Referee Decisions : #155 - August 9, 2004
Decision of the Court having jurisdiction in the Class Action attached - November 4, 2004
D E C I S I O N
Claim No. 11910
 The Claimant, now a Saskatchewan resident and 48 years of age, applied for compensation as a Primarily-Infected Person pursuant to the Transfused HCV Plan (“the Plan”), which is Schedule A to the 1986-1990 Hepatitis C Settlement Agreement (“the Settlement Agreement”).
 Pursuant to the terms of the Settlement Agreement and the Plan, the “Class Period” (January 1 1986 to and including July 1, 1990) is the only period of time in respect of which compensation may be available. Further, while there are many possible sources of infection with respect to the Hepatitis C Virus (“HCV”), the Plan only provides compensation for individuals who received transfusions during the Class period of defined blood products, generally, but with an exception, where the donors have been tested and found to be infected with the HCV.
 However, by letter dated November 18, 2002,(1) the Administrator denied the claim, having carefully reviewed the material provided in support of the claim, for the following reasons:
… You have not provided sufficient evidence to support your claim that you received blood during the Class Period.
In your original application you stated you were transfused in UBC Hospital or Vancouver General hospital in 1988 or 1989. No transfusion documents were submitted with your claim. In cases where the claimant is having difficulty obtaining documents to support (sic) they received a transfusion, the traceback department contacts Canadian Blood Services to request their assistance in obtaining transfusion information directly from the hospital. The final response to this request was received from CBS September 22, 2003. Both Hospitals confirmed they searched their blood bank records and you were not transfused. Therefore, you do not qualify for compensation, based on Article 3.01 (1a) of the 1986-1990 Hepatitis C Settlement Agreement, because you did not have a blood transfusion between January 1, 1986 and July 1, 1990.
 By way of Request for Review by Arbitrator/Referee (the “Notice of Appeal”) dated November 9, 2003,(2) the Claimant requested a review of the denial of her claim by the Administrator.
 The Claimant now specifically maintains that she received a blood transfusion during the period of time that she attended for surgery at UBC Hospital in Vancouver on June 13, 1988, while she was a resident of British Columbia. In TRAN1 the Claimant answered “once” to the question asking if the HCV Infected Person received a Blood transfusion in the Class Period (3) and “no” to the question asking if she had received Blood transfusions in Canada prior to 1986. In TRAN2, her present Saskatchewan G.P. stated “tattoos” and “hysterectomy in 1981” as other risk factors. He stated that the Claimant did receive Blood but handwrote “Information from patient” above that.(4) The Administrator requested that Canadian Blood Services (CBS) conduct a Traceback. The Traceback results are summarized in an attachment to a letter dated August 28, 2003 from CBS, which shows that no transfusion was given to the Claimant, either at the University Hospital, UBC site, or Vancouver General Hospital, where the Claimant attended for further surgery in April 1989.(5) A further letter from CBS dated September 17, 2003 summarizes the Claimant’s file with them and essentially confirms the earlier CBS findings, but supplies further details.(6)
 Notwithstanding the Traceback results, in her appeal documentation, the Claimant states that blood was in fact given on June 12 or June 13, 1988 at UBC Hospital. She states (7) as follows:
“DATE Blood was given
June 12, 1988 at UBC Hospital – records & myself confirm I lost a lot of blood for the surgery of bi-lateral Mastectomy at this time. Acheson & Company out of Victoria recently informed me that the above date is correct from the file they have. Acheson & Co. are lawyers presently involved with me in the “Breast Litigation” with Dow Corning.
More information will be presented to you further in my statement and my own words.
Also: I have re-used a used “Tran 5” as was requested, I hope I have followed your instructions as I was asked to do, to be able to file before the deadline…
 In her Request for Review form, (8) the Claimant provides the following reasons for review:
“I … wish to have the Administrator’s decision reviewed as I truly believe that given the time I surely need, I will do my living best to produce docuements (sic) to prove my claim to the best of my abilities. I know in my heart and soul that I was given blood June 13-1988. My life since June 13-1988 has been one step short of hell. My physcial (sic) and mental health have been thru (sic) so much stress since that first Bi-Lateral Mascetomy (sic), it’s going to be pretty tough to forget those 2 yrs of my life, plus living with silicone running thru my system, now I add Hep “C” to the list. No! I don’t think I will ever forget those 2 years. I know in my heart & soul, Dr. W. told me I had been given blood that June 13th. I remember well that day, at least certain parts because the problems that came after and on that day, I shall never forget. For Gods sake, I just had both breasts removed, that alone would be termatic (sic) to any women (sic). I had to be tough, I had a 6 yr old boy to raise alone. To think of all the things that boy had to see his mom go thru (sic), is sickening. Which I may add, “not pertaining to this claim”, J, my son, turned out to be an honest, hard working young man, he will never forget parts of these past 15 years, neither shall I.
The day Dr. W. told me I was given blood was when I was in my room. I knew J would be scared when he came to visit and saw the bag of blood, not full, but quite full. I wondered myself. So when Dr. W came to see me I asked what it was for? He said, I had lost to (sic) much blood and had to be given some. I was still bleeding so that was the reason for the drain. I was in a lot of pain, more than I expected, I felt like I was hit by a Mack truck, I was scared because of the surgery and the drain bag. I started to wonder if there was a problem in the operating room. I know I told admitting I would prefer no blood unless it was really necessary, she said when I sign the release that it gives the Dr. permission to perform stuff if necessary when I’m out. So to get blood I was concerned. Dr. W. said I was fine the drain had slowed, body fluid and blood were going into the bag. I had the bag for awhile, how long I don’t know. I remember the tubes when they came out. It felt like snakes moving thru (sic) my chest, really gross.
When I original (sic) filed for this Hep “C” claim, I never for a minute thought the blood services would NOT find me on there (sic) files. When I read that letter I was floored. I am new at this claim stuff, I thought or presumed I’d done what was needed.
I informed Hep “C” I was waiting for Medical Files. First UBC sends me a form, I of course fill it out wrong when I sent it, same for Vancouver General Hosp. “I have enclosed documents for you to see”. Back and forth, back and forth til final (sic), I get 2 files from UBC and Vancouver General none. Finally, after sending Van. Gen. Hosp. a request form, twice, they write and say, “there’s no record of me”. Why not say so in the first place? Now, finally I have 2 files, both from UBC and both are very similar. Meanwhile the “Hep C” claim folks have results from the blood people. The Blood people say, UBC, and Vancouver General, say I wasn’t transfused at either place. Now! the stress has been put on me to prove the truth. Why would Vancouver General say: I wasn’t there to me?, tell the Blood Bank, I’m not transfused according to Blood Bank records, then charge, my lawyers for the Breast Litagation (sic) in BC, for my records, actually that bill, UBC Hospital wasn’t even mentioned. I feel I’m getting the run around by the hospitals mentioned and truly believe I did get blood as I said, there just has been some error. My Lawyers for the Breast Litagation (sic) Claim requested my files back in 1993-94, when a file is requested for an on going claim, are not those files to be kept? Why then were my files perged (purged)? Things just don’t add up where those two hospital (sic) are concerned. Also my Victoria lawyers have 126 pages from the hospital. I in turn was sent a lot less. I have requested a copy of what Medical Files they have to prove my case further. I also have contacted or I should say, I have sent a release form to the Dr. before surgery and the Dr. after surgery in hopes to prove I had “HEP B” before and after surgery, yes, but not “HEP C” before the 1988 surgery and I also hope to prove this to you. If I may, I would also like to say my son J was tested for “Hep C” aprox. 2000. I will also get confirmation of exact date from my son that he carries the “Hep B” but does not carry the “Hep C” virus.
If the Administor (sic) see (sic) fit, I will do my very best to prove my case if given the chance to do so. My health is poor to say the least. To prove this case even if it were simple will and would put me through a lot, what I’ve read on what I have to do will be one step short of a miracle. God willing I will have the strength and understanding to give you what you need to qualify me in this settlement. I will get every hospital and Dr. to send me my records, I am in the process as we speak. All documents pertaining to my case will be forwarded on to you in turn I hope to prove I did get this virus in 1988 as I remember and after you see the paper work you too will believe me and except (sic) my claim.”
 The Claimant advised that she wished the matter to proceed by way of Reference and after numerous conference calls and requests for additional medical records, she requested an in-person hearing.
 Fund Counsel’s written submissions, dated June 1, 2004, set out the position of the Administrator. The Administrator concedes that the Claimant was hospitalized at UBC Hospital in Vancouver and underwent surgery on June 13, 1988. Although it is acknowledged that a request for blood form indicating the Claimant’s blood type was done on June 12, 1988, the day prior to her surgery, (9) it is argued that the Claimant has failed to supply the proof for compensation required by Article 3 of the Plan. Article 3.01 requires the Claimant to provide the evidence demonstrating that she received a Blood transfusion in Canada during the Class period. If a claimant cannot provide the records required by Article 3.01(1) (a), Article 3.01(2) states that a claimant must deliver evidence establishing on a balance of probabilities that she received a Blood transfusion in Canada during the Class period. While the Claimant may not be able to establish the cause of her infection, she did have other risk factors. Also, according to the publication of the Canadian Liver Foundation “Hepatitis C Medical Information Update”: “In 10% of cases of hepatitis C, according to U.S. data, the source of the infection cannot be identified.” A further article published in the Canadian Journal of Infectious Diseases, at page 361 states that unknown factors contribute to 20.8% of all cases of Hepatitis C. In this case, the Claimant did have other risk factors: tattoos, prior surgery, prior infection with Hepatitis B and possible IV drug use. In a report from Dr. B dated May 22, 1997(10) it is stated that “she is a previous drug abuser” and an entry from Dr. C. dated June 26, 1986 (11) stated “use IV cocaine 2 months ago” and “(Previous Drug tattoo user)”. In total, it is argued that the Claimant has failed to produce evidence to satisfy the proof necessary in Article 3.01(2).
B. Facts, Summary of Evidence
 An in-person hearing was held in Saskatchewan on June 2, 2004. 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.
 Prior to the hearing, however the Claimant had, in numerous conference calls with the Referee and Fund Counsel, expressed concerns that she had encountered considerable difficulties gaining the co-operation of medical doctors necessary to enable her to obtain the records necessary so as to properly present her case. She requested the assistance of the Referee in obtaining such records. The Referee did in fact request and obtain certain records from a Dr. W of Vancouver (one of the surgeons who operated on the Claimant) and Dr. WH, a general practitioner from BC. The Claimant stated that she had not met and never recalls any female surgeon operating on her and was therefore surprised to see the name of Dr. K (General Surgeon) show up on the operative reports. Therefore, in order to address the Claimant’s concerns in this respect, two letters and a number of telephone inquiries were made by the Referee with the office of Dr. K, the other surgeon who operated on the Claimant on June 13, 1988, as well as the Women’s Health Centre, on the suggestion of Dr. K’s office.
 In the result, the matter will indeed be adjudicated upon based on the written materials and testimony tendered by the parties, together with certain documentary materials obtained post-hearing, about which more will be said shortly.
 The following documentary evidence was tendered at the hearing:
Exhibit 1 - Initial Claims Centre File (pages 1 – 136)
Exhibit 2 - Materials supplied by Claimant to Claims Centre re: “Medical Papers received from Dr. G”, received February 4, 2004 (pages 1 – 83)
Exhibit 3 - Materials supplied by Claimant to Centre dated February 17, 2004, containing a 3-page typewritten letter from KL, a friend of the Claimant, dated Februray15, 2004. (12)
Exhibit 4 - Office chart of Dr. WH, provided under cover of invoice of March 17, 2004, to the Referee, consisting of 83 pages
Exhibit 5 - Further materials supplied by Claimant to Centre, including office chart of Dr. C. and Creston Valley Hospital records, documents on Breast Implant Surgery, received by Centre on May 10, 2004 (pages 1-101)
Exhibit 6 - Dr. W’s cover letter to the Referee dated May 20, 2004, with attached copies of office chart (pages 1-19).
Exhibit 7 - Further submissions from Claimant to Centre dated May 18, 2004, with attached materials, including notarized statement of LL, a friend of the Claimant’s, dated May 12, 2004
Exhibit 8 - Letters from Referee to Dr. K dated May 14, 2004 and May 20, 2004, requesting office chart (Dr. K’s office advised that they no longer had patient records from 1988 and that if they still existed they would be at Women’s Hospital, letter to Women’s Hospital from Referee dated May 25, 2004 and fax from BC Women’s Health Centre to Referee’s office, dated May 31, 2004 (indicating that no records could be found in respect of the Claimant)
Exhibit 9 - Hepatitis C Medical Information Update, Canadian Liver Foundation
Exhibit 10 - “Enhanced Surveillance of Acute Hepatitis B and C in Four Health Regions in Canada 1998 to 1999”, Canadian Journal of Infectious Diseases, Vol. 12 No. 6 November/December 2001
 In terms of viva voce testimony, Ms. Miller testified as to her broad background in most areas of hospital nursing as well as her experience with the Claims Centre since May 2000 including her current position as Appeals Coordinator. Commenting on Exhibit 1, Ms. Miller noted that the Claimant alleged only one blood transfusion in her lifetime.(13) In TRAN2 (14), the Claimant’s Saskatchewan g.p., Dr. F, stated that based on “Information from patient”, the Claimant did receive a Blood transfusion during the Class period. In TRAN 3 (15), the Claimant declared that to the best of her knowledge, information and belief, she has never at any time used non-prescription intravenous drugs and was not infected with Hepatitis Non-A, Non-B or the Hepatitis C virus prior to January 1, 1986. The RIBA test, dated September 12, 2001, (16) confirmed that the Claimant had tested positive for the HCV antibody. The PCR test dated December 13, 2001, (17) shows that the Claimant tested positive both for the Hepatitis B Surface Antibody and Hepatitis C. Ms. Miller explained that once a doctor reports risk factors, the “Other Risk Factor Inquiry Form” is sent to the claimant. In this case, the Claimant reported (18) one tattoo in the early 70’s and another between approximately 1980-1982. She further did not check off any of the other risk factor boxes, including intra-nasal drug use, non-prescription intravenous drug use, prison/incarceration and dialysis and then certified her statement to be true and correct. Ms. Miller noted that the Claimant had mentioned that she had suffered silicone poisoning in 1988. The UBC Health Sciences Centre Hospital records indicate that the Claimant was admitted to hospital in June 1988 under the combined service of Dr. K (General Surgeon) and Dr. W (Plastic Surgeon). One would normally expect to see transfusions only where there was extensive bleeding or blood loss, of which there was no evidence here. The Claimant had placed considerable emphasis on the fact that she had a drainage bag, which in the Claimant’s view supported her position that there was extensive bleeding. Ms. Miller noted that there was in fact a hemovac used here. This is a device consisting of a hard plastic tube a little bigger than a straw inserted between muscles at the surgical site. A pressure ball attached to it can be squeezed, providing negative pressure and in this case the unit had springs inside the bag with which to provide suction. This can assist in removing oozing that is normal for mastectomies and it helps the healing process by preventing anything accumulating that may delay such process, as well as preventing bruising. Its use does not signify that there was blood loss as it would be routinely used in such cases. The General Surgeon, Dr. K, performed the mastectomies, after which the Plastic Surgeon, Dr. W, performed immediate reconstructive surgery, all while the Claimant was under the same general anesthesia.
 In terms of specific records, Ms. Miller pointed out that the Pre-Operative Check List (19) showed the Claimant’s hemoglobin, at 137, to be within normal limits. Blood was grouped and screened pre-operatively, (20) showing the Claimant’s blood type to be B-positive. However, there is nothing noted under “blood donor no.” or elsewhere to suggest that blood was ever required or used. This is just a blood type match – if the Claimant had too many antibodies it would be harder to find blood for her, if required. Dr. K’s Operation Report (21) in respect of the portions of surgery that she performed was very detailed and discusses achieving hemostasis through electrocautery, with no mention or suggestion of extensive bleeding. In Ms. Miller’s view, for bleeding points to be controlled by cautery, they would have to be small. A bigger bleed would involve stopping the procedure and recording the event. Dr. W’s Operation Report (22) describes the bleeding points being well-controlled with cautery, a small amount of blood oozing and refers to a small suction drain (hemovac) being but into place. The patient was reported to have been sent to Recovery in good condition. Again, there is no mention of anything that might suggest extensive bleeding. Any significant blood loss would be reported on Operation Reports and here there were in fact two such reports, neither of which made the slightest mention of significant bleeding. The Operating Room Nursing Record (23) would also show a blood transfusion if one were given and nothing was indicated here on the part of either the scrub nurse or the circulating nurse. If blood was infused during surgery, it would have been recorded on the Anesthesia Record, whereas here, (24) there was no such reference. The record shows normal hemoglobin levels, records the normal saline solution administered intravenously and is required to show all fluids given, including blood, and the times fluids were administered. Here, only the saline was shown. In fact, if blood was used, stickers with bar codes would have been used and entries would have been made on various portions of the chart. Since Ms. Miller started as a nurse in 1975, blood has uniformly been required to be strictly recorded. This record also records blood pressure, which although up a little did not vary much, which is another reliable indicator that no blood was required. The PARR (Post Anesthesia Recovery Room) Clinical Record (25) would also record either extensive blood loss or a transfusion, neither of which was shown here. If blood was given and running, it would definitely have been noted in this record. Physician’s Orders (26) would also record an order for transfusion if one were given. Here there is no reference to transfusion. The Discharge Summary, dated June 20, 1988 (but dictated September 1, 1988) (27) notes that the Claimant’s principal postoperative problem was pain. The drains were removed on the second postoperative day and she was finally ready for discharge by the seventh post-operative day. Again there is nothing to suggest bleeding or a transfusion. While the Claimant suggested that the delay in dictating the summary makes it unreliable, Ms. Miller indicated that it is standard for these to be late and in some cases they take between one and two years. The Patient Cumulative Summary (28) showed hemoglobin the day before, the day of and the day after surgery as within normal limits (137, 138, 126). As this indicates the oxygen-carrying ability of blood, if a person needed blood, one would see hemoglobin numbers of less than 100. The Fluid Balance Record (29) shows the records of the nurse while the patient was on the floor. If blood had been administered over that period of time, it would have been considered a fluid delivered intravenously that would have to be recorded as such. Here it was not.
 The Infection Report (30) was at that time standard where a patient was known to have Hepatitis B, in terms of precautions. The Profile and Initial Nursing Assessment (31) listed previous hospital experiences as including hysterectomy 1984 Mission Hospital, laparoscopy x 3-4 for infections, ovarian cysts, appendectomy x 2 (the latter meaning simply that the Claimant was hospitalized twice in that regard, not that she had two appendectomies).
 Ms. Miller testified as to the usual procedures of Blood Banks. CBS services are only as good as the hospitals’ Blood Bank records. Here, Blood Bank records were requested from Vancouver Hospital and Health Sciences Centre for both April and June 1988, as initially the Claimant was unsure when she underwent this surgery. Although hospitals can purge their charts in time, blood services records are not destroyed. Once the Claimant told the Centre the date and location of the surgery, the Centre started contact with CBS. The Traceback search report from University Hospital, UBC Site for April and June 1988 indicates: “Health records purged @ UBC. Patient not transfused according to Blood Bank records.” A similar report was received re: Vancouver Hospital covering the period April through June 1989. Based on these reports, coupled with a review of the health records supplied, the Administrator decided that there was simply no evidence of transfusion.
 The Claimant’s advocate suggested to Ms. Miller that he had heard from a doctor that many records are inaccurate and that while they would usually record blood transfusions, quite often they would not report if they simply “topped the patient off” with blood, just enough to keep them going. Ms. Miller replied that the only way you can get blood is to have it cross-matched, find the Claimant’s blood type, find matching blood and then record the number of units taken out of the Blood Bank. The procedure is that two people have to sign out the blood. The process starts with a requisition, a doctor’s order, one person reads out loud the patient’s name and date of birth, which is then compared to the patient’s records, two people sign to say that blood is started and then it is logged. No part of these processes was evident here. In the operating room, normally blood is given by the Anesthetist. While there is usually emergency blood in the Blood Bank, it also has to be signed out and logged. Universal donor blood is not used to top someone off, for example someone who has low hemoglobin. Instead, it is used to save someone’s life. There was no suggestion from any of the records that there was any emergency situation in the Claimant’s case.
 Ms. Miller was also asked about other risk factors for Hepatitis C and she referred to intravenous drug use, intranasal drug use, tattoos, body piercing (except ears), prison/incarceration, Hepatitis B, dialysis treatment and other traumas or surgeries. Going into hospital is a risk factor. The more often you go in, the greater the risk. Infected scopes have recently attracted a great deal of publicity. There has to be “blood to blood contact” for transmission of the virus to occur.
 The Claimant then testified as to the circumstances surrounding the June 1988 surgery. She saw the plastic surgeon, Dr. W, a number of times with respect to pain that she was experiencing in her breasts. He said that they would remove breast tissue (although this would not necessarily eliminate the pain) and put in implants. They discussed other options such as just taking off the nipples, but that would look bad and there were no side effects of implants. She opted to have the breasts removed altogether.
 She stayed with her sister the night before the surgery.(32) She recalls having had a shot of something that made her dozy before the anesthetic. She recalls Dr. W saying that they would have to draw a picture on her. She met the anesthetist and walked into the operating room. She has tiny veins and is scared of needles. In the recovery room, she was in a lot of pain and had some nausea but was given another shot and felt better. She can remember seeing a bag with some blood in it although she was not sure if it was after the 1988 or 1989 surgery. After she was back in her room, Dr. W came in with his hat and gown on and asked how she felt. The Claimant asked about her breasts. She asked Dr. W about the bag and he replied that they put a tube in to draw blood from the chest. She knew it was a drain bag. She asked if she had a transfusion and he replied: “No, but we had to give you a bit of blood.” This was the only time the issue of blood was brought up. She was “all doped up” and had not yet gotten out of bed. She was upset, not due to the blood issue, but rather due to the pain and swelling she was experiencing and to the deformity of her breasts that she was already noticing. It was obvious that the surgery had not gone as planned. She had opted to have the nipples left, as she was still young. Dr. W told her that the pain was bad because they “had removed a lot of meat from her chest.”
 In terms of what occurred after the surgery, it is clear that the relationship between the Claimant and Dr. W deteriorated dramatically. While somewhere in her records it was mentioned that she had 18 breast surgeries, the Claimant says that it was actually 12 or 13 after the June 1988 surgery, the first of which was performed by Dr. W in April 1989 and then from September 1989 until 1998 or 1998, the rest of the surgeries were performed by another plastic surgeon, Dr. G. In addition to the breast surgeries, she had teeth surgically removed in 1994, hernia surgery under general anesthetic, surgery to remove a lump under her arm and kidney stones. She had neck surgery in 1999. She had a history of ovarian problems including 7 tumors and 6 cysts, she was raped and became pregnant when she was very young and there was an operation to take out the baby, her stomach was ripped while leaving the hospital, requiring stitches, she became pregnant later on and was hit in the stomach after which the baby was removed, her appendix was removed, she underwent a liver biopsy, three or four laparoscopic surgeries and required stitches for an accident where she almost cut her thumbs off.
 The Claimant has attempted to the extent possible to lead a hard-working and industrious life, which is particularly commendable given the numerous medical and personal issues she had to contend with. Her son was born in 1982. She was on welfare to be with her son, not because she did not want to work. In the late 1980’s she cut shake blocks in winter. She was involved in fishing on the ocean. She was an industrial first aid attendant in forestry. She started many businesses. Since her 1988 surgery she has not had one pain-free day.
 Under cross-examination, she noted that she could not recall whether it was after the June 1988 surgery that she saw the drain bag, but does remember that it was while she was on IV. She thought there was a separate bag on the floor, about 4” x 3”. She did not know about the class action litigation until she moved to Saskatchewan and saw an item on the news, after which she called the Centre as she felt that she deserved compensation.
 At the conclusion of evidence and during argument, the Claimant indicated that she wished to arrange for Dr. G to provide a report indicating that based on the magnitude of the surgery she underwent in June 1988, bleeding to the point of requiring a transfusion would be almost inevitable. She also stated that although Dr. W had replied to the Referee’s letter and provided his chart, she was dissatisfied with it and wanted him to be questioned further. It was determined that the Claimant would be granted leave to supply further materials from Dr. G, and was provided three weeks within which to do so. It was also determined that the Referee would write to Dr. W with some specific questions. Fund Counsel would have the opportunity to respond to any reports that Dr. G might provide and both parties would have an opportunity to respond to Dr. W’s response to the Referee’s questions.
 After the hearing, the following letter was written by the Referee to Dr. W on June 7, 2004:
Further to my discussions by telephone last week with your assistant, this will confirm that I have been appointed by the Supreme Court of Ontario to serve as the Saskatchewan Referee of disputes between the Administrator of the 1986-1990 Hepatitis C Class Actions Settlement and individuals who claim to be entitled to benefits pursuant to the said Settlement Agreement.
I am Referee involving a claim by [Claimant] for benefits pursuant to the Settlement Agreement. The sole issue that I am required to determine is whether or not [Claimant] received blood or blood products relative to surgery that she underwent at UBC Hospital on June 13, 1988. [Claimant] has advised that you informed her following the surgery that she had received blood at that time. For clarification, I understand that [Claimant] raised with you certain other concerns she had with respect to the surgery and I wish to assure you that none of these issues are relevant to the matter I am charged to determine.
As I indicated in my previous correspondence, it may well be that we will ultimately have to arrange to have you testify as to your recollection of events. However, in order to minimize the prospects of this occurring and in order to limit disruption to your practice, I remain optimistic that this matter can be dealt with without having to arrange to have you testify, if you are in a position to provide answers in writing to a few brief questions. Specifically, we are looking for your answers to the following:
1. Did you (or anyone else that you are aware of) ever advise [Claimant] that she had received blood or blood products at any time?
2. If so:
3. If you do not recall telling [Claimant] that she had received blood, or if you recall that this conversation did not occur, please advise us how you can recall this or what causes you to conclude that she did not receive blood.
a) When did you advise her of this and who was present?
b) Why was blood required? and
c) What if any recollection you have as to when and how blood was administered, under whose orders and in what quantity?
I have received certain health records from [Claimant] pertaining to her stay at UBC Hospital, some of which do not form part of the records which you were kind enough to send to me. In responding to my request, in order that you may have all of the information available to you that I have in that regard, I am taking the liberty of enclosing copies of the following records:
1. Exhibit 1 - pages 68 -88, 93, 100, 101, 111-115, 121-122, 124, 128, 132-134
2. Exhibit 2 – pages 10-13 inclusive.
Please note that I am not requesting a medical-legal report at this time. I am prepared to be responsible for your reasonable account reflecting time spent in responding to this request, in an amount not exceeding BCMA guidelines. I require this information by not later than June 22, 2004. I look forward to hearing from you and thank for your continued co-operation.
 Dr. W replied by way of letter dated June 10, 2004, which has been received into evidence as if it had been tendered at the hearing, and entered as Exhibit 12. Because the involvement of Dr. W appears to be pivotal to the Claimant’s case, this letter is set out virtually in its entirety below:
… I would like to clarify the issue of possible blood transfusion for (Claimant) who was admitted to the UBC Hospital on two occasions: June 12, 1988 and April 24, 1989.
I have already forwarded all records in my possession, and will summarize the history of this case. All statements in quotation marks are lifted directly from these records.
November 6, 1987 – [Claimant], age 31, was referred to me by her family doctor (Dr. C.) requesting that her breasts be removed because of breast pain. I was reluctant to do it, telling the patient that “in my mind this operation is not a particularly good one because it is impossible to completely remove all breast tissue and therefore is not considered a cure for breast pain which may still persist.” I therefore decided to refer her on to a breast surgeon for another opinion.
November 25, 1987 – [Claimant] was seen by Dr. K, a General Surgeon specializing in breast disease, who told her that “the problem is not curable” but notes in her letter that the patient “insists over and over again that she wants her breasts removed.” The patient was then referred back to me as the plastic surgeon who would be reconstructing her breasts once the mastectomy had been done by Dr. K.
May 1988 - The patient was once again seen by me at which time I told her that “the pain may not be cured, that skin could die, and that the appearance and feel may be poor”.
June 13, 1988 - Surgery at UBC
The patient undergoes a subcutaneous mastectomy by Dr. K, assisted by resident KE. I then enter the operating room and placed two breast implants (170cc Silastic II) beneath her pectoral muscles. Drains placed by Dr. K were removed two days post surgery. The patient was discharged from hospital on June 20, 1988.
January 1989 – The patient was seen in follow-up and said that she “can’t sleep” and that she is in “constant pain”. Despite repeated advance warnings about a predictable poor cosmetic result, she complained that: “one side is too hard and one side is too floppy”. I reminded her of my reservations about her surgery and pointed out that the results were really as predicted. Nevertheless, I offered to try to help by doing another operative procedure to try to improve things.
April 25, 1989 – Surgery at UBC
The patient was taken to the operating room for repositioning of the left breast implants and a capsulotomy procedure. The patient was discharged from hospital on April 28, 1989. The patient’s discharge from hospital was problematic and she was demanding immediate further surgery because of what she still perceived as being an inadequate cosmetic result. She was informed that it was too soon to properly assess the results of her surgery which had only been done days previously. According to my notes, she then “stormed out of the hospital.” I have not seen her since.
In 1989 this patient obviously had a problem understanding what I was trying to tell her. Now, as I understand it, [Claimant] claims that, at some point, I told her she had been given a blood transfusion at the UBC Hospital. In this regard, she is mistaken.
Firstly, I have no recollection of telling this patient she received a blood transfusion.
Secondly, I have carefully reviewed all records and there is no evidence that a blood transfusion was ever given to [Claimant] during her admissions to the UBC Hospital. My experience in the British Columbia Hospital system is that a blood transfusion is a major event and it is always very well documented.
Lastly, since joining the staff at the UBC hospital in 1983, I do not recall ever having given a blood transfusion to any patient. The reason for this is that UBC hospital is utilized by plastic surgeons for straightforward non-major surgery. I have certainly had patients undergo blood transfusions at the Vancouver General Hospital in Vancouver where we look after major trauma victims, complex reconstructions, and burn patients. The UBC Hospital simply does not see such cases.
I note from the patient records that this patient was assessed for her blood type. There was, however, no cross match ever done. In fact, at UBC in the 1980’s and the first part of the 1990’s, a determination of blood type was routinely done for all patients undergoing any breast surgery including mastectomy, breast reconstruction, breast reduction and breast augmentation for cosmetic reasons. I always found this policy an expensive waste of time, and it was eventually discontinued. Thus, the fact that this patient’s blood type was determined in no way implies that there was any intention of actually giving a transfusion.
I also note that the patient was kept in hospital for one week after her mastectomy procedure, something which might imply she underwent a “major” medical procedure. In fact, mastectomy plus implant insertion is not major, and now would be done as a daycare procedure. Even in 1988, the typical stay for a case of mastectomy and implant insertion would have been only two or three days. All indicators from the records are that the patient was kept in hospital for a relatively long time (seven days), because of complaints of pain, not concerns of blood loss.
The utilization of suction drains (inserted by the General Surgeon, Dr. K.) was a routine procedure in 1988 for mastectomies. It was done to prevent the small fluid collections which routinely collect, and in no way implies any unusual blood loss during the surgery itself. Drain removal after only two days is also consistent with a very small amount of drainage.”
 On July 6, 2004 a report dated June 15 from Dr. G to the Claimant was received by the Referee. This letter has been received into evidence as if it had been tendered at the hearing and entered as Exhibit 13. He states:
…I am not certain that I can really help you a great deal.
All of our records with regards to your care no longer exist. Therefore, I do not have any copies of records of the surgical procedures that I may have had in my chart when your care with transferred from Dr. W.
There may be records held at E___ R___ Hospital in Health Records there. Those medical records you would be able to request yourself; they are not really available to me at this time.
In general terms, blood loss is a significant risk and potential problem with the type of surgeries that you have had. Blood transfusions are given to replace lost blood. For elective surgical procedures, it is exceedingly rare that a patient is given non cross-matched blood. Non-cross-matched blood in my experience has only been given under life-threatening conditions or in the Emergency Department. Certainly, operative records always, in my experience, record and reflect any blood given. In fact, all fluids, drugs, blood substitutes or blood are all recorded in the operative record.
While anything is possible, I do not really think it is very probable you would have received any small amount of blood without it being appropriately and accurately recorded on the operative sheets. Therefore, I think to support your claim your best evidence would be the obtaining of the operative records from the time of surgery. There is one further record that I think is kept and it is my understanding is still available even from the distant past and that is the transfusion records from the Red Cross. It is my understanding that those records are still present and can be obtained through the Blood Bank. That is an avenue that you may pursue to obtain correct correlative evidence of your concern that you may have received blood.
I am sorry I do not have any hard facts to support your claim…
 Along with Dr. G’s letter, the Claimant also supplied her own lengthy response to and critique of Dr. W’s report, which has been carefully reviewed, but which essentially summarizes concerns raised previously and does not add anything substantively new.
 The Administrator was obligated to apply the provisions of the Plan text, which provide:
REQUIRED PROOF FOR COMPENSATION
3.01 Claim by Primarily-Infected Person
 Section 3.01(2) of the Plan text provides an exception to the general rule embodied within Section 3.01(a):
(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 the 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 Period.
 In this regard, it is acknowledged that the Claimant in this case has been unable to comply with the provisions of Section 3.01(1)(a). Therefore, the sole issue is whether or not she has nevertheless succeeded in providing “evidence independent of the personal recollection of the claimant or … a family member, establishing on a balance of probabilities that … she received a blood transfusion in Canada during the Class Period.” There is a heavy, though not insurmountable burden upon the Claimant to establish that she fits within the “notwithstanding” provisions of Article 3.01(2). In this respect, I am mindful of the numerous other decisions which bear on this issue, which discuss the burden of proof upon a claimant in such circumstances and which are posted on the web-site. I do not propose to review the many cases in which the claimant was unsuccessful in meeting this burden. Rather, I will turn to the two cases to date which have allowed a Claimant to prove that she/he was infected with HCV by a Blood transfusion received in Canada during the class period, notwithstanding the lack of the specified health records demonstrating that the claimant received such a transfusion.
 In Confirmed Referee Decision # 96, July 23, 2003 (Shelley Miller, Q.C.). Referee Miller carefully considered the circumstances in that case as to whether they could meet the “notwithstanding” test embodied in Section 3.01(2). In fact, the Claimant in this case was certainly familiar with the Miller decision and indeed did her utmost best to bring her evidence into line with what she hoped would be sufficient to meet the test.
 That being said, it is necessary to consider the unique factual background that gave rise to the Miller decision. In that case, the claimant was treated in 1984-1986 for a laceration, underwent surgery on both feet in 1986, underwent surgery to repair severe facial injuries at Vancouver General Hospital (VGH) following an MVA in 1987, was hospitalized in 1987 due to a major infection at which time her doctor told her that her white blood cells were 200 times the normal, eye surgery and head injury in 1989 (no records were located) and a craniotomy in 1990. The claimant had no recollection of any blood having been given in any of the hospitalizations. When she submitted her application for benefits, the claimant referenced her belief that there were missing records from the Canadian Red Cross and the VGH. Testing for and the diagnosis of HCV occurred in July 1997. The claimant was notified as part of the Blood Recipient Notification Project that she was a person who likely received a blood transfusion during the class period, although the BC Ministry of Health indicated that the record must have been sent in error as the traceback revealed no transfusions. The main issue in the decision revolved around the September 1987 facial smash surgery performed by a Dr. Kester, a plastic surgeon, at VGH following the MVA in which the claimant’s vehicle collided with a moose. Dr. Kester testified at the hearing and submitted to cross-examination by fund counsel. In 20 years of experience as a plastic surgeon in the Vancouver area, he had personally performed surgery in several facial smash cases and he did recall three cases of facial smashes specifically involving moose-car accidents. While he did not specifically remember a blood transfusion occurring in the operating room under his supervision in the claimant’s case, he did remember the claimant, her condition and the hospitalization under consideration. He remembered that the claimant’s facial condition was such that her blood loss was severe. He reviewed all the hospital records that had been provided to him by fund counsel and noted that the absence of any reference whatsoever to the need for blood or the existence of a blood transfusion would be unusual, particularly in the anesthetist’s records, but noted that he expected it would be referenced in the nursing notes, which were no longer available. His testimony was that he considered it highly probable that the claimant received a blood transfusion because it would be normal in a severe facial fracture of that type. He opined that in the Vancouver area in the context of a severe fracture and the accompanying blood loss, the infusion of one unit of blood would not be unusual and would not likely be regarded by any the surgeons or residents within the operating theatre either as a complication or as an emergency need. He found further support for his conclusion in that the hemoglobin readings recorded after the surgery went up, which he would not expect unless the patient had received an injection of blood. He also noted that if an emergency arose in the course of surgery, a unit of O blood could be ordered from the O.R. He noted that the claimant’s preoperative hemoglobin level was recorded at 117 which he interpreted as being on the low side and following surgery he would have expected the hemoglobin readings be in the range of 105 to 110 whereas her reading was 120. He felt that this rise in hemoglobin levels was probably attributable to the injection of blood. He also stated that if the doctor had given a verbal order in the operating room, he would tell the anesthetist to do so, but the anesthetist would not know that he had typed and crossed the blood. In other words, if blood had been ordered in the operating room by the anesthetist, it may not have been noted. In addition to the testimony from Dr. Kester, although it was not relied on in reaching the decision, there was also oral testimony from the claimant’s former partner who testified that he witnessed the blood transfusion occurring while awaiting the claimant’s return from the operating room and described the details of his discussions with the nurse in that respect. Referee Miller stated, in allowing the claim:
60. In my view, Dr. Kester’s evidence must be treated as the best evidence before me and where there are inconsistencies between his testimony and the hospital records, I find his oral evidence overrides because of his familiarity with the usual practices of surgeons at VGH in facial smash surgeries of this type, and in particular by reason of his specific recollection of this particular operation. …I must conclude that his unchallenged opinion convinces me it is likely, or probable, that the claimant received a blood transfusion on September 13, 1987 in connection with the facial surgery performed by Dr. Kester. Without the weight of Dr. Kester’s viva voce evidence, I would have been unable to conclude that there was requisite evidence on the balance of probabilities to satisfy the requirements of the Plan.
61. My decision in this case may put a nearly impossible burden on the Administrator to undertake a trace-back of blood apparently transfused into this claimant for which no record can ever be found. In light of all the foregoing, I conclude this case must very likely be confined to its own peculiar facts.
 Unfortunately for the claimant in this case, there are numerous factual differences between her case and that before Referee Miller that prevent a finding in her favour in this case. These distinctions include:
(a) In the Miller case, there were factual findings to the effect that the other surgical procedures that the claimant underwent would not have been such as to warrant blood transfusions, which had the effect of narrowing the scope of inquiry to the particular surgery performed by Dr. Kester;
(b) In the Miller case, there was no evidence of risk factors applicable to the claimant, whereas in the present case, there were clearly numerous other risk factors present;
(c) The Miller case clearly turned on the specific testimony provided by Dr. Kester, which was well supported by his specific recollection of the surgery in question, and other surgeries he had performed relating to facial smashes, even more specifically relating to moose-car crashes;
(d) Unlike the Miller case where there were elevated hemoglobin levels post surgery that would be difficult to explain in the absence of a blood transfusion, here the hemoglobin levels fell post-operatively;
(e) Unlike the Miller case where there were no nursing notes, in this case there were nursing notes, however, there was nothing to indicate any need for blood or the giving of blood;
(f) In the present case, the fluid level records do not support the Claimant’s position;
(g) In the present case, not only did the Claimant not have a surgeon that was supportive of her position, as Dr. Kester was of the claimant’s position in the Miller decision, but here the Claimant’s attending surgeon has provided a report which squarely flies in the face of any argument that could show that the Claimant, on the balance of probabilities, received a transfusion. In the present case, the evidence from Dr. W, in terms of his interpretation of the hospital records as well as his firm recollection of the practices at UBC hospital relative to noting the use of blood, the lack of need for blood at any time since he commenced operating at UBC hospital in 1983 and the lack of need for blood in particular in connection with the type of surgery performed on the Claimant in this case, is particularly decisive when combined with Ms. Miller’s evidence and an overall review of the available records;
(h) While the giving of blood would not be considered unusual in facial smash surgery such as that performed by Dr. Kester at VGH in the Miller decision (and might therefore more understandably be omitted from the operative records), in this type of surgery at the UBC Hospital, the giving of blood would clearly have been unusual and therefore more likely not to have been omitted from the records if it had indeed occurred; and
(i) The Claimant’s best evidence came in the form of Dr. G’s report, which while sympathetic to be Claimant, comes nowhere close to rising to the level of proof necessary to establish a transfusion and in fact is more supportive of the Administrator’s position than that of the Claimant.
 While the extent of the Claimant’s mistrust of Dr. W was clear and her significant suspicions as to the veracity of his report were obvious, given the totality of the evidence and the state of the health records, I have no basis upon which to conclude that his description of events should not be accepted. Regardless of the deterioration of the relationship between the Claimant and Dr. W, there was no credible suggestion of any personal or self-serving reasons why Dr. W would be anything less than truthful in the circumstances. While the Claimant is concerned that “something went on” in the operating room, even if it had, there is no basis to suggest that this would have been related to blood loss or a blood transfusion. Nobody would have had any reason, certainly based on the information then prevailing as to the safety of the Canadian blood supply system, to alter the records or fail to record an important and unusual occurrence. The Claimant herself indicated that her concerns with Dr. W did not relate to her perception that she was given blood, but rather related to her concerns as to the performance of the surgery itself and the poor outcome. The Claimant has not sued Dr. W and would in all likelihood be too late to sue him this many years after the fact. Dr. W was specifically informed that the sole issue that our inquiry was concerned with related to whether or not the Claimant received blood relative to the surgery he had performed. In the event that she had in fact received blood, this would not have been Dr. W’s legal responsibility in any case. There is simply no credible basis to suggest that Dr. W would either falsify records or provide a report that he knew to be false and which he knew would be entered into evidence, all for the purpose of preventing the Claimant from recovery of financial compensation from the fund. In the end, the Claimant’s suspicions relative to Dr. W are just that – suspicions.
 There is a second decision in which a referee has determined that a claimant met the “notwithstanding” burden imposed by section 3.01(2), which decision took place after the argument in the present case and which was therefore not referred to by counsel. In Confirmed Referee Decisions # 150 (Jacques Nols, Referee, June 22, 2004), the claimant alleged that he had received a blood transfusion during a brief hospitalization in 1987. The claimant admitted that he had an operation which normally does not necessitate a blood transfusion, but for reasons which he could not fully explain, alleged that he had been transfused while under general anesthetic. The hospital wrote him advising that the records concerning all blood products that were administered to him were destroyed following the closure of the hospital in January 1997. Referee Nols pointed out that this was not a case where the hospital records were silent on the issue of whether the claimant received a transfusion or not, but rather was a case where such records, including blood bank records, had been purged or destroyed. Faced with the non-availability of his hospital records, the claimant called as a witness a friend of the family who had visited him while he was hospitalized in 1987. The friend recalled a nurse coming in, hanging some blood and “plugging it in”. This witness eventually graduated in nursing in 1993 and admitted that while he did not have a “trained eye” in 1987, was familiar with blood transfusions and knew how to recognize one. The Referee was clearly impressed by the testimony of this witness and accepted it. There was no evidence to suggest that the claimant had a “lifestyle or a character such as to create additional risk factors” and no more plausible explanation given for the infection than that of a 1987 blood transfusion. On the unique facts of that particular case, including the lack of any health records or blood bank records of any kind and the affidavit and viva voce evidence of the claimant’s friend, Referee Nols found that the claimant had met the “notwithstanding” burden of Section 3.01(2) and should therefore succeed in his appeal.
 Regrettably for the Claimant in this case, unlike the claimant in the Nols decision, there was simply no corroborating evidence of a blood transfusion. The Claimant in this case was unable to produce even a lay witness to support her claim. The Nols decision, for many of the same reasons as the Miller decision, is distinguishable from the present circumstances and does not assist the Claimant.
 In this case, the Referee did initiate processes both before and after the hearing process, of obtaining significant amounts of additional medical records and information in order to ensure that no stone would be left unturned in ensuring that the Claimant’s position that she was entitled to benefits was exhaustively explored. Fund Counsel was most cooperative in terms of the obtaining of such information and agreeing to the delay of the hearing until such time as such information could be obtained, as well as the information-gathering process that occurred post-hearing. However, regrettably for the Claimant, the report from Dr. G did not assist her and the report of Dr. W is of course less than helpful to her, all of this bearing in mind the burden of proof which lies on the Claimant to establish that a transfusion occurred.
 In conclusion, there was simply no persuasive contradictory medical or other evidence adduced by the Claimant that could meet either the Miller or Nols criteria, in order to allow a Referee to reasonably conclude that the Claimant had received a blood transfusion during the Class Period.
 It must be said that the Claimant has been most honourable in her manner of approaching this claim and in advancing her claim in the most vigorous way possible. In the interests of finding out the truth, she has been most forthcoming with information and documentation, even where it did not support her position. Unfortunately, the Claimant will in all probability never know the definitive source of her infection with any degree of certainty. The Claimant has emerged from an astonishing array of medical, surgical and personal setbacks in such a manner that has permitted her to retain a positive deposition and sense of humor, all the while, from all descriptions, admirably parenting her son and developing into an accomplished artist herself. She is quite a remarkable individual. If the applicable test was whether or not the Claimant is a good person, she would have succeeded. If the applicable test was whether or not the Claimant is in poor health and in need of financial help, she would have succeeded. If the applicable test was whether or not the Claimant was truthful in her belief that she obtained a blood transfusion, she would have succeeded, in that I have no doubt whatsoever as to the honesty of her views in that respect. The evidence points inescapably to the conclusion that she was simply mistaken. The Claimant did not ignore or minimize the problems in her life and, while she is clearly upset with Drs. W and K and is mistrustful in particular of Dr. W, her evidence was provided in a most candid and straightforward manner. There is no basis to doubt the sincerity of her views. In other words, if there is any way that the evidence would have allowed me to find in the Claimant’s favor, I would have been delighted to have been able to do so.
 However, regrettably for the Claimant, in the final analysis, while the evidence did not establish the definitive source of her HCV infection, I find that she was unable to establish that she received a blood transfusion during her June 1988 surgical stay at UBC Hospital or at any other time during the Class Period. There was unfortunately for the Claimant simply no evidence that could reasonably be interpreted so as to rise to the level necessary of proof necessary to meet the Miller and Nols tests.
 The appeal must therefore fail. 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, including the requirements of the “notwithstanding” provision contained in Section 3.01(2) of the Plan text.
 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 9th day of August 2004.
Daniel Shapiro, Q.C., C. Arb., Referee
1. The initial Claims Centre File, consisting of 136 pages, was entered as Exhibit 1 at the hearing (see pages 3 - 4).
2. Exhibit 1, pp. 5-11
3. Exhibit 1, p. 44, Q. 11.
4. Exhibit 1, p. 52
5. Exhibit 1, pp. 92-96.
6. Exhibit 1, pp. 100-104.
7. Exhibit 1, pp. 13-14
8. Exhibit 1, pp. 5-11
9. Exhibit 1, page 86
10. Exhibit 4, 31 pages in
11. Exhibit 5, page 12
12. This document was initially marked for identification only, as it was not signed. However, a copy signed before a solicitor, with an accompanying letter of June 16, 2004, was received post-hearing and this latter signed document will be considered as full Exhibit 3, as if it had been tendered at the hearing.
13. Page 44
14. Page 52
15. Page 55
16. Page 62
17. Page 63
18. Pages 66-67
19. Exhibit 1, page 83
20. Exhibit 1, page 86
21. Exhibit 2, pp. 10 –11
22. Exhibit 1, p. 73
23. Exhibit 1, page 85
24. Exhibit 1, page 87
25. Exhibit 1, pp. 75-76
26. Exhibit 1, pp. 79-82
27. Exhibit 2, p. 12.
28. Exhibit 1, page 128
29. Exhibit 1, page 134
30. Exhibit 1, page 111
31. Exhibit 1, page 122
32. This is corroborated by the Claimant’s sister in a written statement dated November 23, 2003, being Exhibit 2, page 34.
J U D I C I A L D E C I S I O N