Appeals: Confirmed
Referee Decisions : #115 - November 16, 2003
D E C I S I O N
1. This is an Ontario-based claimant.
2. There are four separate issues in this appeal, each of
which is dealt with separately below.
1. COMPENSATION FOR OUT-OF-POCKET EXPENSES
3. The first claim consists of an appeal for denial for out-of-pocket
expenses dated April 29, 2001, incurred by the infected person,
his mother and father, when at age 16, on a recommendation
of a psychologist treating the infected teenager, it was recommended
that he attend a National Haemophiliac Foundation retreat
in Anaheim, California. The infected Claimant is also haemophiliac.
In making the recommendation, the psychologist noted that
the infected person had attended these sessions in the past,
and they had been "valuable as emotional and social supports
in his treatment and psychological outlook". In
another note dated December 21, 2000, the psychologist notes
that he has provided psychological services to the infected
person and to the family for three years, the central purpose
of which was "to strengthen X's coping mechanism so as
to minimize the psychological impact of the eventual disclosure
to him of his involvement with hepatitis". The infected
person's mother indicated that she had sought similar kinds
of events for her son to attend closer to home, but none were
available.
4. A certificate was produced confirming that the infected
person and his parents attended the annual meeting in Anaheim
from November 9-11, 2000, and that the meeting included 6
½ hours of hepatitis C sessions directed to people
with haemophilia. The Claimant's mother indicated that she
and her husband attended sessions for adults, while her son
attended the sessions for teenagers. The sessions for 16-18
year olds included a number of general sessions on building
trust, career and education planning, navigating one's own
health care, questions teenagers don't feel comfortable asking
their parents, and one specifically aimed at "hepatitis
and teens".
5. The cost of registration and meals in this case were covered
by the Haemophilia Society, and no claim was made in respect
of them. The claim is comprised of three air fares to California
amounting to $1,350.00 Canadian in total, and three nights
in a hotel, amounting to $186.30 U.S.
6. The Administrator produced a letter from the Professor
and head of the Division of Infectious Diseases at the University
of Ottawa. In relation to this issue, Dr. Garber stated:
"It may be important to look at the psychological needs,
disability to work in the context of children with haemophilia
to determine how much of an additional issue is related to
hepatitis C. It is quite clear that these haemophilia camps
are set up for information and support because haemophilia
youths have many issues related to their chronic disease.
There is no question that being hepatitis C positive is an
additional burden but it appears that too much emphasis may
be placed upon the hepatitis C....
The camp was clearly predominantly focused on haemophilia
issues, with only 6 ½ hours of the camp session related
to hepatitis C. Information on hepatitis can certainly be
obtained locally in Ontario and Quebec. Travel to California
cannot be considered "generally accepted treatment".
Furthermore, although recommended by the psychologist, it
is not uncommon for a primary care provider to support a family's
request, however this does not justify the expense as generally
accepted or necessary. In my opinion, a trip to California
is exceptional treatment, and does not meet the criteria (or
merit) funding."
7. The Claimant argued that the treatment was an out-of-pocket
expense recommended by the psychologist, and it was therefore
reasonable and also no other similar treatment was available
in the Ottawa area. It was acknowledged that while the infected
teenager went for treatment, the parents attended in order
to get intense medical advice relating to hepatitis C which
could not be obtained in as much detail and for as long a
time as could be obtained from a physician in their office
in Ottawa. Moreover, it was argued that at age 16, the infected
teenager could not be alone.
8. On behalf of the Administrator, it was argued that the
out-of-pocket expenses incurred could not meet the test of
reasonableness set out in the section, and even if the costs
were reasonable, it was not attributable to seeking medical
advice or generally accepted medication or treatment due to
the infected person's infection. It was pointed out that the
infected person receives treatment in Ottawa from medical
specialists and a psychologist. The conference materials indicated
that it was for the benefit of those with Haemophilia. The
conference materials did not indicate it was for Hepatitis
C. The Administrator relied on the opinion of Dr. Garber,
set out above, and submitted there was a strong concern that
the submission and approval of unreasonable expenses in connection
with these kinds of matters could lead to a multiplicity of
claims and affect the financial position of the Fund.
DECISION
9. The parties argued this case based on Article 4.07 of
the Agreement. In passing, I note that Article 4.07 set out
below deals with compensation for out-of-pocket expenses,
and Article 4.06 deals with compensation for uninsured treatment
and medication.
"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
therefore in the guidelines in the Regulations issued
under the Financial Administration Act (Canada)
from time to time." |
No argument was made that compensation for out-of-pocket
expenses was not payable in this case because the recommendation
did not come from a physician, but from a psychologist, and
may or may not have been or required to be medical treatment.
In short, the case was argued on the basis that if the psychologists
recommendation was reasonable, and if it was generally accepted
treatment, then the claim could be paid.
10. Article 4.07 provides that out-of-pocket expenses are
reimbursable to an infected person. It does not extend on
the language to a guardian or parents or family members, which
are all defined terms under Article 1.01 of the Agreement.
Moreover, Article 6.03 provides that other family members
of an HCV Infected Person are only entitled to make claims
under Articles 6.01 and 6.02 (or, in lieu thereof, under Article
5.01(2) or (3)), and not entitled to make claims or to additional
or other compensation.
11. Accordingly, in this case, the only compensation that
is payable, in my view, if any, is to the Infected Person.
Neither the psychologist nor the physician retained by the
Administrator to provide the Administrator with advice on
the claim, testified before me, or were subject to cross-examination.
On its face, the recommendation of the psychologist that the
infected 16 year old attend the National Haemophilic Foundation
was done explicitly on the basis that this had been done in
the past and had been valuable as emotional and social support
in his treatment and psychological outlook. Thus, the participation
of the Infected Person was not recommended on the basis of
it being a pleasant or nice thing to do, but rather on the
basis that it was valuable in the treatment. Moreover, according
to the psychologist, the "central purpose of the provision
of psychological services was to strengthen the infected 16
year old's coping mechanism so as to minimize the psychological
impact of the eventual disclosure to him of his involvement
with Hepatitis".
12. Dr. Garber's opinion is not entitled to much weight in
my view because it was not based upon any direct understanding
or investigation of the psychologist's recommendation. There
is nothing to indicate that Dr. Garber or the Administrator
undertook any investigation in this matter, and in any event,
I note in passing that Dr. Garber, as a medical physician,
is not a psychologist. Moreover, Dr. Garber's note that that
the camp was predominantly focused on haemophilia, with only
6 ½ hours related to Hepatitis C was clearly stated
without any understanding that the infected 16 year old attended
a separate camp from the adults where issues of haemophilia
and issues of Hepatitis C were both dealt with. In any event,
I am not convinced that the issue of the extent to which the
camp dealt with Hepatitis C is relevant in the particular
circumstances of this case. Here it appears there is a significant
psychological problem with the infected teenager being able
to come to grips with the fact that he suffers from Hepatitis
C in addition to Haemophilia. This seems to be at the core
of the provision of psychological services over a period of
three years to this young person. In my view, the entire experience
and exercise recommended on behalf of the infected young person
seems central to the problem encountered by him.
13. In relation to Dr. Garber's evidence, I also note that
there is no obvious basis for his conclusion that while "hepatitis
C is an additional burden" in the circumstances of this
case, "it appears that too much emphasis may be placed
upon the Hepatitis C." In the absence of any interaction
between the expert or Administrator and the infected teenager
or the psychologist, such a conclusion by this physician carries
very little weight in the circumstances.
14. Ordinarily I would have discounted the out-of-pocket
expenses to eliminate those portions relating to Haemophilia
and/or to allocate on some reasonable basis between the Haemophilia
and Hepatitis C. In the particular circumstances of this case,
however, and given the basis for the recommendation for the
infected teenager's attendance in the first instance, and
also given the reasonableness of the amounts involved and
claimed, I think the claim for hotel expenses which presumably
would have been incurred by one person or three, (there was
no additional expense as they all stayed in one room) should
be reimbursed in full, and one plane fare should also be reimbursed.
15. A concern has been expressed regarding opening wide the
reimbursement of out-of-pocket expenses and out-of-country
treatments. This case does nothing to open wide any possible
"floodgates". First, the amounts claimed are very
small and reasonable in the circumstances, limited as they
are to one plane fare for $450 Canadian, and a hotel for three
nights at a cost of $630 U.S. Second, there was no evidence
in this case that there was a similar treatment available
for the infected teenager in the local area, or anywhere closer.
Third, the particular psychological circumstances of this
particular Claimant were unique, and likely comparatively
rare given that he suffers from haemophilia, and now has to
cope with the associated psychological pressures arising from
suffering from Hepatitis C. Fourth, the treatment in this
case was specifically recommended by the psychologist because
of the very particular psychological problems of this Claimant,
and while it would have been preferable had there been more
detail from the psychologist, and while it would have been
preferable to have a more expansive exposition on the particular
circumstances which justified the recommendation of the psychologist,
in other cases, where there is a larger claim, more detailed
evidence may well be held to be necessary in order to meet
the threshold test of reasonableness. As well, there may be
a need for more detail of the particular treatment recommended,
and the rationale for it. In that regard, however, in must
be borne in mind that this is designed to be an expeditious
process to resolve claims and the amounts claimed were small.
16. Accordingly, in the particular circumstances of this
case, I direct that the Infected Person be reimbursed with
the costs of a single air fare and the total hotel bill which
was paid in American funds.
2. LOST WAGES
17. The Claimant's mother has claimed for lost wages associated
with medical appointments. She argues that if it is the case
that losses can only be claimed by the victim and not by the
parents, it should be different in the case of a minor. Additionally,
in her last submission, the Claimant's mother indicates she
does not understand why the victim was not reimbursed for
loss of services from the time he turned 14, nor why the Administrator
did not cover the parents' loss of services.
18. The Administrator argues that the Plan does not provide
for lost wages to paid to a family member, and thus compensation
for loss of income can only be paid to the infected person,
not the person's mother.
19. Moreover, the Administrator argues that under section
4.03, the victim has already been paid compensation for loss
of services and that under section 4.03(3), an infected person
cannot claim both compensation for loss of income and compensation
for loss of services during the same period.
20. I can find no basis under the Plan for compensating loss
of wages of the Claimant's mother. If there is an additional
claim for loss of services for the victim in prior years,
that evidence is not before me and I cannot deal with it in
this matter.
3. INDEXING
21. The Claimant claimed that the indexing formula under
the Plan was not observed properly in the present case, and
that in any event, the Claimant did not receive his cheque
in a timely way and was thus inconvenienced and lost interest
on the money.
22. The Administrator submits that the indexing formula
is correct and has submitted a calculation in this regard.
23. I can find no basis for finding that the indexing as
applied by the Administrator was incorrect, and at most there
appears to have been a mix-up and confusion with respect to
the delivery of a cheque, which while regrettable, is not
compensable.
4. OTHER ISSUES
24. The Administrator raised the issue as to whether or not
the provision of psychological services had been to the victim
or to the victim's mother or parents in some circumstances.
The Claimant's mother testified that the claims had always
been paid previously and that she always accompanied the Claimant
to the sessions with the psychologist. Additionally, the psychologist
provided a further letter after the hearing confirming that
services had always been provided to the Infected Person.
In these circumstances, the Administrator indicated that it
would not take issue with any further payment to the Claimant
and would make the appropriate payments. If this has not taken
place, I can be advised and would make the appropriate order
directing the Administrator to make the payments.
This concludes all the matters raised in the appeal.
DATED at Toronto this 16th day of November, 2003
_____________________________________
C. Michael Mitchell
Referee
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