After hearing the experts' testimonies, I accept their determinations as they were given during the hearing.
Accordingly, the plaintiff's medical disability is 10% orthopedic disability, 1.25% neurological disability (pain); and 5% psychiatric disability. The weighted medical disability is 15.5% (rounded), and against this background, the plaintiff's functional status should be discussed.
The functional impairment caused to the plaintiff as a result of the accident
- I will now turn to the assessment of the plaintiff's damages as a result of the accident, and for this purpose I will discuss the functional impairment and its impact on the plaintiff. This task may be complex for any injured party, and in particular in the case of the plaintiff, who suffers from background problems as well as a variety of medical problems and areas of disability following the accident, and presents a dynamic functional picture.
- The plaintiff claims that the accident had a decisive impact on her functioning and the course of her life. As a result of the accident, she became disabled with limited social, daily and occupational functioning, with no improvement in her functioning.
Due to the pain in her lower back, the plaintiff is limited in her exertion, and requires a lot of rest, and she also suffers from constant and severe pain in her left leg. The plaintiff's medical condition and the pain she suffers cause damage to her mental state and social functioning, and she feels exhausted and in a low mood.
The plaintiff claims that for an extended period of time she was limited to lifting light loads, and to this day she refrains from lifting loads. Her pains cause disturbance in her sleep and as a result she causes fatigue that makes it difficult for her to function at work, along with the difficulty in sitting for long periods of time.
Therefore, the plaintiff argues that her functional impairment should be set at a rate of 26%.
- The defendants claim that after the expert investigations, the plaintiff's weighted medical disability should be set at 2.5%, and that she did not suffer a functional disability as a result of the accident, not even temporarily. The evidence in the case indicates that the plaintiff asked to return to work immediately after the incident, and if she had not been fired, she would have continued to work regularly. Similarly, the documents of the hearing at the National Insurance Institute show that for a long time the plaintiff did not claim that the orthopedic disability or the disability in the field of pain impaired her ability to earn a living, but that her claims related only to hearing problems. The fact that the plaintiff worked for a certain period of time in a workplace where she earned a lower salary is not related to functional impairment as a result of the accident, but rather to the choice of workplace, after the plaintiff was fired from her previous job.
Therefore, the defendants claim that the plaintiff did not suffer any functional impairment or impairment of earning capacity as a result of the accident.
- As ruled in other municipal applications 3222/10 Direct Insurance v. Anonymous [published in Nevo] (June 28, 2012), the court must determine the rate of medical disability, what is the rate of functional disability, and what is the deduction from the income capacity of the victim in the accident, while making a distinction between these concepts. The effect of the medical disability on the functional impairment is not the same in each and every case, and even the functional impairment (which is different from the medical disability) does not necessarily indicate a deduction from the amount of earnings in the future (Civil Appeal Authority 8532/11 Cohen v. Krakowski [published in Nevo] (March 25, 2012)).
The rule is that the extent of the impairment and functional detriment is determined by the court on the basis of the totality of the circumstances and the evidence brought before it in each and every case. For this purpose, the medical disability serves as a starting point, and it is necessary to further examine the manner and extent of its effect on the actual injured party. Among other things, weight should be given to the nature of the injury and the medical disability, and its impact on the victim's occupation, taking into account his age, education, and skills. Real weight will be given to evidence relating to the actual functional implication, such as a violation of wages; In the absence of data that would assist in determining the deduction from earning capacity as a result of the accident, the rate of medical disability can even serve as a measure of the extent of the impairment of earning capacity, using the presumption that this capacity was impaired as the degree of medical disability (Civil Appeal 3049/93 Girogisian v. Ramzi [Nevo, June 8, 1995]); Civil Appeal 2113/90 Adler v. Southern Agencies in Tax Appeal [published in Nevo] (December 21, 1992); Civil Appeal 6601/07 Abu Sarhan v. Clal Insurance Company in Tax Appeal [published in Nevo] (August 23, 2010); Civil Appeal 4946/06 Tzel David v. Eliyahu [published in Nevo] (January 31, 2008)).