608 So. 2d 649 | La. Ct. App. | 1992
Lead Opinion
As Brenda Hahn was leaving work, she was shot and killed by her estranged husband on her employer’s parking lot. Plaintiff brought this workers’ compensation action on behalf of decedent’s three minor children. Determining that this incident arose out of a personal risk and was not employment related, the trial court initially granted summary judgment in favor of the employer. On appeal this court reversed holding that while on company property an employee is still within the course of employment for a reasonable period of time after completing her day’s work. Duncan v. South Central Bell Telephone Company, 554 So.2d 214 (La.App.2d Cir.1989), writ denied, 559 So.2d 125 (La.1990). On remand the trial court awarded plaintiff workers' compensation death benefits and funeral expenses. The trial court denied plaintiff’s request for penalties and attorney fees. Both plaintiff and defendant appeal. We affirm.
FACTS AND PROCEDURE
Brenda C. Hahn was employed as a telephone operator for defendant, South Central Bell Telephone Company. On August 8, 1986, she was scheduled to work a split shift from 9:30 a.m. until 1:00 p.m. and thereafter from 5:30 p.m. until 9:30 p.m. Mrs. Hahn clocked off of work from her first shift at 1:00 p.m. and proceeded to the parking lot provided for South Central Bell employees. At 1:03 p.m. while in the parking lot, Mrs. Hahn was shot and killed by her estranged husband. This action for workers’ compensation benefits and funeral expenses was brought by decedent’s sister, a court appointed tutrix, on behalf of decedent’s three minor children.
South Central Bell filed a motion for summary judgment contending that decedent’s death did not arise out of her employment and thus the children had no cause of action for workers’ compensation benefits. The trial court granted the motion for summary judgment. On appeal this court reversed and remanded for further proceedings. Duncan v. South Central Bell, supra. Defendant’s writ application to the Louisiana Supreme Court was denied by a four to three vote.
Thereafter, on remand the trial court found in favor of plaintiff and awarded the children death benefits and funeral expenses. From this decision, defendant has appealed. On remand plaintiff amended her petition to seek penalties and attorney fees for the capricious and arbitrary denial of benefits. The trial court denied plaintiff’s request and plaintiff also has appealed.
DISCUSSION
In reversing the trial court’s initial grant of summary judgment this court held in Duncan v. South Central Bell Telephone Company, supra, that decedent’s death occurred in the course of her employment. This court stated, “[e]ven if an employee has finished his day’s work and is preparing to leave or is in the act of leaving, he is entitled to a reasonable period while still on the premises which is regarded as within the course of the employment and the working day embraces these intervals just as it includes reasonable periods of rest, relaxation, or the attendance of personal needs.” Duncan, 554 So.2d at 220 citing Carter v. Lanzetta, 249 La. 1098, 193 So.2d 259 (1966).
In Duncan, supra, we analyzed the phrases “in the course of” and “arising out of” and utilized the legal reasoning and analysis contained in Raybol v. Louisiana State University, 520 So.2d 724 (La.1988). Raybol is the jurisprudence construing LSA-R.S. 23:1031, as that statute read on the date of Hahn’s death. Interpreting Raybol, we found that if an employee is clearly in the course of employment, there is no need to determine whether the injury “arose out of” the plaintiff’s employment by examining whether the circumstances under which the employee worked enhanced the danger of an assault. Duncan, 554 So.2d at 221. However, this court noted that a security guard was allegedly absent from his post at the time of the shooting, “which fact, if proven at trial, would clearly serve to satisfy the ‘arising out of’ requirement as the lack of security provid
We now clarify our prior opinion to state that two requirements exist for com-pensability under the act. Both “in the course of employment” and “arising out of employment” must be proven to qualify for compensation benefits; however, they should not be considered in isolation and a strong showing of one can overcome or strengthen a weaker showing of the other.
In our previous opinion, we found that the decedent, although in the process of leaving the work premises, was still “in the course of” her employment and because the employer’s actions made her movements more predictable that her death “arose out of” her employment. It is not for this panel to revisit the previous evaluation of a different panel of this court as their decision is the law of this case. Clomon v. Monroe City School Board, 557 So.2d 1100, 1106 (La.App.2d Cir.1990); Sharkey v. Sterling Drug, Inc., 600 So.2d 701, 705 (La.App. 1st Cir.1992), writ denied, 605 So.2d 1099 (La.1992); Knotts v. U.S., 893 F.2d 758, 761 (5th Cir.1990). We are bound by and accept the conclusion reached by the previous panel while clarifying its legal reasoning.
IS THE AMENDMENT TO LSA R.S. 23:1031 RETROACTIVE OR PROSPECTIVE?
South Central Bell cites, for the first time, Act 454 of 1989 which amended LSA-R.S. 23:1031 to add Paragraph D to the statute. Paragraph D provides that an injury by accident should not be considered as having arisen out of the employment, and therefore is not covered by workers’ compensation, if the employer can establish that the injury arose out of a dispute with another person or employee over matters unrelated to the injured employee’s work. LSA-R.S. 23:1031(D). This amendment became effective on January 1, 1990. South Central Bell argues that although Hahn was killed in 1986, this amendment is applicable because it is interpretive and therefore retroactive. Such retroactive application would defeat plaintiff’s claim for workers’ compensation death benefits and funeral expenses. We do not agree.
LSA-R.S. 1:2 mandates that no statute is retrospective unless expressly stated. The jurisprudence has developed the rule that substantive laws can only be applied prospectively while laws that are procedural, remedial, or curative can be accorded retroactive effect. La.C.C. art. 6
A substantive law is one that creates an obligation and its acts are generally defined as those which create, confer, define or destroy rights, liabilities, causes of action or legal duties. Roadrunner Motor Rebuilders v. Ryan, 603 So.2d 214, 218 (La.App. 1 Cir.1992). Procedural, remedial or curative statutes relate to the form of the proceeding or operation of the laws. Procedural acts describe methods for enforcing, processing, administering, or determining rights, liabilities, or status. Curative acts are those that remove past disabilities in order to effect the true intent of the legislature. Crowley, 602 So.2d at 44; Young v. American Hoechst Corporation, 527 So.2d 1102, 1103 (La.App. 1st Cir.1988).
Interpretive legislation does not destroy vested rights, because it does not create new rules, but merely establishes the meaning that the statute being considered had from the time of its enactment. It is the original statute, not the interpretive one, that establishes rights and duties. Gulf Oil Corporation v. State Mineral Board, 317 So.2d 576, 590 (La.1974). In a sense, interpretive acts explain existing laws, or add to them provisions which the lawmakers believe to be salutary. Dripps v. Dripps, 366 So.2d 544, 548 (La.1978).
That portion of Act 454 of 1989 which adds Paragraph D to LSA-R.S. 23:1031 eliminates a theory of recovery and thus, makes changes that alter substantive rights.
LSA-R.S. 23:1031(D) provides in part: An injury by accident should not be considered as having arisen out of the employment and thereby not covered by the provisions of this chapter if the employer can establish that the injury arose out of a dispute with another person or employee over matters unrelated to the injured employee’s employment, (emphasis added)
Before Paragraph D of LSA-R.S. 23:1031(D) was added, employees could prevail under certain circumstances against the employer for injuries that arose out of disputes with another person or employee over matters unrelated to the injured employee’s work. Paragraph D is a substantive change in the law which effectively extinguished this theory of recovery, and therefore is not to be retroactively applied. Gilboy v. American Tobacco Co., 582 So.2d 1263 (La.1991). The following analogy is also helpful in reaching this logical conclusion.
In Green v. Liberty Mutual Insurance Co., 352 So.2d 366 (La.App. 4th Cir.1977), writ denied, 354 So.2d 210 (La.1978), plaintiff was injured in an industrial accident at his place of employment and brought an “executive officer” tort suit, alleging that negligent acts of omission by four officers created unsafe working conditions and proximately caused his injury. Prior to filing suit, but after the accident, LSA-R.S. 23:1032 of the Louisiana Workmen’s Compensation Act, now called the Louisiana Workers’ Compensation Act, was amended by Act 147 of 1976 to provide that no employee could maintain a suit for damages against his employer, principal, or any officer. Defendants filed a peremptory exception of no cause of action asserting that the 1976 amendment required dismissal of plaintiff’s demands because it was retroactive in effect. The district court sustained defendant’s exceptions and dismissed plaintiff’s suit. Green, 352 So.2d at 367; Chris-tovich, Workmen’s Compensation Re-troactivity of Amendment to Louisiana Workmen’s Compensation Statute, 52 Tul.L.Rev. 907 (1978).
The court of appeal reversed and held that U.S. Const.Art. 1, § 10 prohibits a state from passing a retroactive or ex post facto law that would destroy a vested right or impair the obligation of contract. Furthermore, the Fourteenth Amendment guarantees against loss of a property right without due process of law. See also La. Const. Art. 1, § 23. Thus, because the amendment would deprive plaintiff of his vested right in the cause of action, i.e., right to file an executive officer damage suit, it cannot be given retroactive application. Green, 352 So.2d at 369-370.
Likewise, in the instant case, Act 454 of 1989, which amended LSA-R.S. 23:1031 to add Paragraph D, cannot be applied retroactively because such an application would deprive plaintiff of vested rights. It is well settled that where an injury has occurred for which the injured party has a theory of recovery, such is a substantive right. Gil-boy, supra; Sepulvado v. Sepulvado, 590
Because that portion of Act 454 of 1989 adding Paragraph D to LSA-R.S. 23:1031 is substantive and not retroactive, we find that LSA-R.S. 23:1031 as written on the date of Hahn’s death is applicable to the case and accordingly compensation benefits are due.
CREDIT
The defendant argues in the alternative that if workers’ compensation death benefits are due, the trial court erred in refusing to grant defendant’s request for credit for sums it paid under a sickness and accidental disability insurance plan funded by South Central Bell in the amount of $21,715. Specifically, South Central Bell argues that LSA-R.S. 23:1225(C)(1) is applicable to plaintiff’s claim. That statute provides in part:
C. (1) If an employee receives remuneration from: (a) benefits under the Louisiana Worker’s Compensation Law, (b) old age insurance benefits received under Title II of the Social Security Act to the extent not funded by the employee, (c) benefits under disability benefit plans in the proportion funded by the employer, and (d) any other worker’s compensation benefits, then compensation benefits under this Chapter shall be reduced ..., so that the aggregate remuneration from (a) through (d) of this subsection shall not exceed 66⅜ percent of the average weekly wages of the employee at the time of injury.
LSA-R.S. 23:1225(C)(1) is under chapter 10 subpart B titled “Disability Benefits”. The title for “Death Benefits” is found in subpart C. Unlike the subpart pertaining to disability benefits, subpart C does not allow a reduction for other benefits paid.
In our review, we are constrained to read and construe words and phrases in statutes according to the common and approved usage of the language. We may not disregard the letter of the statute under the pretext of pursuing its spirit when the wording of the statute is clear and free of ambiguity. Jungina v. Stafford, 535 So.2d 794, 795 (La.App. 2d Cir.1988). LSA-R.S. 23:1225 applies only when “an employee receives remuneration.” Like the trial court, we too cannot agree with South Central Bell’s claim that LSA-R.S. 23:1225(C)(1) is applicable. The statute does not apply to death benefits.
PLAINTIFF'S CLAIM FOR PENALTIES AND LEGAL FEES
In denying the plaintiff’s claim for penalties and attorney fees, the trial court noted that the plaintiff alleged in its petition that South Central Bell knew the parking lot was unsafe, had employed a security guard, and that the guard had left his post unattended when this shooting occurred. However, during the trial on the merits, no evidence was presented establishing the parking lot area to be unsafe, or that a security guard had been hired or was needed. The trial court found that because of this discrepancy between the plaintiff’s allegations and the facts proved at trial, and due to the uncertainty of the legal question presented, reflected by the Louisiana Supreme Court’s 4-3 vote on the writ denial, defendant was not arbitrary and capricious in refusing to pay benefits.
Under the totality of the circumstances of this case we find the trial court was not manifestly/clearly wrong to deny penalties and legal fees to plaintiff.
For the reasons stated above, the trial court judgment is affirmed. The claims for workers’ compensation benefits and funeral expenses made by plaintiff, Diane C. Duncan, on behalf of the minor children Brandon Michael Hahn, Miranda K. Hahn and Clinton Wayne Hahn, are sustained. That portion of the trial court judgment denying penalties and attorney fees and denying offset for disability and accident insurance benefits paid on behalf of the decedent is also affirmed. Costs are assessed to the defendant.
AFFIRMED.
LINDSAY, J., dissents and will assign reasons.
. LSA-C.C.Art. 6 was enacted by Acts 1987, No. 124 and became effective January 1, 1988. Comments to this article provide that the provision reproduces the substance of Article 8 of the Louisiana Civil Code of 1870 and accords with Louisiana jurisprudence interpreting the source provision and does not change the law.
. We reviewed the present case under the clearly erroneous standard. This standard dictates that if the trial court’s findings are reasonable, the court of appeal may not reverse, even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Sistler v. Liberty Mutual Insurance Co., 558 So.2d 1106 (La.1990).
This writer wishes to note that had he been sitting as the trial judge, he would have awarded penalties and attorney fees. This award of penalties and fees would be based on South Central
Dissenting Opinion
dissenting.
I respectfully dissent from the majority opinion which affirms the trial court judgment and follows our prior decision in this case.
I do not agree with the majority opinion that the plaintiff is entitled to workers’ compensation benefits. This court, in its prior opinion and now in the majority opinion, has misconstrued the jurisprudence dealing with entitlement to workers’ compensation benefits. Although the majority has “clarified” our prior opinion regarding the dual requirements that an accident must “arise out of” and be “in the course of” employment, it has failed to apply those requirements by finding that the initial decision is the law of the case. By so doing, the majority opinion perpetuates error made in the original opinion which relied upon jurisprudential authority that has been criticized in some cases and overruled in others. More importantly, in the prior opinion and in the present majority opinion, this court has failed to apply interpretive legislation concerning certain occurrences which are excluded from workers’ compensation coverage.
ENTITLEMENT TO BENEFITS
LSA-R.S. 23:1031(A) provides:
If an employee not otherwise eliminated from the benefits of this Chapter receives personal injury by an accident arising out of and in the course of his employment, his employer shall pay compensation in the amounts, on the conditions and to the person or persons hereafter designated. [Emphasis supplied.]
In our previous opinion in this case, and relying upon the reasoning in Raybol v. Louisiana State University, 520 So.2d 724 (La.1988), we ignored the statutory dual requirement that an employee must show that an accident “arose out of” and was “in the course of” his employment. We found that when the employee is injured while clearly in the course of employment, there is no need to determine whether the injury arose out of the employment. We found that in such a case, it is unnecessary to examine whether the circumstances under which the employee worked enhanced the danger of an assault. We also noted that numerous cases provide that an employee, who has finished the day’s work and is preparing to leave, or is in the act of leaving the premises, is entitled to a reasonable period of time while still on the premises, which is regarded as “within the course of” the employment. Carter v. Lanzetta, 193 So.2d 259 (La.1966); LaFleur v. Swallow’s Rice Mills, 532 So.2d 255 (La.App. 3rd Cir. 1988); Gorings v. Edwards, 222 So.2d 530 (La.App. 4th Cir.1969). Based upon this reasoning, we found that the decedent in this case, although in the process of leaving the work premises, was still “in the course of” her employment and there was no need for a showing that her death “arose out of” the employment.
We did not find, as stated by the majority, that the death “arose out of” the employment because the employer’s action made the decedent’s movements more predictable. Nor should we do so. The requirement that an assault “arose out of” the employment is not satisfied simply by
Further, the decision in Raybol, supra, was criticized in Johnson, Workers’ Compensation, Developments in the Law, 1987 to 1988, 49 La.L.Rev. 549 (1988). Professor Johnson stated that Raybol, supra, went too far and inadvertently transformed the dual requirement that had long been applied into a single requirement.
In Raybol, supra, an LSU custodial worker was attacked by a jilted lover while the worker was actively engaged in performing her duties. There, the employee was clearly in the course of employment when the act occurred. However, Professor Johnson stated that,
The fact that the victim was squarely in the course of employment does not compel the conclusion that the assault arose out of the employment. Such a showing may counter-balance a weak showing that the assault arose out of the employment, as in Raybol, and thus may justify compensating the injured worker. But to say that a strong showing of course of employment establishes that an injury arises out of employment is another matter entirely, and in fact would reduce the dual requirement in many instances to a single requirement.
In criticizing the reasoning in Raybol, supra, which transformed the dual requirement into a single requirement, Professor Johnson advised, “care should be exercised in the future to make sure that both requirements are kept alive and well; the courts may want and need to use both in future cases.”
As mentioned earlier, Act 454 of 1989 amended LSA-R.S. 23:1031 to add Paragraph D, which provides:
An injury by accident should not be considered as having arisen out of employment and thereby not covered by the provisions of this Chapter if the employer can establish that the injury arose out of a dispute with another person or employee over matters unrelated to the injured employee’s employment.
In Johnson, Worker’s Compensation, Developments in the Law, 1988-1989, 50 La.L.Rev. 391 (1989), it was noted that this amendment was “aimed” at the decision in Raybol v. Louisiana State University, supra. It appears that the amendment was intended to provide guidance in the interpretation of the statute in situations such as this, and to make it clear that workers’ compensation coverage does not extend to
South Central Bell argues that this amendment is interpretive legislation and therefore should be applied retroactively to exclude entitlement to workers’ compensation death benefits and funeral expenses in this case. This argument has merit.
LSA-C.C.Art. 6 provides:
In the absence of contrary legislative expression, substantive laws apply prospectively only. Procedural and interpretive laws apply both prospectively and retroactively, unless there is a legislative expression to the contrary.
The jurisprudence provides that the principle of nonretroactivity of existing legislation has three exceptions, i.e., laws that suppress or lessen penalties, laws that are interpretive of existing legislation and laws which the legislature has expressly or impliedly declared to be retroactive. Peppard v. Hilton Hotels Corp., 482 So.2d 639 (La.App. 4th Cir.1986); Ardoin v. Hartford Accident and Indemnity Company, 360 So.2d 1331 (La.1978).
Interpretive legislation is a recognized function of legislatures in systems of codified laws, being considered a correlative of the power to legislate. The legislature is an appropriate agency to clarify the meaning of its own statements. Barron v. State, Department of Public Safety, 397 So.2d 29 (La.App. 2d Cir.1981), writ denied 401 So.2d 1188 (La.1981).
Interpretive legislation does not divest vested rights, because it does not create new rules, but merely establishes the meaning that the interpreted statute had from the time of its enactment. It is the original statute, not the interpretive one, that establishes rights and duties. Gulf Oil Corporation v. State Mineral Board, 317 So.2d 576 (La.1974); Barron v. State, Department of Public Safety, supra.
In a sense, interpretive laws explain and interpret existing laws, or add to them provisions which the lawmakers believe to be salutary. Dripps v. Dripps, 366 So.2d 544 (La.1978).
That portion of Act 454 of 1989 which adds Paragraph D to LSA-R.S. 23:1031 is aimed at interpreting the meaning of the term “arising out of,” in certain situations. According to this provision, injuries resulting from disputes between co-workers or workers and third persons over matters not related to the employment are not covered by workers’ compensation. It also appears that such coverage was never intended under the statute, even as originally written, but rather was a jurisprudential extension of coverage. In the present case, it is undisputed that the decedent was killed by a third party, her estranged husband, and the killing was unrelated to the decedent’s employment by South Central Bell. Because this provision illumines the definition of the phrase “arising out of,” it is interpretive and is therefore retroactive.
Further, the dual requirements of LSA-R.S. 23:1031(A) continue to be the proper analysis, regardless of the discussion contained in Raybol v. Louisiana State University, supra. With no showing of the requirement of “arising out of,” no workers’ compensation benefits are due.
Because the precise behavior contemplated by LSA-R.S. 23:1031(D) is present under the facts of this case, workers’ compensation death benefits and funeral expenses are not payable.
Several other portions of Act 454 of 1989, amending various sections of the Workers’ Compensation Act, have been held to be interpretive and therefore retroactive. Blanson v. State, Department of Public Safety, 571 So.2d 181 (La.App. 4th Cir.1990), writ denied 573 So.2d 1142 (La.1991), held that the portion of Act 454 which amended LSA-R.S. 23:1225(C) was interpretive because it clarified instances in which workers’ compensation benefits would be reduced when other benefits were payable. See also Dupre v. City of New Orleans, 579 So.2d 496 (La.App. 4th Cir. 1991), writ denied 584 So.2d 679 (La.1991). Putzeys v. Schreiber, 576 So.2d 563 (La.App. 4th Cir.1991), writ denied 578 So.2d 932 (La.1991), held that Act 454, amending LSA-R.S. 23:1032, overruled a decision that had previously allowed other types of re
Therefore, in the instant case, because that portion of Act 454 of 1989 adding Paragraph D to LSA-R.S. 23:1031 is interpretive and retroactive, I do not find that workers’ compensation benefits are due in this case.
LAW OF THE CASE
The majority holds that we are bound by our prior decision under the doctrine of “law of the case.” Under the facts presented, I do not find that we are bound by our prior decision. Law of the case refers to a policy by which the court will not, on a subsequent appeal, reconsider prior rulings in the same case. This policy usually applies against those who were parties to a case when the former appellate decision was rendered and thus had their day in court. Among reasons assigned for application of the policy are the avoidance of indefinite relitigation of the same issue, the desirability of consistency of result in the same litigation and the efficiency and the essential fairness to both parties of affording a single opportunity for the argument and decision of the matter at issue. Mayer v. Valentine Sugars, Inc., 444 So.2d 618 (La.1984); Walker v. Creech, 509 So.2d 168 (La.App. 1st Cir.1987), writ denied 512 So.2d 464 (La.1987); Board of Levee Commissioners of the Orleans Levee District v. Newport Limited, 578 So.2d 191 (La.App. 4th Cir.1991), writ denied 584 So.2d 681, 683 (La.1991); Day v. Campbell-Grosjean Roofing and Sheet Metal Corporation, 260 La. 325, 256 So.2d 105 (1971).
However, this policy merely expresses the practice of courts generally to refuse to reopen what has been decided; it is not a limit to the court’s power. Day v. Campbell-Grosjean Roofing and Sheet Metal Corporation, supra. Law of the case is merely a practice of court policy and not of inflexible law, so that appellate courts are not absolutely bound thereby, but may exercise a degree of discretion in its application. Brumfield v. Dyson, 418 So.2d 21 (La.App. 1st Cir.1982), writ denied 422 So.2d 162, (La.1982). The principle is merely a discretionary guide and should not be applied where to do so would accomplish an obvious injustice or where the former appellate decision was clearly, palpably or manifestly erroneous. First Federal Savings and Loan of Warner Robins, Georgia v. Disiere, 542 So.2d 11 (La.App. 4th Cir.1989), writ denied 548 So.2d 311 (La.1989); Day v. Campbell-Grosjean Roofing and Sheet Metal Corporation, supra.
Because this court failed to consider the amendment to LSA-R.S. 23:1031 when this case was previously considered on appeal, the prior opinion was erroneous. To apply the law of the case doctrine to preclude reexamination of the issue of entitlement to workers’ compensation death benefits under the circumstances presented here would accomplish an obvious injustice. Application of the doctrine in this case is not warranted.
CONCLUSION
For the reasons stated above, I respectfully dissent from the majority opinion and would deny the claims for workers’ compensation benefits and funeral benefits.
. In our prior decision in this case, we partially relied upon Mundy v. Department of Health and Human Resources, 580 So.2d 493 (La.App. 4th Cir.1991), writ granted 586 So.2d 519 (La.1991). In Mundy, a nurse employed at Charity Hospital in New Orleans was stabbed by an assailant in an elevator while traveling to the floor of the hospital where she was to perform her duties. The plaintiff was a few minutes late arriving for her work shift. The plaintiff sought to recover in tort. The court of appeal held that because the plaintiff was within the course of her employment at the time of the attack, her exclusive remedy was in workers’ compensation. In our prior opinion in the instant case, we relied upon the appellate court decision finding that because the plaintiff in Mundy had arrived for work and was traveling to her work station at the time she was attacked, she was in the course of her employment.
The Louisiana Supreme Court reversed the appellate court decision in Mundy v. Department of Health and Human Resources, 593 So.2d 346 (La.1992). The Louisiana Supreme Court applied the dual requirement analysis of LSA-R.S. 23:1031 and found that the plaintiff’s injury did not arise out of her employment because the risk encountered was no greater for the employee than for any other person not so employed. The court also found that there was no strong "course of employment” showing because the attack occurred before the plaintiff arrived at her work station and before she began performing her duties. The court found that this fact situation was distinguishable from that in Raybol, supra, where the plaintiff was squarely within the course of her employment when she was attacked.
In Mundy, the Louisiana Supreme Court stated, “Generally, an accident that occurs while the employee is going to or returning from work does not occur in the course of the employment." In a footnote, the court observed that if the employee is actually performing services for the employer when the accident occurs when going to or from work, the accident is viewed as occurring in the course of employment because of the employment activity. Therefore, our previous reliance upon the appellate court decision in Mundy was erroneous.
