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
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