Appeals : Arbitrator Decisions : #118 - December 26, 2003

D E C I S I O N

Background:

1. The Appellant is the spouse of an HCV Infected Person who died on August 12, 1997.

2. As an approved dependant, the Appellant is entitled to loss of support pursuant to section 6.01 of the Plan. Loss of support was paid to the Appellant on July 19, 2002, in the amount of $42,152.53.

The Issue:

3. The issue in this appeal is whether the Administrator erred in considering payments made to the Appellant through the HIV Multi-Provincial/Territorial Assistance Program ("MPTAP") in calculating her loss of support pursuant to section 6.01 of the Plan.

The Appellant's Position:

4. In the Appellant's Request For Review Form, she indicates that the MPTAP payments were made to herself and her spouse as a result of his having received the HIV virus from a blood transfusion.

5. The Appellant takes issue with the deduction of the MPTAP payments from her loss of support claim - to which she is entitled because HCV contributed to her spouse's death. She maintains that the two matters are distinct, and she should not have the MPTAP payments, which related to her spouse having received the HIV virus, deducted in effect, because her spouse was infected with HCV as well.

6. The Appellant further submits that pursuant to section 6 of the MPTAP agreement, compensation provided under that agreement is not to be considered "income." Specifically, section 6.1 of that agreement provides that the Province agrees to take all reasonable steps so that the payments made under the agreement are not considered income for the purposes of the Income Tax Act.

The Administrator's Position:

7. The Administrator maintains the MPTAP benefits are included in the definition of "Post-Claim Net Income" and therefore must be deducted to arrive at the amount to which the Appellant is entitled.

Analysis:

8. Section 6.01 of the Plan states that a loss of support must be calculated in accordance with section 4.02(2) of the Plan.

9. Section 4.02(2) sets out in detail how a loss of support must be calculated. It provides that each approved HCV Infected Person who is entitled to receive compensation for loss of income caused by his or her infection with HCV will be paid an amount each calendar year equal to 70% of his or her "Annual Loss of Net Income" for such year until he or she attains the age of 65 years determined in accordance with provisions which follow.

10. Subsection 4.02(2)(a) provides that "Annual Loss of Net Income" for a year means the excess of the Approved HCV Person's Pre-claim Net Income for such year over his or her Post-claim Net Income for such year.

11. Subsection 4.02(2)(c)(i) defines "Post-claim Net Income" of an Approved HCV Infected Person as including ... (E) the amount paid or payable to the person pursuant to the ... MPTAP.

12. Consequently, the Plan requires that MPTAP payments be included in the calculation of Post-Claim Net Income.

13. Furthermore, section 6.1 of the MPTAP agreement has no relationship to the entitlements under the Plan and cannot be said to override the express provisions of the Plan.

14. The Administrator has no discretion in this matter and is obliged to follow the requirements of the Plan when calculating the loss of support entitlement. Consequently, the Administrator was required to take into account the MPTAP benefits in calculating the Appellant's entitlement.

15. I, as an arbitrator reviewing the actions of the Administrator, am also bound by the terms of the Plan and have no authority to deviate from it.

16. Consequently, I find the Administrator was correct in including the Appellant's MPTAP benefits in determining her entitlement.

Determination:

17. The appeal is denied.

DATED AT TORONTO, THIS 26TH DAY OF DECEMBER 2003.

"Tanja Wacyk"
Arbitrator