Appeals : Unconfirmed Referee Decisions : #31 - January 7, 2002

D E C I S I O N

Claim ID 1400386

1. Introduction
   
   
   1. The Claimant applied for compensation as a Primarily-Infected Person pursuant to the Transfused HCV Plan ("the Plan").
      
      

   2. By letter dated March 19, 2001, the Administrator denied the Claim on the basis that, having carefully reviewed the material provided in support of the claim, the Claimant had not provided sufficient evidence to support his claim that he had received blood during the period from January 1, 1986 - July 1, 1990 ("the Class Period").

   3. By way of Notice of Appeal dated March 25, 2001, the Claimant requested that a Referee review the denial of his claim by the Administrator. In paragraph 4 of his Notice of Appeal, the Claimant stated that he wished to review the Administrator's decision, for numerous and lengthy reasons. In essence, however, these reasons may be distilled to the Claimant's central position, whereby he maintains that he received "Transfused Blood Products", within the meaning of the Plan, while hospitalized at the Plains Health Centre in Regina, Saskatchewan, at some point between November 7-10, 1989 and possibly also on November13, 1989.

   4. The Claimant checked off the box in paragraph 5 of the Notice of Appeal that certified that he had provided all necessary documents upon which he relies for his claim to the Administrator and does not intend to file any further documents with the Administrator, "unless released to me and my lawyer. I cannot provide all donors or proper donor numbers unless they have been released to me and my lawyer and evidence shows they have not provided all numbers in their traceback." The Claimant further checked off the box in paragraph 6 of the Notice of Appeal, which provides space for a Claimant to indicate that he wished to have witnesses testify before the Referee and indicated in paragraph 7 of the Notice of Appeal that he requested an in-person hearing.

   5. At the request of the Referee, each party provided advance written submissions. Fund Counsel's written submissions, dated August 17, 2001, set out the position of the Administrator. Although the Administrator concedes that the Claimant had undergone two operations at the Plains Health Centre in November 1989 (within the Class Period), and while the records indicate that blood products were cross-matched and set aside for the first of these operations, those blood products were never transfused to the Claimant. Fund Counsel went on to submit that this was confirmed by way of a traceback request and further that the Regina Health District (owner/operator of the Plains Health Centre) had done a disposition search and reported that the two units of packed cells that had been cross-matched and reserved and set aside for the Claimant were instead transfused on November 20th and 21st of 1989 to another patient, the identity of which must remain confidential.

   6. Initially, an in-person hearing date was set for September 13, 2001, which date had to be postponed due to the inability of Fund Counsel and her witness to travel to Saskatchewan because of the tragic events of September 11, 2001. The hearing date was therefore re-scheduled to November 28, 2001, at which time viva voce evidence was lead by both parties. The Claimant testified on his own behalf and Carol Miller, Appeals Coordinator of the Hepatitis C January 1, 1986 - July 1, 1990 Claims Centre (the "Claims Centre"), testified on behalf of the Administrator. In the result, the matter will indeed be adjudicated upon based on the written materials and testimony provided by the parties.
      
      
2. Facts, Summary of Evidence
   
   
   7. Pursuant to the terms of the January 1, 1986 - July 1, 1990 Hepatitis Settlement Agreement ("the Settlement Agreement") and the Plan, the Class Period is the only period of time in respect of which compensation may be available. While there are many possible sources of infection with respect to the Hepatitis C virus, the Plan only provides compensation for individuals who received transfusions of defined blood products during the Class Period.
      
      

   8. The Claims Center file, consisting of 164 pages, was entered as Exhibit 1 at the hearing.1 In the Claimant's General Claimant Information Form (TRAN 1) dated August 9, 2000,2 the Claimant stated that he had received blood transfusions "once maybe twice" in Canada in his lifetime, both times during the class period. In his accompanying Declaration (TRAN 3) dated August 14, 20003 , the Claimant stated that to the best of his knowledge, information and belief, he had resided in Saskatchewan during the Class Period, more specifically on November 9, 1989. The Claimant further declared it to be "true" that to the best of his knowledge, information and belief, he "was not infected with Hepatitis Non-A Non-B or the Hepatitis C virus prior to January 1, 19864 . In Box 4 on TRAN 3, the Claimant checked off the "false" box and added in the word "Absolutely" beside the declaration that he "has never at any time used non-prescription intravenous drugs." [In testimony, the Claimant indicated that he was confused by the wording of box 4 and intended to make it clear that he had in fact never used non-prescription intravenous drugs.]5 When the Claimant filled out a revised TRAN 3 on February 8, 20016, he checked off "true" on Box 4 of the Declaration.

   9. The Treating Physician Form ("TRAN 2")7 was purported to have been completed by Dr. G., the Claimant's physician on "00.8.9" in which Section F - Box 2 was checked off as "yes" following the statement: "Having regard to the definition of blood, the Claimant did receive a blood transfusion during the period January 1, 1986 to July 1, 1990. "None" was checked off under Section F, Box 1, with respect to whether the Claimant had a history of risk factors for the Hepatitis C virus other than a blood transfusion during the class period. This form also purported to indicate that the physician had known the Claimant for 25-30 years and treated him "off and on throughout."
      
      

   10. Exhibit 2 is a letter dated November 6, 1998 from the Canadian Blood Services (CBS) to the Claimant dated November 6, 1998, in response to the Claimant's request for a traceback, together with traceback Investigation Notes, dated August 15-21, 2000 and accompanying Reports of Transfusion-Related Infection, dated November 11, 1998, with respect to the Pasqua Hospital8 and the Plains Health Centre. The latter record states:

       "This patient was not transfused at the Plains Health Centre in November, 1989. The units were cancelled after the surgery."

   11. The traceback Investigation Notes indicate that the CBS reported that there were two units of blood in the logbook that were cross-matched for the Claimant, shown as numbers 45…60 and 13..59. They were cancelled post-op and then transfused to a different patient on November 20 and 21 (1989).

   12. Dr. S., now deceased, provided a letter dated June 28, 1999, stating that the Claimant "received a blood transfusion in 1989 at the Plains Hospital in Regina, Saskatchewan and serial testing in the last four years has been positive for Hepatitis C." In his testimony, the Claimant acknowledged that Dr. S. obtained the information with respect to transfusion from the Claimant. However, he was also of the understanding that Dr. S. had made some calls on his own to the Plains Health Centre in that regard, presumably to obtain confirmation. The Claimant was therefore unable to say whether someone else may have also provided information to Dr. S. about a transfusion. As to Dr. G.'s report, at TRAN 2, the Claimant was not sure if Dr. G obtained the information about the transfusion from Dr. S. or from the Claimant.

   13. The Claimant is of the view that the Plains Health Centre has been less than forthcoming in terms of providing co-operation and documentation that he had requested. He was, at least prior to hearing the testimony of Carol Miller, of the firm view that four units of blood had been ordered but only two were on record, leaving two units unaccounted for, one or both of which presumably led to his infection with the Hepatitis C virus. He also felt that there were many contradictions in what various physicians had told him. He recalled that his doctor advised him that he was anemic prior to the surgery and therefore in need of blood products.

   14. With respect to his prior medical history, the Claimant testified that he had surgery in 1969 at the Grey Nun's Hospital in Regina, which involved having his ankle pinned. He had a further operation in 1977 as a result of a serious knee injuries sustained after leaving a bar, when a car drove over him in a parking lot. He was not sure if the surgery in that regard took place in Weyburn or in Regina. He received general anaesthetic at the time and was therefore not sure about receiving blood products. Finally, he had gall bladder surgery in 1995 or 1996 in Prince Albert, Saskatchewan.

   15. The Claimant testified that he had been an accomplished professional touring musician, that he has never been an intravenous drug user and that he drank occasionally but is not an alcoholic. He was very upset with certain reports that suggested that he was a drug abuser.

   16. As to the surgical procedures during which the Claimant believes he was transfused with blood products, he had been admitted to the Plains Health Centre for investigation of myasthenia gravis9 . Investigations showed a thymic abnormality as a result of which it was recommended by a surgeon, Dr. F., that the Claimant undergo a median sternotomy10 and thymectomy11 on November 8, 1989. Prior to the surgery, the Claimant recalled Dr. F. telling him about anemia and slow blood coagulation, saying that he thought the Claimant should receive packed cells, as Dr. F. did not want to take any chances on bleeding. The surgeon told him that his thymus was enlarged and the safest way to deal with it was to "yard it out", that it was easier than tonsils and that the surgeon had performed hundreds of these procedures. The Claimant asked to see x-rays of the thymus but was not shown them.

   17. The Claimant testified that he recalled that on November 7, 1989, a big nurse came into his room and brought blood, in advance of the surgery. He described seeing two large bags of blood, close to or roughly 1 foot square in size, the first of which he received before his operation and the second of which he recalls seeing while in the operating room. He did not agree to receive blood until he spoke to the surgeon, as he was worried about contracting HIV from blood, but the surgeon assured him that the blood would be safe. He also recalls having seen blood in the operating room, in the same bag format as previously described, before he lost consciousness. He recalls waking up in the operating room and Dr. F. saying that he did not need all the blood and that they only ended up needing 2 bags. He believes that he may have seen blood in the recovery room, although he was not thinking clearly at that time due to the effects of morphine. His sternum had been wired shut in the surgery and the Claimant was advised not to cough or to hold a pillow over his chest if he had to cough, in order to prevent these sternal wires from breaking.

   18. Unfortunately, on November 13, 1989, the Claimant inhaled some toast and as a result experienced a serious coughing fit. He believes that at that time, the doctors "reefed on" his chest, as a result of which the sternum wires were broken, and it was determined that he would have to undergo surgery again, this time to repair the sternum wires.

   19. The second operation took place on November 13, 1999. This time the Claimant was taken to a different operating room and he "kind of thinks" he saw blood in the ward afterwards, but was not at all sure about any blood involvement in the second operation, as morphine was again required.

   20. The Claimant stated that he needed Demerol for many years after these operations to control pain. He tried to enroll in a methadone program to attempt to "get off the Demerol", but the doctor in charge of the program would not treat him unless he admitted that he was an I.V. drug user, which he refused to do.

   21. The Claimant moved to Manitoba in 1990 and was working 12-16 hour days logging. He also built a ranch. However, soon he could not even work 5-6 hour days as he was encountering bad fatigue and burning pain in the side, by the liver. In 1995 or 1996, he went in for HIV testing, after he learned that HIV could be contracted by means of heterosexual relations, although he had not been with lots of women. The doctor conducted Hepatitis C testing at the same time and confirmed that the Claimant was infected with the virus.

   22. In addition to his own recollection of seeing blood products being transfused into him, some of the factors that the Claimant believes support his contention that he did receive blood products during the course of one or both of his November 1989 operations are:
       
       
   • He believes that his PT testing showed blood coagulation problems.
     
   • He was told that packed cells act as a coagulant.
     
   • He is still anemic today.
     
   • A Dr. F2 evidently told the Claimant that he did not need the first operation. From this the Claimant deduced that both the Plains Health Centre and Dr. F wished to cover up the fact that he had received blood. If he received $150,000 from the Hepatitis C Fund, they would be concerned that he could sue them.
     
   • The Director of the Plains Health Centre had been fired and Dr. F. had been sent back to New Brunswick.
     
   • The Requisition for Blood12 looked like part of it had been "scissored." It also showed 4 units of packed cells having been requisitioned, whereas only 2 were accounted for.13
     
   • He is a Sagittarian. Sagittarians are known for their natural talent for determining when people are "yanking their chains."
     
   • He was convinced that both the Physician's Orders14 and the Individual Care Plan15, both dated November 7, 1989, read "Give I.V. 2 units packed cells." 16
     
   • He was concerned that there was no lab requisition for blood with respect to the surgery of November 13, 1989 and assumed that this was missing from the health records supplied by the Plains Health Centre. 17
     
   • When he attended on Linda Bird, Director, Health Information Management Services of Regina District Health, although his file happened to be opened on her desk at the time, she had informed him that she could not find the cancellation records, and advised him: "maybe the CBS has them." Yet she wrote to advise that only two units of blood were ordered18, whereas the records clearly showed that it was actually four units, so she had failed to account for the disposition of 2 units.
     
   • What evidently caused the Claimant the most suspicion is the fact that there was no record of the original surgeon's "Report of Operation", with respect to the surgery of November 8, 1989. Instead the "Report of Operation" that was produced by the Plains Health Centre with respect to that surgery is shown as dictated on December 5, 1989 and transcribed on December 6, 1989,19 with the report starting out with the following statement:
     
     "This Operative Report has previously been dictated and apparently lost. I can therefore not be sure of the immediate operative details but to the best of my knowledge, the following is true."
     
     
   • There is no reference in this replacement Report of Operation to blood products having been required. The Claimant appears to attribute great significance to the fact that the original Report of Operation was missing, which in his view would presumably have corroborated his version of events, with respect to the matter of receipt of blood products.

   • The Claimant had discussions with Dr. Alport, Medical Officer, Regina Centre of CBS, one of which was recorded on tape that was played during the Reference hearing. These discussions caused the Claimant to conclude that Dr. Alport was involved in attempting to cover-up the transfusion(s).
     

   23. The Claimant was able to produce, as Exhibit 3, a clearer copy of page 140 of Exhibit 1, consisting of lab records that simply confirm the numbers assigned to the two units of blood that the CBS had confirmed as a result of a traceback to have been transfused to another patient following the Claimant's November 8, 1989 operation. The Claimant also produced Exhibit 4, which was a clearer copy of page 150 of Exhibit 1, the Blood Transfusion Daily Log. This document clearly shows the 2 unit numbers identified previously, together in each case with the notation "Canc." 20
       
       
   24. There was no cross-examination of the Claimant. Fund Counsel did tender a letter from Dr. G. to Ms. Miller dated August 28, 2001, Exhibit 5, in which he states, in reference to the Claimant, whose name was referred to in the letter's caption:
       
       Dr. G. has reviewed the form sent by you on the above named patient. There is no record on (Claimant's) file that he in fact had a transfusion. The signature on the form is Dr. G.'s but the pen used to fill out the form is not what Dr. G. uses. Hoping this clarifies the situation.
       
       Thank You.
       Yours Truly,
       [signed]
       Dr. G.
       
       
   25. The writing contained in the report (TRAN 2, Exhibit, pages 83-87) initially attributed to and then substantially repudiated by Dr. G., bears a striking resemblance to that of the Claimant. The Claimant did not say for sure whether he may have completed the document, but notes that in any case, Dr. G. did sign it.
       
       
   26. Carol Miller, the Centre Claims Coordinator testified at the behest of Fund Counsel. Ms. Miller's impressive background includes 23 years in nursing, in Nova Scotia, Newfoundland, Manitoba and Ontario, and in virtually every hospital department, including but not limited to such areas as surgery, medicine, pediatrics and geriatrics. She has extensive experience with the cross matching and giving of blood in her capacity as a nurse.
       
       
   27. The Claimant's PCR test of July 29, 199821 was positive. Having reviewed the most recent pathology report, 22 which showed Periportal Hepatitis with definite cirrhosis (Stage 4, Grade III), Ms. Miller stated that it is clear that the disease progression is such that the Claimant is at Level 5.
       
       
   28. Upon a detailed review of the materials provided by the Claimant and the Plains Health Centre, Ms. Miller was able to offer her opinion as to what most likely occurred. In reference to the surgical report, which was re-dictated less than a month after the surgery, she testified that one would normally have seen a reference in such record if there had been a surgical complication requiring blood. However, in this case, the report concludes as follows:23
       
       The patient tolerated the procedure well and no operative complications were noted. The patient was extubated, transferred to a stretcher and then to Recovery in satisfactory condition."
       
       
   29. The Report of Operation with respect to the procedure of November 13, 1989 ended similarly.24
       
       
   30. The Claimant was in hospital for 1-2 days pre-operatively. Ms. Miller had the benefit of hearing the Claimant's testimony. The Claimant had described bags of blood being close to 1' square. However, units of packed cells are contained in much smaller bags of the approximate dimensions of 3.5" x 5.5". Further, while the Claimant described receiving blood in his room prior to surgery, Ms. Miller testified that is highly unlikely that one would receive blood in his hospital room over this period of time as blood can only be left unrefrigerated for 4 hours in total. When asked what type of fluids might have been given pre-operatively, Ms. Miller noted that since the Claimant is a diabetic, he would probably have required nourishment through the I.V, since it is necessary to fast for 8 hours prior to surgery and diabetics cannot safely fast. Normally such I.V. fluids would be colourless, but there could have been some vitamins that would give the solution a yellow colour.
       
       
   31. There was some discussion surrounding the bleeding time tests25 that were conducted on the Claimant pre-operatively, and which he felt supported his conclusion that blood products would be required with respect to the surgery. However, Ms. Miller testified that the Prothrombin Time (PT) test produced 10.4 seconds versus a control of 9.8 seconds and the Partial Thromboplastin time (PTT) tests showed a test time of 36 seconds versus a control of 31 seconds. She testified that both of these tests were within normal limits and were not suggestive of any coagulation problems.
       
       
   32. Ms. Miller further testified that the CBC hemoglobin results would be of definitive significance in terms of determining whether or not blood would be required. In this case,26 the Claimant's hemoglobin was reported as 155, which is the normal level for males. There was no history or suggestion of anemia recorded anywhere in the chart.
       
       
   33. Notwithstanding the lack of any indications in the pre-operative testing to suggest that blood would be required, the first surgery would have been considered as major surgery because the chest cavity was to be opened and bleeding could therefore reasonably be anticipated. It was for this reason that two units of packed cells (not the four as the Claimant had thought, from an honest but mistaken reading of the Lab Report (page 24.) Further, having reviewed the operation record from the second operation, she noted that there was no hint of complications or bleeding. Indeed, this was minor to moderate surgery, involving opening the skin, attending to the wiring problems, without the necessity of going near the lungs and heart, in a situation where they knew where they were going.
       
       
   34. The Record of Anaesthesia27 was of significance in several respects. First, the reference to "Losses: .300" related to blood loss. In this case, the blood loss was less than a cup, which is considered minimal surgical blood loss. Second, beside this there is a reference to:
       
       Blood
       Fluid 1900
       
       Whereas the Claimant thought that this 1900 notation related to blood, the proper reading of the chart was such that this pertained to I.V. fluids administered. Finally, if the patient was losing blood during surgery, the heart rate would increase (here it remained steady at between 50 and 60 beats per minute) and the blood pressure would drop significantly, which did not occur in this case. Finally, on this record there is a spot to record Anaesthetic Agents and I.V. fluids, on which blood would be normally recorded if it had been supplied. Here, the entries were limited to insulin, 5% dextrose and water and Ringers Lactate. The Operative Record28 would not normally record blood.
       
       Further, complications requiring blood transfusion would as a matter of course be reported on the Discharge Summary,29 which in this case showed nothing of the kind.
       
       
   35. The Physician's Orders30 were for grouping and cross-matching two units of packed cells, which were carried out as ordered, as confirmed in the Individual Care Plan31 prepared by the nursing staff. Very often, blood is readied and not used. It is not normally recorded when blood is cancelled (although here Exhibit 4 clearly does in fact show that the blood was cancelled in this case.) It had been requested for 24 hours. While the shelf life for blood in the lab is 30 days, shelf life for packed cells to be saved for one person is 3 days. It is therefore automatic that you would no longer have blood after 24 hours, as the blood would be allowed to go back into circulation. In reference to the Lab Report32 that the Claimant thought had been altered, Ms. Miller explained how these labels are prepared and affixed to the chart and testified that in this case they appeared to be in order. In reference to the nursing Progress Record 33, the Claimant had formed the view that the reference to "O" on November 8, 1989, proved that he had received type O blood. Ms. Miller pointed out that "O" is simply the nursing abbreviation for "objective."
       
       
   36. Ms. Miller identified the following additional components of the Claimant's health record that would normally refer to blood products if blood had been given, but in relation to which there were no such references here:
       
       
   • Progress Records 34
     
   • Physicians' Progress Record 35
     
   • The post-operative records 36
     
   • The Daily Fluid Record 37
     
   • The Intravenous Flow Sheet38 and Daily Fluid Records 39
     
     
   37. In reviewing Linda Bird's response to the Claimant's inquiries40, Ms. Miller felt that Ms. Bird went above and beyond the call of duty by ascertaining that the cancelled blood products that had been set aside for the Claimant had actually been transfused to another patient, as it is not normal to try to find out where the blood went.
       
       
   38. Not only would the Physicians' Progress Record41 have normally shown if blood was needed, it would also have shown if there was a history of anemia, which was not recorded or suggested here. In this case, the Claimant's hemoglobin readings definitively ruled out anemia.
       
       
   39. On November 11, 1989 the Physician's Orders show that the I.V. was discontinued. Thereafter, there would have been no way to get blood in without starting a new I.V. line. There was no suggestion of a new IV line having been started.
       
       
3. Analysis
   
   
   40. The following are the material findings of fact in this case:
       
       
       1. The Claimant is infected with Hepatitis C.
          
       2. The probable source of such infection was not established in evidence.
          
       3. Although two units of packed blood cells were cross-matched and reserved for him with respect to the surgery of November 8, 1989, the evidence is overwhelming that the Claimant did not receive a blood transfusion before, during or after that surgery.
          
       4. No blood products were either cross-matched or reserved for or transfused to the Claimant with respect to the surgery of November 13, 1989.
          
       5. Accordingly, the Claimant has failed to establish that he received any blood transfusions during the Class Period.
          
          
   41. I am satisfied that the Claimant was labouring under the honest but mistaken belief that he had in fact received blood transfusion(s) with respect to one or both November, 1989 operations. The Claimant's suspicion and distrust of the Plains Health Centre, the surgeon and the CBS, were clearly exacerbated by the unusual and unexplained loss of the original Operation Record with respect to the November 8, 1989 surgery. The loss of the original surgical record is regrettable. However, given the absence of any reference to blood products being supplied, when there were so many other components in the health record that would have been expected to refer to such blood products, and given the absence of any evidence that the Claimant needed blood (the CBC testing and lack of significant surgical bleeding being key), I am unable to conclude or even infer any sinister intent or "cover-up" in that regard. Finally, while the Claimant undoubtedly felt this to be true, the records with respect to hemoglobin levels and bleeding time tests conclusively disprove the Claimant's belief that he was suffering from both anemia and abnormal or prolonged bleeding time.
       
       
   42. The Claimant has reviewed the health records with a fine-toothed comb, in a diligent manner, without the benefit of recent assistance from legal counsel and with no medical or nursing background, earnestly hoping that they would be interpreted in such a manner as to support his contentions. Certainly, without the benefit of Ms. Miller's testimony, I can well understand how a diligent layperson in the Claimant's circumstances could have reached the conclusions that the Claimant did.
       
       
   43. Based on the foregoing facts, it is clear that the Administrator's denial of the Claimant's request for Compensation must be sustained, a conclusion that, after hearing Ms. Miller's evidence interpreting the health record, the Claimant appeared to appreciate would be inevitable.
       
       
   44. Both the Settlement Agreement and the Plan define "Class Period" as meaning "the period from and including 1 January 1986 to and including 1 July 1990." The Plan defines "Primarily-Infected Person" as meaning "a person who received a Blood transfusion in Canada during the Class period." Article 3.01 of the Plan stipulates that the burden lies on the individual claiming to be a Primarily-Infected Person to provide materials that demonstrate his or her entitlement. This burden, while not onerous, is at the same time not flexible. A person claiming to be a Primarily Infected Person must provide the Administrator with medical "records demonstrating that the Claimant received a Blood transfusion in Canada during the Class Period." Article 3.03 sets out "additional proof" that may be required of the Claimant by the Administrator, including provision of, among other materials, further health records and a consent to a Traceback Procedure. Having heard the evidence, I am satisfied that the Claims Centre was not looking for ways of denying this claim, but rather was merely ensuring that it complied with the parameters of the Plan. Indeed, I find that Ms. Miller was most fair and even-handed in her testimony.
       
       
   45. The Claimant's illness is undeniably very serious and he is clearly in dire financial circumstances. The Claimant is a resourceful and colourful street-smart individual with many skills and a diverse background and skill-set. His circumstances have now been greatly reduced in consequence of his illness. He could no doubt be significantly assisted in his medical battle by the availability of funds. One cannot help but have considerable empathy for him and the difficulty of his plight. There is a considerable temptation to wish to assist him in that regard, if the evidence allowed one to do so.
       
       

   46. However, regrettably for the Claimant, he was unable to provide the proof required by Article 3.01 because he could not establish that he received a transfusion during the Class Period. The provisions of the Settlement Agreement and Plan, as specified by the Honourable Mr. Justice Winkler in approving the class action settlement in his judgment of October 22, 1999, are finite and explicit. If a Claimant cannot establish the threshold requirement that a blood transfusion was received during the Class Period, (ignoring for the moment the requirements with respect to establishing that the blood so transfused was infected), then the Claimant is not entitled to receive compensation. The Administrator has an obligation to assess each claim and determine whether or not the required proof for compensation exists. The Administrator has no discretion to allow compensation where the required proof does not exist. The financial sufficiency of the Fund depends upon the Administrator properly scrutinizing each claim and determining whether the Claimant qualifies. A Referee similarly has no jurisdiction to alter, enlarge or disregard the terms of the Settlement Agreement or Plan, or to extend or modify coverage.

4. Decision
   
   
   47. Upon careful consideration of the Settlement Agreement, Plan, Court orders and the viva voce and documentary evidence tendered, the Administrator's denial of the Claimant's application for compensation is hereby upheld.

Dated at Saskatoon, Saskatchewan, this 7th day of January 2002.

________________________________
DANIEL SHAPIRO, Q.C.
Referee

1. All references throughout to page numbers are from Exhibit 1, unless otherwise specified.
   
2. Pages 79 - 82
   
3. Pages 88 - 89
   
4. Page 88
   
5. In her testimony, Carol Miller stated that the Claims Centre read this to mean that the Claimant did use I.V. drugs.
   
6. Page 155
7. Pages 83 - 87
   
8. The record indicates: "No records are available prior to 1977 and this patient has no record of transfusion since then." The Claimant had attended at some point at the Pasqua Hospital and requested that the records of this hospital also be searched with respect to a possible blood transfusion. The letter of November 6, 1998 states: "The Pasqua Hospital and the Plains Health
9. A chronic progressive muscular weakness.
10. An incision into or through the sternum.
    
11. Removal of the thymus gland.
12. Pages 95 and 128
    
13. Carol Miller later testified that this Lab Report referred to a "request: to supply 2 units of packed cells", on the left hand side of the page and the reference on the right hand side of the page, initialing off "2 units of packed cells", simply confirmed that the request to reserve 2 units had in fact been fulfilled. This document could therefore not be interpreted as suggesting that 4 units had been reserved, as the Claimant had incorrectly assumed.
    
14. Page 62
    
15. Pages 63and 119
    
16. Carol Miller later testified that the notes in question read: "Gr X for 2 u p.c.", which simply means "Group and cross-match for 2 units of packed cells."
    
17. Carol Miller later testified that while the first operation would be considered major surgery, since the chest cavity was opened and bleeding was readily foreseeable, the second surgery would be considered minor-moderate surgery since it was not necessary to open up the chest. In the latter case, it would simply be a question of repairing the wire, and no significant blood loss would be anticipated.
    
18. Page 147
19. Page 31
    
20. Ms. Miller later confirmed that "canc" is simply an abbreviation for "cancelled."
21. Page 35
    
22. Page 34
    
23. Page 31
24. Page 33
    
25. Page 96
    
26. Page 97
    
27. Page 40
    
28. Page 41
    
29. Page 33
    
30. Page 62
    
31. Page 63
    
32. Page 66
    
33. Page 69
    
34. ibid
    
35. Page 70
    
36. Page 73
    
37. Page 77 - These would normally show blood in the "Solution" column, if it had been administered, but there was no such entry here.
    
38. Page 111
    
39. Page 112
    
40. Page 148
    
41. Page 70