Appeals : Arbitrator
Decisions : #47 - June 17, 2002
D E C I S I O N
 The Claimant applied for compensation as a Primarily-Infected
Person pursuant to the Transfused HCV Plan ("the Plan").
 By letter dated February 6, 2002, 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 her claim that
she had received blood during the period from January 1, 1986
- July 1, 1990 ("the Class Period").
 By way of Notice of Appeal dated February 4, 2002, the
Claimant requested that an Arbitrator review the denial of
her claim by the Administrator. In paragraph 4 of her Notice
of Appeal, the Claimant stated that she wished to review the
Administrator's decision, for the following reasons:
I was given blood transfusion when I was in R.U.H. (Royal
University Hospital, Saskatoon). In 1998 I was in the hospital
for over a week and now they are saying I was never in there.
The doctor is either dead or retired. I have tried phoning
the (College of) Physicians and Surgeons but they are playing
dumb like everyone else.
 The Claimant replied as follows in the box of paragraph
5 of the Notice of Appeal in terms of additional documents,
which the Arbitrator should consider in support of her appeal:
There are the only papers I could get as they say I wasn't
in that hospital, which is wrong because I was there.
 In Box 6, the claimant indicated that she wished to have
the following person testify in person before the Arbitrator:
H.I., construction worker, (deceased) because he was the
one that drove me to the hospital.
 The matter was referred to the Arbitrator on or about
April 16, 2002. On April 20, 2002, the Arbitrator wrote to
the Claimant explaining the differences between a Review by
Arbitrator or Referee and invited the Claimant to confirm
that she preferred to have the matter decided by an Arbitrator,
notwithstanding that an Arbitrator's decision is final and
not subject to being reviewed by a Superior Court Judge. The
Claimant confirmed that she indeed wished to have the matter
determined by way of Arbitration and she requested an "in-person"
 A hearing date was therefore set for May 10, 2002 in
Saskatoon. Both parties provided written submissions and viva
voce evidence was lead by both parties. The Claimant testified
on her 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.
B. Facts, Summary of Evidence
 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 in Canada during the Class Period.
 The Claims Center file, consisting of 93 pages, was entered
in evidence at the hearing. In Section A, Box 1 of the Claimant's
General Claimant Information Form (TRAN 1) dated October 15,
2000, the Claimant checked off the box indicating:
I believe that was infected with the Hepatitis C virus through
a Blood transfusion received in Canada between January 1,
1986 and July 1, 1990.
In boxes 11-13, the Claimant indicated that she had received
blood transfusions twice in her lifetime, once prior to 1986
and once during the class period.
 In her accompanying Declaration (TRAN 3) dated October
15, 2000, the Claimant stated that to the best of her knowledge,
information and belief:
Box 4 - She has never used non-prescription intravenous drugs.
Box 5 - She was not infected with the Hepatitis Non-A Non-B
or the Hepatitis C virus prior to January 1, 1986.
Box 6 - Saskatchewan was her place of residence at the time
of her application.
Box 7 - Saskatchewan was her place of residence when she
first received a Blood transfusion during the class period.
Box 8 - The place where she received her first Blood transfusion
during the Class Period was Saskatoon.
 In her Blood Transfusion History Form ("TRAN 5"),
dated March 5, 2001, the Claimant indicated that she had received
a blood transfusion in 1975 at Regina General Hospital in
respect of a broken right leg, together with a 1988 transfusion
at RUH Saskatoon, in connection with "pneumonia, anemia."
 The Treating Physician Form ("TRAN 2"), confirming
that the Claimant was at Disease Level 2, was completed by
Dr. A., the Claimant's physician on September 8, 2000. This
form indicated that the physician knew the Claimant for a
period of 11 months. Under Section F - Box 2 was checked off
as "no" following the statement:
Having regard to the definition of Blood, did the Primarily-Infected
Person receive a Blood transfusion during the period January
1, 1986 to July 1, 1990?
 Under Section F, Box 1 of TRAN 2, with respect to whether
the Claimant had a history of risk factors for the Hepatitis
C virus, Dr. A. checked off the box indicating "Blood
transfusions outside the period January 1, 1986 to July 1,
1990". He did not complete Box 3, which asks the question:
Is there anything in the HCV Infected Person's medical history
that indicates that he or she was infected with Hepatitis
Non-A, Non-B or the Hepatitis C virus prior to January 1,
 Following a Traceback request from the Claims Centre,
Canadian Blood Services (CBS) conducted a search of blood
bank records regarding transfusion history. On June 26, 2001,
CBS reported that there was "no record of transfusion"
with respect to the Claimant. As the Claimant indicated that
she has two given names that she is known by, at the Request
of the Centre, CBS investigated into whether or not there
may have been a record of a transfusion under either given
name. Be way of letter dated March 21, 2002, CBS reported
Regina General Hospital did find a record of transfusion
in 1975 but is unable to identify the unit numbers.
The documentation from RUH, in Saskatoon, states that the
above patient was not transfused. Also, there is no indication
of any need of any need for transfusion in the patient's chart.
Both (given) names were searched.
 The Claimant testified that she was born and raised
in Saskatchewan. For many years she worked either in the kitchen
or as a nurses' aid in a small hospital and a care home. She
testified to a mishap in 1975 when she slipped on ice and
needed surgery at Regina General Hospital, where she received
a blood transfusion.
 At to the circumstances that lead to her hospitalization
at RUH in 1988, she recalls having been ill at home for about
a week. Her neighbor, H.I., drove her to RUH. She recalls
seeing Dr. S., an older physician from the RUH Family Medicine
Department, who she has since attempted to track down, without
success. Dr. S. told her about pneumonia and anemia and she
recalls him telling her that if she did not receive a blood
transfusion, she was at risk to suffer a heart attack. She
recalls receiving 5 or 6 bags of blood from a bag hanging
from a pole in her hospital room. She recalls one nurse setting
 The Claimant acknowledged that she was unconscious for
much of the period of time she was in hospital and was under
an oxygen tent. Her family was out of province at the time
and did not visit her. She recalls a friend of hers, Sarah
L and her son visiting her in hospital but she has been unable
to locate her. H.I. also saw her in hospital, but he passed
away 6 years ago.
 Carol Miller also testified. She stated that invariably
two nurses come in to set up blood as one spells out the name
on the arm band requisition and the other carefully double
checks the numbers. She also testified that, while she had
not seen the RUH health record for the Claimant, it could
well be that antibiotics would have been administered intravenously
with respect to pneumonia. Vitamins could have been added
to the I.V. fluids, adding colour or tint. She testified that
there are normally numerous areas in the patient's health
record that would document both the need for blood and the
fact that it was requisitioned, cross-matched and transfused,
if in fact the need existed and if blood was in fact transfused.
 The Claimant indicated that she was concerned that she
had encountered difficulty in obtaining copies of her RUH
health record for the 1988 hospitalization. She was eager
to know what became of those records and confidant that they
would obtain the evidence of transfusion that she sought.
Therefore, in an effort to ensure that no stone was left unturned
in the pursuit of evidence that might assist the Claimant,
at the conclusion of the in-person hearing, the Arbitrator
requested that the Claimant execute a consent to enable the
Arbitrator to obtain a copy of her RUH health record for 1988,
which the Claimant was kind enough to do.
 On May 17, 2002, the RUH health records librarian supplied
a copy of the Claimant's health record for 1988. Having carefully
reviewed these documents, it can be stated that there is no
reference in these records to blood being required, requisitioned,
cross-matched or transfused. There is reference to a "microcytic
anemia", which was treated with iron therapy. The Claimant's
pneumonia was treated with intravenous antibiotics. Clinical
Records showed no evidence of blood transfusion in the areas
of the health record where this would be expected to be recorded.
 On May 17, 2002, copies of the Claimant's RUH health
record were supplied to both parties by the Arbitrator, with
a request that they supply any further comments by June 7,
2002. Counsel for the Administrator indicated that the records
confirmed that there was no blood transfusion during the Claimant's
1988 hospitalization at RUH. The Claimant did not supply anything
 The Arbitrator is satisfied that the Claimant was labouring
under the honest but mistaken belief that she had in fact
received blood transfusions during the course of her admission
to RUH in July 1998. The Claimant's suspicion and distrust
of RUH and the CBS were clearly exacerbated by the difficulty
she had in terms of obtaining copies of her records. However,
hopefully the receipt of her RUH records, albeit late in the
process, will allay her concerns in this regard and provide
answers to some of her questions.
 Given the absence of any reference to blood products
being supplied, when there are so many components in the health
record that would have been expected to refer to such blood
products, and given the absence of any evidence from the RUH
health record to suggest that the Claimant needed blood, the
Claimant is lacking the required evidence upon which an Arbitrator
could reasonably conclude that she did receive blood or blood
products during the class period.
 The Transfused Blood Plan, being Schedule A to the January
1, 1986 - July 1, 1990 Hepatitis C Settlement agreement, sets
out the key criteria for eligibility for benefits:
REQUIRED PROOF FOR COMPENSATION
3.01 Claim by Primarily-Infected Person
(1) A person claiming to be a Primarily-Infected Person
must deliver to the Administrator an application form
prescribed by the Administrator together with:
(a) medical, clinical, laboratory, hospital, The Canadian
Red Cross Society, Canadian Blood Services or Hema-Quebec
records desmontratring that the claimant received a Blood
transfusion in Canada during the Class Period;
(2) Notwithstanding the provisions of Section 3.01(1)(a),
if a claimant cannot comply with the provisions of Section
3.01(1)(a), the claimant must deliver to the Administrator
corroborating evidence independent of personal recollection
of the claimant or any person who is a Family Member of the
claimant establishing on a balance of probabilities that he
or she received a Blood transfusion in Canada during the Class
 Based on an analysis of the Plan as applied to the foregoing
facts, it is clear that the Administrator's denial of the
Claimant's request for Compensation must be sustained.
 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." While the Claimant clearly received a
transfusion prior to the Class Period, any may have
rights arising from a separate class actions settlement relating
to that prior period (Ms. Miller has undertaken to supply
the Claimant with the materials necessary to apply under that
Plan), the Claimant has failed to meet the burden imposed
by Article 3.01 of the Plan, stipulating that the burden lies
on the individual claiming to be a Primarily-Infected Person
to provide materials that demonstrate his or her entitlement.
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." While Article 3.01(2) allows the Claimant
to introduce to establish transfusion during the class period
even if the health records do not support such a finding,
here the Claimant was unable to introduce evidence "independent
of her personal recollection". In this case, the Claimant's
personal recollection was admittedly and understandably hazy
due to periods of being unconscious and the passage of time.
 The Claimant is a most co-operative, pleasant and kind
individual. Her grandchildren have had difficulty coming to
terms with the limitations caused her illness. There is considerable
temptation to wish to assist her in regard to her difficult
financial circumstances caused by her Hepatitis C condition,
if the evidence allowed one to do so.
 However, regrettably for the Claimant, she was unable
to provide the proof required by Articles 3.01 and/or 3.02,
because she could not establish that she received a transfusion
during the Class Period, either by health records of other
defined corroborating evidence. 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. An Arbitrator similarly has no jurisdiction
to alter, enlarge or disregard the terms of the Settlement
Agreement or Plan, or to extend or modify coverage.
 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 17th day of June
DANIEL SHAPIRO, Q.C.