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Appeals: Unconfirmed Referee Decisions : #141 - April 28, 2004

D E C I S I O N

BACKGROUND

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

2. On October 18, 2003, both Claimants requested that the Administrator’s denial of their claims be reviewed by a referee. At the same time, the Claimants filed written submissions in support of their claims.

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

4.On March 19, 2004, the Claimants confirmed that they would like their appeals heard together by a referee as a written hearing.

5. By April 16, 2004, the deadline set by me, the Claimants had submitted no further evidence or submissions and the written hearing concluded. As requested by the Claimants, I reviewed the entire master claim file provided by the 86-90 Hepatitis C Claims Centre

EVIDENCE

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

7. 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.

8. 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.

9. 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. In their submissions, the Claimants described how worried the HCV Infected Person was after she received the letter informing her that she had been transfused with HCV infected blood. They also commented on all the paperwork that had to be filled out by her before her death, in order to make a claim. As well, they submitted that even if their sister died of cancer, the HCV infection must have hastened the spread of the cancer and her death.

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 this 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 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 Transfused HCV Plan in accordance with its terms. Compensation is limited to a defined class of individuals. Unfortunately, the Claimants do not qualify for compensation. While I am very sympathetic to the claims of the family members, there is no evidence to prove 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 Claimants’ requests for compensation.

April 28, 2004

JUDITH KILLORAN DATE

REFEREE

 

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