Appeals : Confirmed Referee Decisions : #116 - November 23, 2003

D E C I S I O N

BACKGROUND

1. On August 13, 2003, the Administrator denied the Personal Representative's claim on behalf of the deceased's estate for compensation under the Transfused HCV Plan on the basis that the Personal Representative had not provided sufficient evidence that the deceased was infected with HCV.

2. The Personal Representative requested that the Administrator's denial of his claim on behalf of the deceased's estate be reviewed by an arbitrator.

3. Both parties waived their entitlement to an oral hearing.

4. The Personal Representative filed written submissions on October 27, 2003 and requested that the arbitrator review all the material in his claim file from The 1986-90 Hepatitis C Claims Centre.

5. Fund counsel, on behalf of the Administrator, filed written submissions on October 21, 2003. The written hearing concluded on November 17, 2003 when neither party filed any further submissions.

Facts

6. The deceased died on March 19, 1986.

7. The deceased received medical treatments from late 1985 until her death in March 1986. She was diagnosed at the Greater Niagara General Hospital (GNGH) with presumed alcoholic cirrhosis in December 1985. In February 1986, when the deceased presented at GNGH vomiting blood, an emergency GI endoscopy and scleral vein therapy procedure were conducted. At that time, she was provided with two units of blood and one unit of fresh frozen plasma. The deceased was discharged from hospital only to be readmitted 10 days later. On this second admission, the deceased was hemorrhaging and further blood products were provided.

8. On March 12, 1986, the deceased was admitted to Hotel Dieu Hospital in St. Catharines where she received an endoscopy and scleral vein therapy. The deceased died at Hotel Dieu on March 19, 1986. Her cause of death was an upper GI hemorrhage secondary to esophageal varices which were secondary to cirrhosis.

9. The deceased was never tested for HCV and no liver biopsy appears to have been conducted.

ANALYSIS

10. The Personal Representative seeks compensation on behalf of the deceased's estate under the Transfused HCV Plan. In order for this claim to be successful, the deceased must meet the definition of "Primarily-Infected Person". The Transfused HCV Plan defines "Primarily-Infected Person", in part, as meaning "a person who received a Blood transfusion in Canada during the Class Period ...". Class Period is defined as meaning "the period from and including 1 January 1986 to and including 1 July 1990". The deceased did receive more than one Blood transfusion in Canada during the Class Period.

11. The Personal Representative submitted that considering the deceased's pre-existing condition and the large number of transfusions in 1985 and 1986, it is likely that infected blood was provided through the two hospitals where the deceased received treatment. He also submitted that, at the time of death, tests for the HCV antibody were not available nor was a liver biopsy done "as the 'tainted blood' scandal was not generally known or considered." The Personal Representative objected to the fact that the administrator neglected to conduct a traceback to determine the status of the transfused blood.

12. The Personal Representative's submissions must be considered in the context of the requirements for compensation set out in the Transfused HCV Plan.

13. Section 3.05(1) of the Transfused HCV Plan requires that a Personal Representative claiming on behalf of an HCV Infected Person who has died must deliver to the Administrator, an application form together with: (a) proof that the death of the HCV Infected Person was caused by his or her infection with HCV; (b) unless the required proof has already been previously delivered to the Administrator: (i) if the deceased was a Primarily-Infected Person, the proof required by Sections 3.01 and 3.03. Section 3.01(1) requires that the following be provided: (a) medical, clinical, laboratory, hospital, The Canadian Red Cross, Canadian Blood Services or Hema-Quebec records demonstrating the claimant received a Blood transfusion in Canada during the Class Period; and (b) an HCV antibody test report, PCR test report or similar test report pertaining to the claimant.

14. Section 3.05(3) provides that where a deceased Primarily-Infected Person was not tested for the HCV antibody or HCV, the HCV Personal Representative of such deceased Primarily-Infected Person may deliver instead of the evidence referred to in Section 3.01(1)(b), evidence of any one of the following:

(a) a liver biopsy consistent with HCV in the absence of any other cause of chronic hepatitis;
(b) an episode of jaundice within 3 months of a blood transfusion in the absence of any other cause, or
(c) a diagnosis of cirrhosis in the absence of any other cause.

For greater certainty, nothing in this section will relieve any claimant from the requirement to prove the death of the Primarily-Infected person was caused by his or her infection with HCV.

15. The Personal Representative did not provide either the evidence referred to in Section 3.01(1)(b) or the evidence referred to in Section 3.05(3). The medical report of November 26, 1985 (prior to the Class Period) indicates that the deceased was suffering jaundice due to her presumed alcoholic cirrhosis. Therefore, Section 3.05(3)(b) and (c) would not apply.

16. I find that the Personal Representative failed to establish that the deceased had the HCV antibody or HCV at the time of her death. There is also no evidence that had the deceased suffered from HCV that the HCV caused her death. Rather, it appears from the medical records that the deceased's death was caused by alcoholic cirrhosis. It was alcoholic cirrhosis which resulted in the deceased's treatment in hospital during February 1986 and March 1986. This treatment included transfusions.

17. The Administrator under the Settlement Agreement is required to administer the Transfused HCV Plan in accordance with its terms. The Administrator does not have authority to vary the terms of the Plan nor does an arbitrator or a referee when asked to review the Administrator's decision.

CONCLUSION

18. I uphold the Administrator's denial of the Personal Representative's claim for compensation.



DATE - November 23, 2003

JUDITH KILLORAN
Arbitrator