Appeals: Confirmed Referee Decisions : #164 - October 16, 2004

D E C I S I O N

BACKGROUND:

1. The Claimant is an approved Primarily-Infected haemophiliac under the Haemophiliac HCV Plan (“the Plan"), as set out under the terms of the 1986-1990 Hepatitis C Settlement Agreement (“the Settlement Agreement"). He has been approved as a level 5 claimant pursuant to section 4.04(1)(d) of the Plan.

2. The Claimant submitted a claim for uninsured medical expenses totaling $10,648.59, and out-of-pocket expenses totaling $7,660.42. By letter dated September 18, 2002, the Administrator denied his claim.

3. The claim for uninsured medical expenses was denied on the following basis:

As per the Standard Operating Procedure ("SOP") relating to processing Uninsured Medical Expenses (Tran and Hemo Plans ss. 4.06, 4.07), uninsured medical expenses are defined as recommended/prescribed by an HCV Medical Specialist and must require the HCV Infected Person to supply a letter completed by a treating physician confirming that he/she recommended the claimed items. Your claims for treatment for alternative medications such as Life Plus Supplements, Barley Green Supplements, Metabolite, Herbal Fibre, E-Tonic, Mega Enzymes, Mannatech Supplements, Ecomags MGN 13 Supplements, Health and Wellness Clinic, Hair Analysis, Vitamins, Liver Cell Test, and Nutritional Services are not generally accepted by the medical community for medication or treatment due to HCV infection, and have not been accompanied by the aforementioned letter. Therefore, in light of these facts, your claim for these expenses must be rejected.

4. Regarding the Claimant’s claim for out-of-pocket expenses, the denial letter referred to the Standard Operating Procedure ("SOP") relating to processing Out-of-Pocket expenses, section 4.07 of the 1986-1990 Hepatitis C Settlement Agreement, which states: "an Approved HCV Infected Person is entitled to be reimbursed for all reasonable costs...attributable to seeking medical advice due to his or her HCV infection." The denial letter stated that the claim to recover out-of-pocket expenses, which include airfare, a U-haul rental, gas, an imported vehicle and food while moving back to Canada, as well as annual fees to the Hepatitis C Society must be rejected, as these items are not reasonable and attributable to seeking medical advice.

5. The Claimant requested that a Referee review the decision of the Administrator in an in-person hearing. The in-person hearing took place on April 7, 2003, and was followed by an exchange of written submissions.

APPLICABLE PROVISIONS OF THE PLAN:

6. Section 4.06 of the Plan provides for compensation for uninsured treatment and medication. It provides as follows:

4.06Compensation for Uninsured Treatment and Medication

An Approved HCV Infected Person who delivers to the Administrator evidence satisfactory to the Administrator that he or she has incurred or will incur costs for generally accepted treatment and medication due to his or her HCV infection which are not recoverable by or on behalf of the claimant under any public or private health care plan is entitled to be reimbursed for all reasonable past, present or future costs so incurred, to the extent that such costs are not costs of care or compensation for loss of services in the home, provided:

(a) The costs were incurred on the recommendation of the claimant's treating physician; and

(b) If the costs are incurred outside of Canada, the amount of compensation cannot exceed the lesser of the amount of compensation payable if the costs had been incurred in the Province or Territory where the claimant resides or is deemed to reside and the actual costs.

7. Section 4.07 of the Plan provides for compensation for out-of-pocket expenses. It provides as follows:

4.07 Compensation for Out-of-Pocket Expenses

An Approved HCV Infected Person who delivers to the Administrator evidence satisfactory to the Administrator that he or she has incurred or will incur out-of-pocket expenses due to his or her HCV infection that are not recoverable by or on behalf of the claimant under any public or private health care plan is entitled to be reimbursed for all reasonable costs so incurred provided:

(a) out-of-pocket expenses will include (i) expenses for travel, hotels, meals, telephone and other similar expenses attributable to seeking medical advice or generally accepted medication or treatment due to his or her HCV infection and (ii) medical expenses incurred in establishing a Claim; and

(b) The amount of the expenses cannot exceed the amount therefor in the guidelines in the Regulations issued under the Financial Administration Act (Canada) from time to time.

STANDARD OPERATING PROCEDURE:

8. The Standing Operating Procedure (“SOP) in place at the time of the Claimant’s denial stated:

Standard Operating Procedure
SOP on Uninsured Medical Expenses and Out of Pocket Expenses (Plans ss. 4.06, 4.07)

Medical Expenses

1. In consultation with a gastroenterologist or any of the other specialties of physician which appears on Tran 2/Hemo 2 ("HCV Medical Specialist") the Administrator shall compile a list of medications/treatments which are recommended/prescribed for persons who have HCV and for conditions due to infection with HCV or treatment of HCV and which are generally accepted by the medical community (the "HCV Medication List"). This list shall be periodically updated at the Administrator's discretion.

2. The Administrator may accept a completed Gen 3 accompanied by receipts as proof of medical expenses incurred for any of the items on the HCV Medication List, except where:

(a) the total claimed on any one application exceeds $500 excluding the costs of HCV Compensable Therapy;

(b) the level of medical expenses claimed is inconsistent with the HCV Infected Person's overall application or disease level (eg: a person who is at Level 1 and has a negative PCR test claiming for significant medical expenses); or

(c) for any other reason the Administrator suspects the claim is not valid and wants the backup of a physician confirming the medications were prescribed or recommended as generally accepted treatment or medication due to HCV.

3. Where reimbursement is claimed for items which are not on the HCV Medication List, where one of the exceptions described above applies, or where there are items for which a claim is made but no receipts are available, the Administrator shall:

(a) require the HCV Infected Person to supply a form completed by a treating physician confirming that he or she recommended the claimed items; and

(b) consult a HCV medical specialist (if the treating physician is not an HCV medical specialist) to advise whether the items are generally accepted by the medical community for the treatment of HCV.

Out of Pocket Expenses

4. The Administrator may accept a completed Gen 3 accompanied by receipts (for those items which should be the subject of a receipt) as proof of out of pocket expenses due to HCV infection, except where:

(a) the total claimed on any one application exceeds $500;

(b) the level of expenses claimed is inconsistent with the HCV Infected Persons overall application or disease level (eg: a person who lives in a major centre claiming travel costs to doctors appointments or a person who is at Level 1 and has a negative PCR test claiming for frequent appointments with doctors); or

(c) for any other reason the Administrator suspects the claim is not valid and wants the backup of a physician confirming the expenses were incurred.

The maximum paid for expenses which are covered by the Treasury Board of Canada Secretariat Travel Directive shall be the amounts stipulated in the Treasury Board of Canada Secretariat Travel Directive, and

5. Where one of the exceptions described above applies or where there are items claimed for which the HCV Infected Person does not have receipts but should have a receipt, the Administrator shall:

(a) in the event that item for which reimbursement claimed is such that it is not amenable to confirmation by the treating physician, seek such additional evidence as the Administrator considers appropriate; and

(b) consult a HCV medical specialist (if the treating physician is not a medical specialist) to advise whether the treatment or medication to which the expenses relate are generally accepted by the medical community for the treatment of HCV.

COURT APPROVED PROTOCOL:

9. On December 19, 2003, subsequent to the first day of hearing in this matter, Mr. Justice Winkler issued a Court Approved Protocol ("CAP") pursuant to the Settlement Agreement in respect of uninsured treatment and out of pocket expenses. That CAP was approved by the courts in all provinces, including Ontario. The provisions of the CAP are:

1. For the purpose of this CAP, Treating Physician means a medical doctor who is or was treating the HCV Infected Person in respect of his/her HCV infection or conditions due to his/her infection with HCV.

…

Treatment and Medical Expenses

3. In consultation with a physician(s) in one or more of the medical specialties listed on Tran 2/Hemo 2 Form ("HCV Medical Specialist") the Administrator shall compile a list of medications and treatments which are recommended or prescribed for treatment of HCV and for conditions due to the infection with HCV which are generally accepted by the medical community (the "HCV Medication List"). This list shall be periodically updated at the Administrator's discretion.

4. The Administrator may accept a completed Gen 3 Form accompanied by receipts as proof of medical expenses incurred for any of the items on the HCV Medication List, except where:

(a) the total claimed for medical expenses on any one application exceeds $500 (excluding the costs of Compensable HCV Drug Therapy);

(b) the level of medical expenses claimed is inconsistent with the HCV Infected Person's overall application or disease level (eg: a person who is at Level 1 and has a negative PCR test claiming for significant medical expenses); or

(c) for any other reason, the Administrator requires the confirmation of the Treating Physician that the treatments or medications were prescribed or recommended as treatment or medication for the HCV infection or conditions due to the infection with HCV.

5. Where one of the exceptions described above applies, or where there are items for which a claim is made but no receipts are available, the Administrator shall require the Claimant to supply a form completed by a Treating Physician confirming that he/she prescribed or recommended the claimed items as treatment or medication for the HCV Infected Person for his/her HCV infection or conditions due to the infection with HCV.

6. Where reimbursement is claimed for items which are not on the HCV Medication List, the Administrator shall require the Claimant to supply a form completed by the HCV Infected Person's Treating Physician confirming that he/she prescribed or recommended the treatment or medications for treatment of the HCV infection or conditions due to the infection with HCV. If the Treating Physician is an HCV Medical Specialist, the Treating Physician must confirm that the treatments or medications prescribed or recommended are generally accepted by the medical community for the treatment of HCV or conditions due to the infection with HCV. If the Treating Physician is not an HCV Medical Specialist, the Administrator shall consult an HCV Medical Specialist to determine whether the items are generally accepted by the medical community for the treatment of HCV or conditions due to the infection with HCV.

Out-of-Pocket Expenses

7. The Administrator may accept a completed Gen 3 Form accompanied by receipts (for those items which should be the subject of a receipt) as proof of out-of-pocket expenses due to HCV infection or conditions due to the infection with HCV, except where:

(a) the total claimed for out-of-pocket expenses on any one application exceeds $500;

(b) the level of expenses claimed is inconsistent with the HCV Infected Person's overall application or disease level (eg: a person who lives in a major centre claiming travel costs to doctors appointments or a person who is at Level 1 and has a negative PCR test claiming for frequent appointments with doctors); or

(c) for any other reason, the Administrator requires confirmation of the Treating Physician the expenses were incurred due to the HCV infection or conditions due to the infection with HCV.

8. Where one of the exceptions described above applies or where there are items claimed for which the Claimant does not have receipts but should have a receipt, the Administrator shall:

(a) require the Claimant to supply a form completed by the Treating Physician confirming that the HCV Infected Person had to incur the expense in order to seek medical advice or treatment for HCV or conditions due to the infection with HCV;

(b) in the event the item for which reimbursement claimed is such that it is not amenable to confirmation by the Treating Physician, require such additional evidence as the Administrator considers appropriate; and

(c) if necessary, consult an HCV Medical Specialist (if the Treating Physician is not an HCV Medical Specialist) to advise whether the treatment or medication to which the expenses relate are generally accepted by the medical community for the treatment of HCV or conditions due to the infection with HCV.

HCV MEDICATION LIST OF GENERALLY ACCEPTED TREATMENT AND MEDICATION:

10. Pursuant to the SOP, The Administrator, with the assistance of Dr. Gary Garber, MD FRCPC; Professor of Medicine; University of Ottawa; Head, Division of Infectious Diseases, the Ottawa Hospital; and the medical team at the Ottawa Hospital Hepatitis Clinic, has compiled lists of medications/treatments that are recommended/prescribed for persons who have HCV. The lists outline medications/alternative medicines and treatments that an “Approved HCV Infected Person” may claim for incurred costs relating to “generally accepted treatment and medication due to his or her HCV infection. Relevant to this appeal is the HCV Alternative Medicines and Treatments List.

11. The team included Dr. Garber, Dr. Cooper MD, FRCPC, and Marie Kane. Dr. Cooper is an assistant Professor of Medicine at the University of Ottawa and a Clinical Investigator at the Ottawa Research Institute. Marie Kane is a Hepatitis Nurse Liaison.

12. None of the disputed supplements in this review appear on the list except for barley green supplements, i.e. “Greens.”

EVIDENCE:

General

13. In support of his claim, the Claimant submitted numerous documents which can be summarized as follows:

(a) a copy of a booklet titled “Hepatitis C: Choices”

(b) the Claimant’s resume

(c) the curriculum vitae of Dr. Zoltan Rona M.D.

(d) the curriculum vitae of Dr. Joel Robbins, D.C.

(e) a letter dated March 20, 2003 from Dr. Joel Robbins, with attachments

(f) various articles, summaries of articles from web-sites, and product brochure materials.

14. The Claimant’s stated purpose in submitting these documents was to demonstrate the following:

• Hepatitis C is a complex disease that requires a whole systems approach rather than a narrow-minded focus;
• while the input of a western doctor is vital it is not the final word on the matter – there are many recognized "specialists" of the disease within many fields;
• Not all western doctors with a recognized specialty in Hepatitis C are as narrow-minded as the Claimant’s hepatologist;
• Not only are there recognized specialists who do not fall under the rubric of the six-fold definition adopted in the SOP (see below) but there are also many alternative treatments;
• Even if clinical trials are necessary there are alternative treatments that fulfill this standard. The immune response of the body (not just with drugs but other supplements like glycoproteins and supplements like MGN 3) must be incorporated into the treatment of Hepatitis C;
• While not all forms of alternative treatments are legitimate some are;
• a clinical trial was performed with glycoproteins on Hep C patients;
• there is a tie between Hepatitis Infections (in this instance a Hepatitis B rather than Hepatitis C infection) and other chronic immune diseases;
• Serum enzyme levels of a 66 year old male with a positive-diagnosis of HCV and a 5 year history of elevated ALT and AST levels, began to drop substantially, his level of fatigue dissipated, and he returned to full normal activity after 4 months on a nutritional supplementation program.

Treating Physicians

15. The Claimant advised that his HCV hepatologist is “vehemently opposed to any form of alternative treatment”. Consequently, for the purpose of this claim, the Claimant advises that Dr. Robbins and Dr. Rona are his treating physicians.

16. The Administrator submitted that Dr. Robbins and Dr. Rona are not qualified to be the Claimant’s treating physicians.

Dr. Robbins

17. Dr. Robbins is currently a practicing naturopath in the Health and Wellness Clinic in Tulsa, Oklahoma. He has a Doctor of Chiropractic degree from the Cleveland Chiropractic College in Kansas City, Missouri; a Doctor of Naturopathy degree from the Anglo-American Institute of Drugless Therapy; and a Doctor of Medicine degree from the British West Indies College of Medicine.

18. The Claimant consulted with Dr. Robbins in three to four telephone conversations, the first totaling approximately 40-45 minutes. In addition, Dr. Robbins was privy to all the Claimant’s reports from his hepatologist and Dr. Rona, and as such was familiar with his bloodwork, ultrasounds, endoscopies, liver biopsy and urine analyses. Dr. Robbins also had some urine analyses done by his own lab. The Claimant advised that their telephone conversations mostly revolved around his questioning of the Claimant’s current state, level of fatigue, skin colour and rashes, etc.

19. The Claimant submits that while Dr. Robbins’ practice has not focused exclusively on Hepatitis C, he has treated numerous patients with Hepatitis C and seen their liver enzymes lowered and albumin and biliruben levels return to more normal levels.

20. In a letter submitted by the Claimant, dated March 20, 2003, Dr. Robbins states as follows:

To whom it may concern:

The above-mentioned patient presented to the Health & Wellness Clinic, Inc. on 12/7/98 with a previous diagnoses by an outside clinic of Hepatitis C (see enclosed records). The purpose of this visit was for a nutritional evaluation and treatment of the Hepatitis C. Recommendations were made that included both dietary and supplements that would aid in building up the patient's immunity and offer a non-drug related approach to healing and attacking the hepatitis C. The patient has responded as expected and is expected to make a full recovery, I cannot say he will be free of the Hepatitis C. It is our my opinion that we can get his blood levels to a desirable range and help aide and improve his quality of life.

Should you have any questions regarding his treatment, please feel free to contact us. Thank you for your special consideration in this matter.

Sincerely,

Joel R. Robbins, D.C.

1. A "Chart Review Print" dated December 4, 1999 which provides various blood test results. The tests were taken on November 9, 1998 in Toronto. The physician noted is Dr. H., the specialist who treats the Claimant’s Hepatitis C.

2. Health and Wellness Clinic form from Dr. Robbins' office dated January 20, 1999 titled "24 Hour Urinalysis Results". It is not stated what testing was relied upon to complete the form. The author of the form is not indicated.

3. May 4, 1999 - A "Urinalysis Report (Transfer)" form. The author of the form is not indicated. The specific test results that are relied upon to complete the form are not indicated.

4. June 8, 1999 - A "Urinalysis Report (Transfer)" form. The author of the form is not indicated. The specific test results that are relied upon to complete the form are not indicated.

5. A hair analysis report sent to Dr. Rona conducted in Concord, Ontario in August 1999.

6. Test results ordered by Dr. Rona from Dynacare Medical Laboratories: urine and blood testing conducted in July 1999.

7. March 16, 2000 - A "Urinalysis Report (Transfer)" form. The author of the form is not indicated. The specific test results that are relied upon to complete the form are not indicated.

22. The Claimant has submitted the following receipts originating in Dr. Robbins’ Clinic:

Dr. Zoltan Rona

23. Dr. Rona is a general practitioner practicing holistic/integrative medicine. In addition to his medical degree, Dr. Rona has a Master of Science degree in Biochemistry and Clinical Nutrition from the University of Bridgeport, Connecticut, which he completed subsequent to his medical degree. It is correct that, as pointed out by counsel for the Administrator, Dr. Rona’s curriculum vitae does not identify a particular expertise in the area of Hepatitis C. What his curriculum vitae makes clear is that Dr. Rona has written and lectured extensively on nutritional and preventative medicine and natural healing.

24. While counsel for the Administrator understood that the Claimant had never been seen by Dr. Rona, the Claimant advises he has seen Dr. Rona no less than on four occasions.

25. The Claimant submitted the following receipts related to Dr. Rona:

26. The Claimant also submitted a number of receipts made out to what appears to be the Claimant’s wife, regarding supplements provided by Carol Ivens, Natural Health Practitioner. The Claimant advised that Ms. Ivens is merely a supplier of Barley Green, Essiac (E-tonic), and some other supplements.

27. The Claimant conceded that these supplements were not prescribed by a treating physician, and that he took them on his own initiative, based on his own reading and research. However, the Claimant also pointed out that Barley Greens fall under the category of “greens” which are recognized as an alternative treatment by Dr. Garber and his team. (see below)

28. The Claimant submitted the following receipts from Ms. Ivens:

29. The Claimant also submitted the following receipts from unknown sources, and for which no further information was submitted in the course of the hearing:

Out of Pocket Expenses:

30. The Claimant was working in Los Angeles at the time he was diagnosed with HCV. He testified that he was required to return to Canada because the diagnostic services he had been required to purchase exhausted his entire budget. Consequently, he was unable to afford any further diagnostic services, medical advice or treatment. In fact, he submitted that he had to negotiate a settlement to pay his bills at Huntington Memorial Hospital prior to his return, because he could not pay the full amount.

31. In support of his submissions that he was required to return to Canada in order to seek medical advice and treatment for HCV or conditions due to the infection with HCV, the Claimant submitted a letter, dated May 30, 2000, from Gloria Howe, HR Director of the Howe Marketing Group, the Claimant’s employer in Los Angeles. Ms. Howe states in her letter:

When [the Claimant] left our employ (December, 1995), he had been diagnosed with Hepatitis C and made the decision to return to Canada so that he would have access to better medical options.

32. The Claimant’s claim includes compensation for airfare, a U-haul, gas, an imported vehicle and food while moving back to Canada.

33. The claim also includes annual fees to the Hepatitis C Society. The membership is $20 and entitles members to a publication in which Hepatologists are frequent contributors and keeps the members informed of recent developments in the field.

ARGUMENT AND ANALYSIS:

Application of SOP and CAP

34. It was not disputed that other than barley greens, the treatments and medication for which the Claimant seeks compensation do not appear on the HCV Medication List Of Generally Accepted Treatment And Medication.

35. The Administrator relied on the SOP in place at the time of the Claimant’s application to argue that in such circumstances, a HCV Specialist must be consulted to advise whether the claimed items are generally accepted by the medical community for the treatment of HCV

36. However, the Claimant argued that he should not be bound by the SOP. In doing so, the Claimant relied on a decision of Referee Shapiro, issued March 10, 2003, which rejected the requirement of the SOP that any compensable treatment and medication must either be prescribed by an HCV medical specialist or that a medical specialist be consulted to advise whether the items are generally accepted by the medical community for the treatment of HCV. In that decision Referee Shapiro found that:

to the extent that the SOP purports to place a more onerous burden on Claimants than the already onerous hurdles set out in the Settlement Agreement and Plan, these more onerous burdens are ultra vires the authority of the Administrator under the Settlement Agreement and Plan, and therefore, not binding on a Referee.

37. That decision has since been affirmed by the Court.

38. However, as indicated earlier, the SOP has now been replaced by the CAP which, while worded slightly differently, contains essentially the same requirements contained in the SOP. The CAP has a different legal standing from the SOP, which was acknowledged in Referee Shapiro’s decision:

[44] It must be observed that "protocols", such as the Court Approved Protocol for Medical Evidence for Sections 4.01(1) and 40.1(2) of Article 4 (which involve claims for fixed payments and loss of income) are, unlike SOPs, court approved. That is, if the SOP in question had instead risen to the status of a court approved protocol, there could be (subject to a determination as to the timing of its applicability) no question as to its vires, applicability and binding authority on Referees.

39. While acknowledging that the CAP was passed subsequent to the applicant’s claim, Counsel for the Administrator argued that it is consistent with the approach taken by the administrator, and is persuasive insofar as it provides the Court’s interpretation as to how the Agreement is to be interpreted.

40. While this may be the case, I am not persuaded that it would be reasonable to assess the Claimant’s claim on the basis of the SOP in place at the time. This would require that I apply the specific requirements which have been found to be ultra vires i.e. the requirement that a HCV Specialist be consulted to advise whether the claimed items are generally accepted by the medical community for the treatment of HCV. Rather, I find, as did Referee Shapiro, that this places a more onerous requirement on the Claimant than Section 4.06, and that the SOP must be read to be subordinate to the provisions of the Settlement Agreement.

Uninsured Treatment And Medical Expenses

Treating Physician

41. Section 4.06 requires that in order to be compensated for uninsured treatment and medical expenses, a claimant must submit a form from a “treating physician”.

Dr. Robbins

42. Counsel for the Administrator submitted that the Dr. Robbins does not have the expertise to treat a patient with Hepatitis C, and the statements made in his letters are outside his area of expertise. Counsel for the Administrator appeared to focus on Dr. Robbins’ designation as a chiropractor, to the exclusion of his other training and qualifications as a Naturopath and a Medical Doctor.

43. It may be that a chiropractor is not a medical doctor for the purpose of the SOP or the CAP. That is not a determination I have to make in the instant case. However, I am not persuaded that someone with Dr. Robbins’ qualifications, who not only is trained as a medical doctor, but has arguably a broader training base regarding the function of the human body than most conventional medical doctors, is not a treating physician for the purposes of section 4.06. Nor am I convinced that he cannot be “a medical doctor who is or was treating the Claimant in respect of his HCV infection or for conditions due to his infection with HCV” – as required by the CAP.

44. While Dr. Robbins appears to have focussed on a less medically conventional approach of bolstering the Claimant’s immune system to help his body better deal with the onslaught of the HCV, it is difficult to find fault with that approach.

45. Counsel for the Administrator also took issue with the fact that Dr. Robbins did not see the Claimant personally. While this may be a valid concern in some instances, I would find it more compelling in the Claimant’s case if the only information available to Dr. Robbins regarding the Claimant’s situation resulted from their telephone discussions. However, that is not the case. In addition to an initial consultation lasting between 40-45 minutes, and three subsequent consultations, the Claimant advised that Dr. Robbins was privy to all the Claimant’s reports from Dr. H, and Dr. Rona, and consequently was familiar with the Claimant’s bloodwork, ultrasounds, endoscopies, liver biopsy and urine analyses.

46. Consequently, I find that Dr. Robbins was the Claimant’s treating physician for the purpose of section 4.06, and would also fit the definition of treating physician in the SOP and the CAP.

Dr. Rona

47. Counsel for the Administrator submitted that Dr. Rona was not qualified to define generally accepted treatment for or to treat HCV. Based on her understanding that the Claimant had never been seen by Dr. Rona, she also submitted that Dr. Rona was not the Claimant’s treating physician.

48. My view regarding Dr. Rona is similar to that regarding Dr. Robbins. Dr. Rona has a practice that addresses nutritional and preventative medicine, and natural healing. I am not convinced that Dr. Rona has nothing to offer the Claimant in an integrated approach to his HCV. Consequently, I find that Dr. Rona was the Claimant’s treating physician for the purpose of section 4.06 as well as for both the SOP and the CAP.

49. That having been said, there are two impediments to the Claimant succeeding with this aspect of his claim. They are addressed below.

Evidence That Treatment Prescribed

50. Counsel for the Administrator relied on the SOP and CAP to argue that in order to qualify for compensation, the Administrator must be provided with evidence from a Treating Physician that the Physician has prescribed the treatment resulting in the expenses incurred by the HCV Infected Person. Counsel for the Administrator pointed out that in accordance with the CAP, the evidence should be either in the form of a receipt or a form completed by the Treating Physician confirming that s/he prescribed or recommended the claimed items as treatment or medication for the HCV Infected Person for his/her HCV infection or conditions due to the infection with HCV.

51. While I have determined that the SOP and CAP are not applicable in the instant case, I find that it is not unreasonable for the Administrator to require either itemized receipts or correspondence from the treating physicians confirming that they prescribed or recommended the claimed items as treatment or medication for the Claimant for his HCV infection or conditions due to the infection with HCV.

52. This is consistent with the Agreement which provides that the Administrator must have evidence "satisfactory to the Administrator that the claimant has incurred costs for generally accepted treatment and medication due to his/her HCV Infection on the recommendation of the claimant's treating physician."

53. With few exceptions, the Claimant has provided no specific receipts for the supplements for which he seeks compensation. Nor has he provided any correspondence from Dr. Robbins or Dr. Rona, confirming that they prescribed or recommended the claimed items as treatment or medication for the Claimant for his HCV infection or conditions due to the infection with HCV.

54. The Claimant has explained that Dr. Robbins letter was written in an “abbreviated fashion” due to the Claimant’s limited ability to reimburse Dr. Robbins for his services. Similarly, the Claimant has indicated he does not have a letter from Dr. Rona because of costs, and if that is necessary then he would be glad to pay for such a letter and then be reimbursed.

55. Still, the Claimant has not provided the required documentation. However, rather than deny the claim on this basis, I am prepared to provide the Claimant with an opportunity to do so.

Generally Accepted Treatment

56. As I have found that the SOP is not applicable in the circumstance, the question then becomes, has the Claimant satisfied the remaining requirement of section 4.06. In other words, has he demonstrated that the treatments and medications for which he claims compensation are “generally accepted.”

57. While the Claimant has provided extensive materials to support the application of various holistic therapies, these materials, described above, are too generic to be of assistance in determining his claim.

58. However, again rather than deny the claim on this basis, I am prepared to provide the Claimant with an opportunity to provide the necessary documentation.

Process

59. Without knowing the standard to which he would be held, it would have been difficult for the Claimant to adequately prepare his case. Consequently, I will give the Claimant an opportunity to address the criteria which I have determined are appropriate in determining his claim.

60. Specifically, the Claimant should determine whether he is able to acquire from Dr. Robbins and Dr. Rona, documentation indicating that the expenses which he claimed were incurred on their recommendation.

61. Further, the Claimant should attempt to acquire, preferably from Dr. Robbins and Dr. Rona, any material or documentation they can provide to demonstrate that the treatment or medications are generally accepted, and were recommended due to the Claimant’s HCV infection. If they prefer to address those issues through either a hearing in person, or in Dr. Robbins’ case, by teleconference, this could also be arranged.

62. Any supporting documentation should first be submitted to the Administrator for review. I will remain seised in the event the parties cannot resolve any remaining dispute in this regard.

Barley Greens etc.

63. As indicted earlier, the Claimant conceded that barley greens and the other supplements supplied by Carol Ivens, Natural Health Practitioner, were not prescribed by a treating physician, and that he took them on his own initiative, based on his own reading and research.

64. As a condition precedent to qualifying for compensation pursuant to section 4.06, the treatments and medication must have been prescribed by a treating physician. Consequently, I find the Claimant is not entitled to compensation for the supplements provided by Carol Ivens.

Observation

65. I also make the following observation.

66. As indicated above, the letter denying the Claimant’s claim indicated it was being dismissed pursuant to the SOP in place at the time, which the Administrator, in the initial denial letter, appears to indicate requires that the uninsured medical expenses be recommended/prescribed by an HCV Medical Specialist.

67. However, this is not my reading of the SOP. Rather, my interpretation of the SOP is that if the uninsured medical expenses are not on the "HCV Medication List,” then the Administrator shall require the HCV Infected Person to supply a form completed by a treating physician confirming that he or she recommended the claimed items. In addition, the Administrator is to consult a HCV medical specialist (if the treating physician is not an HCV medical specialist – which Dr. Robbins and Dr. Rona are not) to advise whether the items are generally accepted by the medical community for the treatment of HCV.

68. The Administrator, in written submissions, submitted that the Administrator consulted a panel of experts who found that the treatments were not generally accepted. For the sake of completeness, I have set out the text of correspondence between Counsel to the Administrator and Dr. Garber, which I understand is the consultation relied on by the Administrator. It is as follows:

June 19, 2003

Dear Dr. Garber,

Re : Hepatitis C - Request for Review - Claim #1100290

I am writing in my capacity as Fund Counsel for the Administrator in the Hepatitis C Class Action Settlement. We are currently involved in an appeal relating to uninsured HCV treatments and medications. For your information, I am enclosing a copy of the following:

1. The complete claim file.

2. Our original submissions dated April 1, 2003 and our further submissions dated June 18, 2003.

3. A complete copy of the documentation filed by the claimant on his appeal.

4. A copy of the claimant's written submissions dated April 7, 2003.

While I have provided you with a complete copy of the file, I require your assistance to deal with a specific question that concerns section 4.06 of the Plan. The claimant has received various treatments from Drs. Robbins and Rona and other sources that are detailed in our further submissions. If the treatment/medication appeared on the list which was prepared with your team's assistance and if the other criteria in section 4.06 was satisfied, then the Administrator paid the claimant.

Please review the curriculum vitae for Drs. Robbins and Rona. As well, I would like you to review the letter from Dr. Robbins which will find at tab 4 of the binder. The questions are as follows:

1. Do Drs. Robbins and/or Rona have the expertise to determine what is "generally accepted treatment and medication due to a claimant's HCV infection"?

2. If not, why not? [emphasis added]

If you have any questions regarding this request, please do not hesitate to contact me. I appreciate that the material that I am providing is extensive. You are free to review it although this specific question that I have asked may not require a thorough review of all materials. I will leave that to you to determine.

I look forward to your response.

Yours very truly,

Carolyn J. Horkins

69. Dr. Garber replied as follows:

September 11, 2003

Dear Ms. Horkins:

Claim # 1100290 …
D.O.B. 10 01 1963

I am replying to letter of June 19` h 2003. I thank you for your patience to enable me to review this file after the summer holiday.

I have had the opportunity of reviewing the file that you have forwarded to me with respect to the above named patient who has been approved as a level V claimant as a hemophiliac patient infected with hepatitis C through blood products. The key issue involved is expenses claimed for uninsured treatments and medications. This list includes a variety of herbal and naturopathic products that have been suggested, prescribed or sold by Drs. Zoltan P. Rona and Joel R. Robbins.

The specific question posed to me was to review the enclosed curriculum vitae of the above named doctors and to ascertain whether these individuals have expertise to determine what is "generally accepted treatment due to a claimant's HCV infection" and if not, why not. [emphasis added]

Dr. Zoltan P. Rona graduated with a B.Sc. degree from McGill University in 1973 and a Medical Degree from McGill University in 1977. This individual after completing a rotating internship at the Toronto East General has been in private practice in the Toronto area since 1978. The curriculum vitae mentions a M.Sc degree in Biochemistry and Clinical Nutrition from the University of Bridgeport Connecticut. In checking the WEB site the University of Bridgeport is a Naturopathic Medicine College in Bridgeport Connecticut. The individual has lectured and published in the area of natural healing and preventive medicine. There is nothing in the CV to suggest that this physician has any expertise in the area of hepatitis C and on this basis would not fulfill the definition as an expert in determining what is generally accepted treatment or medication due to a claimant hepatitis C viral infection.

In reviewing the very brief CV of Joel R. Robbins he apparently did undergraduate work at San Janice College in Houston Texas and received a Doctor of Chiropractic from Cleveland Chiropractic College, a doctor of Naturopathy from the Anglo American Institute of Drugless Therapy and a Doctor of Medicine Degree from the British West Indies College of Medicine. There are no dates associated with these graduations so I am unable to validate his medical training outside his Doctor of Chiropractic. Dr. Robbins is the head of a health and wellness clinic in Tulsa Oklahoma. He comments in a letter of March 20 th 2003 that this patient has responded as expected and is expecting a full recovery but cannot say he will be free of hepatitis C. It was interesting reviewing the brief data that was presented in his dossier that in December of 1998 liver function tests were only mildly elevated at less than twice normal and in fact these numbers have decreased from when the diagnosis was initially made. This suggests that any "healing" could in fact have been part of the natural history of hepatic C and being unrelated to the therapies that were started in 1998. The expectation of a "full recovery" seems to indicate a lack of knowledge in the area of hepatitis C in which there are a wide array of clinical presentations including patients who are infected but are completely asymptomatic, others who have transient active disease that then becomes quiescent and another group that has slowly progressive disease. The CV presented does not indicate that Dr. Robbins has any particular expertise in the area of hepatitis C virus and in my opinion would not meet the definition of having expertise to determine what is generally accepted treatment and medications due to a claimant of hepatitis C virus.

In the documents you presented, there are numerous testimonials of individual antioxidants and natural products that have been shown to be beneficial for individual patients. Because of the waxing and waning progression and regression of this disease, individual testimonials really have no statistical or scientific validity. Several products like milk thistle have shown to have beneficial impact in randomized studies and it is that kind of data that has enabled a variety of natural products and vitamins to be included in the list of approved products.

If you have any questions please feel free to contact me.

Yours sincerely,

Gary E. Garber, M.D., FRCPC Professor and Head
Division of Infectious Diseases
University of Ottawa/The Ottawa Hospital
September 11, 2003

70. Even if I had found that the SOP were applicable in this instance, I am not satisfied that the inquiry relied on by the Administrator satisfies the requirement that the Administrator consult a panel of experts to determine if the treatments and medications are “generally accepted.”

71. Nowhere in either the correspondence to or from Dr. Garber is there an indication that Dr. Garber turned his mind to whether the treatments and medications for which compensation was claimed are “generally accepted treatments and medications due to the Claimant’s HCV Infection.” Even if I were confident that Dr. Garber, as qualified as he may be with regard to conventional methods of treating HCV infection, has the requisite expertise to assess treatments and medications of the nature claimed by the Claimant, in my view, he was not asked to.

72. Consequently, even if I had found that the SOP was the appropriate test to apply in the circumstances, I would have found that the Administrator prematurely denied the Claimant’s claim for uninsured treatment and medication.

Out of Pocket Expenses:

73. To qualify for compensation under section 4.07, a claimant must prove the following:

a. That the expenses were incurred due to his or her HCV infection.

b. That they are not recoverable under a public or private health plan.

c. That the expenses are reasonable.

74. If the above three criteria are satisfied, then the Plan will pay out-of-pocket expenses including:

a. Expenses for travel, hotels, meals, telephone and other similar expenses "attributable to seeking medical advice or generally accepted medication or treatment due to the HCV infection".

b. Medical expenses incurred in establishing a claim.

c. Lastly, the expense amount cannot exceed the guidelines provided for in section 4.07(b).

75. The Claimant’s uncontroverted testimony was that while he had a good life and a good job in Los Angeles, he was required to return to Canada shortly after being diagnosed with HCV because he simply could not pay for, and therefore could not access, the medical advice or required treatment for his HCV infection. This submission is supported by the letter from the Claimant’s employer at the time, set out earlier.

76. The Administrator has simply submitted that the out-of-pocket expenses claimed are not reasonable. The Administrator has also submitted, without identifying any particular deficiency, that the claim does not meet the requirements of section 4.07.

77. In the absence of any evidence to the contrary, I find that the Claimant was required to return to Canada in order to seek and receive advice and treatment for his HCV.

78. I further find that the expenses the Claimant has claimed, which include compensation for airfare, a U-haul, gas, an imported vehicle and food while moving back to Canada, fall squarely within the parameters of Section 4.07 (a) and are compensable by the Fund.

79. The claim also includes annual fees to the Hepatitis C Society. The membership is $20 and according to the Claimant, entitles members to a publication in which Hepatologists are frequent contributors and keeps the members informed of recent developments in the field.

80. It is apparent that the Claimant’s interest in a membership to the Hepatitis C Society results from his HCV infection. We live in a era where being an informed consumer is unfortunately, often a requirement in acquiring the most appropriate medical assistance. This is not an endorsement for any sort of HCV related subscription or membership. However, in this instance, I find the claim for the $20 annual fee for membership in the Hepatitis C Society is reasonable, and qualifies as a compensable expense pursuant to section 4.07 claim.

81. The copies of the Claimant’s receipts contained in my copy of his file were difficult to decipher. I direct the Administrator to review the receipts provided by the Claimant with regard to his out-of-pocket expenses, and pay those to which he is entitled based on my determination above.

DETERMINATION:

82. This matter is referred back to the Administrator.

83. I remain seised to deal with any unresolved issues.

DATED AT TORONTO, THIS 16TH DAY OF OCTOBER, 2004.