Appeals: Confirmed Referee Decisions : #92 - June 18, 2003
The Claimant submitted a request for compensation in the
context the 1986-1990 Hepatitis C Settlement Agreement claiming
that he had contracted Hepatitis C following receipt of one
or more blood transfusions in 1987.
After a lengthy exchange of correspondence and documentation
between the Administrator and the Claimant, the Administrator
finally rejected the Claimant's request for compensation on
August 23, 2002, on the basis that he had not provided sufficient
evidence that his first infection had occurred during the
Class Action Period.
The Claimant signed a Request for Review and asked that the
Administrator's decision be reviewed by a Referee. The Claimant
did not specify the reasons for his Request for Review, but
he evidently wants to be compensated according to the relevant
Transfused HCV Plan.
It is agreed that, during the Class Action Period, i.e., in
1987, the Claimant received five units of blood. The Claimant
indicated for his part in his claim for compensation that
he had received only two units of blood whereas the Claimant's
medical record indicated five units.
An examination of the donors of the five units of blood and
of the letter signed by Héma-Québec's Medical
Director dated June 7, 2002 revealed that donors of each of
the 1987 blood transfusions tested negative on the Hepatitis
C tests. The letter of the same Héma-Québec
Medical Director, this time dated February 17, 2003 (pages
164 to 166 of the Claimant's record) confirms the same thing,
but also provides in an appendix a list of the said transfused
units and details on the tests conducted for each of the donors.
All donors of the October 1987 transfused units gave blood
afterward and all came out negative, and this, at least on
two occasions. One of the donors even gave blood 15 times
and always tested negative. The Claimant submitted no evidence
against Héma-Québec's traceback.
Given these facts, has the Claimant established to the satisfaction
of the Undersigned and especially in compliance with the wording
of the Class Action Settlement Agreement that he had contracted
HCV as a result of one or the other of these five transfused
units during the Class Action Period?
The Transfused HCV Plan's Section 3.04 reads as follows:
" 3.04 Traceback Procedure
(1) Notwithstanding any other provision of this Agreement,
if the results of a Traceback Procedure demonstrate that one
of the donors or units of Blood received by a HCV Infected
Person or Opted-Out HCV Infected Person before 1 January 1986
is or was HCV antibody positive or that none of the donors
or units of Blood received by a Primarily-Infected Person
or Opted-Out Primarily Infected Person during the Class Period
is or was HCV antibody positive, subject to the provisions
of Section 3.04(2), the Administrator must reject the Claim
of such HCV Infected Person and all Claims pertaining to such
HCV Infected Person or Opted-Out HCV Infected Person including
Claims of Secondarily-Infected Persons, HCV Personal Representatives,
Dependants and Family Members. "
This 3.04(1) paragraph, when read with the definitions contained
in Section 1.01, tells us therefore that if the results of
a targeted Traceback Procedure demonstrate that none of the
donors or units of blood received by the Claimant is or was
HCV antibody positive, the Administrator must reject this
HCV Infected Person's claim.
Therefore, applying the evidence concerning this Claimant
to the wording of the Settlement Agreement and the wording
provided in the Plan (in particular to the aforementioned
Section 3.04), it appears evident to me that the Claimant
did not establish evidence that he had contracted HCV as a
result of the blood transfusions in 1987 and that the Administrator
had no choice but to reject the request for compensation submitted
by the HCV infected Claimant. As Referee, the Undersigned
must come to the same conclusion.
Neither the Referee nor the Administrator have any discretionary
authority to approve a claim or a referral if the evidence
required under the Agreement has not been provided. The Referee
nor the Administrator for that matter have the authority to
ignore or modify the terms, conditions and provisions of the
Agreement.
The Claimant did remove the burden of proof establishing evidence
that he had received a transfusion (in fact, he received 5
transfusions) during the Class Action Period but was unable
to remove the burden of proof that he had contracted HCV as
a result of one of these transfusions.
The Administrator has thus rightly rejected the claim for
compensation, and I maintain such a decision to reject the
request for compensation by the Claimant.
Montreal, June 18, 2003
(S) Jacques Nols
Jacques Nols
Referee