Appeals: Confirmed Referee Decisions : #161 - September 6, 2004

D E C I S I O N

Background:

1. The Claimant applied for compensation pursuant to Section 3.04 of the Haemophiliac HCV Plan (the “Plan”), as set out under the terms of the 1986-1990 Hepatitis C Settlement Agreement (“the Settlement Agreement"), in her capacity as the personal representative of her father, a Primarily Infected Person, who has died prior to January 1, 1999.

2. By letter dated October 17, 2003, the Administrator denied the claim on the basis that the Claimant had not provided sufficient evidence to establish that her father’s death was caused by his infection with Hepatitis C (“HCV”).

3. The Claimant requested that the Administrator’s denial of the claim be reviewed by a Referee.

4. Although the Claimant had not provided the Administrator with the necessary documentation to allow her to act as the HCV Representative, it was agreed the appeal would proceed on the basis that if the Claimant succeeded, no monies would be paid out until she provided proof of her capacity to act as her father’s personal representative.

5. On May 25, 2004, the Claimant’s brother spoke to the Referee and advised that he and the Claimant wished to proceed by written submissions and that the Claimant would be filing written submissions on their behalf. This was subsequently confirmed by the Claimant on May 26, 2004. Consequently, this appeal proceeded by written submissions. Submissions dated February 16, and August 19, 2004 were filed by Fund Counsel. The Claimant’s submissions were received on August 15, 2004.

Evidence:

6. The following facts were not in dispute:

• The Claimant’s father was infected with HCV;

• The Claimant’s father received a blood transfusion during the class period;

• The Claimant’s father died on December 24, 1998;

• Dr. Erwin Walker completed the Treating Physician Form on July 5, 2000. In answer to question 9, i.e. "if the HCV Infected Person has died, did his or her infection with the hepatitis C virus materially contribute to his or her death?”, Dr. Walker indicated "contributed to death". (Claim file, page 77);

• On July 16, 2003, Dr. Walker completed Form N2A. In this instance, Dr. Walker indicated that the Claimant’s father’s HCV did not materially contribute to his death. Rather, Dr. Walker indicated "the patient died suddenly with no evidence of liver failure. Coroners case - cause of death undetermined". (Claim file, pages 68-69);

• An autopsy was conducted on the Claimant’s father and a report prepared by Dr. A.M. Velji. The autopsy report summarizes the abnormal findings:

  "The histology of the liver in the context of the history is consistent with viral hepatitis, however, there was no sign of hepatic failure. There was pulmonary congestion. There were skin bruises. There was no internal organ injury. The appendix was abscent [sic]." [emphasis added];

• Dr. Velji indicated that based on his examination, he found “no anatomical cause of death", and the cause of death was “Undetermined.” (Claim file, pages 57-63).

7. The Claimant, in her submissions, set out the difficulties the family experienced living with her father’s various medical conditions, and how he changed on being advised he had contracted HCV. The Claimant indicated that her father had wished compensation for his family and submitted this wish should be respected.

8. Counsel for the Fund relied on the requirements of section 3.04(1)(a) of the Plan to argue that the decision of the administrator was correct.

Analysis:

9. Section 3.04(1)(a) requires proof that "the death of the HCV Infected Person was caused by his or her infection with HCV".

10. Dr. Walker’s opinion is that the Claimant’s father’s HCV infection did not materially contribute to his death. Furthermore, Dr. Velji, who conducted the autopsy, did not determine there was any link between the Claimant’s father’s death and his HCV.

11. The Claimant has not brought forward any proof that her father’s death was caused by his infection with HCV.

12. Neither the Administrator, nor I, as a Referee, have any discretion to grant compensation to individuals who were infected with HCV, but whose deaths prior to 1991, cannot be attributed to that infection.

13. Accordingly, I find that the Administrator correctly determined that the Claimant is not entitled to compensation pursuant to the Agreement, as there is insufficient evidence to demonstrate that her father’s death resulted from his having been infected with HCV.

Determination:

14. The decision of the Administrator to deny the Claimant compensation pursuant to the Settlement Agreement is upheld.

DATED AT TORONTO, THIS 6TH DAY OF SEPTEMBER, 2004.

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Tanja Wacyk, Referee