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Appeals : Arbitrator Decisions : #21 - August 15th, 2001

D E C I S I O N

[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 May 7, 2001, the Claimant requested that an arbitrator 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 the following reasons:

"I feel I am entitled to Compensation for illness through contaminated Blood transfusion. Only received letter today as I have spent the four months at the U. of A. Hospital for Liver Transplant."

[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. There were no checkmarks or other notations on paragraph 6 of the Notice of Appeal, which provides space for a Claimant to indicate that he wishes to have witnesses testify before the Arbitrator. Finally, there were no checkmarks or other notations on paragraph 7 of the Notice of Appeal, which states:

"There will be an in-person hearing if you and/or Fund Counsel intend to present oral evidence (testimony). Where no oral evidence is required, it is within the sole discretion of the arbitrator … as to whether an in-person hearing is required. If you believe an in-person is required, please state the reason below…"

[5] On May 16, 2001, Fund Counsel wrote to the Claimant, enclosing the appeal case summary, inviting the Claimant to advise as to whether he wished to have an in-person hearing and stating that the Administrator does not require an in-person hearing. Counsel also invited the Claimant to provide written submissions and advised that if he had nothing further to provide, Fund Counsel would prepare written submissions on behalf of the Administrator and deliver a copy to the Claimant and the Arbitrator.1

[6] Notwithstanding that the Claimant did not indicate in his Notice of Appeal that he wished to have witnesses testify before the Arbitrator or that he requested an "in-person hearing", the following initiatives were undertaken by the Arbitrator in order to ensure that the Claimant's intentions, wishes and rights in this regard were fully respected:

May 17, 2001
The Arbitrator wrote to the Claimant (at the address listed in his Notice of Appeal) and Fund Counsel, inviting the Claimant to provide a telephone number where he could be reached and advise as to whether he intended to represent himself in the matter or preferred to retain legal counsel. The Claimant was invited to advise the Arbitrator by May 31, 2001 as to whether an "in-person" hearing was requested (in which case available dates and preferred hearing locations were sought) or if he preferred that the matter be decided on the basis of written materials only. This letter was sent to the Claimant by ordinary mail. The Claimant provided no response of any kind.

June 6, 2001
The Arbitrator again wrote to the Claimant (at the address listed in his Notice of Appeal) and Fund Counsel, enclosing a further copy of the May 17th letter and again explicitly inviting the Claimant to provide a telephone number and advise as to whether he planned to represent himself or retain counsel, whether an in-person hearing was requested or if he preferred that the matter be decided on the basis of written materials only, inviting the Claimant to advise as to whether he intended to file additional written materials, and if so, when they could be made available. This letter was sent to the Claimant by Express Post. Canada Post records confirm that the Claimant signed for the letter on June 14, 2001. The Claimant did not respond to this letter.

July 9, 2001
The Arbitrator attempted many times to telephone the Claimant at the number listed for him in the telephone directory for the community in which the Claimant resides. There was no answer and no answering device. The Arbitrator then telephoned the Claimant's brother, who lives in the same community as the Claimant and whose name and telephone number were set out under Contact Authorization in the Claimant's Information Form filed with the Claim Centre. The Claimant's brother returned the Arbitrator's call on July 9, 2001 and advised the Arbitrator that although the Claimant was out of town that day, he would return later that week. The Claimant's brother undertook to pass a message on to the Claimant asking him to telephone the Arbitrator collect. The Claimant's brother also confirmed that the telephone number for the Claimant as gleaned from the telephone directory was correct and that the Claimant had received both of the above items of correspondence from the Arbitrator.

July 10, 2001
The Arbitrator again wrote to the Claimant (at the address listed in his Notice of Appeal) and Fund Counsel, again by Express Post.2 This letter stated, in part:

I have attempted on numerous occasions to reach (Claimant) by telephone. I have been able to contact (Claimant's brother) who confirmed that (Claimant) has in fact received my previous letters of May 17th and June 6th, 2001. I have not heard directly from (Claimant) in response to these letters nor have I received a request for an "in-person" hearing.

Therefore, I am proceeding on the following assumptions:

1. That (Claimant) does not intend to be represented by legal counsel and will be representing himself in this matter; and
2. That (Claimant) does not request an "in-person" hearing and is content to have the matter decided on the basis of written materials.

If I am incorrect in either of these assumptions, I invite (Claimant) to call me (collect) immediately upon receipt of this letter to discuss his intentions.

I am enclosing for (Claimant's) benefit and assistance a copy of Schedule A to the January 1, 1986 - July 1, 1990 Hepatitis C Settlement Agreement, namely the Transfused HCV Plan and Appendices A, B and D to that agreement, Appendix D being the "Arbitration Rules" that apply to this matter…

In order to ensure that both sides have the opportunity to address all issues that arise in this appeal, I am setting out the following additional ground-rules:

1. By not later than July 31, 2001, Ms. Horkins will have provided (Clamant) with her written submissions, outlining the position that Fund Counsel, representing the Administrator, is taking in support of the Administrator's position…
2. By not later than July 31, 2001, (Claimant) will have provided Ms. Horkins with any written submissions he wishes to make with respect to this reference, outlining his position in support of his appeal.
3. If either party wishes to respond to any of the written materials supplied by the other party, such response shall be provided to the other party by not later than August 14, 2001.
4. In each case, I ask that copies of materials that you supply to each other also be supplied to me at the same time.

July 25 - July 28, 2001
As there had been no response by the Claimant to any of the Arbitrator's written communications to him or telephone discussion with his brother, the Arbitrator attempted on 6 different occasions, including early morning and late evening, to contact the Claimant at his telephone number. There was no answer and again, no answering device. The Arbitrator again contacted the Claimant's brother by telephone and left a message for him inviting him to ask the Claimant to call the Arbitrator collect. (No response was received in respect of this message, either from the Claimant or his brother.)

July 30, 20013
The Arbitrator again wrote separately to the Claimant (both at his own address and in care of his brother's address) and Fund Counsel, forwarding another copy of the letter of July 17, 2001, restating the same terms and adding the following:

If I am incorrect in either of these assumptions (as stated in July 17, 2001 letter) I invite (Claimant) to call me (collect) immediately upon receipt of this letter to discuss his intentions. Both counsel for the Administrator and myself are agreeable to an in-person hearing, should this be requested by (Claimant). However, I will need to receive a request from (Claimant) in that regard before this can be arranged.

As I have indicated, I am prepared to be flexible with the ground-rules and amend them accordingly, if (Claimant) contacts me to request an in-person-hearing or if he has any other comments or submissions he wishes to make in regard to this arbitration process. If I have not heard from (Claimant) or received additional submissions on his behalf by August 14, 2001, I will have no alternative but to render my decision with respect to this arbitration based on the materials provided to date.

[7] The Claimant did not respond to any of the above written or telephone communications from the Arbitrator. The Arbitrator did receive a letter from Fund Counsel dated August 2, 2001, a copy was shown as being sent to the Claimant, in which Fund Counsel states:

"I received a telephone call from (Claimant) on August 1st… I explained to him that I represent the Administrator and that I am not his lawyer. Based on my discussions with (Claimant), it is my understanding that he does not wish to have an in-person hearing. He is content to have his appeal conducted in writing. He has also advised me that he does not have anything further in writing to submit. I asked that he communicate his position to you directly by telephone."

[8] There has been no written or telephone contact from the Claimant to the Arbitrator. In all the circumstances, while it would have clearly been preferable to proceed following direct communication with the Claimant, in view of all the communications to the Claimant from both the Arbitrator and Fund Counsel, the Arbitrator is satisfied that the Claimant has no wish for an in-person hearing, is content to have the matter decided based on written materials supplied and has no additional materials to provide. In the result, the matter will indeed be adjudicated upon based of the written materials provided by Fund Counsel, including the Claims file, which includes submissions of the Claimant.

B. Facts

[9] 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. In the Claimant's General Claimant Information Form (TRAN 1) dated May 4, 2000 the Claimant stated that he had received 3 blood transfusions in Canada in his lifetime, once prior to and once during the class period. In his accompanying Declaration (TRAN 3), the Claimant stated that to the best of his knowledge, information and belief, he had resided at Grand Prairie, Alberta during the Class Period, more specifically on November 1, 1988. However, the Claimant did not complete the next question on the Declaration, in which the Declarant is to set out, to the best of his knowledge, information and belief, the place where he received his first Blood transfusion in Canada during the Class Period.

[10] Dr. K, the Claimant's attending physician from his Saskatchewan community, completed the Treating Physician Form ("TRAN 2") and stated that, having regard to the definition of blood, the Claimant did receive a blood transfusion during the class period. Dr. K also indicated that the Claimant's medical history indicated that he had been infected with Hepatitis Non-A, Non-B or the Hepatitis C virus prior to the Class Period, noting that the Claimant had received a blood transfusion in 1982.

[11] The Claim file includes health records that confirm that the Claimant had in fact received the following blood transfusions:

August 28, 1981 - University of Alberta Hospital
January 6, 1991 - Queen Elizabeth II Hospital

[12] However, the above transfusions occurred before and after the class period, respectively.

[13] Having carefully reviewed the Claim file, including the materials provided by the Claimant, there is only one conclusion to draw. In this case there is no evidence that the Claimant received a blood transfusion during the Class Period.

[14] As Dr. K's statement in TRAN 2 conflicted with the available blood transfusion records, Carol Miller, a nurse at the Hepatitis C Claims Centre ("the Centre") contacted Dr. K on May 11, 2001 to seek clarification. Her note to file states:

"I called Dr. K, the doctor who completed the Tran 2 and asked him if he answered YES to the question re Blood transfusions during the class period from his records or from the patient telling him the information. The doctor stated he answered it from patient information and in review of his records he stated that the dates of transfusion were in 1981 and 1991. This confirms no blood in class period."

[15] Prior to this, on October 14, 2000, the Centre records indicate that Ms. Miller called the Claimant at which time the Claimant informed her that although the doctor indicated that the Claimant had received blood in 1988, the Claimant only received blood in 1981 and 1991. On August 18, 2000, the Claimant was called by another representative of the Centre and admitted that he did not receive blood during the class period and advised that he awaited a letter from the Administrator and would like a copy of all the material he had sent to the Centre.

[16] The following are the material findings of fact in this case:

(a) The Claimant is infected with Hepatitis C:
(b) Such infection was probably the result of a blood transfusion:
(c) The Claimant received blood transfusions in August 1981 and January 1991; and
(d) The Claimant did not receive any blood transfusions during the Class Period from January 1, 1986 to and including July 1, 1990.

C. Analysis

[17] Based on the foregoing facts, by the Claimant's own admission, it is clear that the Administrator's denial of the Claimant's request for Compensation must be sustained.

[18] 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.4

[19] The Claimant's illness is undeniably very serious and he could no doubt be significantly assisted in his medical battle by the availability of funds. Regrettably for the Claimant, he was unable to provide the proof required by Article 3.01 because his transfusions did not occur during the Class Period, albeit that the second transfusion did occur within 7 months of the termination of the Class Period. The time parameters 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 blood transfusion was not received during the Class Period, 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. These principles are reaffirmed in Arbitrator's Decision # 15, in which, tragically for the claimant in that case, he was transfused with blood on December 31, 1985, a scant few hours prior to the commencement of the Class Period. He was found not to be entitled to compensation. Other arbitrators have taken a consistent and appropriate position in that regard.6

[20] While the Claimant must undoubtedly feel that he is being denied compensation on the basis of a technicality, and while this is in a broad sense accurate, it must be remembered that the rights embodied in the Settlement Agreement and Plan were hard-fought. Establishing the time period in relation to which the Settlement Agreement and Plan apply and in relation to which funding has been supplied must have been an agonizing task, recognizing that there would indeed by Hepatitis C sufferers like the Claimant, whose personal circumstances would fall outside of the Plan criteria. However, the Agreement and Plan do not apply and were never intended to apply to person infected as a result of blood transfusions received at other times.

[21] There are other class actions under way, which are as yet unresolved, relating to other time periods. If he has not already done so, the Claimant would be well served by seeking immediate legal counsel as to whether his circumstances are such that he may perhaps ultimately benefit from the resolution of those other class actions.

D. Decision

[22] Upon careful consideration of the facts, Settlement Agreement, Plan, Court orders and materials provided, the Administrator's denial of the Claimant's application for compensation is hereby upheld.

Dated at Saskatoon, Saskatchewan, this 15th day of August 2001.

________________________________
DANIEL SHAPIRO, Q.C.
Arbitrator

____________________________

1. Ultimately, Fund Counsel supplied written submissions to both the Arbitrator and Claimant, under cover of a letter dated July 17, 2001 and received by the Arbitrator on July 19, 2001.

2. Canada Post records confirm that this letter was signed for by the Claimant on July 11, 2001.

3. Canada Post records confirm that the Claimant and his brother each signed for this letter on August 1, 2001.

4. Since in this case the Claimant was unable to meet the threshold burden of establishing that he received a Blood transfusion in Canada during the Class Period, it was unnecessary to move to this additional proof phase.

5. S. Bruce Outhouse, Q.B., Arbitrator, May 18, 2001.

6. See Arbitrator Decisions #5, Reva Devins, Arbitrator, June 1, 2001 and #9, Tanja Wacyk, Arbitrator, July 6, 2001 and further decision of S. Bruce Outhouse, Arbitrator, of July 6, 2001.

 

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