logo
Hepatitis C - Class Actions Settlement
HomeSearchContact UsFrançaisPrivacy

Claimants:
Essential Information
Claimants:
Additional Information
Claimants:
Loss of Income / Loss of Support / Loss of Services
Periodic Re-Assessment by the Courts
Appeals
Documents
Forms
Contacts and Links
Annual Reports
Administrator


Appeals: Confirmed Referee Decisions : #171 - January 3, 2005

D E C I S I O N

BACKGROUND

1. On September 18, 2003, the Administrator denied the Claimant’s request for compensation as a surviving family member under the Transfused HCV Plan (the “Plan”) on the basis that the Claimant had not provided sufficient evidence to support her claim that the HCV infection caused the death of the HCV Infected Person.

2. On December 14, 2003, the Claimant requested that the Administrator’s denial of her claim be reviewed by a referee. At the same time, she filed written submissions in support of her claim.

3. On February 24, 2004, fund counsel, on behalf of the Administrator, filed written submissions.

4. On December 20, 2004, I conducted a hearing in Oakville, Ontario. As requested by the parties, I also reviewed the master claim file provided by the 1986-1990 Hepatitis C Claims Centre.

EVIDENCE

5. On September 8, 1989, the HCV Infected Person received 10 blood transfusions while hospitalized at the Memorial Hospital in Sudbury, Ontario.

6. On April 18, 1997, the Canadian Red Cross Society confirmed that the donor of unit no. 0 315311-9 had tested positive for Hepatitis C. The HCV Infected Person was transfused with this person’s blood. As a result of this transfusion, the HCV Infected Person was infected with HCV.

7. On October 13, 2000, the HCV infected person died. The last note in the file from the Sudbury Regional Hospital identifies the “most responsible diagnosis” as “carcinoma of the esophagus with pulmonary and bony metastases (left hip, ribs, thoracic spine).” Four comorbid conditions are identified as follows: coronary artery disease, hepatitis C, pathological fracture of her left hip with intratrochanteric hip screws and side plates performed on September 8, 2000, and radiation therapy to the left femoral area post operatively.

8. On March 12, 2002, the HCV Infected Person’s treating physician confirmed in the Treating Physician Form that the deceased’s infection with HCV did not materially contribute to her death.

10. The Claimant testified that, in her opinion, the HCV infection contributed to the death of the HCV Infected person. However, she had no medical evidence to support this claim.

ANALYSIS

11. Since the HCV Infected Person died after January 1, 1999, section 5.02 of the Plan was applied to determine the amount to be paid to the Approved HCV Personal Representative. In order for the Approved HCV Personal Representative to receive this compensation, it was not necessary for the Representative to establish that the HCV Infected Person’s death was caused by her infection with HCV.

12. Compensation has been paid to the Approved HCV Personal Representative in accordance with section 5.02. The amount of $10,728.78 was paid for a level 1 infection.

13. Section 3.07 of the Settlement Agreement provides that a person claiming to be a Family Member of a HCV Infected Person who has died, must deliver to the Administrator proof that HCV caused the death of the HCV Infected Person. Section 3.07 states:

A person claiming to be a Family Member, referred to in clause (a) of the definition of Family Member in Section 1.01 of a HCV Infected Person who has died must deliver to the Administrator, within two years after the death of such HCV Infected Person or within two years after the Approval Date or within one year of the claimant attaining his or her age of majority, whichever event is the last to occur, an application form prescribed by the Administrator together with:

(a) proof as required by Sections 3.05(1)(a) and (b) (or if applicable, Section 3.05(3) or (4) and 3.05(5) and (6), unless the required proof has been previously delivered to the Administrator; and
(b) proof that the claimant was a Family Member referred to in clause (a) of the definition of Family Member in section 1.01 of the HCV Infected Person.

14. The relevant part of section 3.05(1)(a) states:

A person claiming to be the HCV Personal Representative of a HCV Infected Person who has died must deliver to the Administrator ... an application form prescribed by the Administrator together with:

(a) proof that the death of the HCV Infected Person was caused by his or her infection with HCV ....

15. Article 6 of the Plan outlines the compensation available for Approved Family Members. However, section 6.02 only provides compensation for Approved Family Members if the HCV Infected Person’s death was caused by infection with HCV.

16. In the case of the HCV Infected Person, there is no evidence that her death was caused by her infection with HCV. Hepatitis C has not been identified as the cause of death by the Sudbury Regional Hospital or by her family physician.

17. Consequently, there is no evidence to prove that the HCV infection caused the death of the HCV Infected Person, as required under section 3.05(1)(a). In the absence of such evidence, the Administrator was correct in denying the claim under section 3.07.

18. The Administrator under the Settlement Agreement is required to administer the Plan in accordance with its terms. Compensation is limited to a defined class of individuals. Unfortunately, the Claimant does not qualify for compensation. While I am very sympathetic to the Claimant, there is no evidence that the HCV infection caused the death of the HCV Infected Person. 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

19. I uphold the Administrator’s denial of the Claimant’s requests for compensation.

January 3, 2005
DATE

JUDITH KILLORAN
REFEREE

 

 

Disclaimer