B.C. couple injured in serious crash feel left behind by ICBC's new insurance model

Rob Behan was sipping a coffee on a bright morning while driving his pickup truck on the Trans-Canada Highway. His partner, Charmaine McKean, was riding in the front seat, and their dog was in the back.

That's when he saw another pickup truck in his lane, driving straight toward them.

"Everything slows down, and the only thing going through your head is 'I can't avoid this,'" he told CBC News.

With seconds to react, he swerved left before the two trucks collided. Behan's vehicle was sent spinning down the highway as the airbags exploded.

"Another six or eight inches to the right, and nobody would have walked away from that," said Behan.

Behan and McKean, from Enderby, B.C., were taken to hospital and said they both suffered concussions and cracked ribs to go with the many bumps, bruises and scratches they received in the crash. Fortunately, their dog escaped unscathed.

Police informed the couple that the other driver had fallen asleep before crashing into their vehicle on the stretch of highway between Revelstoke and Golden.

They now find themselves struggling to navigate ICBC's new insurance model called enhanced care, which has removed the ability of claimants to pursue benefits through the courts in favour of ICBC assisting them directly. The move was made to cut down on ICBC legal costs and ultimately drive down insurance rates.

But injury lawyers critical of the model say it forces crash victims, who can be dealing with debilitating injuries, to advocate for themselves and navigate a challenging labyrinth of paperwork and bureaucracy, which can ultimately lead to smaller payouts and little legal recourse.

"Under the new system, a family like this who is dealing with the aftermath is really at the mercy of ICBC," said Kevin Gourlay, president of the Trial Lawyers Association of British Columbia. Gourlay is also an injury lawyer with Murphy Battista.

Wage losses and sick days

Behan and McKean's crash occurred on July 3, and both say doctors told them to take time off work due to their injuries. Shortly after, they began to file their claim with ICBC.

Under the enhanced care program, people in crashes like theirs receive costs of medical care and lost wages. Wages are capped at 90 per cent of salaries up to $100,000.

The pair said ICBC urged them to rely on employment benefits or medical employment insurance (EI) for lost compensation while their claim was processed.

But with no paid sick days and a mortgage to pay, Behan said he had no choice but to return to his job as a financial controller after a few days.

He expects he'll receive little compensation from the claim once the dust settles.

"I'm just going to have to live with the aches and pain I have at the moment, and hope they go away," said Behan. "I basically cut ICBC out of it, I'm just doing it on my own because I have to pay my bills."

Gourlay says when claimants go back to work out of necessity, it can be fuel for ICBC adjusters to limit payouts.

"You're in a tough spot trying to prove on your own that you are entitled to those benefits," said Gourlay.

ICBC changes

McKean says she hasn't been able to return to work as an educational assistant and care home worker since the crash and is pursuing wage loss benefits.

She says the process has been onerous and made more challenging given her physical and mental state.

"I struggle almost daily," she said. "There's new aches and pain every day, especially in my back and rib cage, and my concussion piece is going to be a bit more ongoing."

With no other options to pursue benefits, Behan says he ultimately feels blindsided by lawmakers that introduced the system in the first place.

"There is no reason that an at-fault accident, especially a severe one as this, shouldn't have been carved out of that model to still allow access to [the courts and compensation]," he said.

In a statement, ICBC confirmed McKean's request for wage loss benefits has been processed. 

The insurance provider called the enhanced care model an improvement over the old system, noting there are no overall limits to care and recovery benefits.

Additional benefits are available for people with life-altering impairments such as spinal cord injury that leads to paraplegia.

"[They] will get all the care they need, when they need it, for as long as they need it," wrote a spokesperson.

Further, under the new system, claimants who feel they've been treated unfairly can appeal through the Civil Resolution Tribunal. Government-appointed fairness officers can also review cases.

In the case of crashes with a criminal charge, victims can pursue claims through the courts. To Behan and McKean's knowledge, no criminal charges have been laid over the crash, and a search for the driver's name in the courts system came up empty.

But in the immediate aftermath of their crash, McKean and Behan think there's a substantial gap in terms of support.

"People just don't know what got taken away, or what this enhanced care actually means," Behan said.