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Appeals : Arbitrator Decisions : #168 - September 30, 2004

D E C I S I O N

BACKGROUND

1. On April 30, 2004, the Administrator denied the Claimant’s request on behalf of the deceased’s estate for compensation as a Primarily-Infected Person under the Transfused HCV Plan. The claim was denied on the basis that the Claimant had not provided sufficient evidence that the deceased was infected for the first time with HCV by a Blood transfusion received in Canada during the Class Period.

2. The Claimant requested that the Administrator’s denial of her claim on behalf of the estate be reviewed by an arbitrator.

3. Both parties waived their entitlement to an oral hearing.

4. The Claimant filed written submissions on June 25, July 19, August 13, 16 and 30, 2004, and requested that the referee review all the material in her claim file from The 86-90 Hepatitis C Claims Centre.

5. Fund counsel, on behalf of the Administrator, filed written submissions on August 16, 2004. The written hearing concluded on August 30, 2004 when the Claimant confirmed that she had no further submissions to file in reply.

Facts

6. The deceased was infected with Hepatitis C.

7. The deceased died on March 1, 2001 after filing a proof of claim in this case.

8. The physician who signed the Treating Physician Form on May 1, 2000 stated that he had known the deceased for 30 years. In the Treating Physician Form:

(i) at Section F, question one, blood transfusions outside the period January 1, 1986 and July 1, 1990 are identified as risk factors.

(ii) at Section F, question one, non-prescription intravenous blood use and tattoos are identified as risk factors.

(iii) at Section F, question three, the physician indicates that the patient was infected with Hepatitis B in 1973 in response to the question about whether there was anything in the medical history that indicates that the patient was infected with HCV prior to January 1, 1986.

(iv) at Section F, question four, the physician indicates again that the diagnosis of Hepatitis B in 1973 indicates that the patient may have been infected with HCV prior to January 1, 1986.

(v) at Section F, question 6, the physician states that the patient was seen and diagnosed with Hepatitis B and admitted the use of non-prescription intravenous drug use.

9. On March 17, 2004, the treating physician signed a form certifying that the HCV infection did not materially contribute to the death of the deceased.

10. On March 4, 2004, the Administrator notified the Claimant that the claim would be rejected unless she returned the Further Evidence of First Infection Form, in which she should indicate whether she wanted to provide further evidence to establish on the balance of probabilities that the deceased was infected for the first time with HCV by a Blood transfusion received in Canada during the Class Period. The Claimant has never returned this form. Therefore, the claim was rejected as no further evidence was provided.

ANALYSIS

11. The Claimant seeks compensation on behalf of the estate of the deceased, whom she claims was a Primarily-Infected Person under the Transfused HCV Plan. The Transfused HCV Plan defines “Primarily-Infected Person”, in part, as meaning “a person who received a Blood transfusion in Canada during the Class Period ...”.

12. The 1986-1990 Hepatitis C Settlement Agreement defines “Class Period” as meaning “the period from and including 1 January 1986 to and including 1 July 1990." “Class Period” is defined identically in the Transfused HCV Plan.

13. Article 3.01 of the Transfused HCV Plan requires that a person claiming on behalf of a Primarily-Infected Person must deliver to the Administrator an application form together with, among other things, medical “records demonstrating that the Claimant received a Blood transfusion in Canada during the Class Period.” Article 3.03 itemizes the additional proof that may be requested by the Administrator.

14. This is a case involving the IV Drug Use Protocol. According to correspondence dated May 27, 2004 and a Transfusion Summary from Canadian Blood Services, the deceased did have two transfusions of 10 units of Blood in 1987. Three units of Blood could not be traced back to completion. The remaining units were negative.

15. According to a physician’s report dated July 8, 1993, the deceased was an IV drug user for about 3 years prior to his diagnosis of Hepatitis B in 1973.

16. Upon learning that a claimant has used IV drugs, the Administrator is obligated under the Court Approved Protocol -Non-Prescription Drug Use (“CAP”) to conduct further investigations and obtain additional information in order to assess the claim. Paragraphs 7 and 8 of the CAP dictate the additional investigations required. Paragraph 9 provides that the Administrator shall weigh the totality of evidence obtained from the additional investigations and determine whether, on a balance of probabilities, the HCV Infected Person meets the eligibility criteria

17. The Administrator asked the Claimant for an affidavit under paragraph 11(d) of the CAP. The Administrator also asked for medical records dating back 10 years under paragraph 11(b) of the CAP. The Administrator offered to assist in this exercise. The Administrator’s requests to the Claimant were made on March 4, 2004. A further request was made at the outset of this appeal by Fund Counsel in his letter of June 17, 2004. The requested information has not been provided by the Claimant.

18. The Claimant submitted a summary of her 26-year marriage to the deceased. She was very detailed in her outline of his medical history and the heartbreaking circumstances leading to his death. Unfortunately, the information she provided did not meet the requirements of the CAP.

19. As the Administrator has not been provided with the requested information, the Administrator had insufficient information to conduct a further investigation. According to paragraph 10 of the CAP, as there has not been an investigation to satisfy the Administrator that the “body of evidence is sufficiently complete to make a decision,” the Administrator must “reject the claim.”

20. The Administrator under the Settlement Agreement is required to administer the Transfused HCV Plan in accordance with its terms. The Administrator does not have authority to vary the terms of the Plan nor does an arbitrator or a referee when asked to review the Administrator’s decision.

CONCLUSION

21. I uphold the Administrator’s denial of the Claimant’s request for compensation on behalf of the deceased’s estate.

 

DATE
September 30, 2004

JUDITH KILLORAN
Arbitrator


 

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