Caton v. City of Pelham

• Decision Date: 11 December 2020
• Docket Number: 1190589
• Parties: Mark CATON v. CITY OF PELHAM
• Court: Alabama Supreme Court

329 So.3d 5

Mark CATON

v.CITY OF PELHAM

1190589

Supreme Court of Alabama.

December 11, 2020

Gregory A. Brockwell and Allen E. Sorrell of Brockwell Smith LLC, Birmingham, for appellant.

J. Frank Head and J. Bentley Owens III of Ellis, Head, Owens, Justice & Arnold, Columbiana, for appellee.

MENDHEIM, Justice.

Mark Caton appeals from a summary judgment entered by the Shelby Circuit Court in favor of the City of Pelham ("the City"), in his action alleging retaliatory discharge against the City. We affirm.

I. Facts

Caton began a career as a police officer with the City of Birmingham in 1990. In approximately 2001, he was hired as a police officer by the City. In 2004, while he was still a police officer, Caton injured his neck when he was wrestling with a suspect. Caton did not receive treatment for his neck at the time, but the pain from the injury gradually increased. In April 2006, Caton transferred from the Pelham Police Department to the Pelham Fire Department. On June 26, 2012, Caton had a vertebrae-fusion surgery.

On July 7, 2015, Caton was participating in a job-training exercise with fellow firefighters. While some of the crew he worked with were testing a fire engine, Caton pulled a three-inch fire hose off the bed of the truck and began throwing it on the ground. Caton then began to feel his neck spasming and hurting. Caton informed his supervisor, Timmy Honeycutt, of the injury. A couple of days later, Caton informed Honeycutt that he needed to see a doctor, and Caton went to Pelham Urgent Care, which prescribed muscle relaxers and told him that, if he did not get better, he would be referred to a specialist. Caton's pain did not subside, and he subsequently was referred to Dr. Thomas Powell, an orthopedic specialist. Dr. Powell began treating Caton in September 2015, and Caton visited Dr. Powell approximately four times over the course of two months. On November 16, 2015, Dr. Powell determined that Caton had reached maximum medical improvement with a zero percent impairment rating. Dr. Powell believed that Caton could return to regular-work duty with no restrictions. Caton testified that Dr. Powell did not inform him about the zero percent impairment rating.

Caton testified that, despite being cleared for work, the pain in his neck was so severe that he could not even put on a fire helmet without experiencing intense pain. Consequently, he requested from his worker's compensation insurer a panel of four doctors so that he could select a new doctor for treatment. In December 2015, while Caton waited to be given the panel of doctors, he stopped going to work at the fire station. On December 29, 2015, Pelham Fire Chief Danny Ray (hereinafter "Chief Ray") had a telephone conversation with Caton about his absences; Deputy Fire Chief Blair Sides was present with Chief Ray for the call and heard the conversation because Chief Ray put Caton on speaker phone. During the conversation, Chief Ray informed Caton that he would need to show up for his next shift and that he would need to produce a doctor's excuse for his previous absences. Caton stated that he did not have a doctor's excuse because he had not been able to pick a new doctor for treatment. Despite this information, Chief Ray warned Caton that he needed to show up for his next shift. It is undisputed that on December 31, 2015, Caton did not show up for his next shift and, as a result, he was given a written employee warning notice and suspended for a shift without pay.

In January 2016, Caton was given the names

of a panel of four doctors from which to select treatment. He selected Dr. E. Carter Morris with the Birmingham Neurosurgery and Spine Group. Dr. Morris diagnosed Caton with a nerve impingement at the C4-5 vertebrae of his neck and took Caton off full-work duty. Dr. Morris also provided Caton with two nerve-block injections, which gave Caton temporary relief from his pain. On March 3, 2016, Dr. Morris determined that Caton was at maximum medical improvement and that he had a zero percent impairment rating. Caton was told he could return to work with light duty for one week, after which he would return to full duty.

On March 9, 2016, Caton had an argument with Chief Ray concerning the amount of time Caton had taken off from work. Chief Ray informed Caton that he would need a doctor's excuse for the time he had taken off, and Caton stated that he had no doctor's excuse because he had not been able to see a doctor during that period. Chief Ray stated that, without an excuse, Caton's previous paid time off would be counted against him during current work periods. Caton expressed that he wanted to record the conversation with his cellular telephone, but Chief Ray refused to continue the conversation if it was being recorded, and Chief Ray subsequently left the fire station. Because of this incident, Caton was given another employee warning notice, and he was suspended from work until March 30, 2016, for failure to provide a doctor's excuse for missed time and for insubordination.

In early June 2016, while Caton was on full work duty with his fire crew, they were dispatched to Oak Mountain State Park to help a hiker who had injured her ankle

. Caton, along with other members of the crew, took turns carrying the hiker out of the park on a stretcher. Caton aggravated and reinjured his neck during this task, and, as a result, he filed another notice of injury. Caton testified that he returned to Dr. Morris following this reinjury and that Dr. Morris told Caton that he would perform surgery on Caton's neck if his worker's compensation insurance would cover it, and that the surgery would solve Caton's problems. However, according to Caton, Dr. Morris did not receive clearance to perform the surgery; consequently, Dr. Morris told Caton that there was nothing more he could to do to help Caton.¹

The City next sent Caton to Dr. Michelle Turnley, a physiatrist² at the Workplace Occupational Health Clinic located on the campus of the University of Alabama at Birmingham ("UAB"). Caton testified that he was unaware that Dr. Turnley was a "pain-management" doctor; he had thought that he was being referred to another spine-surgery doctor. Caton first visited Dr. Turnley on July 26, 2016. Caton testified that during that visit he had to wait over an hour before being seen, that no one in the office informed him that he would need to provide a urine sample to receive pain medications from Dr. Turnley, and that, as a result, he used the restroom while there but did not provide a sample. Dr. Turnley's medical notes state that she offered to reinstate the pain medications Caton had been taking under the direction of previous physicians, but he refused to sign a pain contract and declined to give a urine sample. Those notes also state that Dr. Turnley's office assistant told Caton that he needed to provide a urine sample to receive narcotics but that he stated that he would do without those drugs. Dr. Turnley prescribed physical therapy to Caton, which included receiving pain injections that Caton testified provided him with only temporary relief from his pain.

On August 23, 2016, Caton met with Dr. Turnley again. On that visit, Dr. Turnley recommended that Caton undergo a nerve study to gain further information about his problem, but Caton declined the recommendation because, he said, he had undergone a nerve study before that did not help, and he felt "that is not treatment; that's something that worker's comp people can say that there's nothing wrong with me when I know there is." Dr. Turnley prescribed more physical therapy for Caton.

Caton testified that following his second visit he experienced intense pain as a result of his injury, and so he telephoned Dr. Turnley's office and asked if there was a way he could get some pain medication or get an immediate appointment. Dr. Turnley's office scheduled a visit for Caton for two weeks from that day. On September 21, 2016, Caton visited Dr. Turnley for the third time. Caton testified that he had to wait an hour and a half before he was seen. When he was finally seen, Caton asked Dr. Turnley for pain medication for the next time his pain became too intense, but Dr. Turnley reminded Caton that on his first visit he had not signed a pain contract and he had refused to provide a urine sample, so she declined to give him pain medication. Caton testified:

"I said why aren't you treating me? And she goes, you don't want to piss me off. Her voice changed, she got -- for lack of a better word, an attitude. And that's why I said -- so my voice changed; I don't care -- I don't care if I piss you off at all. I mean, something to that effect. And that's when she said this is -- this is over.

"I said why won't you treat me, why won't you do -- I'm begging her, and she's walking out of the room. And like I said, my other doctors, I ask questions, they talk to me; she won't say anything. All she says is you need to leave.

"I said please refer me to Dr. Swaid [who treated Caton in 2012], refer me to anybody, anything but here, you're not doing anything for me, you've done nothing. And that's when she said to the receptionist, call security. I said you don't have to call security. I just want an answer to my question, you know."

Caton further testified that when Dr. Turnley would not help him, he left her office without engaging with security personnel. He went home and he called UAB to register a complaint about Dr. Turnley.

Dr. Turnley's patient notes relate the following with respect to the September 21, 2016, visit:

"[Caton] comes in today fairly aggressively requesting pain medication. When I attempt to explain for him a rationale for not giving any he interrupted me [and] used a loud tone. He became intimidating, stating ‘I was going to treat him’ and ‘you will give me pain medicine.’ He was fairly loud and refused to leave the clinic and UAB police were called.

"....

"[Caton] became verbally aggressive in the clinic. During that time he was noted

...