What Do You Think: Was Conference Attendee Injured on Way to Souvenir Shop in Course & Scope of Employment?

Winchester, KY (WorkersCompensation.com) -- A traveling employee generally can recover workers’ compensation benefits for injuries sustained at a hotel where her employer required her to stay. But what if she’s on her way out to get last-minute gifts for family and friends.

A case involving a catering company that sent an employee to a conference in Las Vegas addresses that issue. The company put the caterer up at the Paris hotel. On her final day, she had some free time before she had to go to the airport. She had been so busy working she had not had time to grab souvenirs for her friend and family. So, she decided to go shopping.

On the way out of the hotel, she fell while on the hotel stairs and severely injured her ankle. The injury required several surgeries. An ALJ denied her request for workers’ compensation benefits, but the Workers’ Compensation Board reversed that decision.

On appeal, the company argued that the caterer was not acting in the course and scope of her employment when she was injured.

The court explained that the coming and going rule generally bars compensation of injuries sustained while an employee travels to and from work. But the traveling employee doctrine is an exception to that rule.

Under the traveling employee doctrine, employees whose work entails travel away from the employer's premises are, in most jurisdictions, considered to be within the course of their employment continuously during the trip, except when they make a distinct and significant departure on a personal errand. Thus, injuries arising out of the necessity of sleeping in hotels or eating in restaurants away from home are usually compensable, the court explained.

Did the caterer leave the course of her employment prior to falling?
A. No. She was still in the hotel where her employer required her to stay.
B. Yes. She was on a personal errand that had nothing to do with her job.

If you selected A, you agreed with the appeals court in Thompson Catering v. Costello, No. 2023-CA-1301-WC (Ky. Ct. App. 02/23/24, unpublished), which held that the caterer did not engage in a significant departure from the purpose of a work-related trip.

The appeals court explained that the caterer 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 and significant departure on a personal errand.

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The court pointed out that Meredith v. Jefferson County Property Valuation Administrator, 19 S.W.3d 106 (Ky. 2000), found an injury compensable when a traveling employee left the hotel to get a cup of coffee. While there was a dearth of Kentucky cases addressing an employee going to get souvenirs, the court reasoned that if an injury sustained after leaving a hotel is compensable, then an injury occurring while still in the hotel must be.

“[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,” the court wrote.

Further, even if an employer wouldn’t expect a traveling employee in a tourist location like Las Vegas to shop for souvenirs in or near her hotel while waiting to come home, the employer would expect the employee to attempt to exit the hotel where the employer had placed her.

“It would have been a different analysis had [the caterer] 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,” the court wrote.

The court affirmed the Board’s decision.

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