RENDERED: FEBRUARY 23, 2024; 10:00 A.M. NOT TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals NO. 2023-CA-1301-WC
THOMPSON CATERING & SPECIAL EVENTS APPELLANT
PETITION FOR REVIEW OF A DECISION v. OF THE WORKERS’ COMPENSATION BOARD ACTION NO. WC-14-88084
KIMMINEE COSTELLO; HONORABLE JOHN H. MCCRACKEN, ADMINISTRATIVE LAW JUDGE; AND WORKERS’ COMPENSATION BOARD APPELLEES
OPINION AFFIRMING
** ** ** ** **
BEFORE: THOMPSON, CHIEF JUDGE; EASTON AND GOODWINE, JUDGES.
EASTON, JUDGE: This workers’ compensation case presents a question about
whether a traveling employee (“Costello”) was engaged in a significant departure
from the purpose of a work-related trip and a distinct departure on a personal
errand when she was injured. Concluding that Costello’s injury was sustained while Costello was still in the course and scope of her employment, we affirm the
Workers’ Compensation Board (“Board”).
FACTUAL AND PROCEDURAL BACKGROUND
Costello was employed by Thompson Catering & Special Events
(“Thompson Catering”). Thompson Catering sent Costello to Las Vegas to attend
a conference and paid for Costello’s stay at the Paris Hotel in Las Vegas. After the
conference was over, Costello prepared to travel home. She packed her bags and
checked out of the hotel. Costello had time to kill before she headed to the airport.
She left her bags with the hotel bellman.
Costello had not had an opportunity during the conference to shop for
souvenirs for family members. She planned to leave the hotel for this purpose.
Before she left the hotel premises, Costello fell on some steps severely injuring her
ankle. This injury would require multiple surgeries. Hundreds of pages of medical
records make up the bulk of the record in this case.
Costello claimed workers’ compensation benefits. Thompson
Catering responded that Costello was on a personal errand when injured and so
was not entitled to workers’ compensation coverage. Honorable John Hampton
McCracken (“ALJ”) presided over the hearing on the claim and ultimately
concluded that Costello was on a personal errand at the time of her fall and so not
entitled to coverage. The Board reversed the ALJ. This appeal follows.
-2- STANDARD OF REVIEW
In workers’ compensation cases, the ALJ is the finder of facts. In
deciding facts, the ALJ has sole discretion in the evaluation of the evidence. Ford
Motor Co. v. Jobe, 544 S.W.3d 628, 631 (Ky. 2018). Factual findings cannot be
set aside unless shown to be clearly erroneous. A finding is not clearly erroneous
if supported by substantial evidence. Lexington Fayette Urb. Cnty. Gov’t v.
Gosper, 671 S.W.3d 184, 199 (Ky. 2023).
Costello had the burden of proof. When the ALJ rules against the
party having the burden of proof, that party must “show that the ALJ misapplied
the law or that the evidence in her favor was so overwhelming that it compelled a
favorable finding.” Gray v. Trimmaster, 173 S.W.3d 236, 241 (Ky. 2005)
(citations omitted). We then look at whether the ALJ and subsequently the Board
correctly applied the law to the facts found. This review is de novo. Bowerman v.
Black Equip. Co., 297 S.W.3d 858, 874 (Ky. App. 2008).
Thompson Catering asserts the sole issue presented in this appeal –
whether Costello was engaged in a significant departure from the purpose of her
work-related trip and a personal errand when she was injured – is a factual finding
by the ALJ subject to the “clearly erroneous” standard. Under the circumstances
presented, Thompson Catering is incorrect. The relevant underlying facts are not
in dispute and the sole issue on appeal is the legal significance of those facts under
-3- Kentucky Revised Statutes (“KRS”) Chapter 342; as such, we apply the de novo
standard. See General Elec. Co. v. Cain, 236 S.W.3d 579, 589 (Ky. 2007).
ANALYSIS
As stated, the facts of what happened and where are undisputed.
Costello attended a conference in Las Vegas for Thompson Catering. She stayed
at the Paris Hotel, which was paid for by Thompson Catering. The conference was
over, and Costello was waiting to go home. Before going to the airport for her
flight home, Costello left her bags with the hotel bellman and started to leave the
hotel to go shopping for souvenirs. She was not planning to shop on behalf of her
employer. She fell on some steps while exiting the Paris Hotel and received a
settlement from that property owner resulting from the fall. (Hearing Transcript,
Record at Pages 543-544, and 572-573.)
We want to be sure to distinguish some common rules applicable in
workers’ compensation cases from those rules which are dispositive of this case.
Generally, injuries occurring when an employee is coming or going from his usual
place of employment are not covered. Receveur Const. Co./Realm Inc. v. Rogers,
958 S.W.2d 18, 20 (Ky. 2018). An exception exists for travel to and from the
usual work site when the travel serves a purpose for the employer, such as when a
home health care provider travels to and from a place of employment to provide
-4- service at the homes of the customers of the employer. Olsten-Kimberly Quality
Care v. Parr, 965 S.W.2d 155 (Ky. 1998).
This case involves a different doctrine, the traveling employee
doctrine, which alters the application of the coming or going rule:
Employees whose work entails travel away from the employer’s premises are held in the majority of jurisdictions to be within the course of their employment continuously during the trip, except when a distinct departure on a personal errand is shown. Thus, injuries arising out of the necessity of sleeping in hotels or eating in restaurants away from home are usually held compensable.
Black v. Tichenor, 396 S.W.2d 794, 797 (Ky. 1965) (citations omitted).
The traveling employee doctrine is based on the positional risk
doctrine. Gaines Gentry Thoroughbreds/Fayette Farms v. Mandujano, 366
S.W.3d 456 (Ky. 2012). When an employer sends an employee to some other
location as part of the job, the risks of injury to the employee are different. The
employee will not be as familiar with the roads traveled or layout of the place
where they are staying as compared with the employer’s usual work location and
the employee’s own residence. For example, Costello would not be as aware of
the location and types of steps she may have to navigate at the Paris Hotel in Las
Vegas.
In Gaines, supra, the Court declared: “an injury that occurs while the
employee is in travel status to be work-related unless the worker was engaged in a
-5- significant departure from the purpose of the trip.” Id. at 462. From these
authorities, we see that Costello was a traveling employee and was entitled to
coverage for injuries occurring while she was in this travel status, unless she had
Free access — add to your briefcase to read the full text and ask questions with AI
RENDERED: FEBRUARY 23, 2024; 10:00 A.M. NOT TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals NO. 2023-CA-1301-WC
THOMPSON CATERING & SPECIAL EVENTS APPELLANT
PETITION FOR REVIEW OF A DECISION v. OF THE WORKERS’ COMPENSATION BOARD ACTION NO. WC-14-88084
KIMMINEE COSTELLO; HONORABLE JOHN H. MCCRACKEN, ADMINISTRATIVE LAW JUDGE; AND WORKERS’ COMPENSATION BOARD APPELLEES
OPINION AFFIRMING
** ** ** ** **
BEFORE: THOMPSON, CHIEF JUDGE; EASTON AND GOODWINE, JUDGES.
EASTON, JUDGE: This workers’ compensation case presents a question about
whether a traveling employee (“Costello”) was engaged in a significant departure
from the purpose of a work-related trip and a distinct departure on a personal
errand when she was injured. Concluding that Costello’s injury was sustained while Costello was still in the course and scope of her employment, we affirm the
Workers’ Compensation Board (“Board”).
FACTUAL AND PROCEDURAL BACKGROUND
Costello was employed by Thompson Catering & Special Events
(“Thompson Catering”). Thompson Catering sent Costello to Las Vegas to attend
a conference and paid for Costello’s stay at the Paris Hotel in Las Vegas. After the
conference was over, Costello prepared to travel home. She packed her bags and
checked out of the hotel. Costello had time to kill before she headed to the airport.
She left her bags with the hotel bellman.
Costello had not had an opportunity during the conference to shop for
souvenirs for family members. She planned to leave the hotel for this purpose.
Before she left the hotel premises, Costello fell on some steps severely injuring her
ankle. This injury would require multiple surgeries. Hundreds of pages of medical
records make up the bulk of the record in this case.
Costello claimed workers’ compensation benefits. Thompson
Catering responded that Costello was on a personal errand when injured and so
was not entitled to workers’ compensation coverage. Honorable John Hampton
McCracken (“ALJ”) presided over the hearing on the claim and ultimately
concluded that Costello was on a personal errand at the time of her fall and so not
entitled to coverage. The Board reversed the ALJ. This appeal follows.
-2- STANDARD OF REVIEW
In workers’ compensation cases, the ALJ is the finder of facts. In
deciding facts, the ALJ has sole discretion in the evaluation of the evidence. Ford
Motor Co. v. Jobe, 544 S.W.3d 628, 631 (Ky. 2018). Factual findings cannot be
set aside unless shown to be clearly erroneous. A finding is not clearly erroneous
if supported by substantial evidence. Lexington Fayette Urb. Cnty. Gov’t v.
Gosper, 671 S.W.3d 184, 199 (Ky. 2023).
Costello had the burden of proof. When the ALJ rules against the
party having the burden of proof, that party must “show that the ALJ misapplied
the law or that the evidence in her favor was so overwhelming that it compelled a
favorable finding.” Gray v. Trimmaster, 173 S.W.3d 236, 241 (Ky. 2005)
(citations omitted). We then look at whether the ALJ and subsequently the Board
correctly applied the law to the facts found. This review is de novo. Bowerman v.
Black Equip. Co., 297 S.W.3d 858, 874 (Ky. App. 2008).
Thompson Catering asserts the sole issue presented in this appeal –
whether Costello was engaged in a significant departure from the purpose of her
work-related trip and a personal errand when she was injured – is a factual finding
by the ALJ subject to the “clearly erroneous” standard. Under the circumstances
presented, Thompson Catering is incorrect. The relevant underlying facts are not
in dispute and the sole issue on appeal is the legal significance of those facts under
-3- Kentucky Revised Statutes (“KRS”) Chapter 342; as such, we apply the de novo
standard. See General Elec. Co. v. Cain, 236 S.W.3d 579, 589 (Ky. 2007).
ANALYSIS
As stated, the facts of what happened and where are undisputed.
Costello attended a conference in Las Vegas for Thompson Catering. She stayed
at the Paris Hotel, which was paid for by Thompson Catering. The conference was
over, and Costello was waiting to go home. Before going to the airport for her
flight home, Costello left her bags with the hotel bellman and started to leave the
hotel to go shopping for souvenirs. She was not planning to shop on behalf of her
employer. She fell on some steps while exiting the Paris Hotel and received a
settlement from that property owner resulting from the fall. (Hearing Transcript,
Record at Pages 543-544, and 572-573.)
We want to be sure to distinguish some common rules applicable in
workers’ compensation cases from those rules which are dispositive of this case.
Generally, injuries occurring when an employee is coming or going from his usual
place of employment are not covered. Receveur Const. Co./Realm Inc. v. Rogers,
958 S.W.2d 18, 20 (Ky. 2018). An exception exists for travel to and from the
usual work site when the travel serves a purpose for the employer, such as when a
home health care provider travels to and from a place of employment to provide
-4- service at the homes of the customers of the employer. Olsten-Kimberly Quality
Care v. Parr, 965 S.W.2d 155 (Ky. 1998).
This case involves a different doctrine, the traveling employee
doctrine, which alters the application of the coming or going rule:
Employees whose work entails travel away from the employer’s premises are held in the majority of jurisdictions to be within the course of their employment continuously during the trip, except when a distinct departure on a personal errand is shown. Thus, injuries arising out of the necessity of sleeping in hotels or eating in restaurants away from home are usually held compensable.
Black v. Tichenor, 396 S.W.2d 794, 797 (Ky. 1965) (citations omitted).
The traveling employee doctrine is based on the positional risk
doctrine. Gaines Gentry Thoroughbreds/Fayette Farms v. Mandujano, 366
S.W.3d 456 (Ky. 2012). When an employer sends an employee to some other
location as part of the job, the risks of injury to the employee are different. The
employee will not be as familiar with the roads traveled or layout of the place
where they are staying as compared with the employer’s usual work location and
the employee’s own residence. For example, Costello would not be as aware of
the location and types of steps she may have to navigate at the Paris Hotel in Las
Vegas.
In Gaines, supra, the Court declared: “an injury that occurs while the
employee is in travel status to be work-related unless the worker was engaged in a
-5- significant departure from the purpose of the trip.” Id. at 462. From these
authorities, we see that Costello was a traveling employee and was entitled to
coverage for injuries occurring while she was in this travel status, unless she had
made a distinct departure on a personal errand, and this departure must be
significant.
Relative to what does not qualify as a significant, distinct departure on
a personal errand, we find a measure of guidance in Meredith v. Jefferson County
Property Valuation Administrator, 19 S.W.3d 106 (Ky. 2000). There, a
government employee was required to travel to banks to perform his employment
duties. He showed up early to one appointment, had some time to kill, and left the
premises to get a cup of coffee. He then fell at the place where he got the coffee
and was injured.
The Court in Meredith applied the doctrine of comfort and
convenience, which applies to all employees. For example, if an employee went to
a bathroom during work or to get a coat to keep warm while working, attending to
such personal concerns does not interrupt their working status. For traveling
employees, we see an indication of this doctrine in Black, supra. Employees
working away from home have to eat and sleep somewhere, and they are covered
while doing so.
-6- So, the question in Meredith was whether the employee was on a
personal errand outside of his work status when getting a cup of coffee. The
employee was on a “hiatus” while on the job. Quoting a well-respected authority
on workers’ compensation law, the Court concluded that the trip to get a cup of
coffee did not take the employee out of the employment status at the time of his
injury noting: “a certain amount of wandering around and even undertaking what
otherwise might seem to be distinctly personal activities has been permitted in a
number of jurisdictions unless there was evidence that the worker’s duties required
him to remain in a particular place.” Id. at 108-09 (internal quotation marks
omitted). The deviation from work was “so small that it may be disregarded as
insubstantial.” Id. at 108.
To be sure, Meredith indicates that getting a cup of coffee at a nearby
restaurant while on a “hiatus” does not qualify as engaging in a significant
departure from the purpose of a work-related trip. It says nothing about shopping
for souvenirs and, strictly speaking, there is a dearth of Kentucky law indicating
how that type of personal errand would be treated for purposes of applying the
traveling employee doctrine. But logically, if successfully leaving the location
where your employment has placed you can be considered an insubstantial
deviation under the traveling employee doctrine, then an unsuccessful attempt to
leave that same location, regardless of the reason, would also qualify. That was the
-7- thrust of why the Board reversed the ALJ. Absent any clear Kentucky law
supporting a contrary conclusion – and we have found none – the Board’s
interpretation of its statutory mandate in this respect is also to be accorded a level
of deference. See Kentucky Associated Gen. Contractors Self-Ins. Fund v.
Lowther, 330 S.W.3d 456, 460 (Ky. 2010). Even without that deference, we reach
the same conclusion.
Moreover, the Board’s interpretation is consistent with other
persuasive authority. To that point, Oregon – which applies the same standard as
Kentucky for the traveling employee – focuses on the nature of the activity at the
time of injury. See Sosnoski v. SAIF Corp., 184 Or. App. 88, 55 P.3d 533, 537
(2002). “If the activity at the time of the injury is an activity that the employer
could reasonably anticipate or expect of a traveling employee, then the activity is
reasonably related to the employee’s status as a traveling employee and is not a
departure.” Id. Minnesota courts have similarly explained that no significant
departure occurs when a traveling employee engages in activities “which may
normally be expected of a traveling employee as opposed to those which are
clearly unanticipated, unforeseeable and extraordinary.” Voight v. Rettinger
Transportation, Inc., 306 N.W.2d 133, 138 (Minn. 1981) (footnote omitted). And
the Maryland Court of Appeals, summarizing cases from around the county, has
-8- recognized this as the majority view. See Gravette v. Visual Aids Elecs., 216 Md.
App. 686, 90 A.3d 483, 498 (2014).
When we apply the majority view to this case, Costello was on a
hiatus as she waited to come home. Even if it could be considered unexpected that
a traveling employee in a tourist location like Las Vegas would shop for souvenirs
in or near her hotel while waiting to come home, it could not be considered
unexpected that Costello would attempt to exit the hotel where her employer had
placed her and utilize the stairs while doing so. It would have been a different
analysis had Costello broken her ankle because she left the Paris Hotel, took an
extra day side-trip to another location, and went skydiving before returning to Las
Vegas to catch her flight. But in the facts of this case, Costello was not engaged in
a distinct and significant departure from the work-related purpose of the trip.
This application of the majority rule is consistent with the well-
established purpose for Kentucky’s workers’ compensation laws. “The primary
purpose of the Workers’ Compensation Act is to aid injured or deceased workers
and statutes are to be interpreted in a manner that is consistent with their beneficent
purpose.” Kindred Healthcare v. Harper, 642 S.W.3d 672, 679 (Ky. 2022)
(internal quotation marks and citations omitted). Furthermore, assuming the
majority rule does not apply to these facts, there is an alternative reason to affirm
the Board. Even in cases of distinct and significant departures for personal
-9- errands, courts have acknowledged that the traveling employee status returns after
the errand is completed. See, e.g., Phillips Contracting, Inc. v. Hirst, 905 P.2d 9,
12 (Col. App. 1995). By the same logic, if the errand never began, the status never
left. See 2 LEX K. LARSON, THOMAS A. ROBINSON, LARSON WORKERS’
COMPENSATION LAW § 17.02[2] (2023).
Costello intended to shop for souvenirs, but she did not make it off the
property of the Paris Hotel. She fell there before making a distinct departure for
the shopping errand. And, while an employer might argue that an employee should
not be expected to run a shopping errand to get souvenirs while waiting to travel
home, it is certainly not unreasonable to expect coverage for an injury an employee
sustained while attempting to exit the hotel where the employer had the employee
stay on a work-related trip.
CONCLUSION
The Board correctly applied the law to the facts found by the ALJ in
this case. Costello was still in the course and scope of her employment as a
traveling employee when she fell at her hotel on her way to shop for souvenirs
before her return trip home. The Board is AFFIRMED.
ALL CONCUR.
-10- BRIEF FOR APPELLANT: BRIEF FOR APPELLEE KIMMINEE COSTELLO: Joseph C. Klausing Brian W. Davidson William E. Brown, II Louisville, Kentucky Lexington, Kentucky
-11-