W.C. No. 4-386-423Industrial Claim Appeals Office.
October 14, 1999
FINAL ORDER
The claimant seeks review of a final order of Administrative Law Judge Friend (ALJ) which denied his claim for worker’s compensation benefits. The claimant contends the ALJ erred in determining that he was not “in active service on behalf of the state under orders from competent authority” when he sustained injuries while performing a parachute jump as a member of the Colorado Army National Guard. We affirm.
The claimant is a member of the Colorado Army National Guard (Guard). On December 12, 1997, the claimant performed a parachute jump during “inactive duty training” mandated by 32 U.S.C.A. § 502. The claimant was seriously injured when the wind shifted and he experienced a hard landing. The federal government has provided “incapacitation pay” and medical treatment on account of the claimant’s injuries. The claimant also filed this claim for workers’ compensation benefits.
Applying § 8-40-202(1)(a)(I)(A), C.R.S. 1999, the ALJ concluded the claimant was not a member of the military forces of the state of Colorado “engaged in active service on behalf of the state under orders from competent authority” at the time of the injury. Instead, the ALJ credited the testimony of the respondents’ witnesses who opined the claimant was not in “active duty status” at the time of the injury because he was not “activated by the Governor under executive order.” (Tr. p. 59). Thus, the ALJ concluded that, although the claimant was performing services for the state of Colorado to time of the injury, he was not in “active-duty” status for the Guard.
I.
On review, the claimant first contends the ALJ misconstrued §8-40-202(1)(a)(I)(A). The claimant argues the ALJ erred in differentiating between “active service on behalf of the state” and “active duty.” The claimant further contends this interpretation is contrary to the beneficent purposes of the Workers’ Compensation Act (Act). We find no error.
We previously addressed this issue in Hansen v. Colorado National Guard, W.C. No. 3-789-692 (October 2, 1987). There, we held that the predecessor to § 8-40-202(1)(a)(I)(A) should be construed as consistent with Title 28 Article 3, C.R.S., governing the organization and duties of the Guard. We reached this conclusion because the rules of statutory construction require that statutes pertaining to the same subject matter be construed together so as to effect the intent of the General Assembly. See McFarlen v. Eckhart, 878 P.2d 11 (Colo.App. 1994).
In Hansen, we noted that § 28-3-101(1), C.R.S. 1999, defines “active service” as a guardsman to mean “full-time service on behalf of the state when ordered by competent authority.” Thus, subsection (1) contains the same language which appears in §8-40-202(1)(a)(I)(A). In contrast, § 28-3-101(6), C.R.S. 1999, defines a guardsman as being “on duty” during “periods of drill and such other training and service as may be required under state or federal law, regulations, or orders.” Reading Title 28 and the Act together, we concluded that the General Assembly intended a distinction between “active service” as a guardsman and being “on duty” as a guardsman. “Active service”on behalf of the state occurs when the governor calls out “the militia to execute the laws, suppress insurrection or repel invasion” under the authority of Colo. Const. Art. IV, § 5. The claimant in Hansen was found to be “on duty”and not rendering “active service” because he was performing training required by the federal government under 32 U.S.C.A. § 502. Thus, in Hansen, we upheld the ALJ’s determination that the claimant was not an “employee” for purposes of the Act because he was not in “active service” of the state pursuant to an order from “competent authority.”
Our conclusion that Title 28 and the Act should be read together is bolstered by § 28-3-801, C.R.S. 1999. That provision states that guardsmen who die or are disabled as a result of “active service on behalf of this state ordered by competent authority” are entitled to benefits under the Act unless “similar benefits are payable under the provisions of any federal law or regulation.”
None of the claimant’s arguments persuades us to depart from our conclusion in Hansen. The claimant’s assertion notwithstanding, Hansen did not rule that guardsmen performing training are “federal employees,” the case merely ruled they are not “employees” for purposes of the Act. The Supreme Court’s holding in Perpich v. Department of Defense, 496 U.S. 334 (1990), merely observed that current federal law provides for a “dual enlistment” under which guardsmen simultaneously enlist in a State National Guard and the National Guard of the United States. A guardsman remains under the auspices and authority of the state Guard until called to active duty (as defined by federal law) in the National Guard of the United States. However, nothing i Perpich purports to define the terms “active service” and “on duty” as those terms are used in the Act or Title 28, C.R.S. Indeed, no such issue was even considered in Perpich.
Neither do we agree with the claimant’s assertion that the ALJ’s order is contrary to the beneficent purposes of the Act. To the contrary, § 28-3-801, evidences the General Assembly’s intent that workers’ compensation benefits be unavailable to guardsmen who are eligible for similar benefits under federal law. Here, it is apparent that such benefits were paid to the claimant.
II.
Claimant next argues that regardless of the ALJ’s interpretation of “active service on behalf of the state” the claimant was “in service of the state” and should receive benefits in the same fashion as any other state employee. However, a specific statute prevails over a general statute. Climax Molybdenum v. Walter, 812 P.2d 1168 (Colo. 1991). Here, §8-40-202(1)(a)(I)(A) contains a specific provision concerning the circumstances under which guardsmen are considered employees for purposes of the Act. In light of this specific provision the more general definition of “employee” pertaining to persons in service of the state does not govern.
IT IS THEREFORE ORDERED that the ALJ’s order dated January 8, 1999, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ David Cain
____________________________________ Robert M. Socolofsky
NOTICE
This Order is final unless an action to modify or vacate the Order is commenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver, Colorado 80203, by filing a petition to review with the court, with service of a copy of the petition upon the Industrial Claim Appeals Office and all other parties, within twenty (20) days after the date the Order was mailed, pursuant to §§ 8-43-301(10) and 307, C.R.S. 1999.
Copies of this decision were mailed October 14, 1999 to the following parties:
Donald K. Sullivan, 7840 Tejon, Denver, CO 80221
Department of Military Affairs, 6848 S. Revere Pkwy., Englewood, CO 80112-3904
John M. Connell, Esq., and Mark A. Neider, Esq., Larimer Corporate Plaza, 1675 Larimer St., Ste. 710, Denver, CO 80202 (For Claimant)
Tim Nemecheck, Esq., Ritsema Lyon, P.C., 999 18th St., Ste. 3100, Denver, CO 80202
Laurie A. Schoder, Esq., Colorado Compensation Insurance Authority, — (Interagency Mail) (For Respondents)
BY: A. Pendroy