The plaintiff had suffered several on-the-job injuries, including a right shoulder injury which had resulted in a limitation of his lifting to not more than fifty pounds. The plaintiff suffered an injury to his left shoulder and bicep in 1999. He underwent surgery by Surgeon 1. No lifting restrictions followed that surgery.

In March 2003, the plaintiff suffered a medial meniscal tear to his left knee and underwent surgery by Surgeon 2. The plaintiff was released to return to work in April 2004. The plaintiff was required to undergo a return-to-work screening to assess his fitness for his job, which was a new company policy. Employees of the company were to take a medical history and perform a physical examination. Employees of the rehabilitation firm would then administer a series of physical tests. The physician who took the history and performed the physical exam made no note of the plaintiff mentioning lifting restrictions. This physician cleared the plaintiff to undergo the physical testing.

An exercise physiologist conducted the physical testing, first explaining the tests which the plaintiff would undergo. One test required the plaintiff to use both hands to lift an eighty-pound weight from the floor to the top of a thirty-six inch high table. The plaintiff was asked to sign a written list of these tests.

The plaintiff claimed that he informed the physiologist that he was under a fifty-pound lifting restriction. The plaintiff claimed that he was told that if he did not perform the test he would not be allowed to return to work.

The physiologist claimed that the plaintiff did not mention lifting restrictions. The plaintiff signed the list and then the testing proceeded. The plaintiff completed the eighty-pound lifting test successfully, but immediately complained of pain in the left shoulder and upper arm. The physiologist conferred with the physician and then the screening was terminated.

The physician diagnosed a muscle strain after an examination and the plaintiff underwent a course of physical therapy which seemed to provide some relief for a while. The pain worsened, however and an MRI was ordered. This showed a massive left rotator cuff tear. Surgery was performed. The injury was handled as a work-related injury.

The plaintiff claimed that the defendants were negligent for requiring him to perform a lifting test which exceeded his restrictions. The plaintiff also claimed that Surgeon 1 should have been consulted prior to requiring him to perform the lifting test. The plaintiff claimed that he did not make a full recovery from the rotator cuff injury.

The defendants claimed that the plaintiff had not told them of his lifting restrictions and that there was no duty to consult with Surgeon 1. The defendants also noted that the lifting restriction had not been given by Surgeon 1, but by Surgeon 2 who had operated on the right shoulder. The shoulder at issue in this case was the left shoulder and the defendants claimed this shoulder was not under any lifting restriction.

Surgeon 1 was deposed in the case and testified that he would have advised allowing the plaintiff to attempt the eighty-pound lift. According to a Jury Verdict Reporter a $475,000 verdict was returned. The verdict was apparently against the exercise physiologist and the rehabilitation firm. A motion for a new trial was filed and denied. An appeal was pending.

With permission from Medical Malpractice Verdicts, Settlements & Experts; Lewis Laska, Editor, 901 Church St., Nashville, TN 37203-3411, 1-800-298-6288.