If a North Carolina National Guardsman is hurt at a federally required two-week summer training camp and the federal government already pays his medical bills, full duty pay, and other federal benefits, can he also collect North Carolina workers' compensation from the State?

Plain-English summary

A North Carolina National Guard benefits officer described a guardsman injured at a federally required two-week summer camp. The guardsman received full-time duty pay, medical expenses, and other benefits from the federal government. The 1979 Attorney General concluded that, on those facts, the guardsman should not be treated as a state employee for North Carolina workers' compensation benefits. The Department therefore was not required to file Industrial Commission Form 19, though the AG said it might retain one in its own records.

G.S. 97-2(2) included Guard members in its definition of employee "except when called into the service of the United States." The opinion said the federal government had "apparently treated the guardsman as being called or ordered" to camp under the cited federal training provisions. It relied on that apparent federal treatment and the full federal pay and benefits in applying the state exception. The opinion does not say that attendance at every federally required summer camp automatically satisfies it.

For a different injury that qualifies under both the Workmen's Compensation Act and G.S. 127A-108, the AG gave a calculation order. Compute and pay Chapter 97 benefits first, then compute the G.S. 127A-108 amount and credit payments already made under Chapter 97.

Currency note

This opinion was issued in 1979 under the provisions it quotes. Verify current state and federal Guard benefit rules before applying it to a current claim.

What this means for you

Guard benefits staff. Determine the member's duty status and the benefits actually provided. The AG based its no-coverage answer on the stated facts, including the federal government's apparent treatment of the guardsman as called or ordered and its payment of full benefits.

State claims staff. On the opinion's stated facts, Form 19 did not have to be filed with the Industrial Commission. The AG nevertheless said an internal copy might be useful for future reference.

Members with potentially overlapping state benefits. In a case where both Chapter 97 and G.S. 127A-108 apply, the opinion directs Chapter 97 payment first and a credit against the G.S. 127A-108 payment.

Common questions

Did the AG say federally required training always counts as federal service for this state exception?

No. Its answer turned on the facts presented: the federal government had apparently called or ordered the guardsman to camp and paid full duty pay, medical expenses, and other benefits after the injury.

Was the Department required to file Form 19?

No, on those facts. The AG said the guardsman was not a state employee under the Workmen's Compensation Act at the time of injury. It suggested keeping a form internally as a record, without requiring a Commission filing.

How are Chapter 97 and G.S. 127A-108 payments coordinated if both apply?

The opinion says Chapter 97 is the primary provider. Its payments are computed and made first, then credited against payments calculated under G.S. 127A-108.

Background and statutory framework

G.S. 97-2(2), as quoted in the opinion, includes Guard members in the state workers' compensation definition of employee, except when called into U.S. service. The opinion cites 32 U.S.C. 318, 502 and 503 concerning federal training and disability benefits. It then applies the exception to the stated facts of federal treatment and payment.

G.S. 97-92 governs injury records for employees, which is why the no-employee conclusion also resolved the Form 19 question. G.S. 127A-108 directs a credit for Chapter 97 or federal payments against benefits paid under that section. The AG applied that credit to its third, hypothetical question about overlapping state benefits.

Citations

• G.S. 97-2(2)
• G.S. 97-92
• G.S. 97-92(a)
• G.S. 127A-108
• Chapter 97 of the General Statutes
• 32 U.S.C. 318
• 32 U.S.C. 502
• 32 U.S.C. 502 and 503

Source

• Landing page: https://ncdoj.gov/opinions/eligibility-of-national-guardsmen-under-workmens-compensation/

Original opinion text

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?

• 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?
• 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.

• 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.
• All payments of benefits, including 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 therefrom 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 dual 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