Baccus v. Dept. of Crime Control

• Decision Date: 20 January 2009
• Docket Number: No. COA08-204.,COA08-204.
• Citation: 671 S.E.2d 37
• Court: North Carolina Court of Appeals
• Parties: Felisa R. BACCUS, Employee, Plaintiff v. N.C. DEPARTMENT OF CRIME CONTROL & PUBLIC SAFETY, Employer, Self-Insured (Key Risk Management Services, Servicing Agent), Defendants.

671 S.E.2d 37

Felisa R. BACCUS, Employee, Plaintiff v. N.C. DEPARTMENT OF CRIME CONTROL & PUBLIC SAFETY, Employer Self-Insured (Key Risk Management Services, Servicing Agent), Defendants.

No. COA08-204.

Court of Appeals of North Carolina.

January 20, 2009.

Appeal by defendants from an opinion and award entered 27 November 2007 by the North Carolina Industrial Commission. Heard in the Court of Appeals 23 September 2008.

Lewis & Daggett, Attorneys at Law, P.A., by Griffis C. Shuler and Christopher M. Wilkie, Winston-Salem, for plaintiff-appellee.

Attorney General Roy A. Cooper, III, by Special Deputy Attorney General Sharon Patrick-Wilson, for defendant-appellants.

HUNTER, ROBERT C., Judge.

Defendant North Carolina Department of Crime Control and Public Safety ("defendant") appeals from an opinion and award of the North Carolina Industrial Commission ("the Commission") awarding Felisa R. Baccus ("plaintiff"), a former member of the North Carolina National Guard, workers' compensation benefits due to injuries she sustained while participating in military training at Fort Hunter-Liggett in California. The sole issue on appeal is whether plaintiff was an "employee" as defined in N.C. Gen.Stat. § 97-2(2) (2007), and consequently, whether the Commission possessed subject matter jurisdiction. Deputy Commissioner Crystal Redding Stanback concluded plaintiff was an employee as defined in section 97-2(2) and awarded her compensation. The Commission affirmed with some modifications. After careful review, we vacate the opinion and award.

I. Background

In 2003, plaintiff was a member of the North Carolina Army National Guard and assigned to a unit and company based out of Winston-Salem, North Carolina. Plaintiff was also employed in a civilian capacity as a personal nursing assistant.

On or about 25 March 2003, plaintiff was "ordered to active duty for training (ADT)" from 11 May 2003 until 25 May 2003 and instructed to report to Eastover, South Carolina, to attend a motor transport operator course. The order listed its authority as 32 U.S.C. § 502(f) and stated that it was "contingent upon Congress enacting appropriations[.]" The order contained the following heading "State of North Carolina, Office of the Adjutant General" and was signed "for the Adjutant General" by "Charles E. Jackson, Col, MP, NCARNG G3[.]" On or about 14 April 2003, plaintiff received an amended order which changed the dates and location for the training; pursuant to the amended order, plaintiff was required to report from 2 May 2003 until 17 May 2003 at Fort Hunter-Liggett in California.

On 8 May 2003, while plaintiff was training at Fort Hunter-Liggett in California pursuant to the amended order, she sustained injuries while participating in a training exercise. In an effort to avoid a truck that was backing up towards her, plaintiff jumped onto a chain link fence and tried to climb it; her legs became entangled in the fence, causing injuries to her hip, back, and legs.

Plaintiff was incapacitated and unable to perform her military or civilian employment from 8 May 2003 until 5 November 2003. As a result of her injuries, she received $2,676.80 per month in gross incapacitation pay from the federal government from 8 May 2003 until 5 November 2003. In addition, upon filing for severance pay with the Veterans' Administration of the federal government, plaintiff was found eligible for benefits based upon a total disability rating of thirty percent (30%). She was awarded $330.00 per month in severance pay for approximately one year, after which her benefits increased to $439.00 per month and continue for the rest of her life. At the time defendant filed this appeal, this was the only compensation plaintiff had received as a result of her injuries. In addition to the federal compensation, defendant paid plaintiff approximately $273.00 per month for participating in her monthly/weekend drill for the North Carolina National Guard from the time she sustained her injuries (8 May 2003) until approximately June 2004.

Due to her injuries and physical limitations, plaintiff was discharged from the Army Reserve effective 13 August 2004; however, she was not simultaneously discharged from the North Carolina National Guard. She was later determined to be physically unfit to continue with the North Carolina National Guard. Since sustaining her injuries, plaintiff has not been able to return to her civilian employment as a nursing assistant. With the exception of a brief period of employment with Church's Chicken, a job which plaintiff had to leave due to her physical limitations, she has not returned to civilian employment in any capacity since 3 February 2004.

In September 2004, plaintiff filed for state workers' compensation benefits for the injuries she sustained on 8 May 2003. Defendant denied liability asserting that plaintiff "was not on State active duty under orders of the Governor at the time of the alleged injury; therefore, she would not be considered an `employee' under the [North Carolina] Workers' Compensation Act[,]" and the Commission did not possess subject matter jurisdiction. Plaintiff argued that while at Fort Hunter-Liggett, she was on "State active duty under orders of the Governor" and that the Commission did have subject matter jurisdiction. The Commission found and concluded that plaintiff was an employee as defined by section 97-2(2), specifically that she was on "active duty training with the North Carolina National Guard under orders of the Governor." Defendant appeals.

II. Analysis

In order to determine whether the Commission had subject matter jurisdiction, we must: (1) interpret what "State active duty under orders of the Governor" means, an issue of first impression for this Court; and (2) decide whether the training plaintiff was participating in on 8 May 2003, i.e., active duty for training pursuant to 32 U.S.C. § 502(f), fits within that definition.

It is well settled that to be entitled to maintain a proceeding for compensation under the Work[ers'] Compensation Act the claimant must have been an employee of the alleged employer at the time of his injury.... Thus, the existence of the employer-employee relationship at the time of the accident is a jurisdictional fact.... [T]he finding of a jurisdictional fact by the Industrial Commission is not conclusive on appeal even though there be evidence in the record to support such finding. The reviewing court has the right, and the duty, to make its own independent findings of such jurisdictional facts from its consideration of all the evidence in the record. The claimant has the burden of proof that the employer-employee relation existed at the time the injury by accident occurred.

Lucas v. Stores, 289 N.C. 212, 218, 221 S.E.2d 257, 261 (1976) (internal citations omitted). "When interpreting a statute, we ascertain the intent of the legislature, first by applying the statute's language and, if necessary, considering its legislative history and the circumstances of its enactment." Shaw v. U.S. Airways, Inc., 362 N.C. 457, 460, 665 S.E.2d 449, 451 (2008) (citations omitted). Further,

"[T]he Workers' Compensation Act should be liberally construed, whenever appropriate, so that benefits will not be denied upon mere technicalities or strained and narrow interpretations of its provisions .... [S]uch liberality should not, however, extend beyond the clearly expressed language of those provisions, and our courts may not enlarge the ordinary meaning of the terms used by the legislature or engage in any method of `judicial legislation.' [Finally], it is not reasonable to assume that the legislature would leave an important matter regarding the administration of the Act open to inference or speculation; consequently, the judiciary should avoid `ingrafting upon a law something that has been omitted, which [it] believes ought to have been embraced.'"

Id. at 463, 665 S.E.2d at 453 (citation omitted; final alteration in original).

N.C. Gen.Stat. § 97-2(2) provides in pertinent part: "The term `employee' shall include members of the North Carolina national guard while on State active duty under orders of the Governor and members of the North Carolina State Defense Militia while on State active duty under orders of the Governor."¹ In its opinion and award, the Commission did not actually interpret the meaning of section 97-2(2). Rather, it simply noted that the statute had been amended in 1999 and that it believed defendant's interpretation was too narrow. Specifically, the Commission concluded:

5. The amendment to the statute clarified the language to specify that it covered more than injuries at drill, in camp, and while on special duty under orders of the Governor. The amendment clarifies that members of both the North Carolina National Guard and the North Carolina State Guard are considered employees under the North Carolina Workers' Compensation Act while on State active (not just special) duty under orders of the Governor. It appears that the amendment clarified the intent of the legislature to make the statute more inclusive, rather than exclusive. Defendant's interpretation would preclude State workers' compensation coverage for members of the North Carolina National Guard while at camp or participating in drills even in North Carolina unless the Governor issued a special order.... [T]he Full Commission is not persuaded that the statutory intent is as narrow as Defendant argues.

On appeal, defendant argues, as it did below, that "State active duty under orders of the Governor" only includes those instances where North Carolina National Guard members are called into service of the State by the Governor in the event of a state emergency, such as a natural disaster, and that it does not include training.² In all other circumstances, defendant claims North Carolina National Guard members are federal employees, paid with federal funds, who exclusively receive federal...