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Appeals : Confirmed
Referee Decisions : #76 - January 5, 2003
D E C I S I O N
BACKGROUND
1. On June 27, 2002, the Administrator denied the Claimant's
request for compensation as a Primarily-Infected Person under
the Transfused HCV Plan. The claim was denied due to lack
of evidence that the Claimant received a Blood transfusion
during the Class Period.
2. The Claimant requested that the Administrator's denial
of his claim be reviewed by a referee.
3. An oral hearing was conducted on November 1, 2002. Fund
counsel, on behalf of the Administrator, filed written submissions
on November 22, 2002. The hearing concluded on December 20,
2002 when the Claimant filed written submissions.
EVIDENCE
4. It is not disputed that the Claimant is infected with
Hepatitis C.
5. Carol Miller, Appeal Coordinator for the Fund, testified
on behalf of the Administrator. She reviewed the seventy-five
pages of documentation upon which the Administrator relied
in reaching a decision. The physician who completed the Treating
Physician Form claimed to have known the Claimant since October
1998. The physician stated that the Claimant received a Blood
transfusion in the period January 1, 1986 to July 1, 1990,
had no other risk factors, and had nothing in his medical
history that indicated he used non-prescription intravenous
drugs or was infected with Hepatitis Non-A, Non-B or the Hepatitis
C virus prior to January 1, 1986.
6. On his Blood Transfusion History Form, the Claimant stated
that he received a Blood transfusion in July 1988 during surgery
for a peptic ulcer in Newmarket, Ontario. In the General Claimant
Information Form, the Claimant stated that he received only
one Blood transfusion in his life and that was in Canada between
January 1, 1986 and July 1, 1990.
7. On March 2, 2001, the Southlake Regional Health Centre
wrote to his physician to state that the Claimant had no Blood
transfusion when he had a perforated ulcer in 1988. His hospital
record indicated that his haemoglobin was 168 and remained
stable registering at 152 in the haemotology note. Ms. Miller
testified that in her experience, blood is generally not transfused
unless the haemoglobin is 100 or less.
8. The Claimant's earlier hospital records from the York County
Hospital in Newmarket indicate that he was admitted on June
13, 1986 and discharged on June 18, 1986. His liver function
tests were abnormal and he was suspected of having viral hepatitis.
Hepatitis A and B were ruled out as was mononucleosis. At
that time, Hepatitis C was not known.
9. On his second admission to hospital on August 8, 1988,
the Claimant received a laparotomy and an appendectomy and
was diagnosed as having a perforated ulcer. A traceback was
done and Canadian Blood Services reported on February 13,
2002 that the patient records were available at the hospital
and the patient had not been transfused.
10. A fax was sent by the Administrator to the Claimant's
physician on June 18, 2002 asking on what basis he had stated
that the Claimant had transfusions during the Class period.
The physician responded that he had relied on information
from the patient.
11. The Claimant testified that he recalled waking up from
surgery in 1988 and seeing a red bag and a clear bag which
he was receiving intravenously. He understood that the red
bag contained blood. His recollection was that his type of
blood and name was on the label of the red bag. He testified
that the contents of the red bag were transfused during approximately
11/2 days.
12. A friend of the Claimant visited him in hospital in 1988
twice maybe three times. He first visited the day of the surgery
or the day after. He claimed that the Claimant was receiving
a transfusion on his first visit but two or three days later
there was only one bag of clear fluid being given intravenously.
However, he stated that on both occasions, the Claimant was
being transfused with a clear liquid which he could not identify.
In 1997, the friend also recalled seeing a sheet of paper
about a Blood transfusion when the Claimant was staying at
his home.
13. The friend's wife accompanied him on his visits to the
Claimant in hospital in 1988. She does not recall the first
visit but remembers that during the second visit the Claimant
was being transfused with a clear liquid. She did not recall
seeing a Blood transfusion.
14. Carol Miller testified that blood can only be kept out
of refrigeration for a maximum of four hours after which it
must be discarded. If the Claimant were being transfused with
Blood for a day and a half, he would receive six units over
the course of a day and a total of nine units.Yet, there is
no record of any of these units being transfused. Ms. Miller
reviewed the information from the hospital records and the
Blood bank records which contained no reference to a Blood
transfusion.
ANALYSIS
15. The Claimant seeks compensation as a Primarily-Infected
Person under the Transfused HCV Plan. The Transfused HCV Plan
defines "Primarily-Infected Person", in part, as
meaning "a person who received a Blood transfusion in
Canada during the Class Period and who is or was infected
with HCV".
16. The 1986-1990 Hepatitis C Settlement Agreement defines
"Class Period" as meaning "the period from
and including 1 January 1986 to and including 1 July 1990."
"Class Period" is defined identically in the Transfused
HCV Plan.
17. Article 3.01 (1) (a) of the Transfused HCV Plan requires
that a person claiming to be a Primarily-Infected Person must
deliver to the Administrator an application form together
with, among other things, medical "records demonstrating
that the Claimant received a Blood transfusion in Canada during
the Class Period ...". I find that the Claimant has not
satisfied this requirement.
18. In these circumstances, Article 3.01 (2) of the Transfused
HCV Plan provides that if a Claimant cannot obtain the necessary
medical records as a means of proof, the Claimant must deliver
corroborating evidence to the Administrator independent of
the personal recollection of the Claimant or any person who
is a Family Member. The Claimant has not delivered this proof.
Although his friend testified that he saw the Claimant receive
a Blood transfusion, he offered no explanation for his conclusion
that the bag contained Blood. The friend stated in his letter
dated December 9, 2002 that the Claimant "was being transfused
with a clear liquid, which I cannot identify further."
This is at odds with the Claimant's testimony that he was
transfused with a red bag of blood. The friend had little
specific information about the document which he saw in 1997
indicating that the Claimant had been transfused. For example,
he provided no information about the date of transfusion or
the amount of blood transfused. Unfortunately, sufficient
evidence was not presented to corroborate the personal recollection
of the Claimant.
19. I find that the Claimant did not provide the evidence
required by Article 3.01 to establish that he received a Blood
transfusion during the Class Period. Consequently, the Claimant
has not established on the balance of probabilities that he
was infected with HCV by a Blood transfusion received during
the Class Period. Therefore, the Claimant does not qualify
as a Primarily-Infected Person and is not entitled to compensation
under the terms of the Transfused HCV Plan.
20. The Administrator under the Settlement Agreement is required
to administer the Transfused HCV Plan in accordance with its
terms. The Administrator does not have authority to vary the
terms of the Plan nor does an arbitrator or a referee when
asked to review the Administrator's decision.
CONCLUSION
21. I uphold the Administrator's denial of the Claimant's
request for compensation.
January 5, 2003
DATE
______________________________
JUDITH KILLORAN
Referee
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