Appeals : Arbitrator Decisions : #61 - October 4th, 2002

D E C I S I O N

In the present file, the petitioner informed the undersigned of his decision not to request a hearing in a note dated November 30, 2001. The representatives of the Administrator, for their part, did not require a hearing to the extent that the undersigned undertook to examine this matter, as arbitrator, based on the file as constituted and taking into consideration the additional information provided by the petitioner himself in a letter addressed to the undersigned and dated October 3, 2001, and a copy of which was given to counsel for the Administrator.

For greater certainty, it is worth specifying that the Administrator has made the following admissions as to the facts :

1. The patient involved in the present case received two blood transfusions during the period covered by the Hepatitis C (HCV) January 1, 1986 - July 1, 1990 Class Actions Settlement ("Settlement Agreement");

2. One of the blood donors tested positive on an HCV screening test; and

3. The patient was in fact infected by HCV.

Furthermore, it must be noted that the patient died in November 1998, and that the claim is being brought by an HCV Personal Representative of the deceased. In the present case, even if there was no doubt that the patient was infected by HCV, the question still remains as to whether his death was caused by this infection.
In this regard, it is important to underscore the tenor of the answers expressed by Dr. Morrison in his capacity as the treating physician of the patient. Dr. Morrison responded in the affirmative to the question whether the HCV infection materially contributed to the patient's death. As to the subsequent question, Dr. Morrison added the following explanation : "It caused significant grief and anxiety to himself, his family, his spouse - physically he did not have signs of liver failure."

According to the facts, the patient also suffered from Parkinson's disease and the cause of death was established as being Cardiac Arrhythmia and Ischemic Heart Disease.

In light of the whole of the evidence contained in the file, it must be determined if the petitioner has adequately met his burden of proof in order to justify his indemnity claim. In this regard, it is helpful to emphasize the distinction between the terms "contribute to the death" and "cause the death". In this case, the form completed by Dr. Morrison evidenced the fact that the infection had a prejudicial effect on the patient's general state, which was never in doubt. However, this does not in any way change the evidence in the file with respect to the cause of death which was specifically established as being cardiac in nature. Surprising as this may seem, the terms of the Settlement Agreement are more restrictive than those used in the form aimed at the treating physician, which has the effect of creating more ambiguity than clarity.

I must, however, give effect to the letter of the Settlement Agreement and thus conclude that it was not clearly established that the cause of death was the HCV infection. Consequently, the decision of the Administrator is maintained.

Montreal, October 4, 2002

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Martin Hébert, Referee