Appeals: Confirmed Referee Decisions : #103 - September 10, 2003

D E C I S I O N

A claim has been presented under the haemophiliac HCV plan (schedule "B") by the wife of a primarily infected person who died July 17th, 1990.

The claim has been approved and various payments have been made, and continue to be made, in accordance with various provisions of the plan.

The claim made by the wife of the deceased as a dependent of such deceased for loss of services, to cover the period from his disability (circa 1987) until his death (July 1990) was refused by the administrator and it is this decision which is the object of the present appeal and thus of the present decision.

The claimant was heard before me on August 21st, 2003 and she spoke eloquently and in a most structured way to explain her position. She also filed a detailed written submission for which I am most grateful.

Studying the documentation filed, the claimant's arguments are that:

· the "contra proferentem" rule should be applied, and thus the agreement interpreted against the Administrator;
· in case of ambiguity, the interpretation should be in favour of "coverage" and against "exclusion";
· the agreement, as interpreted by the Administrator, gives preferential treatment to dependents of persons deceased after January 1st, 1999.

Before me, claimant stressed mostly that there is, in her opinion, ambiguity between article 5 and article 6 of the Agreement and that the Agreement lacks precision regarding the matter of loss of services in the home.

I take the liberty of reproducing here the first two paragraphs of the submission of the claimant:

"I am painfully aware that the human tragedy which brought families like my own to sign the Settlement Agreement and claim compensation under this Plan has really no relevance or importance in the approval or denial of a claim.

I realize that the Settlement Agreement is a legal document and its terms and conditions must be respected by the Administrator in evaluating the validity of a claim. However, if one were to determine that there is ambiguity between certain articles or lack of precision within one article of the agreement, then, the decision to approve or deny a claim is left to the judgment or interpretation of the Administrator."

Whether I act as Referee or Arbitrator, I am always very much aware of the human tragedy caused to individuals and to families involved with Hepatitis C and I am certain that all my brethren arbitrators or referees share the same concern. However, having reviewed the documentation and studied with great care the text of the settlement agreement, I fail to see any ambiguity and I am unable to share appellant's views.

Article 4 of the agreement deals with "compensation to approved HCV Infected Persons", article 5 with "compensation to approved HCV Personal Representatives" and article 6 with "compensation to approved Dependents and approved Family Members". Claimant stresses that she is claiming as a dependent and not as a personal representative.

Under article 5.01(1):

"5.01 Compensation if Deceased Prior to 1 January 1999

(1) If a HCV infected Person died prior to 1 January 1999 and his or her HCV Personal Representative delivers to the Administrator the evidence required under Article Three within the period set out in Section 3.04, the Approved HCV Personal Representative is entitled to be reimbursed for the uninsured funeral expenses incurred up to a maximum of $5,000 and, subject to the provisions of Sections 5.01(2) and (3), the Approved HCV Personal Representative will be paid the amount of $50,000 in full satisfaction of any and all Claims that the deceased HCV Infected Person would have had under this Plan if he or she had been alive on or after 1 January 1999." …

Article 5.01(1) goes on to say that this $50,000-payment is in addition to the claims of dependents and other family members pursuant to article 6.

Under article 6.01(2), the Approved Dependent living with the Infected Person at the time of his death will be entitled to be compensated for the loss of services of the HCV Infected Person. Perhaps that the wording of 6.01(2) is somewhat difficult to comprehend, but if one reads 6.01 in conjunction with 5.01(2) and 5.01 in conjunction with 5.02, I can arrive at no other conclusion but to say that the loss of services prior to the death of the Infected Person is included in the $50,000 provided under article 5.01(2), and that the loss of services after death can be claimed (and indeed are being compensated) under article 6.01(2).

I see no ambiguity and no need to refer to the standard operating procedures, nor to the information provided in various sections of the hepatitis C class action settlement web-site.

I have taken cognizance of several decisions, rendered by various referees or arbitrators, and in particular decision No. 88 (May 19, 2003) where referee Judith Killoran writes as follows:

"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."

The rôle of the administrator under the settlement agreement is to administer the Transfused HCV Plan and the Hemophiliac HCV Plan in accordance with their respective terms. Neither the administrator, nor I as referee, have the authority to disregard or to alter the terms of the plans.

I find that the decision of the Administrator is the correct one and accordingly, the Administrator's denial of the claim must be upheld.

MONTREAL, September 10, 2003

(S) JACQUES NOLS

Jacques Nols
Referee