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DAVID H. GREENWOOD v. COMMONWEALTH PENNSYLVANIA (11/22/83)

decided: November 22, 1983.

DAVID H. GREENWOOD, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF MILITARY AFFAIRS AND PENNSYLVANIA NATIONAL GUARD, RESPONDENTS



Appeal from the Order of the Department of Military Affairs in case of In the Matter of Claim of David H. Greenwood, Claim Petition No. 82-1.

COUNSEL

Lopis C. Long, with him Louis B. Loughren, Meyer, Darragh, Buckler, Bebenek & Eck, for petitioner.

Dennis T. Guise, Chief Counsel, for respondents.

Judges Craig, MacPhail and Doyle, sitting as a panel of three. Opinion by Judge Craig. Dissenting Opinion by Judge MacPhail.

Author: Craig

[ 78 Pa. Commw. Page 481]

Claimant David H. Greenwood appeals an order of the Department of Military Affairs denying state benefits for a substantial back injury sustained in the line of duty while on annual two-week encampment with the Pennsylvania Army National Guard in 1975. At that time, state military benefits were governed by

[ 78 Pa. Commw. Page 482]

    section 844 of The Military Code of 1949.*fn1 The basis for the department's order is that the claimant was exclusively engaged in federal service and that the federal government has compensated him.

The questions are: (1) Does participation in federally funded and mandated training mean that a Pennsylvania National Guardsman is in federal service exclusively, thereby precluding any state compensation for injuries sustained during the training? (2) Does receipt of federal incapacitation benefits render the guardsman ineligible for state compensation?

Mr. Greenwood was admitted to a federal hospital for treatment of his back injury. Under 32 U.S.C. § 318, he incurred no costs for the treatment, and received a total of $683.50 in federal incapacitation benefits. Following his scheduled discharge from the Guard on September 17, 1975, Greenwood's incapacitation benefits ceased, although his back injury prevented him from returning to work until January 6, 1976.

After unsuccessfully challenging his discharge and termination of benefits at the federal level, Greenwood filed a claim for Pennsylvania workmen's compensation benefits. The referee denied his claim and the Workmen's Compensation Appeal Board reversed. In Pennsylvania National Guard v. Workmen's Compensation Appeal Board, 63 Pa. Commonwealth Ct. 1, 437 A.2d 494 (1981), this court vacated the board's action, finding that the board had exceeded its subject matter jurisdiction: "[W]hile the Pennsylvania Workmen's

[ 78 Pa. Commw. Page 483]

Compensation Act is to be applied in determining the amount of compensation, the actual authority to award relief lies with the Department of Military Affairs." Id. at 3, 437 A.2d at 495.

The Army National Guard of the United States is defined as the reserve component of the United States Army, and includes all members of the organized militia of the several states. 10 U.S.C. §§ 101(9)-(11). Thus, the Pennsylvania National Guard is a unit of the Army National Guard of the United States.

The National Guard is the modern militia reserved to the states by art. I, § 8, cl. 15, 16 of the United States Constitution. Maryland v. United States, 381 U.S. 41 (1965). The Guard is under the command of the Governor except when it is called into actual service of the United States. Pa. Const. art. IV, § 7; Act of May 27, 1949, P.L. 1903, § 301, 51 P.S. § 1-301. Thus, the Pennsylvania National Guard has a dual capacity and duty to serve both the state and federal governments.

In New Jersey Air National Guard v. Federal Labor Relations Authority, 677 F.2d 276 (3d Cir. 1982), the Third Circuit characterized the function of the National Guard in general as follows:

The National Guard occupies a unique position in the federal structure. It is "an essential reserve component of the Armed Forces of the United States, available with regular forces in time of war," and "also may be federalized in addition to its role under state governments, to assist in controlling civil disorders." (Citations omitted.) . . . [The role of the Guard] does not fit neatly within the scope of either state or national concerns; historically the Guard has been, and today remains, something of a hybrid. Within ...


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