Lawyers allege holes in ICBC care system after Penticton cyclist crushed by truck

A Penticton cyclist left severely injured after being crushed by a truck is shocked by what he sees as limited options for help and reimbursement.

Matthew Skaszczyk said he was biking along Government Street heading towards Naramata on June 23, 2024 in the late afternoon, preparing for the upcoming Peach Classic Triathlon.

Suddenly, a truck turned right into a grocery lot parking lot without warning in front of Skaszczyk.

Skaszczyk said he slammed on his brakes to avoid being hit and went over the handlebars.

“I landed underneath the back right tire and [the truck] ran over my chest, my neck and my head, [they] crushed my helmet so I have multiple fractures, five or six rib fractures, a pneumothorax, which is a punctured lung, I have some liver damage, and my helmet basically saved my life,” he added.

“I thought that because I heard multiple crashes through my chest and my body, and I heard crushes in my head area, that my skull was crushing, but that was the helmet.”

As an avid cyclist and runner, Skaszczyk said he always tries to be aware of the road traffic around him.

“You're hyper-alert when you're biking a lot.”

But the quick move from the truck driver caught him off guard.

“For me, this is almost insane, that I almost died. Basically, if I didn't have a helmet, I would be either in a wheelchair or dead and that's completely not my fault, and there's nothing I can do.”

Skaszczyk said he luckily received excellent care when he was transported to the Penticton Regional Hospital and up to Kelowna General Hospital.

“The Kelowna hospital was great as well. But I see how overwhelmed the medical system is,” he added.

Skaszczyk reported the crash to ICBC from KGH the following day, before being discharged.

In a statement to Castanet, ICBC said they outlined the immediate next steps in the claim process over the next few days, assigning a recovery specialist to work with Skaszczyk and his care team, going over the income replacement benefit, and arranging for a company to conduct an assessment of his home to see what services, equipment and supplies he may need to support his recovery.

“We are still in the early stages of working with Mr. Skaszczyk as the collision happened this past Sunday. We’re committed to doing everything we can to ensure he receives all of the benefits available to him under Enhanced Care, which could include income replacement if he is unable to work, rehabilitation treatments such as physiotherapy and massage therapy, and support with his activities of daily living,” ICBC said.

Skaszczyk said he was disheartened to find out how few options there are with ICBC’s no-fault insurance, and that they won’t provide a settlement.

The provincial government’s insurance, introduced on May 1, 2021, was 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.

Most victims’ right to a civil suit is removed, unless the at-fault driver is convicted of certain Criminal Code offences, such as impaired driving, for certain damages.

“Basically, my life changed for the foreseeable future, and I was wondering what kind of liability the person will have, because she admitted to everything, according to the police officer who called me when I was in a hospital. So he said, just contact with the lawyer, basically,” Skaszczyk said.

This is when Skaszczyk said he found out how limited legal actions after crashes are.

Fighting against changes

The Trial Lawyers Association of B.C., which is a non-profit society of roughly 1500 lawyers across all different practice areas, filed a constitutional challenge to the minor injury caps introduced by the Government of BC in April 2019.

In March 2021, the Civil Resolution Tribunal ruled the caps to be unconstitutional in a judgement by Chief Justice Hinkson. The province has since moved to appeal the decision, and the trial lawyers group said they will continue to advocate on these matters.

They also launched the "No to No Fault" campaign, upset that not only will “an injury victim will only be entitled to compensation if their injuries are considered by ICBC—not an independent judge—to be a ‘permanent impairment,’” but that the maximum payout they could receive was lowered.

Greg Phillips, the first vice president of the Trial Lawyers Association of B.C., said the reality is people no longer have recourse to the courts to essentially ensure that they're being treated fairly.

“ICBC is essentially a one-stop shop for determining what you're entitled to as far as benefits go,” he said. “We get telephone calls almost every day from people who are who are genuinely surprised that this no-fault system went through.”

“When somebody calls a lawyer and says, ‘Hey, ICBC is treating me unfairly,' there's very little we can do for them because we can no longer bring a claim against the at-fault driver.”

For anyone hurt in a crash and unable to work, ICBC’s Enhanced Care program says they will pay up to 90 per cent of their net income based on a maximum gross income of up to $113,000. Those who earn more than $113,000 can choose to purchase additional income top-up protection.

Victims can also be approved for further treatments, which can include acupuncture, chiropractic care, counselling, sessions with a kinesiologist, massage therapy and physiotherapy.

In answer to what progress or data can support that the enhanced care programs with ICBC have been the correct move since being introduced in 2021, ICBC has previously stated they’re able to provide “affordable auto insurance” and “access to some of the best care and recovery benefits available in Canada.”

“When Enhanced Care started in May 2021, drivers saved an average of nearly $500 on their premiums compared to premiums under the legal-based model. Basic insurance rates have remained flat under this model with no increases until at least 2026, which will make it six years in a row with steady basic rates,” they added.

“Unlike the old legal-based, adversarial insurance model, Enhanced Care is collaborative. Our focus is on supporting people injured in crashes by ensuring they are accessing all the benefits needed in their recovery journey.”

David Brooke, who is the founding lawyer of Hillside Law Inc., a Penticton law firm that has practices in motor vehicle accident law and personal injury law, said in his opinion, there is now no way to get lawyers to advocate on an injured person's behalf.

“You’re kind of [stuck with] kindergarten rules, you get what you get and you don't get upset,” he added. “It's just basically an army of adjusters trying to implement these really archaic, complicated rules about what you get, and there's no real recourse in terms of if you're unhappy with what ICBC is prepared to dole out to you and the way they assess your claim.”

“Historically, you went to court, and if they weren't being fair to you, a judge or a jury of your peers would decide what proper compensation there ought to have been.”

He added that their office is shocked at how many people continue to call them, looking for a lawyer, and who are unaware that this change happened in the province back in 2021.

“It's just a real problem, a lot of people are going to get really hard done by this system, particularly the very seriously injured people who have no other means of getting financial support. All the care in the world isn't going to pay your mortgage. All the care in the world isn't going to put your kids through university, right? So a lot of people are going to end up being really seriously financially disadvantaged by this.”

ICBC: It's not 'no fault.'

“To be clear on the model and describing it as 'no-fault', while care is available to all, fault still matters and accountability remains a key tenant of our insurance system,” ICBC said in a statement to Castanet.

“ICBC still determines responsibility after a crash, which can impact driver records and insurance premiums. Unsafe drivers can also face criminal and administrative sanctions including charges, fines, roadside suspensions, vehicle impoundment, driving prohibitions in addition to driver penalty point premiums and driver risk premiums.”

Phillips said he disagrees.

“It's no fault by another name. They did try and give it a little bit of a friendlier name, but it's still no fault.”

Skaszczyk said he expects to be off work for a few weeks, and his recovery time is looking at between six to eight weeks for his ribs to heal up, and it will be much longer before he is able to return to triathlon training.

Much like the story of Dustin DuGray, also in Penticton, who was on his way home from work and hit by a truck, the significant injuries leave questions in the injured peoples' minds about whether the system changes are fair.

ICBC announced $110 vehicle rebates to be issued and a rate increases on hold until 2026 at the start of May, along with preliminary financial results showing ICBC will earn a net income of $1.5 billion this year, which includes the $400 million cost of the rebates.

“The short answer is, the people who are paying for this are the people who are hurt,” Phillips said.

“What people need to remember is that these savings are on the backs of people like Mr. DuGray, who's receiving less fulsome compensation than he would have under the old system. He's the one who's paying for the $100 rebate check that some of us got.”

ICBC said they are reviewing the insurance coverage plan put into place, through working with advocacy groups and healthcare leaders, and the feedback they receive is helping to improve the model.

“In March, we implemented a new program focused on helping customers who need additional support in navigating their claims and accessing benefits. We are working with external customer experience experts to deliver new specialized training for our recovery specialists and their leaders over the summer to help address concerns around responsiveness and overall communication. We are also developing a new education module in collaboration with the B.C Brain Injury Association to help our team better support people with brain injuries,” they added.

Since the launch of Enhanced Care, ICBC said they have supported over 17,000 customers unable to return to work after a crash with $208 million in income replacement benefits.

“We’ve [also] funded more than $915 million in Enhanced Accident Benefits and helped over 155,000 customers return to their daily lives after being injured in a crash.”

What model works?

Recently B.C. Premier David Eby said the beneficiaries of the old litigation-based ICBC system were lawyers, not victims.

The leader was responding to critics who have been arguing that the province’s new no-fault insurance model has reduced rates and provided rebates for policyholders on the backs of victims with catastrophic injuries.

“I’ve seen the old system up close,” said Eby, who as B.C.'s attorney general in 2018, joined the B.C. NDP in calling ICBC a “financial dumpster fire” due to its $1.3-billion deficit.

The goal of the no-fault system was to ensure billions of dollars that were then going into legal fees, along with pain and suffering and injury claims, instead were going into improved benefits, immediate treatment and compensation, as well as generating lower basic rates and rebates for policyholders.

Brooke said the narrative that the government has, in his opinion, been spinning is that it's “the greedy lawyers that are taking from the system.”

“He knows full well that lawyers get paid by taking a percentage of their client's settlement. So it's not coming out of the government's pocket, it's coming out of injured people's pockets, and it provides them access to justice,” he added.

“The contingency fee regime provides impecunious people with access to justice that they otherwise wouldn't have so it's somewhat disingenuous to say the lawyers are the ones causing this problem.”

He said there is a compromise to be made on what can work if the old system was unsustainable and was costing too much money.

Phillips agreed that the system the province had before, although not without its flaws, supported legal recourse and compensation for injured individuals.

“Up until fairly recently, we were extremely lucky to have ICBC. We had a full tort system that allowed full compensation for injuries, as well as some of the lowest insurance rates in the country. Things have changed in the last decade, not for the better, but, when ICBC was being run in a way that limited rates, but was fair, was the sort of high watermark for what can be done with a public insurer,” he said.

“The organization is getting bigger, but as we can see from these stories, the service people are getting is actually declining.”

Further pleas for safety

Skaszczyk said he hopes his story warns people to be vigilant on the roadways and ensures that they wear helmets, as his helped save his life.

He is also grateful to many friends and family who stepped up to help out while he recovers.

Matt Hopkins, the Penticton and Area Cycling Association's urban cycling director, said the number one thing that they push for as a cycling organization is improvements to the physical environment.

After last month’s incident when Dustin DuGray was riding in a Penticton bike lane and was hit by a truck that turned off of Martin Street into the parking lot near Nanaimo Square, the cycling association called for the closure of parking lot access points through the bike lane.

He said there could be improvements made for cycling along Government Street as well.

"People drive very fast. It's very, very loud. It's not a comfortable environment for someone on a bicycle to be I think, especially with more and more housing going up," he added.

“We want to see significant improvements to Government Street that make it safer for people to use a bicycle. We know more and more people are using bikes, and we've seen clearly that the safer that you make the environment, the more people use it.”