Appeals : Confirmed Referee Decisions : #30 - December 14, 2001

D E C I S I O N

BACKGROUND

1. On August 15, 2001, the Administrator denied a claim by the Claimant as a Personal Representative on behalf of the deceased's estate. The Administrator found that Hepatitis C was not a contributory cause of the deceased's death. Therefore, the requirements of Subsection 3.05 (1) (a) of the Transfused HCV Plan were not met.
   
2. On October 4, 2001, the Claimant requested that the Administrator's denial of the claim be reviewed by a referee.
   
3. Both parties waived their entitlement to an oral hearing.
   
4. The Claimant requested that the referee review all the material in the claim file from The 86-90 Hepatitis C Claims Centre.
   
5. Fund counsel, on behalf of the Administrator, filed written submissions on November 29, 2001. The written hearing concluded on December 10, 2001 when the Claimant did not file any written submissions in reply.
   Facts
   
6. The Claimant has provided correspondence from Sunnybrook Health Sciences Centre dated March 26, 1998. In this letter, the hospital reported that the hospital's Look Back Program had established that the deceased had received blood on October 28, 1989 which was provided by a donor who tested positive recently for Hepatitis C. The letter indicated that the Hepatitis C virus status of the blood given to the deceased was unknown.
   
7. The Medical Certificate of Death indicates that the deceased died on January 11, 1990 of repiratory arrest related to "relapsed acute leukemia".
   

ANALYSIS

8. Subsection 3.05(1)(a) of the Transfused HCV Plan requires that the Personal Representative of the HCV infected person must provide "proof that the death of the HCV infected person was caused by his or her infection with HCV".
   
9. In order to establish whether a person has died as a result of Hepatitis C, the treating physician must attest to the following question: If the HCV Infected Person has died, did his or her infection with HCV materially contribute to his or her death? In this case, the treating physician stated that he did not know whether or not HCV materially contributed to the death of the deceased.
   
10. The burden of proof is on the Claimant to satisfy the requirements of the Settlement Agreement approved by the Court for compensation of persons who died prior to January 1, 1999. Section 5.01 of the Settlement Agreement requires that the Claimant establish that the deceased had a blood transfusion by which he contracted Hepatitis C and that the Hepatitis C caused his death. I have not been provided with any evidence by which I can conclude that Hepatitis C caused the death of the deceased. In fact, there is no evidence that the deceased was infected with Hepatitis C at the time of his death.
    
11. The Administrator under the Settlement Agreement is required to administer the Transfused HCV Plan in accordance with its terms. The Administrator does not have authority to vary the terms of the Plan nor does an arbitrator or a referee when asked to review the Administrator's decision.
    CONCLUSION
    
12. I uphold the Administrator's denial of the Claimant's request for compensation on behalf of the deceased's estate.
    
    

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December 14, 2001
JUDITH KILLORAN
Referee