Determining the disability percentage is a matter for the judge alone
According to new legislation, the determination of medical disability is based on the assessment of the medical expert appointed by the court, deviating from general tort law principles.
The purpose of the law was to streamline the proceedings and shorten them as much as possible, since in car accident cases the question of liability does not arise and the proceedings focus solely on the issue of damages.
The result of this legislation is that the fate of the lawsuit in most cases rests with the court-appointed expert who typically determines the outcome of the lawsuit, and the prevailing tendency in the courts is not to dispute the court-appointed expert and to leave the medical determination exclusively in his hands.
It is clear that this approach is highly problematic, as the judicial function is effectively transferred to an external party, the issue of judicial ethics and conflicts of interest is not covered at all in the regulations, and in any case the doctor is not a judge and often the intricacies of the judicial function are unfamiliar to him.
In many verdicts it has been determined that the determination of the percentage of loss of earning capacity as well as functional disability are within the court's area of expertise and that in any case the final arbiter – even on the question of medical disability – is the court. However, usually immediately after these bombastic declarations the court adopted the determination of its medical expert without question.
However, recently a verdict was issued by the Honorable Judge Ilani at the Jerusalem Magistrate's Court, C.A. 16800/08 Alon Yerimi v. HaPhoenix, a verdict in which the court gave substance to the statement that it is the final arbiter even on medical matters.
The medical expert appointed by the court in the case determined that the plaintiff (who was represented by our office), who was injured in his ankle at age 15, had no remaining orthopedic disability. In his cross-examination, Dr. Ehud Leval determined that there is an extremely low probability that the ankle injury and its consequences are related to the accident. However, the expert could not explain the source of the ankle injury when the plaintiff's entire medical file was before him and there was no evidence in this file of any injury whatsoever.
The court, after hearing all the evidence in the case including testimony from family members, refused to follow the path that the medical expert paved for it. The court refused to assume that a 15-year-old child suffers from ankle disability due to another traumatic injury or for any reason – other than the car accident – when there is not a shred of evidence either in the medical file or anywhere else of trauma or treatment or past complaints that could indicate prior medical damage to the ankle. Since all the evidence in the case, including the medical documents, testified that the ankle injury was observed after the accident (although it was not diagnosed in the initial treatment), the court attributed the disability to the accident.
The court therefore rejected the expert's determination, took back control of managing the case, and awarded the plaintiff a total sum of 285,000 ₪, including 200,000 ₪ for future loss of earning capacity.
It should therefore be stated – even the determination of medical disability and its connection to the car accident is a distinctly judicial function. The expert is merely an auxiliary tool in fulfilling the judicial function and not the final arbiter on any matter.
