Appeals : Arbitrator Decisions : #18 - October 12th, 2001

D E C I S I O N

1. The Claimant is the HCV Personal Representative of a deceased spouse who died on December 8, 1991. On July 26, 2001, the Administrator denied the claim for compensation under the Transfused HCV Plan (the"Plan"). The claim was denied on the basis that there was no proof that the death of the spouse was caused by infection with HCV.

2. The Claimant requested that the Administrator's denial of the claim be reviewed by way of arbitration.

3. Neither party required an oral hearing.

4. The undisputed relevant facts are as follows:

(a) the spouse was infected with Hepatitis C;

(b) the spouse received blood transfusions in 1951, 1972, 1975, 1989 and 1991;

(c) the hospital discharge summary of December 9, 1991 signed by the Treating Physician indicated that the spouse died from complications following surgery involving abdominal aneurysm repair; and

(d) the Administrator denied the claim on the basis that the material provided by the Claimant did not support the claim that HCV caused the death of the spouse.

5. Article 3.05 under the Plan establishes what claimants must prove to be entitled to compensation as the Personal Representative of an HCV Infected Person.

5. Article 3.05(1)(a) provides that the Claimant must provide proof that the death of the HCV Infected Person was caused by his or her infection with HCV.

6. The Claimant therefore must establish, as a threshold requirement for a claim, proof that the death of an HCV Infected Person was caused by infection with HCV.

7. The Claimant offers no proof that the death of the spouse was caused by infection with HCV. The Claimant submits that the spouse's "general health was precarious enough that tainted blood could have been fatal; that it was not so at the time of [the] death is only incidental to the fact that [the spouse] would have been at a later date." In a letter dated September 17, 2001, the Claimant admits that HCV did not cause the spouse's death, but "would have eventually done so because of the precarious state of [the spouse's] health."

8. In the Treating Physician Form ("TRAN2"), the Treating Physician states that the doctor treated the spouse from 1985 until December 8, 1991 and that the spouse's HCV did not need treatment. The Treating Physician did not answer "yes" to the question "If the HCV Infected Person has died, did his or her infection with HCV materially contribute to his or her death?" It appears he wrote "N/A" in answer to the question, meaning "not applicable".

9. The evidence is overwhelming that the death of the spouse was not related to HCV but rather was due to other causes. That the spouse might have died as a result of HCV at a later date, if the spouse had survived complications following surgery, is quite irrelevant.

10. The Administrator has no discretion to allow compensation where the required proof does not exist.

11. I confirm that the Administrator's Decision was correct. The Administrator properly determined that the Claimant was not entitled to compensation under the Plan as the death of the spouse was not caused by infection with Hepatitis C. The Appeal is dismissed.

DATED at Vancouver, British Columbia this 12th day of October 2001.

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Vincent R.K. Orchard, Arbitrator