Ultimately, even after watching the reconstruction video filmed by the defendant, the expert again determined that it was likely that the incident caused the plaintiff's herniated disc. Dr. Lotan's testimony regarding the development of the herniated disc and its effect on the intensity of the pain in a two-stage manner, which can last over several days, is consistent with the course of events described by the plaintiff and the fact that she sought medical treatment only after a week.
- Therefore, even though Dr. Lotan did not make an unequivocal conclusion regarding the circumstances of the incident, according to his testimony it is possible to establish a reasonable conclusion - and even the most reasonable - that there is a causal connection between the incident and the disability from which the plaintiff suffers.
- According to case law, the final determination regarding the medical condition of a plaintiff as a result of an accident is always left to the court, which has discretion as to whether to rely on the expert opinion on its behalf, or to reject it, in whole or in part (Civil Appeal 2160/90 Raz v. Latz, IsrSC 47(5) 170, 174 (1993); Civil Appeal 2541/02 Langer v. Yehezkel, IsrSC 58(2) 583, 588 (2004)). However, as a rule, it is customary to give the expert opinion - as he is an objective expert who serves as the long arm of the court - a great deal of weight. The court will not deviate from the medical expert's determinations and conclusions unless there are special circumstances and convincing reasons (see Civil Appeal 293/88 Yitzhak Neiman Company for Rent in Tax Appeal v. Moniti Rabi [published in Nevo] (December 31, 1988); Civil Appeal 3056/99 Stern v. Haim Sheba Medical Center [Nevo, February 4, 2002]; Civil Appeal 9598/05 Anonymous v. "HaMagen" Insurance Company in a Tax Appeal [published in Nevo] (March 28, 2007); Civil Appeal 5681/19 Daoud H. Holdings and Investments inTax Appeal v. Danya Cebus in Tax Appeal [published in Nevo] (November 5, 2020)).
This principle applies both for the purpose of assessing the medical condition of the injured party and the degree of disability caused to him, and for the purpose of determining the causal connection between the incident and the medical impairment (see Civil Appeals Authority 1138/12 I.D.I. Insurance Company in Tax Appeal v. Anonymous [published in Nevo] (April 9, 2012); Civil Appeal Authority 7097/11 Phoenix Insurance Company in Tax Appeal v. Qawasma [published in Nevo] (August 5, 2012); T.A. (Haifa) 63017-06-20 Anonymous v. Lobzov [published in Nevo] (December 18, 2023)).
- I am of the opinion that significant weight should be attributed to Dr. Lotan's testimony regarding the mechanism of the event and the causal connection to the disability, as he is a professional and objective expert on behalf of the court, and also because of the fact that his testimony was convincing and his opinion is acceptable to me.
- The court-appointed neurology expert, Dr. Arie Koritzky, who was appointed in the current proceeding, also described in an opinion dated July 23, 2023, the circumstances of the incident as reported to him by the plaintiff - jumping while riding a motorcycle over a cattle barrier and landing forcefully on the buttocks, without falling off the motorcycle. The expert noted in the opinion that there is a question as to whether the full disability determined in the plaintiff's case should be attributed to landing on the motorcycle seat, in view of what was stated in the initial medical documentation, but it was not required to do so.
- In cross-examination of the plaintiff's counsel, Dr. Koritzky referred to the possibility that deep tissue massage caused the disc protrusion from which the plaintiff suffers, and replied that "medicine has everything" and that it depends on the intensity of the massage, but "as a rule, if you do a massage in general, it should not happen." [Proc. at p. 8]. When the expert was asked to assess whether it was more likely that the damage was caused by the incident or as a result of a massage, he replied that he thinks it is more logical that the damage was caused by a blow, but it is difficult to give an accurate answer since it is not known whether the massage was manipulated.
- During his interrogation by counsel for the defendant, with regard to the damage caused to the plaintiff, the expert testified that part of the pain could be explained by additional degenerative changes in the matter of the injury, and that there may be other causes. The expert ruled out the connection between the plaintiff's past complaints of neck pain, but confirmed that the fall on the buttocks in 2016 could have caused damage to the lumbar spine, and at the same time did not find it appropriate to determine a previous medical condition.
In contrast to the orthopedic expert, Dr. Koritzky did not directly relate in his testimony to the reasonableness of the mechanism of the event, but testified mainly regarding the fact that the pain stemmed from factors involved, and therefore he saw fit to attribute only part of the disability to the event. Therefore, the contribution of his opinion and testimony was mainly not to the existence of a medical defect in connection with the incident of the cattle crossing, but rather to the degree of disability that should be attributed to the event out of the total disability in the area of pain, from a quantitative point of view, and taking into account the existence of other factors.
- In summary, the opinion and the testimonies of the experts in orthopedics and neurology, the reasonable conclusion is that there is a causal connection between the incident of the cattle crossing and the disability in the lumbar spine that was caused to the plaintiff and appeared only after the incident, but only part of the disability in the area of pain should be attributed to the event.
The parties' claims of lack of credibility
- As part of their summaries, each of the parties raised numerous claims regarding the lack of credibility of the other party. The arguments were presented on behalf of the parties in great detail, and a careful examination of them against the evidence and testimonies shows that at least some of the claims were presented in an incomplete and tendentious manner, while ignoring relevant data and the overall picture.
- 00The plaintiff claims that the defendant, who is a driving instructor by profession, acted irresponsibly by driving her on a motorcycle without valid compulsory insurance, in violation of the law.
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