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Appeals : Arbitrator Decisions : #160 - August 15, 2004

D E C I S I O N

Background:

1. The Applicant submitted a claim for compensation under the Transfused HCV Plan (“the Plan"), as set out under the terms of the 1986-1990 Hepatitis C Settlement Agreement (“the Settlement Agreement"). The Applicant submitted the claim in her capacity as the HCV Personal Representative of her late husband (the “Deceased”) who passed away in 1995.

2. By letter dated July 7, 2004, the Administrator conceded there was evidence the deceased had received a transfusion in November 1986, from a blood donor in who was subsequently found to be HCV positive. However, the claim was denied on the basis that the Applicant had not provided sufficient evidence that the Deceased was infected with HCV as required by section 3.05 (b) of the Settlement Agreement.

3. The Applicant requested that an Arbitrator review the decision of the Administrator and a hearing by conference-call was scheduled at the convenience of the parties.

Evidence:

4. The Applicant relied on the (OHCAP) - Physician Form to prove that her husband had been infected with HCV. On that form, Dr. Pich, indicated he had been the deceased’s physician for three years. Dr. Pich also indicated, by checking the appropriate box, that the Deceased had been infected with HCV. However, Dr. Pich did not make the diagnosis, and the Applicant could provide no further information in that regard.

5. Although the Applicant submitted a “Proof of Death Certificate,” she had not filed, as requested, a medical certificate indicating the cause of her husband’s death. However, in a memorandum to file, Carol Miller, the Claims Administrator for the Fund, indicated she had spoken to the Applicant by telephone on March 23, 2004, and that in that conversation, the Applicant indicated her husband had died of a heart attack, and that she had been told many times that his HCV had nothing to do with it.

6. In the hearing, the Applicant conceded she had no proof that her husband’s death had been caused or materially contributed to by his HCV infection. No autopsy had been performed on her husband, and the Applicant also indicated that given the length of time which had passed, she did not anticipate finding any additional documentation to support the claim.

7. The Applicant indicated that I should determine her appeal based on the documentary evidence already submitted, as well as her submissions during the hearing.

Analysis:

8. Subsection 3.05 provides that in order to qualify for compensation, proof required under section 3.01 of the Settlement Agreement must be provided. Section 3.01 (b) requires that an HCV Antibody test or similar test report pertaining to the HCV Infected Person must be provided. This is further defined in the Standard Operating Procedure "Criteria for Acceptable HCV Antibody Test and PCR Test” (“SOP”) which requires that:

A person claiming to be an HCV Infected Person must have either an HCV Antibody Test or a PCR Test to qualify for compensation.

9. Subsection 3.05 also provides:

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 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.

For greater certainty, nothing in this Section will relieve any claimant from the requirement to prove that the death of the Primarily-Infected Person was caused by his or her infection with HCV. [emphasis added]

10. Although Dr. Pich has indicated the deceased did have HCV, this falls short of the requirements of sections 3.01 and 3.05.

11. Furthermore, the Applicant has not submitted any proof that her husband’s death was caused by or was materially contributed to by his infection with HCV. Subsection 3.05 is clear that in order to qualify for compensation, the Applicant must establish that her husband’s death was caused by, or was materially contributed to by his infection with HCV.

12. Consequently, even the Applicant had been able to meet the requirements set out above, and establish that her husband did have HCV, she is unable to provide any proof that his death was caused by or materially contributed to by the HCV infection.

13. Neither the Administrator, nor I, as a Referee, have any discretion to grant compensation in circumstances when the requirements of the Settlement Agreement have not been met.

14. 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 husband was infected with HCV or the his death resulted from or was materially contributed to by his having been infected with HCV.

Determination:

15. The decision of the Administrator to deny the Applicant’s claim pursuant to the Hepatitis C 1986-1990 Class Action Settlement Agreement is upheld.

DATED AT TORONTO, THIS 15TH DAY OF AUGUST, 2004.

__________________

Tanja Wacyk, Referee








 

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