Appeals: Confirmed
Referee Decisions : #113 - November 5, 2003
Decision of the Court having jurisdiction
in the Class Action attached - February 23, 2004
D E C I S I O N
1. This matter concerns a request for review by Referee of
a denial by the Administrator of a Claim for compensation
under the Transfused HCV Plan (the "Plan") made
by the Claimant as an HCV Personal Representative pertaining
to his father (the "Deceased") who died on June
16, 1998 in British Columbia. The Administrator denied the
Claim for reasons set forth in a letter dated June 19, 2003
(claim file pp 3 - 4), namely that the Claim did not meet
the criteria established under Article 3.05 (1)(a) of the
Plan which requires proof that HCV caused the death of the
Primarily-Infected Person.
2. The parties waived an in-person hearing and requested my
decision on the basis of the written record, which included
all documentation submitted by the Claimant in support of
the Claim, the claim file provided by the Administrator and
written submissions by the Claimant and Fund Counsel. I have
considered the entire record and all submissions carefully.
3. There is no dispute that the Deceased met the definition
of a Primarily-Infected Person under the Plan in that he received
Blood through transfusions in Canada in the Class Period and
one of the donors tested positive for HCV.
4. However, according to the Deceased's treating physician
who had treated him for nine years prior to his death, he
"Died of congestive heart failure/secondary to heart
valve disease & COPD" (the Treating Physician Form
(TRAN2), dated October 21, 2002 claim file, pp. 44 - 49).
COPD refers to chronic obstructive pulmonary disease.
5. The Claimant candidly admits the Deceased did not die from
HCV. The Request for Review dated June 25, 2003 completed
by the Claimant states the following reasons for the review:
My father was infected with HCV through a blood transfussion
(sic) while in Royal
Jubilee Hospital. This infection did not help him recover
from heart surgery. In fact, it
lessoned (sic) his chances of recovery, as well as, made
his last few years of life
miserable. (claim file, p. 6) |
6. The Claimant elaborated on his argument in a letter dated
July 10, 2003. The Claimant submits that after his father
contracted HCV his health because worse, his quality of life
deteriorated and infection with HCV was a contributing factor
towards his death.
7. Article 3.05 of the Plan establishes the proof required
for a Claim made by an HCV Personal Representatives of a Primarily-Infected
Person. Article 3.05(1)(a) requires "proof that the death
of the HCV Infected Person was caused by his or her infection
with HCV". That proof is an essential criterion of the
claim. In my opinion, such proof is required to be established
on a balance of probabilities, keeping in mind the pragmatic
and common sense approach discussed in such medical cases
as Snell v. Farrell, [1990] 2 SCR 311 and generally
in the law of torts in Athey v. Leonati, [1996] 3 SCR
458.
8. The Deceased, according to a document called Registration
of Death (claim file p. 79) was born on April 9, 1917. He
died at 81 years of age on June 16, 1998. The Physician's
Medical Certificate of Death completed by the same general
physician who complete the above-noted TRAN2 form indicated
that the cause of death was stroke and other significant contributing
factors were atrial fibrillation and aortic valve replacement
(claims file p. 97).
9. In the TRAN2 form, the Deceased's doctor was asked specifically
in question 31: "If the HCV Infected Person has died,
did his or her infection with HCV materially contribute to
his or her death?". In reply, the doctor, faced with
a choice of ticking the yes box or the no box, checked the
no box. In other words, the doctor who treated the Deceased
for nine years before his death and completed the Medical
Certificate of Death stated that HCV did not materially cause
or contribute to the death. However, the doctor responded
to the secondary question on the form: "If yes, how did
the HCV Infected Person's infection with HCV materially contribute
to his or her death?". The doctor has written "Not
available. Died of congestive heart failure/secondary to heart
valve disease & COPD." (claim file p. 48).
10. In my opinion, that the treating physician went on to
give further explanation concerning the cause of death, does
not assist the Claimant. Having answered "no" to
question 31, the doctor was not required by the form to write
additional information. In my view, the doctor was merely
being helpful in his explanation. He has indicated that there
is no available evidence that HCV materially caused or contributed
to his patient's death. I conclude that the medical evidence
is sufficiently conclusive that HCV did not materially contribute
to the death of the Deceased. Unfortunately the Deceased contracted
HCV in the later years of his life but the cause of his death
was heart disease and not HCV. There is no evidence HCV materially
contributed to his death. Therefore, there is no proof establishing
that the death of the HCV Infected Person was caused by his
infection with HCV as required by the Plan.
11. I find that the Administrator correctly concluded that
the required proof for compensation did not exist. The wording
of Article 3.05(1)(a) is quite clear. The Administrator had
no alternative but to dismiss the Claim.
12. I uphold the Administrator's decision.
DATED at Vancouver, British Columbia, this 5th day of November
2003.
"Vincent R.K. Orchard"
_____________________________
Vincent R.K. Orchard, Referee
JUDICIAL DECISION
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