Medical Disability
- The plaintiff claims that during the incident he was injured in both shoulders, elbow and back. The court-appointed expert found that his condition deteriorated only due to the injury to his cervical spine and the injury to his right shoulder. The expert ruled out any connection to the plaintiff's complaints regarding injury to the left shoulder and back. The expert refers to the extensive medical material presented as the basis for his determinations.
- It turns out that the plaintiff was evacuated from the scene of the incident for medical examinations. The medical documents from the day of the incident and the next day show that the plaintiff complained of injury to his right shoulder, neck and left hand. There are no complaints of injuries to the left shoulder (see documents attached to the plaintiff's affidavit). Even in most of the documents from 2003, including the sick certificates and referrals for counseling, there is no mention of complaints of injury to the left shoulder or back. Thus, for example, in a document dated February 3, 2003, it was recorded "I suffer from pain in my right shoulder starting from my right neck along the length of my arm. The pain worsened after an attack on January 13, 2003.". Only in later documents, including those of Dr. Falah Mazen, who handled the plaintiff, do there any mention of complaints about the left shoulder (see, for example, a document dated April 22, 2003).
We would also like to emphasize that all the imaging tests that were attached from the period close to the incident refer only to a torn tendon in the right shoulder, without any mention of complaints or findings in the left shoulder (see also Prof. Wolfin's testimony, p. 15).
Only in 2008, five years after the incident, did complaints of injury to the left shoulder increase, and only in December 2009 did an imaging examination find an injury to the left shoulder (see also the testimony of Prof. Wolpin, p. 16).
- In his interrogation, Prof. Wolpin replied emphatically that these signs of injury were not related to the incident. According to him, "[...] Such complaints and findings of damage as we see in the right shoulder should have been clinically expressed already after the accident and not after a month and a half" (p. 16). According to him, even if the main injury was in the right shoulder, it is unlikely that the victim did not complain about the injury to the left shoulder for such a long time. The same applies to the tear found in the elbow tendon of the left hand, noting that it is not possible that the tear stemmed from the incident, since the complaints about it and the imaging findings were only from 2008 (p. 18).
- The expert clarified that medical documents about injuries to the cervical spine were also found on the eve of the assault. Therefore, he assessed that the attack only worsened the previous situation and emphasized that "Went to Kola" Prior to the plaintiff when he determined an aggravation rate of 5% (p. 20). Regarding the injuries to the back, he reiterated that no records of injuries to the lower back were found until November 2003, and therefore these injuries should not be linked to the assault incident (p. 21).
- From a review of the documents, the opinion and the expert's answers, I do not believe that there is room to deviate from his assessments. The expert's conclusions are well anchored in the medical material and logic, and the plaintiff did not succeed in contradicting them. It should also be noted that the rule is that usually in the absence of special circumstances, the court will tend to adopt the conclusions and findings of an expert appointed by it (see Civil Appeal 293/88 Yitzhak Neiman Company for rent inTax Appeal v. Rabi, [Published in Nevo] Paragraph 4 (December 31, 1988); Civil Appeal Authority 3811/96 Clal Insurance Company in Tax Appeal v. Lieberman, Piskei Din 50(3) 191 (1996)).
In this case, not only is there no evidence and circumstances that justify a deviation, and not the other way around, all the medical material strengthens the conclusion that the injury in the incident was only to the right shoulder and spine, and that although the plaintiff suffered from previous injuries, it can be assumed that the assault aggravated a previous condition.
- From the above, the conclusion is that following the assault incident, the plaintiff's disability in the orthopedic field increased by 9.75% and in the mental field by 10%.
I will note that the two experts clarified that the plaintiff intensifies his injuries, and this also has an impact on the significance of the injuries on the plaintiff's functioning. However, it is clear that the injuries impaired his functioning and limited his earning capacity.