Citation: Stavitsky v. Certas Direct Insurance Company, 2026 ONLAT 24-012759/AABS

Licence Appeal Tribunal File Number: 24-012759/AABS

In the matter of an application pursuant to subsection 280(2) of the Insurance Act, RSO 1990, c I.8, in relation to statutory accident benefits.

Between:

Inessa Stavitsky

Applicant

and

Certas Direct Insurance Company

Respondent

DECISION

ADJUDICATOR:

Rachel Levitsky

APPEARANCES:

For the Applicant:

Mariana Slomyanski, Counsel

For the Respondent:

Jessica Bacopulos, Counsel

HEARD:

By way of written submissions

OVERVIEW

1Inessa Stavitsky, the applicant, was involved in an automobile accident on November 11, 2019, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (the "Schedule"). The applicant was denied benefits by the respondent, Certas Direct Insurance Company, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the "Tribunal") for resolution of the dispute.

ISSUES

2The issues in dispute are:

i. Is the applicant entitled to $3,047.60 for a chronic pain assessment, proposed by HealthSpot Assessments Inc. in a treatment plan submitted October 9, 2024?

ii. Is the applicant entitled to $2,652.00 for a psychological assessment, proposed by HealthSpot Assessments Inc. in a treatment plan submitted August 27, 2024?

iii. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?

iv. Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

3The applicant is not entitled to the treatment plans in dispute or interest.

4The respondent is not liable to pay an award.

ANALYSIS

5I find that the applicant is not entitled to the treatment plan in dispute for a chronic pain assessment.

6To receive payment for a treatment and assessment plan under s. 15 and 16 of the Schedule, the applicant bears the burden of demonstrating on a balance of probabilities that the benefit is reasonable and necessary as a result of the accident. To do so, the applicant should identify the goals of treatment, how the goals would be met to a reasonable degree and that the overall costs of achieving them are reasonable.

7The applicant relies on records from Mackenzie Richmond Hill Hospital from November 12, 2019, which indicate that she was experiencing pain to her neck and right shoulder. She was diagnosed with a soft tissue injury.

8The applicant also provided records from Dr. Mezhericher-Shenderey, family physician, from April 2, 2018, to November 20, 2021. She submits that she was involved in a previous accident in 2018, and that her injuries were aggravated by the 2019 accident. An x-ray and ultrasound of her right shoulder from June 12, 2018, indicated a partial tear of her infraspinatus tendon. An ultrasound to her neck on April 17, 2019, identified a subcutaneous lipoma, and a right shoulder ultrasound from the same date identified trace subacromial/subdeltoid bursitis. On May 29, 2019, the applicant complained to Dr. Mezhericher-Shenderey of right shoulder pain after an accident in 2018. She was diagnosed with a right rotator cuff injury and sprains and strains to her neck, and was referred to a pain clinic. She visited Dr. Mezhericher-Shenderey again on August 27 and September 3, 2019, and complained of neck pain, right arm pain, and right shoulder pain.

9After the accident, the applicant visited Dr. Mezhericher-Shenderey on November 22, 2019. She complained of neck and right shoulder pain and was sent for imaging, which indicated trace bicipital tenosynovitis, trace subacromial/subdeltoid bursitis, and mild supraspinatus tendinosis. The applicant did not visit Dr. Mezhericher-Shenderey again until August 25, 2020. She continued to complain of neck, right shoulder, and arm pain as a result of the 2018 and 2019 accidents. Further imaging on September 3, 2020, identified the suggestion of an AC joint injury, mild degenerative changes of the thoracic spine, and an intermediate grade partial articular surface tear of the supraspinatus tendon. The applicant complained of similar symptoms on March 9 and April 12, 2021. During the latter visit, Dr. Mezhericher-Shenderey noted that the applicant had some relief of her shoulder and neck pain after a course of Vimovo.

10The applicant visited Dr. Mezhericher-Shenderey 8 more times in 2021 but did not mention her neck or shoulder pain or either accident. There are no further records from Dr. Mezhericher-Shenderey before me.

11The applicant also visited Dr. Dima Rozen at The Pain Clinic, both before and after the accident. The records indicate that, on June 3, 2019, the applicant was experiencing pain in her neck and pain and paresthesia in her right upper extremity. She was diagnosed with facet arthropathy and myofascial pain, and she received a cervical epidural steroid injection. The applicant visited Dr. Rozen again for injections on June 17, July 19, August 16, September 3, October 1, November 15, and December 5, 2019. There are no further records from Dr. Rozen before me.

12The applicant also relies on a report dated January 20, 2020, authored by Natalya Khramtsova, registered nurse. Ms. Khramtsova noted that the applicant was experiencing pain in her neck and right shoulder, right elbow, bilateral wrists, upper back, lower back, right lower limb, right knee, bilateral ankles, and headaches.

13Finally, the applicant relies on the OCF-18 itself, which is dated October 9, 2024, and was completed by Igor Portnoi, general practitioner. Dr. Portnoi indicated that the applicant was exhibiting symptoms of chronic pain syndrome characterized by pain which is exacerbated by attempts to increase daily activities. He noted that she experienced neck pain, mid back pain, right shoulder pain, right elbow pain, upper and lower back pain, right arm pain, right wrist pain, right hand pain, right pelvis pain, right knee pain, right foot pain, right hip pain, right ankle pain, right toe pain, and headaches. On a scale from 0-10, the applicant's pain was noted to be a 9, and the interference with her activities was also a 9. Dr. Portnoi stated that a chronic pain evaluation would determine the extent of her injuries and arrange an appropriate multidisciplinary pain management program to assist with her recovery.

14Aside from the OCF-18, there is no evidence before me that, after April 12, 2021, the applicant was still suffering from accident-related pain. Suddenly, over three years later, the treatment plan indicates that the applicant has severe pain all over the right side of her body. The information contained in the treatment plan is not corroborated by contemporaneous medical evidence, and thus I do not find it persuasive on its own.

15I find that there is a lack of compelling contemporaneous medical information indicating that the applicant is still experiencing pain such that a chronic pain assessment is warranted. I accordingly find that the applicant has failed to prove, on a balance of probabilities, that the proposed chronic pain assessment is reasonable and necessary.

16I find that the applicant is not entitled to the treatment plan in dispute for a psychological assessment.

17The treatment plan was prepared by Dr. Cody Eriksen, psychologist, along with Viktoria Tolmatshov, psychotherapist. It notes that the applicant experiences sleep difficulties due to anxiety and nightmares, constantly feels anxious throughout the day, is fearful when driving, has become irritable and short tempered, and experiences memory difficulties. The authors provide a provisional diagnosis of Adjustment Disorder, and state that scores on measures of anxiety and low mood issues fell in the severe ranges. They propose a psychological assessment to provide specific recommendations for psychological support.

18The applicant also relies on Ms. Khramtsova's report from January 20, 2020, which states that she felt depressed and reported decreased energy levels and decreased appetite. She was also feeling increased fatigue, lethargy, and feelings of stress and anxiety. She also reported feeling nervous when using vehicular transportation.

19The applicant was subsequently assessed by Lital Grinberg, psychological associate, and Dr. Peter Waxer, supervising psychologist. In a report dated July 16, 2020, the assessors indicated that the applicant had anxiety related to operating a motor vehicle. They recommended that she receive 15 driver desensitization lessons, 12 sessions of virtual reality guided therapy, and 12 mindfulness-based therapy sessions. The report also indicated that the applicant was receiving psychological treatment every two weeks.

20The applicant submits that the proposed assessment is necessary to monitor if she is improving from treatments and has "attained the goal". However, a progress report from Dr. Olga Gale, psychologist, dated August 1, 2020, was authored after the applicant underwent 12 treatment sessions. Dr. Gale noted that the applicant's discomfort with driving had improved overtime, although some apprehension remained. She indicated that the applicant's emotional state had improved, and towards the end of the treatment she reported socializing with friends, enjoying shopping, and managing at work. The applicant denied hopelessness and helplessness, or any issues with mood or depression. No further recommendations for psychological treatment were made by Dr. Gale. There is no evidence before me indicating that the applicant attended any further psychological treatment sessions, and therefore it does not appear that there is any further treatment to monitor.

21I note that the only time the applicant's psychological status was mentioned by Dr. Mezhericher-Shenderey was during a physical on November 20, 2021. She conducted a depression screening, and noted that the applicant's mood was "good". No other psychological symptoms were reported. After Dr. Gale's progress report, and before the preparation of the treatment plan, there are no other records before me which indicate that the applicant is suffering from psychological symptoms that warrant further investigation.

22I find that the treatment plan alone is unpersuasive in the absence of compelling contemporaneous evidence indicating that the applicant still suffers from psychological symptoms, especially as the evidence before me indicates that her symptoms had largely resolved years before the treatment plan was submitted. I accordingly find that the applicant has failed to prove, on a balance of probabilities, that the proposed psychological assessment is reasonable and necessary.

Interest

23Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As no benefits are overdue, interest is not applicable.

Award

24The applicant sought an award under s. 10 of Reg. 664. Under s. 10, the Tribunal may grant an award of up to 50 per cent of the total benefits payable if it finds that an insurer unreasonably withheld or delayed the payment of benefits. As no benefits are payable, I find that the respondent is not liable to pay an award.

ORDER

25The applicant is not entitled to the treatment plans in dispute or interest.

26The respondent is not liable to pay an award.