Appeals : Confirmed Referee Decisions : #63 - October 15, 2002

D E C I S I O N

Background:

The Estate of the Claimant, (the "Estate") submitted an application for compensation under the 1986-1990 Hepatitis C Settlement Agreement (the "Agreement") and Schedule A - The Transfused HCV Plan, (the "Plan").

By letter dated October 30, 2001, the Administrator of the Fund (the "Administrator") denied the claim on the basis there was insufficient evidence that the death of the Claimant was caused by his infection with Hepatitis C ("HCV").

The Estate requested that a Referee review the decision of the Administrator in an oral hearing.

Evidence:

The following facts were not in dispute:

- The Claimant was infected with HCV;
- The Claimant died on October 31, 1998, of multiple trauma resulting from a motor vehicle accident; and,

- The Claimant's treating physician indicated on the TRAN 2 form that the Claimant's HCV infection did not materially contribute to his death.

Both the Claimant's mother and son testified at the hearing. It was clear from their evidence that the Claimant's infection with HCV dramatically diminished both his quality of life and their ability to enjoy his companionship. In addition, his inability to work as his condition deteriorated created serious financial difficulty for his family.

The Claimant's treating physician also testified at the hearing. He was the Claimant's family physician from 1992 until the Claimant's death. The physician described the deterioration in the Claimant's condition from the time he was diagnosed with HCV in 1993 to shortly before his accident.

The Claimant was last seen by his physician approximately one month prior to his death. At that time, the Claimant was feeling optimistic regarding his condition and was considering returning to work. While the physician felt this was unrealistic, he also testified that the Claimant might have lived for another ten years as death from HCV is unpredictable.

Applicable Provisions of the Plan:

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 3.05, 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 Section 5.01(2), the Approved HCV Personal Representative will be paid the amount of $50,000 in full satisfaction of any and all Claims that the HCV Infected Person would have had under this Plan if he or she had been alive on or after 1 January 1999. This $50,000 payment to the Approved HCV Personal Representative is in addition to the Claims of Dependants and other Family Members pursuant to Article Six and will not affect the personal Claim of a Spouse or Child who is also a HCV Infected Person...[emphasis added]

6.01 Compensation to Approved Dependants

(1) If a HCV Infected Person dies and the death was caused by his or her infection with HCV, the Approved Dependants of such HCV Infected Person will be entitled to be compensated for their loss of support. The loss of support is an amount each calendar year equal to 70% of the deceased HCV Infected Person's Annual Loss of Net Income for such year until he or she would have attained the age of 65 years determined in accordance with 4.02(2), provided, however, that the annual amount payable under this provision will be reduced by an amount equal to 30% of the net amount as calculated to allow for the personal living expenses of the HCV Infected Person, and provided further that, for purposes of calculating the annual amount payable under this provision, "Post-claim Net Income" will be computed without reference to clauses (A), (C) and (D) of the definition of "Post-claim Net Income" and that the words "the person" and "on account of illness or disability for the year" in clause (B) and the words "the person" in clause (E) of the definition of "Post-claim Net Income" were replaced with the words "the Dependants as a result of the death of the person". [emphasis added]

3.05 Claim by HCV Personal Representative of HCV Infected Person

(1) A person claiming to be the HCV Personal Representative of a HCV Infected Person who has died must deliver to the Administrator, within three years after the death of such HCV Infected Person or within two years after the Approval Date, whichever event is the last to occur, an application form prescribed by the Administrator together with:

(a) proof that the death of the HCV Infected Person was caused by his or her infection with HCV; [emphasis added]

3.06 Claim by Dependant

A person claiming to be a Dependant of a HCV Infected Person who has died must deliver to the Administrator, within two years after the death of such HCV Infected Person or within two years after the Approval Date or within one year of the claimant attaining his or her age of majority, whichever event is the last to occur, an application form prescribed by the Administrator together with:

(a) proof as required by Sections 3.05(1)(a) and (b) (or, if applicable, Section 3.05(3) or (4)) and 3.05(5) and (6), unless the required proof has been previously delivered to the Administrator; ... [emphasis added]

3.07 Claim by Family Member

A person claiming to be a Family Member referred to in clause (a) of the definition of Family Member in Section 1.01 of a HCV Infected Person who has died must deliver to the Administrator, within two years after the death of such HCV Infected Person or within two years after the Approval Date or within one year of the claimant attaining his or her age of majority, whichever event is the last to occur, an application form prescribed by the Administrator together with:

(a) proof as required by Sections 3.05(1)(a) and (b) (or, if applicable, Section 3.05(3) or (4)) and 3.05(5) and (6), unless the required proof has been previously delivered to the Administrator; ...[emphasis added]

Argument:

The Estate maintained that the Claimant had been infected with HCV through a blood transfusion received following a workplace accident on January 6, 1988. Consequently, the Estate maintained that the accident in which the Claimant was killed simply changed the date of his death - not the inevitability of his death.

The Estate submitted that the claimant's family could bring a claim pursuant to either Articles 5.01 and 6.01.

The Estate argued that nothing in Article 5.01 requires that the Claimant's death have resulted from his infection with HCV.

The Estate conceded that Article 6 expressly precludes a claim unless it can be shown that the Claimant's death was caused by his infection with HCV.

However, the Estate pointed out that both the Claimant and the Claimant's family suffered as much as others in their situation, and that it was inequitable that they could not receive compensation pursuant to the settlement.

The Estate maintained that in light of the intent of the plan, the date of death was not important for the purpose of Article 6.01. Rather, the Estate maintained the issue was whether the Claimant would have died as a result of his infection with HCV had it not been for the intervening event of the motor vehicle accident. The Estate argued that the Claimant's death had been imminent because of his HCV.

The Administrator also pointed out that Article 5.01 expressly requires the same evidence as required under Article Three in order for entitlement to be established (see bold). Consequently, the Administrator maintained that the requirements of Article 5 and 6 are the same in that they both require proof that the Claimant's death was caused by his infection with HCV.

The Administrator also pointed out that despite the submission of the Estate to the contrary, the Claimant's physician testified that he may have lived an additional ten years. Consequently, even if entitlement were based on proof of imminent death from infection with HCV, that proof was lacking in this instance.

The Administrator also submitted that the provisions of the Settlement and the Plan are clear in the parameters for entitlement and that neither the Administrator nor a Referee have discretion to vary them.

Analysis:

Article 6.01 clearly sets out the requirement for proof that the Claimant's death was caused by his infection with HCV.

I find that Article 5.01 incorporates the same requirement by reference to the evidence required under Article 3.

Article 3.05(1)(a) of the Agreement requires, as a threshold test for a claim, proof that a claimant's death was caused by his or her infection with HCV. This requirement is further affirmed by Articles 3.06 and 3.07.

The Estate, therefore, must establish that the Claimant's death was caused by his infection with HCV.

The Estate has not provided any proof that the death of the Claimant was caused by his infection with HCV. Rather, the evidence clearly established that his death was the result of a motor vehicle accident, and I so find.

This is regrettable for the Claimant's family as it is clear they have suffered greatly as a result of the Claimant's infection with HCV.

However, neither the Administrator nor I, as a Referee, have any discretion to grant compensation in circumstances where the death of an HCV infected person cannot be attributed to that infection.

Accordingly, I find that the Administrator correctly determined that the Estate of the Claimant is not entitled to compensation pursuant to the Agreement, as his death did not result from his having been infected with HCV.

Determination:

The decision of the Administrator to deny the Estate of the Claimant compensation pursuant to the Hepatitis C 1986-1990 Class Action Settlement Agreement is upheld.

DATED AT TORONTO, THIS 15TH DAY OF OCTOBER, 2002.

Tanja Wacyk, Referee