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
The Benefits and Safety Officer for the Department of Crime Control and Public Safety (the State agency that administered the North Carolina National Guard) asked three questions about Guardsmen injured at federally mandated training:
- If a Guardsman is hurt at a federally required summer training camp and the federal government already pays his disability and medical expenses, does he also get North Carolina workers' compensation?
- Should the Department file an Industrial Commission Form 19 (employer's report of injury) anyway?
- If a Guardsman has an injury that does trigger both Chapter 97 workers' compensation and the Guardsman-specific G.S. 127A-108 benefit, how should the two be coordinated?
The 1979 AG said no to questions 1 and 2 on the facts presented, and laid out a Chapter-97-first computation rule for question 3.
Question 1: no double workers' comp. G.S. 97-2(2), the Workers' Compensation Act's definition of "employee," includes Guardsmen but with a critical exception: "except when called into the service of the United States." When a Guardsman is at a federally required summer training camp under 32 U.S.C. 318, 502, and 503 (the federal statutes that require the camp and provide federal pay, medical care, pension, and other compensation as if the Guardsman were a federal soldier of corresponding grade), the federal government is treating him as called into U.S. service. Under those facts, G.S. 97-2(2)'s exception applies and he is not a State employee for workers' compensation purposes. The Workers' Compensation Act, the AG observed, was not intended to provide double benefits.
Question 2: no Form 19 required. G.S. 97-92(a) requires every employer to keep a record of all injuries "received by his employees in the course of their employment." Because the Guardsman is not a State employee for Workers' Comp Act purposes under the facts in question 1, the Department had no duty to file a Form 19 with the Industrial Commission. The AG noted that the Department might prefer to complete a Form 19 internally for recordkeeping (documenting why the claim was denied), but the statute did not require filing one.
Question 3: Chapter 97 is primary; G.S. 127A-108 is the gap-filler. G.S. 127A-108 provides a Guard-specific benefit for a Guardsman disabled by illness, injury, or disease incurred on duty or by reason of his duty in the service of the State. By its own terms, that statute reduces its payment by any amount paid under Chapter 97 or under federal statutes: payments under those other sources "shall be deducted from the payments made under this section." So when both apply, the right order is:
- Compute the Chapter 97 (Workers' Comp Act) entitlement first and make those payments.
- Then compute the G.S. 127A-108 entitlement and pay the difference, crediting the amount already paid under Chapter 97.
The AG concluded that Chapter 97 was the primary provider and G.S. 127A-108 the supplemental layer.
Currency note
This opinion was issued in 1979. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here. The North Carolina Workers' Compensation Act and Chapter 127A (now the Military Forces of North Carolina Act) have been amended many times since 1979, and federal statutes governing Guard duty status (Title 32) have similarly evolved. Anyone evaluating a current Guard injury claim should re-verify both G.S. 97-2's employee definition and G.S. 127A-108's benefit-coordination text before relying on the rules above.
Historical context: what the AG concluded
The opinion turns on the federalism wrinkle inside G.S. 97-2(2). The North Carolina Workers' Compensation Act treats Guardsmen as State employees for purposes of work-related injury, but only when they are functioning as State personnel: at drills, in State-controlled camps, or on special duty under orders of the Governor. The statute carves out the period during which the Guardsman is "called into the service of the United States," because while in federal service the Guardsman is provided for by federal pay and federal benefits.
Federally required annual summer training is in the federal-service category. 32 U.S.C. 502 and 503 require Guard members to attend or participate in specified drills and field exercises under federal regulation. 32 U.S.C. 318 provides that a member of the National Guard called or ordered to such training and disabled in line of duty is entitled to federal hospital benefits, pay and allowances, pensions, and other federal compensation at the level of a Regular Army member of corresponding grade and length of service. The federal pay-and-benefits package was, in the case described, fully extended to the injured Guardsman, which the AG read as confirmation that the federal government regarded the duty as federal service.
The State Workers' Compensation Act could have been written to layer State benefits on top of federal pay even during federally required duty, but the AG read G.S. 97-2(2) as having made the opposite choice: when federal service is the duty status, the Guardsman is excluded from the State Act's "employee" definition. No coverage means no recovery and no employer reporting duty.
For G.S. 127A-108, the statute itself contained a deduction clause: any Chapter 97 or federal payment had to be subtracted from the State payment under that section. The AG read that clause as a coordination rule, not a complete preemption. If a Guardsman did have a Chapter 97 entitlement, that entitlement was the primary source, and G.S. 127A-108 covered any gap that remained.
For a benefits officer handling claims, the practical 1979 takeaway was: identify the duty status first. If the injury occurred while the Guardsman was in federal service (federal pay, federal medical), there is no State workers' comp claim, no Form 19 filing duty, and the State Guard-specific benefit (if any) is the only North Carolina layer worth analyzing.
Common questions
Did the AG say a National Guardsman can never get workers' compensation in North Carolina?
No. G.S. 97-2(2) expressly includes Guardsmen as employees 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." The exclusion only applies when the Guardsman is "called into the service of the United States." For State drills, State-controlled camps, or special duty for the Governor (think hurricane response or other Governor-ordered call-ups under State authority), the Workers' Compensation Act covers Guardsmen as State employees.
Why does it matter that the training was federally required?
Because federal requirement (under 32 U.S.C. 502 and 503) places the Guardsman within the scope of "called into the service of the United States" for the purposes of the G.S. 97-2(2) exception. The federal pay and federal medical care extended to the injured Guardsman were consistent with treating the camp as federal service. The AG used that as the trigger for the State exclusion.
Did the Department of Crime Control still have to file a Form 19?
No. G.S. 97-92(a) requires employers to keep injury records for "employees in the course of their employment." Because the Guardsman was not a State employee for Workers' Comp Act purposes during federally required training, the Department had no statutory filing duty. The AG suggested as a matter of best practice, the Department might still complete a Form 19 internally to document the incident and the denial of benefits, but the law did not require filing it with the Industrial Commission.
What if an injury triggers both Chapter 97 and G.S. 127A-108?
Compute Chapter 97 first, make those payments, then compute G.S. 127A-108 and reduce it by the Chapter 97 amount already paid. G.S. 127A-108's own text dictates that order: "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."
Could the Department have paid State benefits anyway, treating the federal payments as "extra"?
The AG read G.S. 97-2(2) as a statutory exclusion, not a discretionary choice. The Department had no authority to deem the Guardsman a State employee under Chapter 97 when the statute said he was not. And the opinion expressly warned that the Workers' Compensation Act was not designed to provide double benefits.
Background and statutory framework
The opinion sits at the seam between three statutes.
G.S. 97-2(2), the Workers' Compensation Act's definition of "employee," reads (in the relevant part the AG quoted): "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." The excepting clause is the operative provision for this opinion.
G.S. 97-92(a) imposes a recordkeeping duty: "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." The duty is contingent on the injured person being an employee for Workers' Comp Act purposes.
G.S. 127A-108 provides a State Guard-specific benefit and a benefit-coordination rule: a Guardsman who without fault is disabled through illness, injury, or disease contracted or incurred while on duty or by reason of his duty in the service of the State receives certain benefits, with the proviso that "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." The statute carves out a unique role for itself: layer on top of federal and State workers' comp, not in place of them.
The federal frame is Title 32 of the U.S. Code. 32 U.S.C. 502 and 503 require Guardsmen to attend or participate in drills and field exercises; 32 U.S.C. 318 confers federal benefits (pay, hospital care, pensions, other compensation) when a Guardsman performing such required training is disabled in the line of duty.
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. 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