense, 496 U.S. 334, 345, 110 L. Ed. 2d 312, 325
(1990). “In the latter capacity they
[are] part of the Enlisted Reserve Corps of the Army, but unless and until
ordered to active duty in the Army, they retain[] their status as members of a
separate State Guard unit.” Id.
at 345, 110 L. Ed. 2d at 325. “[A]
member of the Guard who is ordered to active duty in the federal service is
thereby relieved of his or her status in the State Guard for the entire period
of federal service.” Id. at 346,
110 L. Ed. 2d at 325. However, when “‘“relieved
from active duty in the military service of the United States all individuals
and units . . . revert to their [state] National Guard status.”‘” Id. (citations omitted). In sum, as stated by the United States
Supreme Court, “all [National Guard members] . . . must keep three hats in
their closets — a civilian hat, a state militia hat, and an army hat — only one
of which is worn at any particular time.”
Id. at 348, 110 L. Ed. 2d at 327.
In other words, except for those instances where individual members of a
state National Guard are on federal active duty, members retain their state
affiliation, status, and duties. See
id. at 345-46, 348, 110 L. Ed. 2d at 325-27. As such, in the instant case, unless
plaintiff’s order to active duty for training pursuant to 32 U.S.C. §502(f)
qualifies as federal active duty, she was functioning in a state capacity and
subject to the command and control of the governor.
C. Statuses of National Guard Members
(Title 10 and Title 32)
As
discussed infra, title 10 and title 32 of the United States Code
indicate that plaintiff’s status in the case sub judice was not federal
active duty and consequently, that she was functioning in a state capacity when
she sustained her injuries. Federal “active
duty” is defined as “full-time duty in the active military service of the
United States” but “does not include full-time National Guard duty.” 10 U.S.C. §101(d)(1) (2000); 32 U.S.C. §101(12)
(2000) (same). “Full-time National Guard
duty” is defined as
training or other duty, other than
inactive duty, performed by a member of the Army National Guard of the United
States . . . in the member’s status as a member of the National Guard of a
State or territory . . . under section 316, 502, 503, 504, or 505 of title 32
for which the member is entitled to pay from the United States or for which the
member has waived pay from the United States.
10 U.S.C. §101(d)(5)
(2000); 32 U.S.C. §101(19) (2000) (same).
In other words, a National Guard member is only on federal “active duty”
as a member of the United States Army when called to federal service pursuant
to Title 10. See Perpich, 496
U.S. at 346, 350 n.21, 110 L. Ed. 2d at 325, 328, n.21; see also Martin,
Military Justice, 2007 Army Law. at 31 (footnote omitted) (“[w]hile the
National Guard is a component of the U.S. Armed Forces, it is also the militia
of the individual state when not serving in a federal status. More simply put, unless called into federal
service under Title 10, the National Guard remains primarily under the control
of the states and their governors”).
In
contrast to a call to federal service pursuant to Title 10, when participating
in training under the authority of Title 32, a National Guard member is
generally acting in his or her state capacity.
Federally
funded [Army National Guard] training duty, referred to as “Title 32 duty,” is
ordered by the state governor and paid for with federal funds. This form of duty is used for weekend drills,
annual training, and most schools and assignments within the United
States. Most National Guard duty falls
into this category. Conversely, “Title
10 duty” is duty ordered by the President or the Secretary of the [Army] under
the authority of federal law and paid for with federal funds. This form of duty is used for basic (initial)
military training, overseas training missions, and occasions when the Guard is
called or ordered to active duty (mobilized) by the U.S. Government.
Grant Blowers and
David P.S. Charitat, Disciplining The Force — Jurisdictional Issues In The
Joint And Total Force, 42 A.F. L. Rev. 1, 8 (1997). “In 1956, Congress revised, codified, and
enacted into law, Title 32 of the U.S. Code, entitled ‘National Guard.’ . . . Title 32 generally serves as
a compilation of most federal statutes affecting the National Guard while
serving under state control, yet funded through [Department of Defense]
appropriations.” Christopher R. Brown, Been
There, Doing That in a Title 32 Status:
The National Guard Now Authorized to Perform its 400-Year Old Domestic
Mission in Title 32 Status, 2008 Army Law. 23, 29 [hereinafter, Brown, Title
32 Status]. Title 32 training
includes: “Inactive Duty for Training
(IDT, that is, weekend drills) and annual training (AT)[, which] are performed
under the authority of 32 U.S.C. §502(a) . . . [as well as t]raining
. . . performed under [32 U.S.C.] §502(f).” Rich, The National Guard, 1994 Army
Law. at 40, n.51 (emphasis added).
In
sum, as the federal scheme indicates, when plaintiff was training under the authority of 32 U.S.C. §502(f),
she was: (1) wearing her state militia
hat; (2) under the command and control of the Governor; and (3) not on federal “active
duty.” Nevertheless, this does not
compel the conclusion that our legislature intended “State active duty” to
include training pursuant to Title 32, and we reiterate that such an
interpretation requires us to read words into section 97-2(2) which simply are
not there.
D. “State Active Duty”
in the Federal Context
32
C.F.R. §536.97 (2008), which governs the “Scope for claims under [the] National
Guard Claims Act [32 U.S.C. §715]” provides: [Note 9]
(a) Soldiers of the Army National Guard
(ARNG) can perform military duty in an active duty status under the authority
of Title 10 of the United States Code, in a full-time National Guard duty or
inactive-duty training status under the authority of Title 32 of the United
States Code, or in a state active duty status under the authority of a state
code.
(1) When ARNG soldiers perform active duty,
they are under federal command and control and are paid from federal
funds. For claims purposes, th[e]se
soldiers are treated as active duty soldiers. . . .
(2) When ARNG soldiers perform full-time
National Guard duty or inactive-duty training, they are under state command and
control and are paid from federal funds. . . .
(3) When ARNG soldiers perform state
active duty, they are under state command and control and are paid from state
funds. . . .
(Emphasis added.) [Note 10] While the situations this regulation
addresses are not exactly on point, the explicit distinction it makes between
federal active duty (Title 10 duty), Title 32 duty, and state active duty and
its “definition” of state active duty, i.e., a call to state service performed
under the authority of state law and under the command and control of the
Governor which is paid by the State with state funds, are consistent with the
general definition of “state active duty” as articulated in numerous military
law review articles.
National
Guard forces perform their historical, militia-based domestic operational
missions when their governors mobilize them in state controlled and funded SAD
[state active duty] status. State laws
dictate when state authorities may call upon their National Guard to perform
SAD, generally providing broad authority for the use of militias to quell
domestic disturbances or assist in disaster relief when local and state
government civil resources have been exhausted.
The states typically pay their National Guard personnel serving in a SAD
status at the same rate of pay that the Soldiers . . . receive while serving in
a federal status. During a SAD response,
the states may use federal equipment provided to the states’ National Guard
units for training purposes; however, the states must reimburse the Federal
Government for the use of certain resources, such as fuel.
Brown, Title 32
Status, 2008 Army Law. at 29 (footnotes omitted). “[S]tate active duty . . . is performed under
[the] authority of state law and paid for with state funds[.]” Rich, The National Guard, 1994 Army
Law. at 40 (footnote omitted). “State
active duty (SAD) is specifically defined by state law. In general, it refers to the National Guard
under the control of the governor, performing a state mission, paid for by
state funds.” Kevin Cieply, Charting
A New Role For Title 10 Reserve Forces:
A Total Force Response To Natural Disasters, 196 Mil. L. Rev. 1, 4,
n.10 (2008). In sum, these articles
further support the argument that at least in the federal context, “State
active duty” is generally defined as: A
call to state service pursuant to state law where National Guard members serve
under the command and control of the Governor and are paid by the State with
state funds.
E. N.C. Gen. Stat. §97-2(2)
and “State Active Duty”
While
the above general definition is not controlling as to what our legislature
intended “State active duty” to mean within the context of section 97-2(2),
this definition does square with the concept of “state service” set out in
chapter 127A of the North Carolina General Statutes and discussed supra,
i.e., those instances when National Guard members are called to perform state
service by the Governor under the authority of state law and are paid by the
State with state funds. Furthermore, we
believe the explicit differentiation between federal “active duty”; Title 32
duty, (including, inter alia, full-time national guard duty); and “state
active duty” contained in the federal scheme provides insight as to why our
legislature deemed it necessary to amend section 97-2(2) to clarify when
National Guard members are state employees for purposes of the Workers’
Compensation Act, particularly given this Court’s decisions in Britt and
Duncan, which respectively awarded benefits to a Guard member injured
while training pursuant to Title 10 and to a Guard member injured presumably
while training pursuant to Title 32.
Therefore, we conclude that pursuant to N.C. Gen. Stat. §97-2(2), “State
active duty” includes those instances where a North Carolina National Guard
member is: Called into service of the
State of North Carolina; operating under the command and control of the
Governor pursuant to state law; and paid by the State with state funds. [Note 11] Consequently, we further conclude it does not
encompass Title 32 training.
Our
conclusion is consistent with the vast majority of other states that have
considered the compensability of a National Guard member’s injuries incurred
while training pursuant to Title 32. See,
e.g., Sullivan v. Industrial Claim Appeals Office, 22 P.3d 535, 539 (Colo.
Ct. App. 2000) (holding that injuries sustained during weekend training
activities undertaken pursuant to 32 U.S.C. §502 are not compensable because to
be on “active service” and thus to qualify for workers’ compensation benefits,
national guard members “must be ordered by the governor to provide full-time
service . . . in response to an emergency confronting the state”); Kentucky
Nat’l Guard v. Bayles, 535 S.W.2d 234, 237-38 (Ky. 1976) (holding that
national guard members who are injured while training pursuant to 32 U.S.C. §502
are not entitled to state workers’ compensation benefits because in that status
they are entitled to receive federal pay); Lucas v. Military Dep’t, 498
So. 2d 161, 166 (La. Ct. App. 1986) (holding that national guard members who
sustain injuries during annual training pursuant to 32 U.S.C. §502 are not
entitled to state workers’ compensation benefits because they already receive
federal payment and benefits); Cochran v. Missouri Nat’l Guard, 893
S.W.2d 814, 816-17 (Mo. 1995) (holding that injuries sustained by national
guard members while on active duty training pursuant to 32 U.S.C. §502 are not
compensable under the state workers’ compensation system because in this status
members are not “ordered to active state duty by the governor”); Banker v.
Oklahoma Army Nat’l Guard, 7 P.3d 509, 510 (Okla. Civ. App. 2000) (holding
that national guard members injured while participating in a summer training
camp pursuant to 32 U.S.C. §503 are not entitled to state workers’ compensation
benefits because they are not on “state duty”).
In addition, we note that because plaintiff was performing full-time
national guard duty she was entitled to receive and did receive some federal
benefits for her injuries in accordance with federal law. See, e.g., 10 U.S.C. §1074(a) (2000)
(medical and dental care); 37 U.S.C. §§204(g), (h) (2000) (incapacitation pay);
38 U.S.C. §1131 (2000) (veteran disability pay). In contrast, National Guard members “performing
state active duty are not covered by federal medical or disability
benefits. [When] performing state
missions[, they] are only protected under state worker’s compensation laws.” Martin, Military Justice, 2007 Army
Law. at 34 (footnote omitted).
In the
instant case, it is undisputed that plaintiff was injured while training
pursuant to Title 32 and that she was paid with federal and not state
funds. As a result, plaintiff was not on
“State active duty” pursuant to section 97-2(2) when she sustained her
injuries. Because plaintiff was not an
employee as defined by N.C. Gen. Stat. §97-2(2), the Commission lacked subject
matter jurisdiction.
III. Conclusion
In
sum, for the reasons stated herein, we conclude that plaintiff was not an
employee within the meaning of N.C. Gen. Stat. §97-2(2) when she sustained her
injuries. As such, the Commission did
not have subject matter jurisdiction.
Accordingly, we vacate the Commission’s opinion and award.
Vacated.
Judges
ELMORE and GEER concur.
NOTES
1. The North Carolina National Guard and the North Carolina
State Defense Militia are distinctly different components of our organized
State militia. The North Carolina
National Guard consists of “regularly commissioned, warrant and enlisted
personnel between such ages as may be established by regulations promulgated by
the secretary of the appropriate service[.]”
N.C. Gen. Stat. §127A-3 (2007).
The State Defense Militia “consist[s] of commissioned, warrant and
enlisted personnel called, ordered, appointed or enlisted therein by the
Governor under the provisions of Article 5 of . . . Chapter [127A.]” N.C. Gen. Stat. §127A-5 (2007). National Guard members “receive federal
recognition by the United States government [and] hold a dual status both as
State troops and as a reserve component of the armed forces of the United
States.” N.C. Gen. Stat. §127A-29
(2007). In contrast, State Defense
Militia members cannot be members of a reserve component of the armed
forces. N.C. Gen. Stat. §127A-80(b). Finally, unlike with the National Guard which
can be called into federal military service, the State Defense Militia “shall
not be called, ordered, or in any manner drafted, as such, into the military
service of the United States[.]” N.C.
Gen. Stat. §127A-80(d) (2007).
2. The Governor’s power to order National Guard members to
respond to state emergencies is set out in N.C. Gen. Stat. §127A-16(a)
(2007). Also, N.C. Gen. Stat. §127A-16(b)
provides that the Governor, as commander in chief, can order North Carolina
National Guard members to a “State Active Duty status” to assist with certain
formal government activities. We discuss
these provisions infra.
3. Section 511(d) has since been redesignated as 10 U.S.C.
§12103(d).
4. Session Law 1999-418 originated as Senate Bill 877 and was
first assigned to the Senate Judiciary II Committee. At a 20 April 1999 meeting of this committee,
the bill “was explained by [its sponsor] Senator Kerr” and by “Jon Williams,
with the NC Department of Crime Control and Public Safety[.]” Minutes of Senate Judiciary II Committee,
April 20, 1999, 1999 General Assembly, First Regular Session (Senate Bill
877). Unfortunately, these explanations
are not available for our review. A bill
analysis prepared by legislative staff counsel for the meeting states that the
law “amends the definition of ‘employee’ under the North Carolina Worker[s’]
Compensation Act to include members of the North Carolina national guard and
members of the North Carolina state guard while on State active duty under
orders of the Governor.” Id.
(bill analysis by Committee Co-Counsel Brenda J. Carter).
5. The opinion does not specify the statutory authority
pursuant to which the plaintiff was called to weekend training. However, it would appear to be 32 U.S.C.
§502(a) (2000), which provides: “Under
regulations to be prescribed by the Secretary of the Army . . . each company,
battery, squadron, and detachment of the National Guard, unless excused by the
Secretary concerned, shall . . . assemble for drill and instruction . . . at
least 48 times each year[.]” See also
Steven B Rich, The National Guard, Drug Interdiction and Counterdrug
Activities, and Posse Comitatus: The
Meaning and Implications of “In Federal Service,” 1994 Army Law. 35, 40,
n.51 [hereinafter Rich, The National Guard] (National Guard weekend
drills are performed under the authority of 32 U.S.C. §502(a)).
6. Thus, we suggest the legislature may want to amend section
97-2(2) to include a definition of “State active duty.”
7. We focus our discussion on chapter 127A of the North
Carolina General Statutes, which is entitled “Militia,” and Titles 10 and 32 of
the United States Code, which are respectively entitled “Armed Forces” and
“National Guard.”
8. N.C. Gen. Stat. §§127A-45, -45.1 (2007) respectively
establish the “North Carolina National Guard State Active Duty Award” for
“members of the North Carolina National Guard who, by order of the Governor,
satisfactorily serve a tour of State active duty” and the “North Carolina
National Guard Governor’s Unit Citation” for “any unit of [the] North Carolina
national guard distinguishing itself by extraordinary heroism or meritorious
service while in a State active duty status.”
In contrast, N.C. Gen. Stat. §§127A-45.2, -45.2A (2007) establish awards
for North Carolina national guard units who distinguish themselves “through
heroism or meritorious service to the State of North Carolina.”
9. “The National Guard Claims Act authorizes the settlement of
claims for damages caused by National Guard Soldiers in certain limited
circumstances. The Act only applies when
National Guard personnel are under state control, [and are] being paid with
federal funds, such as when they are performing full-time National Guard duties
or are on inactive duty training.” R.
Peter Masterton, “Managing a Claims Office,” 2005 Army Law. 46, 61 (footnotes
omitted).
10. This section did not contain the “state active duty” language
at the time our legislature amended section 97-2(2) as it was not adopted until
2006 and not in effect until 2007. See
71 Fed. Reg. 69,360, 69,390 (Nov. 30, 2006) (codified at 32 C.F.R. §536.97).
11. We note that our conclusion is also supported by the sample
“State active duty” order which is present in the record but which the Deputy
Commissioner and the Commission did not consider because this evidence was
excluded on various grounds. This
order: (1) specifically states that the
National Guard Member is “ordered to State Active Duty (SAD)” in response to
Hurricane Isabel; (2) lists its authorization as “[c]onfirm[ing] verbal orders
of the Adjutant General”; (3) states that the call to duty is “By Order of the
Governor”; (4) states that “State pay and allowances” are authorized and that
“[p]ersons in a federal pay status . . . must be in an official leave status
when placed on State Duty Orders”; and (5) provides that “[p]ersonnel listed on
this order are authorized [to receive] the NCNG State Active Duty Award.”