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Appeals: Unconfirmed
Referee Decisions : #140 - March 10, 2004
D E C I S I O N
BACKGROUND
1. On June 19, 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 her claim on behalf of the deceased’s estate be reviewed by an arbitrator.
3. There was an oral hearing where the personal representative was entitled to present any facts and call any evidence.
4. The hearing in this matter was held at the City of Toronto on February 2, 2004.
FACTS
1. The deceased died on April 11, 1989.
2. The claim on behalf of the appellant’s estate was denied because the Administrator took the view that there was no evidence that the deceased was infected with HCV. The denial is explained in detail in a letter dated June 19, 2003 and attached hereto (1).
3. The deceased was born on August 30, 1908. In December 1988 she was suffering from substernal pain based on what the family doctor said in his report but denied by the appellant’s personal representative. She was admitted to North York General Hospital in January 1989 where she was diagnosed with gastrointestinal cancer and secondary anemia.
4. Dr. Mary Tweeddale confirms in her note dated February 24, 1989 that the deceased had incurable cancer. The doctor was the hematologist at North York General Hospital.
5. During her stay at North York General Hospital she received four units of blood on January 6, 1989 and two units of blood on February 1, 1989.
6. The deceased died on April 11, 1989. Her autopsy report confirms a number of major pathological diagnoses including pancreatic cancer.
ANALYSIS
It must be established that the deceased was an HCV-infected person. An HCV-infected person is defined by the Plan as a Primarily Infected Person or a Secondary Infected Person. In this case the personal representative has not provided evidence to establish that the deceased was infected with HCV.
There was no HCV antibody test or PCR test to document the infection with HCV.
Prior to the deceased’s death there was no antibody test available. In such a situation, the Plan provides that one of the three alternative pieces of evidence can be provided to establish that the deceased had HCV.
Section 3.05(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 anyone 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.
I find that there was no alternative evidence provided to the Administrator or this hearing, though the personal representative saw some jaundice, which was explained by Dr. A.I.M. Armstrong.
The Administrator stated that if there had been acceptable alternative evidence of HCV, the Administrator would have evaluated the cause of death and conducted a trace back on the units of blood transfused.
Dr. Gary Garber, Professor and Head, Division of Infectious Diseases University of Ottawa/The Ottawa Hospital, who was asked to review the file, has assessed the cause of death in his report as follows:
This patient presented with advanced biliary disease which is associated with jaundice and death. The blood transfusions received upon admission in early January were not the precipitating cause of the advanced cancer and during the ten days in hospital the progression of disease lead to stenting to relieve the biliary obstruction which was not caused by the blood given. The anemia was part of the underlying cancer.
The patient’s death was from extensive carcinoma (lymphoma) and was within the normal life expectancy of this disease once diagnosed.
The liver showed no cirrhosis or any evidence of disease except as caused by the biliary obstruction.
The transfusions in January are irrelevant to the patient’s cause of death.
Even if by chance, one of the units of blood happened to be contaminated by hepatitis C virus, this information would have no bearing on the cause of disease and would have no material impact on her death.
One of the deceased’s doctors, A.I.M. Armstrong, stated as follows, that the deceased had cancer of the pancreas and the jaundice observed was from that. That she died from her cancer and the autopsy report showed no liver problems. He indicated he was not going to complete a tran 2 because he does not believe the deceased had HCV and she did not die of HCV.
The reason for this call to Dr. Armstrong was that the claimant was denied a trace back on the blood given to the deceased.
It is clear in my view that even if the blood contained HCV, to which there is no evidence, there is absolutely no indication that HCV played any cause in the death which was caused by pancreatic cancer. That was confirmed by the autopsy.
In result then, the claim is dismissed.
DATED at Toronto, this 10th day of March, 2004.
“G. Charney” ______
Gerald J. Charney, Referee
Denial letter dated June 19, 2003
Dear Claimant:
We are writing to advise you that your claim for compensation under the 1986-1990 Hepatitis C Settlement Agreement has been denied. The reasons for the denial are set out below.
Criteria for Class Membership
The Settlement Agreement provides that compensation may be payable under the Transfused or Hemophiliac HCV Plans for Class Members who were infected with HCV by Blood received or taken in Canada between January 1, 1986 and July 1, 1990.
Reasons for Decision
The Settlement Agreement requires the Administrator to determine a person's eligibility for class membership.
All the material that you provided to support your claim was carefully reviewed by the Administrator. As you may already know, section 3.05(b) of the Settlement Agreement provides that you must deliver proof required under section 3.01. Section 3.01(b) provides that an HCV Antibody test, PCR test or similar test report pertaining to the HCV Infected Person must be delivered to the Administrator. You have not provided sufficient evidence to support your claim that the deceased person was infected with HCV as outlined in the Standard Operating Procedure “Criteria for Acceptable HCV Antibody Test and PCR Test” (“SOP”). This SOP provides as follows:
A person claimed to be an HCV Infected Person must have either an HCV Antibody Test or a PCR Test to qualify for compensation.
An acceptable HCV antibody test includes a test performed in a Canadian laboratory revealing the presence of antibodies including the following:
- First Generation (1989-1990) ELISA or EIA confirmed or supplemented by a RIBA or;
- Second generation (1991-1996) ELISA or EIA confirmed or supplemented by a RIBA or;
- Third generation (1997 and after) ELISA or EIA or RIBA test results.
An acceptable PCR test includes a test performed in a Canadian laboratory revealing the presence of the HCV virus in the blood including the following:
- A test result dated January 1, 1998 or later or;
- A test performed by a designated PCR Lab as determined by the Administrator.
In some cases, the Administrator must consult a microbiologist to obtain his or her expert opinion as to whether it is more likely than not that the test reveals the presence of antibodies.
If the deceased Primarily-Infected Person was never tested for the HCV antibody, you were required to deliver, instead of the antibody or PCR test , 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.
In your claim for the estate of your late mother it was noted that she passed away on April 11, 1989 and there was no HCV antibody test available at that time. On March 12, 2002 the Administrator sent you a letter informing you there was "alternative proof" that could be provided in absence of a Hepatitis C Antibody test (see above). You responded to this request in a letter dated March 18, 2002. There has been no doctor's opinion regarding this issue, which is required by the Administrator. In light of this fact the Administrator elected to send your file to a team of medical experts in the field of Hepatitis C. The completed file was reviewed and the Specialist noted the jaundice was as a result of her biliary obstruction that was caused by her retroperitoneal mass. The specialist also stated "the liver showed no cirrhosis or any evidence of disease except as caused by the biliary obstruction." In summary, there is no alternative proof of HCV as all the criteria mentioned were not "in absence of any other cause". Therefore based on Article 3.05 (3) of The 1986-1990 Hepatitis C Settlement Agreement you do not meet the criteria for compensation and your claim for the Estate of your late mother is denied. |
As you may already know, every claim for compensation is reviewed and approved based on our review of documentation confirming a series of different but related proven facts; i.e. we first look for proof of infection with HCV and next proof of the HCV Infected Person having received a Blood transfusion or taken Blood during the Class Period, etc. As soon as a claim submission fails to meet one of several approval criteria as set out in the Settlement Agreement, the claim must be denied. It is important to note that in some cases, the subsequent claim evaluation steps were not completed after determining the need to deny the claim. Should you opt to appeal our decision to deny your claim and should you succeed on appeal, any and all pending evaluation steps will have to be completed.
Review by Referee or Arbitrator (Right of Appeal)
You can have the Administrator's decision reviewed by a Referee or Arbitrator. Please review the included Rules for Arbitration/Reference and Instructions for filing a Request for Review.
To request a review you must complete and return to the Administrator this enclosed "Request for Review Form" within 30 days from the date that you receive this letter. You must state your objections and the reasons supporting your objections.
If you do not mail a completed "Request for Review Form", the Administrator's decision to reject your claim will become final 30 days after you receive this letter.
We invite you to refer to our Web site at www.hepc8690.ca for further information about meeting class membership criteria. Should you have any additional questions, do not hesitate to call our toll-free telephone line at 1 877 434-0944.
Yours truly,
The 1986-1990 Hepatitis C Claims Centre
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