Appeals: Confirmed Referee Decisions : #88 - May 19, 2003

D E C I S I O N

BACKGROUND

1. On December 11, 2002, the Administrator denied compensation to the Approved Dependants for the loss of the services of the HCV Infected Person for the period prior to his death. The Administrator denied the claim on the basis that compensation for the loss of the services of the deceased for the period starting from the date of disability and ending on the date of death could not be paid as the HCV Infected Person died before January 1, 1999.

2. The Claimant requested that the Administrator's denial of claim be reviewed by an arbitrator. An oral hearing was conducted on April 21, 2003. At the hearing, the parties agreed to treat the hearing as a reference.

EVIDENCE

3. It is not disputed that the deceased was an HCV Infected Person who died on December 2, 1992.

4. Carol Miller, Appeal Coordinator for the Fund, appeared on behalf of the Administrator. She filed 132 pages of evidence contained in the Claimant's file.

ANALYSIS

5. Section 5.01 of the Plan sets out the compensation available to an Approved HCV Personal Representative if an HCV Infected Person dies before January 1, 1999.

6. The Approved HCV Personal Representative can elect compensation under section 5.01(1) or 5.01(2) of the Plan. In the case before me, the Approved HCV Personal Representative elected compensation under section 5.01(1) of the Plan. This section provides the following compensation:

a. Uninsured funeral expenses up to a maximum of $5,000.
b. $50,000 in full satisfaction of any claims the deceased would have had under the Plan if he had been alive on or after January 1, 1999.
c. Compensation available to the dependants and other family members under Article 6 of the Plan.

7. The Claimant has relied on sections 5 and 9 of the Standard Operating Procedure ("SOP") to argue that compensation is owed for the loss of services prior to the death of the HCV Infected Person. Section 5 of the SOP states: "Past loss of services will be paid back to the date of HCV disability". I find that section 5 does not apply where the HCV Infected Person's date of death is prior to January 1, 1999. Section 9 states that it applies to the calculation of payments only in situations where the HCV Infected Person is alive.

8. While I sympathize with the difficulty experienced by the Claimant in interpreting the Plan and the SOP, it is important to keep in mind that the SOP provides general commentary and direction for the calculation and allocation of payment for all loss of service claims. Loss of service claims can be made under the Plan whether the HCV Infected Person is deceased or alive. The general provisions found in the SOP must be read together with the Plan which sets out the specific compensation that is available in each case.

9. Compensation for the loss of the services of an HCV Infected Person before his death is available under section 4.03 to the Approved HCV Infected Person or under section 5.02(1) to the Approved HCV Personal Representative, where a death occurs after January 1, 1999.

10. Article 6 of the Plan provides compensation to Approved Dependants and Approved Family Members in addition to compensation under section 5.01(1). The Administrator paid for the loss of the services of the HCV Infected Person to the Approved Dependants under section 6.01(2). I find that this section compensates the Approved Dependants for the loss of services of the deceased from the date of death forward. I also find that if the deceased were unable to provide services in the home prior to his death, this loss is compensated in full through the $50,000 payment provided in section 5.01(1).

11. The Plan describes the compensation that is available when an HCV Infected Person dies prior to January 1, 1999. The $50,000 payment made under section 5.01(1) is made in satisfaction of all claims that the HCV Infected Person would have had under the Plan if he had been alive on or after January 1, 1999. This includes the loss of the services of the HCV Infected Person before the date of death.

12. The Administrator under the Settlement Agreement is required to administer the Transfused HCV Plan in accordance with its terms. 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

13. I uphold the Administrator's denial of the Claimant's request for compensation for the loss of the services of the HCV Infected Person prior to his death.


DATE: May 19, 2003

JUDITH KILLORAN
Referee