Kentucky high court overturns comp award for injured out-of-state worker

The Kentucky Supreme Court on Thursday overturned an award of benefits to a worker who had relocated from out-of-state for a job, finding an accident that occurred while he was traveling to dinner before his scheduled shift was not in the course and scope of his employment.

Joseph Lee was a resident of Louisiana while he was working for W.G. Yates & Sons Construction, which was contracted to upgrade the ash system at the Eastern Kentucky Cooperative plant in Maysville, Kentucky, according to W.G. Yates & Sons Construction v. Harvey.

While working in Kentucky, Mr. Lee temporarily moved to a nearby campground in Aberdeen, Ohio, while maintaining his Louisiana residence and driver’s license.

Yates did not pay Mr. Lee to relocate but gave him a flat per diem of $100 during his employment. Eight months into the project, Mr. Lee clocked out of work on Sept. 19, 2020, and drove to his temporary home. He later rode his motorcycle to meet a friend for dinner before his next shift. On his way to the restaurant and while still in Ohio, a vehicle entered Mr. Lee’s traffic lane and struck him. The accident caused Mr. Lee to develop a frozen left elbow, and his left leg was amputated below the knee.

An administrative law judge denied Mr. Lee’s claim for workers compensation benefits, citing the “going and coming rule.” The Workers’ Compensation Board affirmed, but the Court of Appeals reversed, relying on the “traveling employee” exception to the rule.

The traveling employee doctrine considers an injury that occurs while the employee is in travel status to be work-related unless the worker was engaged in a significant departure from the purpose of the trip.

The court reasoned that the only way in which Mr. Lee could accomplish the work for which Yates had hired him was to temporarily live close to the job site and away from his permanent residence in Louisiana, which made him a traveling employee.

The Kentucky Supreme Court said the traveling employee exception did not apply in this case, as Mr. Lee was not hired by Yates while residing in Louisiana. He was offered a position in Kentucky and was not an actual employee of Yates until he arrived at the worksite, it said.

The high court said that under the Court of Appeals’ reasoning, Mr. Lee would be in the course and scope of his employment “at all times, day and night, for the full year he was expecting to work in Maysville only because he chose to maintain a residence in Louisiana.”