Appeals: Confirmed Referee Decisions : #91 - June 18, 2003

D E C I S I O N

The Claimant submitted a claim for compensation as a personal representative of her spouse who died on July 26, 1994. Her claim having been rejected by the HCV Class Action Settlement Administration on February 22, 2002, she is now submitting a Request for Review of such a decision.

Notwithstanding her original Request for Review which stated that she wanted to have one of her spouse's Treating Physician testify, the Claimant subsequently waived her right to either testify or to have another person testify, and the Undersigned, in his capacity as Referee, must therefore render his decision based on the documents that were submitted to him including written arguments by the Fund Counsel.

The Records clearly indicate, and these facts are also shared by the Fund Counsel, that:

· The Claimant's spouse was a Hemophiliac and that he had been infected by the Hepatitis C virus;
· The Claimant's spouse had received blood products, including Factor IX type products during the Class Action Period.

It is also established on record that the Claimant's spouse died before January 1, 1999, that is, on July 26, 1994.

This fact being established, the claim was nevertheless rejected by the Administrator on the basis that the Claimant had not provided sufficient evidence to the effect that the Hepatitis C virus had caused her spouse's death.

Sections 3.04(1)a) and 3.05a) clearly provide that if an HCV infected person dies and that one wishes to submit a claim for compensation to that effect, the Personal Representative or the Dependent Person must establish that the death was caused by the HCV infection. Therefore, the Claimant had to establish that her spouse's death which occurred in July 1994 had been caused by the HCV infection.

After careful examination of the documentation that has been submitted to me, I conclude, as it is also stated in the Death Certificate, that the spouse's death is due to an intracerebellar haematoma. Moreover, the Treating Physician answers no to question number 11 on the Treating Physician Form asking if the infection had contributed substantially to the spouse's death.

Therefore, the Claimant did not remove the burden of proof to the effect that the spouse's death had been caused by HCV.

In a letter accompanying her Request for Review, the Claimant asked, and again in a letter dated April 28, 2003, why (she would not have) the right to a certain compensation, even if her spouse had not died from HCV. Thus, she asks in her letter of April 2003 for a compensation for "psychological harm" resulting either from her spouse's illness or death. The Undersigned, in his capacity as Referee, must ensure that the Hemophiliac HCV Plan is complied with and applied as provided in the Settlement Agreement. Without denying that the Claimant may have faced problems and endured pain, I must accept the fact that the Plan does not provide any relief in such a case.

Neither the Referee or the Administrator for that matter has the authority to either modify or ignore the Plan's terms, conditions and provisions. It is therefore impossible for me to grant any relief to the Claimant on this point.

Therefore, having reviewed documents submitted to me, I come to the conclusion that the Claimant's spouse died on July 1994 for a reason other than the Hepatitis C virus and that the claim doesn't fall within the terms and conditions of the Hemophiliac HCV Plan.

The Administrator's decision to reject the claim for compensation is therefore well founded, and I confirm such a decision. The Claimant's Request for Review is therefore rejected.

Montreal, June 18, 2003

(S) Jacques Nols

Jacques Nols
Referee