Appeals : Confirmed
Referee Decisions : #10 - July 19th, 2001
D E C I S I O N
1. On March 19, 2001, the Administrator denied the claim
for compensation as a Primarily-Infected Person under the
Transfused HCV Plan. The claim was denied on the basis that
there was insufficient evidence that the Claimant received
blood within the Class Period.
2. The Claimant requested that the Administrator's denial
of her claim be reviewed by a Referee.
3. Both parties waived a hearing to review the Administrator's
denial of the claim.
4. The relevant facts are not in dispute and can be summarized
as follows:
(a) The Claimant is infected with Hepatitis C.
(b) The Claimant received blood transfusions in 1960, 1961,
1965, 1967, 1968, 1972, 1976 and 1992.
(c) The Claimant did not receive a blood transfusion in
the period January 1, 1986 to July 1, 1990.
(d) The Administrator denied the claim on the basis that
the Claimant did not receive a blood transfusion during
the Class Period.
5. Based on these facts, it is clear that the Administrator's
decision must be sustained.
6. The 1986-1990 Hepatitis C Settlement Agreement defines
"Class Period", as the title implies, as the period
"from and including 1 January 1986 to and including 1
July 1990." The Transfused HCV Plan provides the identical
definition. The Plan defines as "Primarily-Infected Person",
as status a successful Claimant must achieve, as "a person
who received a Blood transfusion in Canada during the Class
Period
".
7. Pursuant to Article 3.01 of the Plan, a person claiming
to be a Primarily-Infected Person is required to produce to
the Administrator medical records "demonstrating that
the Claimant received a Blood transfusion in Canada during
the Class Period."
8. In this case, it is obvious that the Claimant was not
able to provide the proof required by the Article because
the last two blood transfusions received by the Claimant occurred
in the years 1976 and 1992 respectively. Accordingly, the
Administrator had no alternative but to deny the claim.
9. The role of the Administrator under the Settlement Agreement
is to administer the Plan in accordance with its terms. More
specifically, the Administrator has an obligation to review
a claim to determine whether the required proof for compensation
exists. The language of the Plan is clear and, unfortunately
for the Claimant, the Administrator has no discretion to allow
a claim where the required proof has not been produced. The
Administrator has no authority to alter or ignore the terms
of the Plan. Similarly, a referee or arbitrator, called upon
to review decisions of the Administrator, is bound by the
terms of the Plan and cannot amend it or act contrary to its
terms.
10. It is clear from the review of the terms of the Hepatitis
C Settlement Agreement that it was specifically intended to
cover claims relating to a defined time period, namely January
1, 1986, to July 1, 1990. It is equally clear that it does
not apply to persons who received blood transfusions at times
other than during this defined time period.
11. In the result, the administrator properly determined
that the Claimant was not entitled to compensation under the
Plan and the Administrator's decision is hereby upheld.
Dated at Vancouver, British Columbia, this 19th day of July,
2001.
________________________________
John P. Sanderson, Q.C.
Referee
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