Appeals: Confirmed Referee Decisions : #154 - July 26, 2004

D E C I S I O N

Background:

1. The mother of the Hepatitis C Infected (“HCV”) Person (the “Applicant”), submitted an application for compensation under the 1986-1990 Hepatitis C Settlement Agreement (the “Agreement”).

2. By letter dated September 18, 2003, the Administrator denied the claim on the basis there was insufficient evidence that the death of the Applicant’s son was caused by his infection with Hepatitis C.

3. The Applicant requested that a Referee review the decision of the Administrator, by way of an oral hearing.

Evidence:

4. The following facts were not in dispute:

• The Applicant’s son was infected with Hepatitis C;
• The Applicant’s son received a blood transfusion on April 8, 1990;
• Canadian Blood Services has confirmed that a donor of one of the units of blood received on April 8, 1990 has tested positive for HCV
• The Applicant’s son’s treating physician indicated on the TRAN 2 form that he had never treated him for any condition related to HCV;
• The Applicant’s son’s treating physician also indicated on the TRAN 2 form that the Applicant’s son’s HCV infection did not materially contribute to his death;
• The medical certificate of death for the Applicant’s son describes the cause of death as "gangrene, septicemia, end stage renal disease and diabetes mellitus type 1.

5. At the hearing, counsel for the Fund explained the decision of the Administrator, and referred to the provisions of the Agreement relied upon in concluding the Applicant had not satisfied the eligibility criteria.

6. The Applicant submitted that her son’s infection must have contributed to his death because it made him ill.

7. The Applicant’s son had returned to live with the Applicant prior to his death and it was apparent that she had cared for him during this period of time.

Analysis:

8. Article 3.07 of the Agreement requires that in order for a family member such as the Applicant to be eligible for compensation pursuant to the Plan, there must be proof that the HCV Infected Person’s death was caused by his or her infection with HCV.

9. The Applicant must establish, therefore, that her son’s death was caused by, or was materially contributed to by his infection with HCV.

10. The Applicant has not brought forward any proof that her son’s death was caused by or was materially contributed to by his infection with HCV, other than her own belief this was the case. While this belief is understandable in the circumstances, it cannot overcome the medical evidence of her son’s treating physician, and her son’s medical certificate of death, which indicate this was not the case.

11. Neither the Administrator, nor I, as a Referee, have any discretion to grant compensation to Family Members when the death of the HCV Infected family member, regarding whom they claim compensation, cannot be attributed to that infection.

12. Accordingly, I find that the Administrator correctly determined that the Applicant is not entitled to compensation pursuant to the Plan, as there is insufficient evidence to demonstrate that her son’s death resulted from or was materially contributed to by his having been infected with HCV.

Determination:

13. The decision of the Administrator to deny the Applicant compensation pursuant to the Hepatitis C 1986-1990 Class Action Settlement Agreement is upheld.

DATED AT TORONTO, THIS 26TH DAY OF JULY, 2004.

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Tanja Wacyk, Referee