Appeals : Arbitrator Decisions : #25 - November 23th, 2001

D E C I S I O N

Background:

1. The Estate of the Claimant, (the "Estate"), represented by the Claimant's son, submitted an application for compensation under the 1986-1990 Hepatitis C Settlement Agreement (the "Agreement").

2 By letter dated July 26, 2001, the Administrator denied the claim on the basis there was insufficient evidence that the death of the Claimant was caused by his infection with Hepatitis C ("HCV").

3. The Estate requested that an Arbitrator review the decision of the Administrator.

4. The Estate requested an oral hearing in order to present oral evidence.

Evidence:

5. The following facts were not in dispute:

- The Claimant was infected with Hepatitis C ("HCV");

- The Claimant received a blood transfusion in February 1988;

- The Claimant's treating physician indicated on the TRAN 2 form that s/he had never treated the Claimant for any condition related to HCV;

- The Claimant's treating physician also indicated on the TRAN 2 form that the Claimant's HCV infection did not materially contribute to his death; and

- The Claimant's Certificate of Death indicated he died of pneumonia as a result of a cerebrovascular accident.

6. At the hearing, counsel for the Fund explained the decision of the Administrator, and referred to the provisions of the Agreement relied upon in concluding the Estate had not satisfied the eligibility criteria.

7. The Claimant's son did not dispute the interpretation of the Agreement and its application to his father's circumstances, but expressed frustration with the result.

8. The Claimant's father had suffered from Alzheimer's disease and he spoke at length of the difficulties experienced by his family coping with his father's failing health. It was clear the extra precautions required because of his having been infected with HCV significantly compounded these difficulties.

Analysis:

9. Article 3.05(1)(a) of the Agreement requires, as a threshold test for a claim, proof that a claimant's death was caused by his or her infection with HCV.

10. The Estate, therefore, must establish that the Claimant's death was caused by his infection with HCV.

11. The Estate has not brought forward any proof that the death of the Claimant was caused by his infection with HCV.

12. Neither the Administrator, nor I, as an Arbitrator, have any discretion to grant compensation to individuals who were infected with HCV but whose deaths cannot be attributed to that infection.

13. Accordingly, I find that the Administrator correctly determined that the Estate of The Claimant is not entitled to compensation pursuant to the Agreement, as there is insufficient evidence to demonstrate that his death resulted from his having been infected with HCV.

Determination:

14. The decision of the Administrator to deny the Estate of the Claimant compensation pursuant to the Hepatitis C 1986-1990 Class Action Settlement Agreement is upheld.

DATED AT TORONTO, THIS 23RD DAY OF NOVEMBER, 2001.

Tanja Wacyk, Arbitrator