What is the enhanced care model and what is it designed to cover?
This is the ICBC No-Fault Insurance model they put in place on May 1, 2021. They have labeled it “enhanced care” which is a fair bit misleading. They did make some changes and increases so, in that way, it is enhanced. The lifetime limit for a claim has been increased from $300,000 to what they say is ‘unlimited’. ICBC will also pay the treatment providers directly for things like massage and physio. Finally, they increased the cap for the weekly total disability payments for lost wages.
The misleading bit is that although care and recovery benefits were increased, ICBC took almost all owner insurance coverage away. They also put some limits in place on the coverage they provide that cannot be recouped elsewhere, so most people are still out of pocket. What is not covered as compared to how it was before no-fault or ‘enhanced care’? This is really where the misleading part comes in – there are 3 areas that the ‘enhanced care’ does not cover.
There are no payments for lost wages unless you are disabled. For a student who was injured in an accident right before graduating from medical school and can’t be a doctor now. The enhanced care provides no compensation for the years and years of lost wages that medical students will have now because they suffered a head injury and can’t be a doctor anymore.
The enhanced care provides no compensation for a musician or a contract employee who has to turn down future jobs due to the chronic pain they are left with from the car accident. ICBC looks at where you were at the time of the accident and that is what you are compensated for, and only while you are disabled. If you can return part-time, you are cut off from the wage loss benefits. Before No-Fault, you could go to Court and a judge could assess that loss and a worker could get their future lost wages paid by the at-fault driver. Now, that is prohibited – you can’t sue the at-fault driver unless they did something criminal when the accident happened, were convicted, and have money to collect against.
There are no payments for treatment costs over and above the cap ICBC has placed. If your massage therapist that helps your injury pain costs more than ICBC’s rate, you still pay for it out of pocket for that. And if your care is more than $10,000 a month or the care items aren’t approved by your adjuster, they come out of the injured person’s pocket. Again, there is nothing you can do now for the excess. Where you used to be able to go to Court and have a Judge assess that loss and order that ICBC pays it. Finally, there are no payments for pain and suffering – this has been eliminated. This was the catch-all for most injury victims in car accidents. The compensation for wage loss and future care is imperfect – it can’t make you better.
What it did was give some money to an injured person to gain enjoyment in the life their accident injuries left them with. And all the expenses over a lifetime that come with that. If someone now is left with a permanent back injury that is easily aggravated. The pain and suffering component could be used to pay a porter to carry their luggage on vacation. Or pay for a delivery from home depot instead of doing it themselves. All those little things that cost extra but avoid flaring up their car accident injuries and make their quality of life worse.
What are the limits he is facing?
Mr. Schober has a catastrophic spinal cord injury. He is a quadriplegic and required a wheelchair for mobility as well as complete and protracted care for most of his ADL, including eating and drinking. The number of hours he needs care, and the cost of the care itself – exceed what ICBC will approve or cover so he is out of pocket.
His accident was in August 2021 and he is already out of pocket $130,000 – in less than a year. If he wants anything, not on ICBC’s approved list, which is very limited and mostly includes routine things like physio and chiropractor. He has to advocate for himself to his adjuster, who has complete control over whether the expense, treatment, or care is approved. What if the adjuster is away, busy, or simply not doing their job and he has to await approval or coverage.
Under the old system, he would get a settlement or a Court judgment and have the funds at his disposal to deal with his car reasonably. The judgment would be what a judge assessed his future needs would be, plus pain and suffering to cover off the extras. Now, under ‘enhanced care’ Mr. Schober, and anyone unlucky enough to be hit by a negligent driver and suffer injuries through no fault of their own.
It is stuck with a cap on expenses at $10,000 a month, a cap on wage loss of $1200/week ($62,400 per annum), and at the mercy of some adjuster for his well-being and care. We all know how expensive everything is now. Mr. Schober did not cause this accident – he is in this situation through someone else’s bad driving. And he is stuck with the care that is anything but ‘enhanced’ and there is nothing he can do about it under the No-Fault regime because litigation is prohibited.
What is the constitutional challenge about?
ICBC has mandatory insurance in BC – if you drive, you have to get your insurance from them. Until No-Fault, ICBC was BC’s largest litigant in BC Courts because they insured all the negligent drivers who caused the accidents. Then, they made a law that prohibits using the negligent drivers’ insurance company (ICBC) and called it ‘enhanced care’.
This constitutional challenge is about ICBC making a law prohibiting an injured person from seeking a court decision on their damages against a bad driver. It is about ICBC making a law that limits the care Mr. Schober or other injured people like him can receive. And it is about ICBC making a law that limits what future lost wages can be reimbursed. The new law does not seem constitutionally valid, given that BC drivers can ONLY get ICBC insurance because they are a government insurance company. They can also make a law that you can’t take them to court if they are being unfair.
What can people do now to make sure this doesn’t happen to them?
The ‘enhanced care’ insurance ICBC now provides has less coverage than the previous insurance did, so people need to replace the coverage that ICBC no longer provides. Independent Disability insurance and Extended health care cost insurance are critical now. Employers may provide this, but if someone is a student, retired, or does not have benefits with their employer, they should be speaking with an insurance company to fill those gaps. Also, cyclists should check their homeowner policy to see if third-party liability is covered if they cause an accident while cycling – or buy special bicycle insurance for that.
Finally, if this new law by ICBC doesn’t seem fair, they can call their MLA or the premier, or the minister responsible for ICBC and voice their concerns. This affects every single BC resident – not one of us doesn’t travel on a road in some way and so if we are hurt in an accident, ICBC’s new law affects us all.