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NOT TO BE PUBLISHED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

v. 

PETITION FOR REVIEW OF A DECISION

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 
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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.
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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 
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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 
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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 
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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.
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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 
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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 
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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 wellestablished 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 
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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.
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BRIEF FOR APPELLANT:

Joseph C. Klausing

Brian W. Davidson

Louisville, Kentucky

BRIEF FOR APPELLEE KIMMINEE 

COSTELLO:

William E. Brown, II

Lexington, Kentucky