Appeal from the Order of the Commonwealth Court entered on November 22, 1983 at No. 2488 C.D. 1982,
Nix, C.j., and Larsen, Flaherty, McDermott, Hutchinson, Zappala and Papadakos, JJ. Flaherty, J., files a Dissenting Opinion in which Larsen, J., joins. Larsen, J., files a Dissenting Opinion in which Papadakos, J., joins.
This appeal involves the question of whether a Pennsylvania National Guardsman, injured while participating in annual training, is eligible for compensation under the Commonwealth's military benefit provisions.
David Greenwood was a member of the Pennsylvania National Guard. He enlisted in 1969 and was scheduled for discharge on September 17, 1975. In August of 1975, he attended what was to be his last annual encampment at Fort Indiantown Gap. While loading a truck at camp he injured his back. He was treated by Army physicians and put on incapacitation pay. He applied for a disability pension, which was denied, and on September 17, 1975, he was, according to the scheduled end of his enlistment, discharged from the Guard. His incapacitation pay ended, and, except for continued medical services, the Army denied all other claims for benefits on grounds that appellee's injury was not such as to entitle him to disability compensation beyond his date of discharge. Since the standards for evaluating a soldier's fitness for duty are not the same as those used to assess disability for civilian occupations the federal government, applying its standards, determined that appellee, although injured, was not disabled from military duty. Appellee therefore was discharged because he requested discharge, and not because he was unfit for military duty. That he was unable to return to his civilian construction job until January, 1976, was not disputed.
Since the Army would afford no relief beyond free medical care claimant filed for benefits under the Pennsylvania Workmen's Compensation Act,*fn1 alleging that he was injured upon the business of the state. The compensation referee denied benefits upon the ground that while undergoing
annual training with the Guard he was not employed by the state. The Workmen's Compensation Appeal Board reversed the referee, holding that the claimant was, while on duty with the Guard, a state employee and entitled to state compensation if he was not compensated by the federal government.
On appeal, the Commonwealth Court vacated the award, holding that, although the Pennsylvania Workmen's Compensation Act was to be applied in computing the amount of compensation in a given case, the Department of Military Affairs had exclusive authority to determine whether eligibility for state military benefits lies for a member of the Pennsylvania National Guard. Commonwealth, Pennsylvania National Guard v. Workmen's Compensation Appeal Board, 63 Pa. Commw. 1, 437 A.2d 494 (1981).
Claimant subsequently filed a claim*fn2 for disability compensation with the Department of Military Affairs under Section 844 of the Military Code of 1949,*fn3 the provision governing state military benefits. The Department of Military Affairs decided that a Guardsman on duty at annual training encampment was serving the federal government and hence claimant was not entitled to state military benefits. Appeal from that determination was taken again to the Commonwealth Court. That court, in a two-to-one decision, held that the Department of Military Affairs was
in error and that claimant Greenwood was entitled to state benefits. Greenwood v. Commonwealth, Department of Military Affairs, 78 Pa. Commw. 480, 468 A.2d 866 (1983). We granted allocatur to decide the question. The case was argued on May 15, 1985, and, pursuant to order of Court, reargued on January 22, 1986.
Whether claimant is eligible for state military benefits in the instant situation is controlled both by the character of National Guard annual training and by Section 844 of the Military Code of 1949.*fn4 That section provided as follows:
If any officer or enlisted man of the Pennsylvania National Guard is wounded or otherwise disabled, or dies as a result of wounds or other disability received or contracted while performing duty in active service of the State or in the performance of other State military duty under competent order or authority, or while engaged in volunteer service during a civil emergency at the request of competent military authority, he, or his dependents, if not compensated therefor by the government of the United States, shall receive from the Commonwealth ...