Crash victim says ICBC’s new Enhanced Care model is falling short

The only thing Jess Holland-Roy remembers leading up to the collision was a blur in the lower part of his windshield. And then a big bang.

“I’ll never forget the sound of that,” he said. “And then I blacked out.”

On Sept. 17, Holland-Roy had been heading to work, driving through a green light at an intersection on Sooke Road in his blue Ford F-150 half-ton truck, when a small Nissan Leaf, headed in the opposite direction, turned left in front of him.

Over the next few hours, he went in and out of consciousness. He remembers someone trying to pry the door open, yelling at him to see if he was OK. He remembers opening his eyes and seeing the gauges on the dashboard, far too close to his face. There was smoke and too many lights illuminated on the dash. His emergency flashers were on.

The next thing he remembers is paramedics pulling him out of the truck and loading him into an ambulance.

Holland-Roy came out of the collision with a broken C2 vertebrae in his neck, broken sternum, concussion, and scrapes and cuts up and down his arm. The driver and passengers of the Leaf were uninjured.

Jess Holland-Roy's truck was totalled after a Nissan Leaf turned left in front of him on Sept. 17. Photos submitted

Many people who have a vehicle insured in BC will likely remember receiving a few cheques from ICBC earlier this year—two were COVID rebates; the other, a refund to account for the difference between past insurance rates and the new, lower costs of the Enhanced Care model.

Enhanced Care, otherwise known as no-fault insurance, has been touted by ICBC and the provincial government as a more affordable and effective insurance model that will save customers about 20% on their vehicle insurance annually, while the Crown corporation saves more than $1.5 billion on legal fees each year. The change was made in the BC legislature without customers having a choice in the matter, and with ICBC’s monopoly on car insurance in BC, there is nowhere else for them to go.

Holland-Roy said his insurance was basically halved by the switch to no-fault insurance. When he received the refund, he didn’t know anything about the new model, and he was pleased with the lower rate. But after the collision, and as he and his wife Beth Mann have had to navigate their way through this new system, they’re experiencing firsthand the challenges of the model.

Holland-Roy said getting what he is entitled to has been a battle, from having no care plan set up when he was released from the hospital to trying to navigate treatment while dealing with a lack of communication and information from ICBC.

He was even initially refused an electric lift recliner chair rental that was recommended by his occupational therapist so he could stand up and sit down without straining his neck. Though it was within ICBC’s preset budget, his occupational therapist had to fight the corporation to get the decision reversed.

“What I’m saying is that if it came down to it,” Holland-Roy said, “I’d rather be paying double what I’m paying now than have to deal with what I’m dealing with now.”

Enhanced care?

No-fault insurance, which was announced last year and implemented in May 2021, gives equal benefits to all parties of a collision, whether or not a driver is found to be at-fault.

Some changes made the insurance model more generous to victims of car crashes. The new system removed the limit on the amount of compensation for care and recovery (previously a $300,000 cap), changed the wage-loss payment structure to pay out up to 90% of a person’s net income rather than a maximum of $740 per week, and added new benefits such as grief counselling, caregivers, and more generous death benefits for a surviving spouse or eligible dependents. Rather than a one-time settlement, these benefits are now paid out for as long as the client needs them.

However, no-fault insurance also means that people who are involved in a vehicle collision can no longer hire a lawyer and sue for damages, except when a criminal code offence is committed. Since the majority of collisions are not due to criminal conduct, crash victims who don’t think they’re being treated fairly are left with the option of bringing their complaints to a Civil Resolution Tribunal, an ombudsperson, or an ICBC fairness officer.

“You shouldn’t need a lawyer to access the benefits you’ve paid for,” said Attorney General David Eby in February 2020 as he announced the switch to the no-fault system.

But for Holland-Roy, the process of accessing benefits has not been smooth. His mobility is severely limited as he recovers from the crash, and he needs round-the-clock care—but aside from their troubles getting him the necessary supports, Mann said ICBC did not put any sort of care plan in place to accommodate Holland-Roy’s needs after his release from hospital, and an occupational therapist was not sent to assess Holland-Roy's needs for nearly a week after his discharge. Mann took a month-long medical leave from her teaching position and has had it extended to care for him, using up her banked sick days.

In a statement, ICBC said that they were not made aware of the anticipated discharge, and as a result, the hospital discharge program team was not able to assist with his discharge care planning.

Later, in mid-October, Holland-Roy indicated that he would prefer Mann continue to provide his care rather than have an external vendor come into their home, and Mann began receiving personal care assistant benefits.

Mann is receiving $3,279 per month for her time caring for Holland-Roy, based on an assessment submitted to ICBC by the occupational therapist. In a statement, ICBC said these benefits are paid as monthly reimbursements. However, Mann says the availability of this benefit wasn't communicated to her at all during the first month of caring for Holland-Roy, leading her to write a letter to MLA Mitzi Dean, citing the lack of compensation as one of her complaints about the new system.

Mann says they were in a relatively good position that allowed Mann to take the time off work to care for Holland-Roy despite not receiving compensation initially. Not everyone would be so lucky, she said.

Holland-Roy and Mann were also given notice over the summer that they would have to move out of their float home in the coming spring. In preparation, Holland-Roy had been renovating the couple’s boat so they would be able to move onto it. He had gutted the inside and still had months of work ahead of him before the crash.

Now, the couple is facing having to rent an apartment for much more than they were previously paying, and possibly hiring a shipwright to help with the boat renovations—both high costs they were not accounting for.

“So it’s going to be a lot more money than what we’re paying now and, you know, it would be nice if they could cough up a few bucks to compensate us for that,” Holland-Roy said.

Mann said the increased housing expenses, along with the rudeness, lack of support, lack of communication, and lack of compassion she has faced during her dealings with ICBC, led her to seek out the help of a lawyer. She even considered suing the at-fault driver, but she was shocked to learn that neither of these are possible with the no-fault system.

“The system was broken before,” she said. “And I believe that it needed to have a change because we were having lawyers get huge amounts of money. But it just seems like we went from one extreme to the other extreme.”

Lawyers were dragged kicking and screaming from the insurance system, with countless legal industry blog posts warning of the coming harms that, they said, would go unaccounted for. Personal injury lawyer Lorenzo Oss-Cech, who’s with the Hutchison Oss-Cech Marlatt firm and has been helping clients get compensation from ICBC for 30 years, said the inability to get a lawyer with the new system is taking away people’s rights to fair compensation. This, coupled with the removal of compensation for pain and suffering, means that people are facing increased stress and financial strain.

The system now works more like WorkSafe BC, he said, with an individual adjuster in charge of peoples’ cases and set standards for various forms of compensation.

“Basically the ICBC adjusters are the judge, jury, and executioner as to what treatment and compensation an injured person will get,” Oss-Cech said. “The government has made it prohibitive for anyone to have legal representation. Most injured people will not be able to afford to pay a lawyer by the hour, to press ICBC if their benefits are cut off.”

Oss-Cech clarified that lawyers can still be hired, but the cost would come out of the pocket of the person who has been injured. In the vast majority of cases, he said, that cost will be prohibitive. Prior to no-fault insurance, lawyers would take on cases with ICBC under a contingency agreement, meaning they would not be paid until they recovered a certain amount for their clients.

‘No leverage’

Sarah, a local occupational therapist who spoke to Capital Daily on condition of anonymity to protect her employment, is contracted to do work with ICBC a few times per week. She said under the previous tort system, she had on multiple occasions recommended that her clients contact a lawyer to get a fairer settlement. But even with the increase in wage loss payments, unlimited care and recovery, and care that can be extended for as long as needed, Sarah said people are being left hanging.

She mentioned one elderly client she had over the summer, who had no family nearby to help him after he was injured in a car crash. Sarah helped the man with things like finding a rental car, booking and organizing doctor and physiotherapist appointments, and replying to emails—all important tasks he could not do himself. Once her allotted sessions with the man were complete, she determined he still needed help, but the ICBC adjuster wouldn’t authorize additional time. After pushing back to no avail, Sarah decided to continue working with the man for free.

“If he would have had a lawyer to defend him, I’m sure that he would have been able to push so that I could continue to see that person who needed me,” she said. “I feel that it’s unfair because the clients have no leverage to get what they need.”

Mann said she was previously not familiar with how the system works so it’s been difficult to navigate, but a lawyer would have known how to more effectively push for what they need.

Holland-Roy and Mann are not alone in their plight. A man who was hit while cycling in North Vancouver told Global News earlier this year that he has been paying out of pocket for some of his physiotherapy costs that fall above ICBC’s market rate cap, while also fighting with the insurance corporation to get fair compensation for his totalled $15,000 bike.

A couple from the Interior told CBC they were struggling to get wage loss benefits after they were both injured in a collision on the Trans Canada Highway. The wait for the claim to be processed forced one of them to go back to work much earlier than was recommended by their doctor. Kevin Gourlay, president of the Trial Lawyers Association of British Columbia, said at the time that ICBC payouts can sometimes be limited once a claimant goes back to work out of necessity.

“We, as people who have been in an accident, aren’t doing great to begin with,” Holland-Roy said. “So why are we having to take on ICBC?”

However, there’s no denying that removing lawyers from the equation saves the province a lot of money. According to ICBC, between 25 to 33% of settlements used to go to lawyers in the old tort system, and ICBC is projecting savings of more than $1.5 billion in the first full year of Enhanced Care without legal fees. They also say insurance rates will be lower and more stable. The average insurance premium already dropped by more than 20% after the no-fault system was brought in.

Richard McCandless, a policy analyst and former BC senior civil servant, said he expects to hear about more cases like Holland-Roy’s. But the fact is that the former system hadn’t been working for a long time and changes needed to be made.

“It was inefficient and a very expensive system,” he said. “No-fault should be much more efficient, and much less expensive. And it’s probably somewhat less fair. But that’s the trade-off.”

A ‘financial dumpster fire’

It’s no secret that ICBC has been a money pit for years. Critics and the province itself have long said that the Crown corporation’s former tort insurance model was unsustainable, with BC Attorney General David Eby going so far as to call it a “financial dumpster fire” in 2018.

The province had previously made moves to stifle the outflow of money. BC was the last province to operate a full tort liability model where the not-at-fault party could sue for out-of-pocket costs, future potential earnings, and pain and suffering. In 2019, the province put limits on pain and suffering compensation for minor injuries. This cap was a key factor in reducing ICBC’s net losses from over $1 billion in the 2018/2019 fiscal year to $376 million in 2019/20.

But the complete switch to the Enhanced Care model, following in the footsteps of Manitoba, Saskatchewan, and Quebec, has been the biggest reform in the corporation's nearly 50-year history.

According to the Insurance Bureau of Canada, British Columbians have, for years, paid the highest auto insurance premiums in the country. Data released in 2019 shows people living in BC paid an average of $1,832 each year, compared to $1,505 in Ontario, $1,316 in Alberta, and $717 in Quebec.

And those costs would have kept increasing without the switch away from the tort system because the amount ICBC was having to payout to accident victims kept going up. According to government estimates, rates would have kept rising by 36% over the next five years—an additional $650 million in insurance costs paid out by insured British Columbians.

“About four or five years ago, the costs in this province for injury claims started rapidly going up—like, sometimes a double-digit increase year-over-year,” McCandless said. “The government wouldn’t let ICBC raise the rates high enough to cover their costs. So their capital reserve went from around $3.5 billion a few years ago to negative $500 million. They were insolvent.

“[David Eby] called it a dumpster fire. That was being charitable. It was like a nuclear meltdown.”

According to McCandless, with the tort model, suing was necessary because the coverage limits were previously fairly low in the province and often didn’t cover medical and rehabilitation costs, among other expenses. The higher limits with the no-fault model are meant to ensure that medical expenses are covered for as long as is needed.

However, not everyone fits in the boxes laid out by ICBC, and many of the personal ramifications of a collision fall out of the purview of the new system. For example, Holland-Roy does not expect to get housing costs covered with no-fault insurance, but Oss-Cech said in the tort system he could have sued for special damages if he could prove the additional housing costs were tied to the collision and its aftermath. And with the removal of compensation for lost future earnings, out-of-pocket expenses, and pain and suffering—along with the inability to sue—those injured in a crash are left with no options to recoup these costs or be compensated for loss of enjoyment of life.

McCandless acknowledges it’s unfortunate that there is no pain and suffering compensation anymore, but in his view, there is no way that giving out this compensation is financially feasible.

“So yeah, it’s less fair for those that are hurt because they don’t get compensated for loss of enjoyment of life,” he said. “But it’s far less expensive and is making car insurance more affordable.”

Accountability

According to ICBC, BC drivers renewed more than 1.3 million personal insurance policies under Enhanced Care between May 1 and Aug. 31, saving an average of $496, or about 28% compared to last year’s premiums. In a statement to Capital Daily, ICBC said that the amounts that it has spent helping people recover and on permanent injury compensation in the first five months of the Enhanced Care model (May 1 to Sept. 30) has been greater than the amounts spent on new injury claims during a comparable time period with the previous insurance model (April 1, 2019 to Aug. 31, 2019). ICBC did not release specific numbers on the amount of compensation that was given out during these time periods.

McCandless said it could take a while to truly understand how the switch to no-fault insurance will affect customers. He said there has long been a problem with transparency and accountability with ICBC as the corporation releases limited data on its operations. Undisclosed details like the total number of injury claims they receive each year, how many they pay, and the average cost per claim is crucial information to measure service levels and performance. McCandless has submitted freedom of information requests (he has previously published his findings) and is waiting for data from the most recent fiscal year.

At the same time, tracking changes is difficult because of COVID and how it’s affected peoples’ driving habits. Last fiscal year, there were major savings, but McCandless adds that people also weren’t driving as much leading to fewer accidents.

“It’ll be difficult to monitor what’s going on and relate it back to what was promised,” McCandless said.

Meanwhile, Holland-Roy has about three months to go before he can remove the neck brace, but he will need more time to recover fully from the mental and physical effects of the crash.

“Jess will recover and be fine,” Mann said, adding that she fears for those whose injuries will be serious enough to affect the rest of their lives. “I think that there’s other people who are going to find out about this the way that we found out and they’re not going to be in as good of a position as us.”

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Correction: this story has been updated to include a response from ICBC stating why a care plan was not put in place when Holland-Roy was discharged from hospital, and clarifying how benefits for personal care providers are determined and distributed.