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Appeals : Confirmed Referee Decisions : #152 - 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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