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Appeals: Confirmed
Referee Decisions : #181 - March 4, 2005
Decision of the Court having jurisdiction in the Class Action attached - May 19, 2006
D E C I S I O N
CLAIM NO: 1169
Introduction
1. Claim No. 1169 from the Province of Nova Scotia was filed by the Estate of an individual who passed away on April 25, 1988. Her husband, who resides in River Ryan, Nova Scotia, has brought a Claim under the 1986 -1990 Hepatitis C Settlement Agreement, Tranfused Plan on behalf of the individual’s Estate.
2. The Claim was denied because there was no evidence that the individual was infected with HCV.
3. The Estate of the Claimant requested that this matter be reviewed by a Referee.
4. The Parties waived the necessity of a hearing. Opportunities were given for written submissions. The Estate provided submissions on September 13, 2004 and October 12, 2004.
5. Fund counsel provided a submission dated September 8, 2004 which was supplemented on October 27, 2004.
6. The Estate was initially provided with a period of two weeks from October 27, 2004 to make further submissions.
7. On December 7, 2004, the Estate was provided with a further extension until Friday, December 17, 2004.
8. That period for the filing of a submission was further extended. No additional submissions have been made.
Facts:
9. The representative of the Estate completed the General Claimant Information Form (°TRAN 1”). That documentation did not reveal that the deceased had undergone an HCV Antibody Test establishing that the Hepatitis C antibody was present in her body.
10. In addition, there was no evidence which confirmed that the deceased had a PCR Test indicating that the Hepatitis C Virus was present in her blood.
11. An Autopsy Report dated May 18, 1988 states as follows:
“Cause of death is primary pulmonary, due to involvement by tumor and also fibrosis, and mucopus filling bronchi.”
12. There is no evidence that has been submitted with this Claim, or any other medical documentation, establishing that the deceased was infected with HCV or that HCV contributed to her death.
Decision:
13. The 1986 -1990 Hepatitis C Settlement Agreement - Transfused Plan (“the Plan”) establishes what must be demonstrated in order for a Claimant to be entitled to compensation:
Section 3.05 (1)(b) of the Plan provides as follows:
3.05(l) A person claiming to be the HCV Personal Representative of a HCV Infected Person who has died must deliver to the Administrator, within three years after the death of such HCV Infected Person ... an application form prescribed by the Administrator together with:
. . .
(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 of the Plan provides:
(1) A person claiming to be a Primarily-Infected Person must deliver to the Administrator an application form prescribed by the Administrator together with:
. . .
(b) an HCV Antibody Test report, PCR Test report or similar test report pertaining to the claimant;
Section 3.05(3) of the Plan provides as follows:
(3) Notwithstanding the provisions of Section 3.01(1)(b), if 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 three 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.”
14. Unfortunately, no evidence that has been provided to me that the requirements of these provisions have been established. Thus, there is no evidence that the individual to which Claim 1169 relates was infected with HCV.
15. Therefore, there is no entitlement to compensation under the Plan.
16. It is, therefore, my determination that the Administrator’s Decision must be confirmed. The Appeal is dismissed.
Dated at Halifax on this 4 th day of March 2005
Gregory I. North, Q.C., C. Arb.
Referee
J U D I C I A L D E C I S I O N
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