{
  "id": 8521370,
  "name": "DAVID A. DUNCAN, Employee, Plaintiff v. NORTH CAROLINA DEPARTMENT OF CRIME CONTROL & PUBLIC SAFETY, Employer (Self-Funded), Defendant",
  "name_abbreviation": "Duncan v. North Carolina Department of Crime Control & Public Safety",
  "decision_date": "1993-12-21",
  "docket_number": "No. 9310IC412",
  "first_page": "184",
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    "date_added": "2019-08-29",
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  "casebody": {
    "judges": [
      "Judges COZORT and LEWIS concur."
    ],
    "parties": [
      "DAVID A. DUNCAN, Employee, Plaintiff v. NORTH CAROLINA DEPARTMENT OF CRIME CONTROL & PUBLIC SAFETY, Employer (Self-Funded), Defendant"
    ],
    "opinions": [
      {
        "text": "ORR, Judge.\nThe sole issue on appeal is whether plaintiff was an \u201cemployee\u201d as defined in N.C. Gen. Stat. \u00a7 97-2(2) (1991) and thus entitled to compensation benefits from defendant under the Workers\u2019 Compensation Act. N.C. Gen. Stat. \u00a7 97-2(2) provides in pertinent part:\nThe term \u201cemployee\u201d 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.\nDefendant 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.\nRecently we held in Britt v. North Carolina Dep\u2019t 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 \u201ccalled into the service of the United States\u201d 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 \u201c \u2018that 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.\u2019 \u201d 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 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. \u00a7 97-2(2).\nIn 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. \u00a7 97-2(2) expressly entitles members of the National Guard \u201cto compensation for injuries arising out of and in the course of the performance of their duties at drill . . . .\u201d 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.\nWe 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.\nAffirmed.\nJudges COZORT and LEWIS concur.",
        "type": "majority",
        "author": "ORR, Judge."
      }
    ],
    "attorneys": [
      "Dallas M. Pounds for plaintiff-appellee.",
      "Attorney General Michael F. Easley, by Assistant Attorney General Angelina M. Maletto, for defendant-appellant."
    ],
    "corrections": "",
    "head_matter": "DAVID A. DUNCAN, Employee, Plaintiff v. NORTH CAROLINA DEPARTMENT OF CRIME CONTROL & PUBLIC SAFETY, Employer (Self-Funded), Defendant\nNo. 9310IC412\n(Filed 21 December 1993)\nMaster and Servant \u00a7 49.1 (NCI3d)\u2014 workers\u2019 compensation\u2014 National Guard member \u2014 injury during routine weekend drill\u2014 employee of State\nA member of the National Guard injured in a jeep accident while returning to his local unit after completing a routine weekend drill at Fort Bragg was an employee of the State who was entitled to workers\u2019 compensation for his injuries under N.C.G.S. \u00a7 97-2(2). The fact that the injured guardsman received his pay and also compensation benefits from the federal government is of no moment in light of the provision of the statute which expressly entitles members of the National Guard to \u201ccompensation for injuries arising out of and in the course of the performance of their duties at drill . . . .\u201d\nAm Jur 2d, Workers\u2019 Compensation \u00a7 181.\nAppeal by defendant from opinion and award of the North Carolina Industrial Commission filed 28 January 1993. Heard in the Court of Appeals 4 October 1993.\nOn 21 August 1988, plaintiff was a member of the North Carolina Army National Guard, assigned to Company B of the First Battalion, 120th Infantry Unit, in Whiteville. As part of his regular duties for the North Carolina Army National Guard, plaintiff was required once a month to attend a weekend drill, either at the local unit in Whiteville or at Fort Bragg, an United States Army Installation. On 21 August 1988, he was involved in an accident in one of the jeeps assigned to the local unit while returning to Whiteville after completing a required weekend drill at Fort Bragg. He filed this claim under the Workers\u2019 Compensation Act seeking to recover compensation for injuries he sustained in this accident. After a hearing, Deputy Commissioner Lawrence B. Shuping, Jr. concluded that plaintiff\u2019s injuries were compensable under the Workers\u2019 Compensation Act and awarded plaintiff compensation. The Full Commission (the \u201cCommission\u201d) affirmed and adopted the opinion and award of the Deputy Commissioner.\nFrom this opinion and award, defendant appeals.\nDallas M. Pounds for plaintiff-appellee.\nAttorney General Michael F. Easley, by Assistant Attorney General Angelina M. Maletto, for defendant-appellant."
  },
  "file_name": "0184-01",
  "first_page_order": 214,
  "last_page_order": 216
}