An Ontario tribunal has ordered Primmum Insurance Company to pay an accident claimant beyond the $3,500 minor injury cap - three years after the crash.
In Osorno v. Primmum Insurance Company, 2026 CanLII 42201 (ON LAT), released May 5, 2026, the Licence Appeal Tribunal sided with Elvis Osorno Zapata, an accountant who was 43 when his car was struck on February 17, 2022. Primmum had classified his injuries as minor and capped his treatment at $3,500 under Ontario's Minor Injury Guideline. The tribunal disagreed, and the ruling offers a fresh window into how adjudicators are weighing late-emerging diagnostic evidence against insurer examinations.
Osorno Zapata visited his family physician, Dr. Monika Sharma, for neck and low back pain on March 1, 2022 - about two weeks after the collision. X-rays in August 2022 came back unremarkable. A second round in October 2023 showed only mild narrowing at L5-S1 and minimal degenerative changes. It was not until March 23, 2025 - more than three years post-accident - that an MRI revealed disc bulges, mild bilateral facet arthropathy on multiple levels, a superimposed 6 mm central annular tear, mild bilateral neural foraminal stenosis, slight contact with the traversing right L5 nerve roots and moderate loss of disc height.
Primmum leaned on two insurer examinations. Dr. David Berbrayer, a physiatrist, reported on June 20, 2023 that the applicant had myofascial pain in the cervical spine, mechanical low back pain without neurological deficits, and post-traumatic headaches. Dr. Mohammed Abdul-Wahab Khan, another physiatrist, wrote in August 2025 that the MRI showed mild-to-moderate degenerative changes that would not prevent natural healing of the soft-tissue injuries. The insurer argued the disc findings were non-accident-related degenerative disc disease, not accident-related.
Adjudicator Bernard Trottier was not persuaded. Applying the "but for" causation test from Sabadash v. State Farm, he found Dr. Khan's report "equivocal" - silent on whether the disc degeneration was caused by the crash, and oddly focused on pre-existing injuries the claimant never alleged. The adjudicator concluded that the disc injuries began with the accident, failed to improve with physiotherapy and medication, and worsened over time.
On chronic pain, the tribunal went further. Trottier accepted that the applicant suffered persistent neck and back pain well beyond normal healing times, even without an expert chronic pain report. He pointed to a paper trail running from 2022 to 2025 - the family physician, a physiotherapist, a massage therapist and a chiropractor - and accepted that the claimant had to quit part-time bartending and hand off housekeeping to his son.
Primmum's argument that missed appointments and inconsistent medication use undercut the claim went nowhere. Citing Dhillon v Aviva Insurance Company, the adjudicator held that treatment gaps do not negate ongoing pain complaints.
The tribunal awarded $1,094.83 for the disputed physiotherapy plan and $674.95 for out-of-pocket medical expenses - including over-the-counter pain medication, an administrative fee for insurance forms, and parking - plus interest at 1 percent per month, compounded monthly, under section 51 of the Schedule.
For claims teams, the takeaway is sharp: a clean early imaging record and a tidy IE report may not be enough when self-reported pain is consistent and the insurer's own expert leaves causation unanswered.
