Appeals : Confirmed Referee Decisions : #72 -- January 2nd, 2003

D E C I S I O N

1. The Claimant has qualified as a Primarily-Infected Person under the HCV Hemophiliac Plan. As a Level 3 Claimant, he elected to receive Loss of Income rather than the Fixed Payment of $30,000.00. He completed all of the necessary forms and his Loss of Income claim was approved in October of 2001.

2. The Administrator requires Loss of Income claimants to submit certain forms on an annual basis in order to continue to receive payments. The Claimant objected to this requirement but the Administrator insisted upon compliance.

3. On July 26, 2002, the Claimant requested that the Administrator's requirement for annual submission of forms be reviewed by a Referee.

4. On or about August 29, 2002, the Claimant submitted the necessary forms to the Administrator and his claim for continued Loss of Income payments was approved for the following year.

5. The Reference proceeded by way of written submissions.

6. By letter dated October 3, 2002, Fund Counsel advanced the position on behalf of the Administrator that my jurisdiction as Referee is limited to reviewing decisions of the Administrator respecting claims and does not extend to matters of process, such as the requirement for Loss of Income claimants to file forms annually.

7. The crux of the Claimant's argument, as set forth in his written submissions of July 26th and October 9, 2002, is that the annual form requirement is redundant and creates unnecessary paperwork which diverts resources from the Fund which would otherwise be available to pay to claimants.

8. It goes without saying, of course, that the jurisdiction of referees and arbitrators is governed by the terms of the Settlement Agreement, the Plans and Rules for Arbitration/Reference. These documents contain the following provisions which, in my opinion, are relevant to the present inquiry:

The Settlement Agreement
ARTICLE FIVE
THE ADMINISTRATOR

5.01 Appointment of Administrator

The Courts will appoint an Administrator to administer the Plans with such powers, rights, duties and responsibilities as are determined by the Joint Committee and approved by the Courts.

5.02 Administrator's Duties

Subject to obtaining the approval of the Courts, the Administrator's duties and responsibilities will include the following:

(b) developing, installing and implementing systems and procedures for receiving, processing, evaluating and making decisions respecting Claims including making all necessary inquiries (including consulting medical personnel) to determine the validity of any Claim and requiring any claimant to have a medical examination; [emphasis added]

(f) receiving and responding to all enquiries and correspondence respecting Claims, supplying claim forms, reviewing and evaluating all Claims, making decisions in respect of Claims…

5.03 Decisions of the Administrator

The Administrator will give notice of its decision in respect of a Claim to a claimant promptly after the decision is made. A decision of the Administrator in respect of a Claim will, subject to the claimant's right to refer the decision to a Referee or an Arbitrator pursuant to provisions of the Plans, be final and binding upon the claimant and the Administrator. [emphasis added]

The Plan
ARTICLE THREE
REQUIRED PROOF FOR COMPENSATION

3.01 Claim by Primarily-Infected Hemophiliac

(1) A person claiming to be a Primarily-Infected Hemophiliac must deliver to the Administrator an application form prescribed by the Administrator…

3.03 Additional Proof

If requested by the Administrator, a person claiming to be a HCV Infected Person must also provide to the Administrator:

(d) income tax returns and other records and accounts pertaining to loss of income; [emphasis added]

10.01 Reference to Referee or Arbitrator

A person making a Claim may, within 30 days after he or she receives notice of the Administrator's decision respecting his or her Claim, refer that decision to, at his or her option, a Referee or an Arbitrator by filing with the Administrator a notice requiring a reference or arbitration and setting out the objection to its decision and the reasons in support of the objection. If no notice requiring a reference or arbitration is filed within the 30 day period, the Administrator's decision will be automatically confirmed and be final and binding. [emphasis added]

10.03 Forwarding Claims

Upon receipt of a notice requiring a reference or arbitration, the Administrator will forward to a Referee or Arbitrator, as the case may be, in the Province or Territory where the claimant resides or is deemed to reside and to the Fund Counsel the following:

(c) a copy of the Administrator's decision...

Rules for Arbitration/Reference
Nature of Review

3. An Arbitration or Reference shall be a review of the Administrator's decision utilizing the simplest, least expensive and most expeditious procedure for the Arbitration or Reference. [emphasis added]

Commencement

6. In order to commence an Arbitration or Reference, the Claimant shall file a Request for Review by an Arbitrator/Referee in the form prescribed by the Administrator.

7. The Administrator shall forward to a Referee or Arbitrator, as the case may be, in the Province or Territory where a claimant resides or is deemed to reside, to the Claimant and to the Fund Counsel the following:

(c) a copy of the Administrator's decision…" [emphasis added]

9. From reviewing the above provisions, it is apparent that the Administrator has the authority to "develop, install and implement systems and procedures for receiving, processing, evaluating and making decisions respecting Claims". From a practical perspective, of course, it is essential for the Administrator to establish procedures for the processing of claims and Section 5.02 of the Settlement Agreement expressly enables the Administrator to establish such procedures. Conversely, there is nothing in the Settlement Agreement, the HCV Hemophiliac Plan or the Rules for Arbitration/Reference which confers any power on referees or arbitrators with respect to the procedures for processing claims by the Administrator.

10. Section 5.03 of the Settlement Agreement requires the Administrator to give prompt notice of "its decision in respect of a Claim". If the claimant is dissatisfied with the decision, he or she has the right to refer that decision to a referee or arbitrator for review. Section 10.01 of the HCV Hemophiliac Plan is to the same effect. It is clear, therefore, in my opinion, that the only decisions which a claimant can refer to a referee or an arbitrator are decisions in respect of a claim - that is to say, decisions which deal with the granting or withholding of benefits.

11. The present Request for Review does not call into question a decision by the Administrator on the merits of any claim. Rather, it challenges the procedures which the Administrator has put in place for processing Loss of Income claims. I find that in the circumstances of the present case, where there has been no denial of the Claimant's claim, I have no jurisdiction to deal with the concerns raised by the Claimant.

12. In the result, the Request for Review must be declined.

DATED at Halifax, Nova Scotia, this 2nd day of January, 2003.

S. BRUCE OUTHOUSE, Q.C.
Referee