Victoria lawyer Tim Schober was cycling to work on a sunny August morning in 2021 when he was struck by a vehicle illegally exiting the Pat Bay Highway.
Flown to Vancouver with a broken neck, Schober, then 66, spent seven months adapting to life as a quadriplegic.
He became one of the first serious-injury victims subject to the provincial government’s no-fault insurance, introduced on May 1, 2021.
The approach, dubbed the “enhanced care model,” replaced a litigation-based model and provides set amounts of compensation by injury type to victims, regardless of fault and without a referral. It also eliminates most victims’ right to sue.
The B.C. NDP, which called ICBC a “financial dumpster fire” in 2018 due to its $1.3-billion deficit, introduced no-fault insurance in part to divert billions of dollars then going into legal fees, pain and suffering and injury claims, into improved benefits, treatment and compensation, as well as lower basic rates and rebates for policy holders.
Last week, Premier David Eby celebrated the “enhanced care” changes when he announced a projected $1.5 billion in net income for ICBC in 2023-2024, and said the basic public insurance rate won’t increase for a sixth year, and $110 rebates will go to 3.6 million policy holders, the fourth rebate of its kind.
Critics such as Schober, however, have complained that ICBC’s financial savings have been achieved in part on the backs of victims like himself.
“They have sold British Columbians a bill of goods,” said Schober, who lives in Saanich. “They told us all we are getting better benefits than the old system provided to us and we’re getting lower insurance rates plus we’re getting rebates.
“The basic premise is ‘don’t worry, we’ve got you covered’… and the reality is that’s not true.”
Last July, Schober launched a civil claim in B.C. Supreme Court against the province, with the Trial Lawyers Association of B.C. as a second plaintiff, arguing that no-fault insurance legislation discriminates against individuals based on the cause of their disability.
Association president Michael Elliott said the matter is “ongoing and we remain optimistic.”
From active lawyer to 24-hour care
Schober, a business lawyer with Pearlman Lindholm, said he was in great physical condition before the collision.
“It was nothing for me to go for two-hour bike rides throughout the Peninsula. I played one-on-one basketball with my son who at that point was 18 years old. I hiked, I skied, I did all those things.”
Under no-fault insurance, the driver who hit Schober pleaded guilty, paid a $1,000 fine for illegally exiting the Pat Bay Highway and walked out, said Schober’s wife, Lisa Schober.
Schober, who now requires 24-hour care, said he can’t hire a personal injury lawyer to sue for pain and suffering or deal with the mind-numbing amount of paperwork, until the day he dies.
Schober can’t be compensated more than the after-tax amount on $90,000 in annual wages, since income-replacement support is only available for up to 90 per cent of net income, based on a maximum gross income of up to $113,000. Schober is trying to do some legal work in between therapy sessions but says 75 cents will be taken back on every dollar he earns.
“Not only have they capped your loss, and ignored your real income, but they start clawing back from the first dollar earned,” said Schober.
His one-time lump-sum permanent impairment award was $264,000. Under the old system, he would have received about $400,000 for pain and suffering.
Schober said he has “no autonomy” over what equipment or therapy he gets and instead deals with “one adjuster after another” who decides the necessity and cost of each item.
“Under the new system, you’re not allowed to go to court at all,” said Schober, adding he’s luckier than some.
A young adult just starting out and earning minimal salary or a single parent who earned $36,000 would receive just 90 per cent of that annually, adjusted for taxes.
Schober said if he had a large mortgage or his children, now age 22 to 34, were still in school or he didn’t have a spouse, “I might be facing foreclosure.”
Schober needs two caregivers for a morning and afternoon shift. They are mostly paid for by the Health Ministry’s Choice for Support for Independent Living and ICBC. It’s a two-hour morning regime to get him cleaned and dressed in bed, transitioned via a sling and hoisted into his chair, and fed.
The evening care aide must take care to ensure there’s not a wrinkle in his bed sheet and that pillows prop up his body in such a way that over eight hours of immobility, bed sores don’t form. There’s a colostomy bag to deal with and a breathing machine at night to ease his diminished lung capacity.
There’s no compensation for counselling or lost wages for his wife — who can no longer work — or adult children. “Our lives have been turned upside down,” said Lisa Schober. “I must submit receipts for everything we purchase for my husband related to his accident to an ICBC adjuster, who can then reject or approve the receipt.”
Registered massage therapists and others charge more than what ICBC reimburses, he said.
No limit to medical and rehabilitation benefits
ICBC says anyone injured in a crash — whether they are a driver, passenger, motorcycle rider, cyclist or pedestrian — is pre-approved without a referral for a variety of rehabilitation treatments, from chiropractic and physiotherapy to counselling and psychology, for the first 12 weeks following their collision, as laid out in ICBC’s pre-approved treatment guide. After that, a care team will help with access to services.
Those who suffer permanent impairment, such as quadriplegia, can receive up to $299,670 in a lump-sum payment as outlined in a benefits guide, while those with non-catastrophic injuries that include a single amputation receive up to $189,782.
There’s no overall limit to medical and rehabilitation benefits under enhanced care.
Despite significant improvements in some areas of enhanced care, personal injury lawyer Erik Magraken, a managing partner at MacIsaac & Company, based in Victoria, argues the no-fault system is so unpopular, the government won’t even call it that.
Branding it as enhanced care “adds insult to injury” for British Columbians who need the benefits, said Magraken.
ICBC’s surplus is due to the no-fault system leaning heavily in favour of ICBC, he said. “The cash is coming from the rights of the most catastrophically injured British Columbians having their rights taken away.”
Everyone from those with whiplash to quadriplegia are left with the same list of benefits that are wholly inadequate for more seriously injured people, he said
“So people are stuck dealing with ICBC with no lawyers and with no underlying rights, so it’s a bad system,” said Magraken. “I take calls on a weekly basis, if not on a daily basis, from people stuck with catastrophic injuries, people who are paralyzed, people who’ve had limbs amputated, people who’ve had family members killed.”
Magraken said legal reform is needed to restore people’s right to go to court and to bring back the rights of judges to assess people’s damages when they’re harmed by careless drivers, texting drivers, speeding drivers, drivers who run stop signs and red lights.
“Giving those rights back I think is the most sensible reform,” said Magraken.
