Firefighter sues city for lost sick time

Jennifer Kho

COSTA MESA -- A firefighter is suing the city, the fire department and

officials for allegedly docking his sick days when they would not let him

back to work after his physician declared him fit for duty.

“This is a man who really wanted to return to work,” said Devonne

Midson, attorney for Terry Evans, a Costa Mesa fire engineer. “It’s

interesting, forcing sick leave on someone who is saying ‘I’m not sick.’

It was terribly frustrating and stressful, trying to prove his fitness

for duty. I think an employee in that position would say, ‘I told you I’m

fit, my doctor told you I’m fit. You are certainly entitled to make sure,

but why should I have to pay for your piece of mind?’ ”

Evans returned to his job in July, but is seeking compensation for

damages, plus reimbursement for 42 work shifts that he allegedly lost

because he was forced to take sick leave.

Jim Murphy, an attorney representing the city, said he could not yet

comment on the lawsuit, of which he was notified Tuesday, because he has

not had enough time to review it. The city has until Nov. 17 to respond

by filing a court document.

“We’re looking diligently into the facts, trying to assess what

occurred and expect to file an appropriate response in Superior Court,”

Murphy said.

According to the lawsuit, filed two weeks ago, Evans had a “brief

episode of disorientation” and was brought to the hospital while on duty

in March 1998. When he returned to work, Evans alleges he was told he

needed a physician’s work release, but was not allowed back to work after

he produced one.

Instead, he was asked for further releases and was then subjected to a

number of additional tests before being allowed back to work in July,

according to the lawsuit.

Evans was docked for sick leave while he waited for the results of the

additional work release tests, and filed a request to be paid back for

those shifts. He rejected the city’s offer to pay him for 22 of 42 docked

shifts.

“The city refused to return him to full active duty, notwithstanding

the fact that his own physician had given the OK,” said Midson. “The real

question at the issue here is, if the employee insists he is not disabled

and the employer insists on considering him as such, who should bear the

burden if the employer wants to subject him to other tests to find out?”