Britt v. North Carolina Department of Crime Control & Public Safety , 108 N.C. App. 777 ( 1993 )

425 S.E.2d 11 (1993) 108 N.C. App. 777

Edgar L. BRITT, Employee, Plaintiff,
v.
NORTH CAROLINA DEPARTMENT OF CRIME CONTROL & PUBLIC SAFETY, Employer,
Self-Insured, Defendant.

No. 9110IC1267.

Court of Appeals of North Carolina.

February 2, 1993.

Bruce & Bryant, P.A. by R. Michael Bruce, Goldsboro, for plaintiff-appellee.

Atty. Gen. Lacy H. Thornburg by Asst. Atty. Gen. William H. Borden, Raleigh, for defendant-appellant.

EAGLES, Judge.

Defendant argues that the Industrial Commission erred by finding that plaintiff was an "employee" under the Workers' Compensation Act. G.S. 97-1 et seq. We disagree and affirm.

The second sentence of G.S. 97-2(2) 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 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 argues that plaintiff is not covered under the Workers' Compensation Act because he was "called into the service of the United States" when he attended the mandatory initial training at Fort McClellan pursuant to 10 U.S.C. 511(d). We disagree and affirm the Industrial Commission's decision.

The second sentence of G.S. 97-2(2), supra, arose from an amendment to the statute in 1943. However, the federal mandatory initial training requirement arose from an amendment to 10 U.S.C. 511 in 1963. See Pub.L. 88-110, § 3, 77 Stat. 135 (1963) (adding subsection (d) to 10 U.S.C. 511). 10 U.S.C. 511(d) provides:

Under regulations to be prescribed by the Secretary of Defense ... a non-prior-service person who is qualified for induction for active duty in an armed force and who is not under orders to report for induction into an armed force under the Military Selective Service Act (50 U.S.C.App. 451 et seq.), except as provided in section 6(c)(2)(A)(ii) and (iii) of such Act, may be enlisted in the Army National Guard.... Each person enlisted under this subsection shall perform an initial period of active duty for training of not less than twelve weeks to commence insofar as practicable within 270 days after the date of that enlistment.

Therefore, the issue before us is whether plaintiff was an employee of the State when he was injured at this mandatory initial training required by 10 U.S.C. 511(d) (which did not exist when the second sentence of G.S. 97-2(2) was written) and accordingly was entitled to compensation under the Workers' Compensation Act.

Our Supreme Court has previously 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." Baker v. State, 200 N.C. 232, 234, 156 S.E. 917, 918 (1931). It is undisputed that this type of emergency situation did not exist when plaintiff was ordered to initial training. Rather, plaintiff was required by federal statute to attend and successfully complete this initial training. Further, we note that it is a duty of a North Carolina National Guard member to perform this mandatory training when ordered. Accordingly, had plaintiff, a North Carolina National Guard member, disobeyed this order, he would have been subject to a court martial. See G.S. 127A-52 (jurisdiction of courts-martial of the national guard); G.S. 127A-53 (Manual for Courts-Martial); Manual for Courts-Martial, United States, Article 92 (one who fails to obey order or regulation "shall be punished as a court-martial may direct").

The General Assembly amended G.S. 97-2(2) in 1943 to provide workers' compensation coverage to North Carolina National Guard members. Specifically, the legislature provided that National Guard 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 duties under orders of the Governor." We hold that this statutory language includes the period of "initial active duty for training" that plaintiff was required to perform pursuant to 10 U.S.C. 511(d).

At the time of his injury, plaintiff was a member of the National Guard. His injury arose out of and in the course of his employment with the National Guard. Accordingly, we affirm the Industrial Commission's opinion and award.

Affirmed.

WELLS and LEWIS, JJ., concur.