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City of Thomasville v. Tate

Alabama Court of Civil Appeals

March 6, 2015

City of Thomasville
v.
Calvin Tate

Appeal from Clarke Circuit Court (CV-11-900083)

DONALDSON, Judge.

The City of Thomasville ("the City") appeals from a judgment entered in favor of its former employee Calvin Tate by the Clarke Circuit Court ("the trial court") awarding Tate benefits he claimed under the Alabama Workers' Compensation Act ("the Act"), § 25–5–1 et seq., Ala. Code 1975. The trial court concluded that Tate's injuries arose out of and occurred in the course of his employment with the City; appointed a new authorized treating physician for Tate; and awarded Tate temporary-total-disability benefits, permanent-total-disability benefits, and past medical expenses relating to treatment from an unauthorized treating physician. We affirm that part of the judgment awarding Tate disability benefits. Because Tate did not utilize the means provided in the Act for an employee who is dissatisfied with an initial authorized treating physician to select a second physician, we reverse those portions of the judgment appointing a new authorized treating physician for Tate and ordering the City to pay for the medical expenses of Tate's unauthorized treating physician.

On July 1, 2011, Tate filed a complaint in the trial court seeking compensation and benefits under the Act. Tate claimed that on April 26, 2010, he had been employed by the City as a police sergeant and had suffered injuries to his neck and back when he wrecked his patrol vehicle while driving at a high rate of speed to respond to a report of a robbery. The accident happened on "Old Highway 5" outside of the City's police jurisdiction. The City filed an answer on August 8, 2011, denying that Tate's injuries were compensable on various grounds, including that Tate's injuries did not arise out of and in the course of his employment with the City.

The trial court held a bench trial on May 23, 2013. The documents and testimony presented at trial show the following pertinent facts. Landon Coston, a sergeant with the City's police department, testified that department policy required officers to notify dispatch and their supervisor before leaving the City's police jurisdiction. Coston testified that on the day of the accident, a radio dispatch issued a call to all units regarding a robbery. Coston testified that, he did not hear Tate respond to the dispatch. Coston stated that he then contacted Tate using a "walkie-talkie" feature on their mobile telephones and that Tate responded that he was on his way to the location of the robbery. Coston testified that he told Tate not to hurry but to continue to the location. Coston testified that he had no knowledge of why Tate was on Old Highway 5. About two minutes after the call went out regarding the robbery, Tate notified Coston that he had had an accident. Coston testified that the location of the wreck was between two and five miles outside the City's police jurisdiction.

Tate admitted that, at the time of the accident, he was outside the City's police jurisdiction. However, he testified that "I was informed as being the supervisor I could patrol anywhere in the jurisdiction or outside the jurisdiction as long as I was in the scope of my job of patrolling" and that Maurice Dyess, who was the City's chief of police at the time of the accident, "gave me permission. I asked him at one time was a sergeant able to leave the jurisdiction without his permission and he said yes." Dyess denied that Tate had work-related business outside the City's police jurisdiction or that he had given Tate permission to be outside the City's police jurisdiction. Tate testified that, when the accident occurred, the blue lights on his vehicle were illuminated and he was driving at approximately 90-100 miles per hour. Dyess testified that he did not have an objection to an officer's responding with his lights on at a high rate of speed to an emergency call.

Tate testified that he was seen by Dr. Huey Kidd, the physician who had been authorized by the City to treat Tate's injuries. Dissatisfied with the treatment he received from Dr. Kidd, Tate sought treatment from Dr. Timothy Holt, who performed surgery on Tate's neck. Regarding his selection of Dr. Holt, Tate testified on cross-examination:

"Q. Dr. Kidd further says that he never made any referral. On page twenty-two of his deposition we asked him: 'Did you ever make a referral to Dr. Timothy Holt in Montgomery?' He said he did not.

"A. No. He never referred me. I asked him if it was okay if I got a second opinion.

"Q. You never asked him about any particular doctor to go to?
"A. I asked him about Dr. Holt.
"Q. You did ask him about Dr. Holt?
"A. Yes. I asked him would it be okay if I went and seen him.
"....
"Q. You realize that Dr. Holt has testified that nobody referred him to you?
"A. No one did. I called him on my own. I got the number. I received this phone number and I got his number. ...

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