A former Penticton woman struggling to recover from a horrific motorcycle crash has been awarded $1.8 million in damages.

It’s an unusually high award. The money is meant to cover her lost past and future wages, the cost of care for the rest of her life and help to clean and maintain her home — all as she would have done had she not been in the accident.

But if Carrie Lynne Michael had been injured three years later under ICBC’s no-fault insurance coverage, she wouldn’t have gotten any up-front cash, just partial reimbursement for treatment and a fraction of her earning capacity.

The no-fault scheme, implemented in 2021, was lauded for saving drivers up to $400 per month, but leaves accident survivors under the thumb of the provincial insurer, said Michael Elliott, president of the Trial Lawyers Association of BC.

“The plaintiff in this case suffered really profound psychological injuries and received $350,000 for pain and suffering to take into account the devastating impact that her injuries had on her life,” he said. “But under no fault, she would get zero. That's the first difference.

“The award was made under old legislation. Had the accident happened three years later, she would not be eligible for damages at all, just compensation for medical and other expenses to deal with her injuries.”

Michael was riding her motorcycle on Highway 3 near Osoyoos on May 26, 2018 when a vehicle crossed the centre line and hit her head on.

“She suffered significant physical injuries that required three surgeries and left her which chronic pain and limited mobility. She has developed a severe mental illness because of the accident and ultimately had to give up a life she loved in Penticton to move to Victoria where she is more accessible to medical providers and family,” BC Supreme Court Justice Matthew Kirchner wrote in a decision published this week.

She was 48 years old at the time and enjoyed a lengthy career as a veterinary technician, a field she was passionate about. She worked with dogs and horses. All that was lost when she suffered a dislocated hip with multiple fractures. She had a large laceration on her leg, a fractured kneecap and ligament damage, her sciatic nerve was permanently damaged. She has since had the hip replaced but remains in pain. Her left foot dropped because of damage to the entire leg and her back, and has continuous pain in the foot.

Pain, PTSD and severe depression limited her normal activities severely.

It took more than five years to get through litigation, but she now has the cash she needs to pursue whatever remedies she can find as well as pay for assistance she requires.

One month before her crash, now-premier David Eby gave his first indications he was changing the Insurance Vehicle Act to no-fault accident coverage. Citing a broken system, high costs of insurance and mounting ICBC losses, the change means you can’t sue ICBC — at all.

ICBC now caps lost income and pays for what it calls Enhanced Care, ostensibly making rehabilitation or physiotherapy or occupational therapy available.

But there’s a catch. Several of them.

iNFOnews.ca asked Elliott to review the decision and point out the difference between how Michael’s case was adjudicated and contrast that against how her case would be handled today.

Michael would have gotten far less for loss of future income and under no-fault, she would only get monthly payments for as long as ICBC adjusters allowed her. She was somewhat lucky that she had a career and a decent income. Had she been on a hiatus from work — as she was not long before the crash — she would have gotten no compensation for loss of income.

Adjusters would also make decisions about how many physiotherapy appoints she could take, as an example.

Elliott pointed to a recent survey of occupational therapists that showed 74% reported that the opinions of an ICBC staff member were inserted into care plan recommendations on more than one occasion.

“You have a doctor or an occupational therapist dealing with some of the most severely injured British Columbians in the province. They're saying, this person needs this treatment. An adjuster, who has no no medical training… no qualifications other than working at ICBC, says, no, I know you said this person needs like 24 physiotherapy sessions, I'm only going to approve 12.”

That’s the same basic process for all stages and benefits, including income replacement.

“You have to rely on an adjuster continuing to approve your benefits. I get calls from people who are disabled who the adjuster says, you know what, I think you've been disabled for long enough. Time to get back to work, we're going to stop paying your benefits.”

Under Enhanced Care, ICBC will even quibble over home care and costs of physiotherapy, which is capped at $75, Elliott says. Most sessions are roughly $100, meaning patients are required to pay $25 out of pocket.

That alone would burn through the $400 in savings ICBC promised with the switch, he says.

In Michael’s case, she was awarded costs for equine therapy — something personal to her. That simply wouldn’t be allowed under Enhanced Care.

Worst of all, perhaps, clients have little recourse to dispute ICBC decisions on individual care. The law prohibits them from suing, even if those decisions prolonged pain or recovery.

Elliott has an obvious interest in the outcome of no-fault insurance. Overnight, an entire sector of billable hours disappeared. It’s easy to dismiss the views of lawyers, but not so easy to dismiss their clients.

“My law firm fields dozens of calls a week and my association, trial lawyers association, receives hundreds of calls every month from people who are now being treated unfairly by ICBC adjusters, they're cutting them off benefits, they're denying them benefits, they're just ignoring them.

“And there's nothing that anybody can do about it. They can't sue, they are stuck dealing with these adjusters on an ongoing basis for as long as they're injured, which in some cases is the rest of their life.”

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