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Appeals : Unconfirmed
Referee Decisions : #75 - January 5, 2003
Decision of the Court having jurisdiction in the Class Action attached - April 28, 2005
D E C I S I O N
BACKGROUND
1. On June 27, 2002, the Administrator denied the Claimant's
request for compensation under the 1986-1990 Hepatitis C Settlement
Agreement. The claim was denied on the basis that the Claimant
did not present sufficient evidence to support his claim that
he received a Blood transfusion during the Class Period.
2. The Claimant requested that the Administrator's denial
of his claim be reviewed by an arbitrator. An oral hearing
was conducted on November 28, 2002. At the hearing, the parties
agreed to treat this hearing as a reference.
3. I contacted the College of Physicians and Surgeons in
an attempt to locate the Claimant's family physician at the
time of his surgery in 1987 or 1988. On December 20, 2002,
I was informed by the College that this physician was deceased.
EVIDENCE
4. It is not disputed that the Claimant is infected with Hepatitis
C. A positive Hepatitis C test dated April 19, 1993 was filed
at the hearing.
5. Carol Miller, Appeal Coordinator for the Fund, testified
on behalf of the Administrator. She reviewed sixty-three pages
of evidence contained in the Claimant's file.
6. The General Claimant Information Form dated July 17, 2000,
stated that the Claimant had received two Blood transfusions
in Canada in his lifetime, with one Blood transfusion in Canada
prior to 1986.
7. In the Treating Physician Form dated May 29, 2000, the
family physician stated that he had treated the Claimant since
March 1993. He also noted that the Claimant had other risk
factors for the Hepatitis C virus including: Blood transfusions
outside the period January 1, 1986 to July 1, 1990, non-prescription
intravenous drug use and tattoos. However, in two letters
dated October 24, 2002 and November 7, 2002, the physician
corrected this by stating that he had not seen any evidence
of drug abuse and had no reason to believe that the Claimant
had engaged in this type of acitivty.
8. The family physician also stated that the Claimant had
a Blood transfusion in the period January 1, 1986 to July
1, 1990 and that there is nothing in the Claimant's medical
history that indicates that he was infected with Hepatitis
Non-A, Non-B or the Hepatitis C virus prior to January 1,
1986.
9. The Claimant's ex-spouse testified that she completed
the forms for the Claimant. She claimed that the reference
to intravenous drug use both by her and the family physician
related to interferon treatments received by the Claimant
to treat his Hepatitis C.
10. The Declaration Form signed by the Claimant on July 17,
2000 stated the he never used non-prescription intravenous
drugs. The form also stated that the Claimant was unsure about
whether he was infected with Hepatitis Non-A Non-B or the
Hepatitis C virus prior to January 1, 1986. The Claimant claimed
that he received a Blood transfusion in 1988 at Toronto East
General Hospital.
11. In the Blood Transfusion History Form, the family physician
stated: "transfusions in 1980s Toronto area - prior to
being patient in my practice (March 4, 1993). I have no specific
details availabable ..."
12. On May 4, 2000 and August 30, 2000, the Claimant asked
Toronto East General Hospital for a copy of his hospital records
from January 1, 1986 to December 1, 1990. He has never received
any records from Toronto East General Hospital.
13. The Claimant completed an Other Risk Factor Inquiry Form
dated December 11, 2000. He indicated that he received 29
stitches in his right wrist and received blood products in
1988. He also indicated that he received two tattoos while
incarcerated in 1982.
14. The Fund contacted the family physician to ask whether
the Claimant received any Blood transfusions before January
1, 1986. The family physician replied: "Not my patient
in 1986. From his testimony, he did receive several transfusions
prior to 86."
15. A Traceback search was conducted by Canadian Blood Services.
On April 5, 2002. Canadian Blood Services notified the Fund
that The Toronto East General and Orthopaedic Hospital stated
that the above patient received no Blood transfusions in 1980-1990.
Also, The Toronto General Hospital stated that the above patient
received no Blood transfusions in 1982-1990.
16. The Claimant testified that he received blood products
in 1987 or 1988 at Toronto East General Hospital. He remembered
waking from surgery and seeing three Blood bags. He also testified
that in 2000 he spoke to someone named "Daisy" at
Toronto East General Hospital who had his hospital records
in her hands. According to him, Daisy stated that he would
have required blood products during surgery. Unfortunately,
the Claimant has been unable to locate this person.
17. On May 4, 2000, the Claimant's ex-spouse recalled speaking
to someone named "Daisy" at Toronto East General
Hospital who had records of the Claimant's surgery and claimed
that he would have required a Blood transfusion as he lost
a lot of blood.
18. In reply, Carol Miller testified that it would be unlikely
that a patient would see three units of blood if he was being
transfused. The blood is taken out of refrigeration and must
be discarded within four hours. The Claimant testified that
the effects of the surgery and subsequent medication might
have resulted in him seeing three bags of blood rather than
one.
ANALYSIS
19. 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 ..."
20. 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.
21. Article 3.01(1) 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 ..."
22. I find that the Claimant did not provide the evidence
required by Article 3.01 (1) to establish that he received
a Blood transfusion during the Class Period. In such circumstances,
Article 3.01(2) provides:
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.
23. A Traceback Procedure has been conducted which confirms
that the Claimant has not received any Blood transfusions
during the Class Period. A Traceback Procedure is defined
in Article 1.01 of the Plan as follows:
"Traceback Procedure" means a targeted search for
and investigation of the donor and/or the units of Blood received
by a HCV Infected Person.
24. Unfortunately, the Claimant has not provided any evidence,
as provided for by Article 3.01(2), to refute the results
of the Traceback Procedure. His ex-spouse qualifies as a Family
Member according to the terms of the Settlement Agreement.
Therefore, the Claimant has not presented any corroborating
evidence independent of his personal recollection or that
of a Family Member that establishes on a balance of probabilities
that he received a Blood transfusion in Canada during the
Class Period.
25. I find that the Claimant has not estabilished 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. Article 3.04(1) requires that the Administrator
must reject the Claim in circumstances such as these.
26. 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
27. I uphold the Administrator's denial of the Claimant's
request for compensation.
JUDITH KILLORAN
Referee
January 5, 2003
DATE
J U D I C I A L D E C I S I O N
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