Duncan v. North Carolina Department of Crime Control & Public Safety

ORR, Judge. The sole issue on appeal is whether plaintiff was an “employee” as defined in N.C. Gen. Stat. § 97-2(2) (1991) and thus entitled to compensation benefits from defendant under the Workers’ Compensation Act. N.C. Gen. Stat. § 97-2(2) provides in pertinent part: 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. Defendant contends that plaintiff was not an employee under the foregoing section because the evidence shows that plaintiff (1) was called into the service of the United States for weekend drill, (2) was not on special duty under orders of the Governor, (3) was an employee of the federal government, and (4) had received all compensation benefits from the federal government to which he was entitled. Recently we held in Britt v. North Carolina Dep’t of Crime Control & 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) that a member of the National Guard was not “called into the service of the United States” when he attended mandatory initial basic training under orders of the United States Department of Defense. Citing Baker v. State, 200 N.C. 232, 156 S.E.2d 917 (1931), we noted “ ‘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 [on] behalf of the nation.’ ” Britt, 108 N.C. App. at 779, 425 S.E.2d at 13. In Britt, we concluded that when a member of the National Guard injured himself during initial basic training, not during a time of emergency, this injury arose out of and in the course of [186] the performance of his duties at drill, in camp, or on special duty under orders of the Governor thereby entitling him to compensation under N.C. Gen. Stat. § 97-2(2). In the present case, the evidence is undisputed that plaintiff was injured while performing his duties as a member of the National Guard on a routine weekend drill. N.C. Gen. Stat. § 97-2(2) expressly entitles members of the National Guard “to compensation for injuries arising out of and in the course of the performance of their duties at drill . . . .” There is no evidence of the existence of an emergency situation. The fact plaintiff received his pay from the federal government and compensation from the federal government is of no moment in light of the express provision in our General Statutes for payment of compensation. Further, we note defendant was allowed a credit for the incapacitation pay plaintiff received from the federal government, and thus plaintiff did not receive double recovery. We therefore hold the Commission properly concluded plaintiff was entitled to receive compensation for his injuries. We thus affirm the opinion and award of the Commission. Affirmed. Judges COZORT and LEWIS concur.