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Appeals : Arbitrator Decisions : #20 - November 5th, 2001

D E C I S I O N

On July 26, 2001, the Administrator denied the Claimant's request on behalf of the deceased's estate for compensation as a Primarily-Infected Person pursuant to the Transfused HCV Plan on the basis that the Claimant had not provided sufficient evidence to support her claim that HCV caused the death of the HCV Infected Person.

In September, 2001, the Claimant waived the right to an oral hearing by a Referee, and acceded to a decision of an Arbitrator based on a review of written submissions.

The Claimant requested the Arbitrator review all the materials in her claim file from The 86-90 Hepatitis C Claims Centre.

On October 29, 2001, Fund Counsel advised it would make no written submissions.

In the General Claimant Information Form, the Claimant asserted that she was the HCV Personal Representative of a person she believed to be infected with the Hepatitis C virus through a blood transfusion received in Canada between January 1, 1986 and July 1, 1990.

The following facts are not disputed:

The hospital operative notes indicate that the deceased was admitted to hospital on January 13, 1990 with a past long complicated medical history of cardiac problems and a past history of hepatitis prior to the surgery.

The deceased received 5 units of Transfused Blood during surgery between January 25-27, 1990 at the Lethbridge Regional Hospital.

The deceased died on November 18, 1990 due to enumerated causes which did not include mention of hepatitis of any kind.

The Claimant did not know the cause of death.

The deceased was never tested for Hepatitis C.

Article 3.05 (1a) of the Settlement Agreement provides:

(1) A person claiming to be the HCV Personal Representative of a HCV Infected Person who has died must deliver to the Administrator, …

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

I uphold the Administrator's denial of the Claimant's request for compensation for the following reasons:

The medical records reveal that the deceased had a past history of hepatitis before the subject transfusion;

The medical records list certain causes of death that do not include mention of hepatitis.

The deceased was never diagnosed with Hepatitis C.

By reason of the foregoing, she cannot provide the proof required by Article 3.05(1) (a) that the deceased was an HCV Infected Person or that his death was caused by his infection with HCV.

An Arbitrator has no authority to alter or disregard the terms of the Plans.

Dated at Edmonton, Alberta, this 5th day of November, 2001.

__________________________________
Shelley L. Miller, Q.C.
Arbitrator

 

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