Appeals: Confirmed
Referee Decisions : #91 - June 18, 2003
D E C I S I O N
The Claimant submitted a claim for compensation as a personal
representative of her spouse who died on July 26, 1994. Her
claim having been rejected by the HCV Class Action Settlement
Administration on February 22, 2002, she is now submitting
a Request for Review of such a decision.
Notwithstanding her original Request for Review which stated
that she wanted to have one of her spouse's Treating Physician
testify, the Claimant subsequently waived her right to either
testify or to have another person testify, and the Undersigned,
in his capacity as Referee, must therefore render his decision
based on the documents that were submitted to him including
written arguments by the Fund Counsel.
The Records clearly indicate, and these facts are also shared
by the Fund Counsel, that:
· The Claimant's spouse was a Hemophiliac and that
he had been infected by the Hepatitis C virus;
· The Claimant's spouse had received blood products,
including Factor IX type products during the Class Action
Period.
It is also established on record that the Claimant's spouse
died before January 1, 1999, that is, on July 26, 1994.
This fact being established, the claim was nevertheless rejected
by the Administrator on the basis that the Claimant had not
provided sufficient evidence to the effect that the Hepatitis
C virus had caused her spouse's death.
Sections 3.04(1)a) and 3.05a) clearly provide that if an
HCV infected person dies and that one wishes to submit a claim
for compensation to that effect, the Personal Representative
or the Dependent Person must establish that the death was
caused by the HCV infection. Therefore, the Claimant had to
establish that her spouse's death which occurred in July 1994
had been caused by the HCV infection.
After careful examination of the documentation that has been
submitted to me, I conclude, as it is also stated in the Death
Certificate, that the spouse's death is due to an intracerebellar
haematoma. Moreover, the Treating Physician answers no to
question number 11 on the Treating Physician Form asking if
the infection had contributed substantially to the spouse's
death.
Therefore, the Claimant did not remove the burden of proof
to the effect that the spouse's death had been caused by HCV.
In a letter accompanying her Request for Review, the Claimant
asked, and again in a letter dated April 28, 2003, why (she
would not have) the right to a certain compensation, even
if her spouse had not died from HCV. Thus, she asks in her
letter of April 2003 for a compensation for "psychological
harm" resulting either from her spouse's illness or death.
The Undersigned, in his capacity as Referee, must ensure that
the Hemophiliac HCV Plan is complied with and applied as provided
in the Settlement Agreement. Without denying that the Claimant
may have faced problems and endured pain, I must accept the
fact that the Plan does not provide any relief in such a case.
Neither the Referee or the Administrator for that matter has
the authority to either modify or ignore the Plan's terms,
conditions and provisions. It is therefore impossible for
me to grant any relief to the Claimant on this point.
Therefore, having reviewed documents submitted to me, I come
to the conclusion that the Claimant's spouse died on July
1994 for a reason other than the Hepatitis C virus and that
the claim doesn't fall within the terms and conditions of
the Hemophiliac HCV Plan.
The Administrator's decision to reject the claim for compensation
is therefore well founded, and I confirm such a decision.
The Claimant's Request for Review is therefore rejected.
Montreal, June 18, 2003
(S) Jacques Nols
Jacques Nols
Referee
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