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Appeals: Confirmed Referee Decisions : #172 - January 5, 2005

Decision of the Court having jurisdiction in the Class Action attached - December 20, 2005

D E C I S I O N

In August 2000, the Claimant filled out a claim's form as a Secondarily-Infected Person.

After a few verifications, the Administrator agreed that the claim was rather a claim from a Primarily-Infected Person and it is as such that his claim was examined.

On May 17, 2004, the Administrator advised the Claimant by mail that his claim had been rejected, explaining that the Claimant had not provided proof that he had received a blood transfusion during the Class Action Period.

It is for this decision that the Claimant requested a review and I must now render this decision as a Referee.

A hearing was set for September 22, 2004 and two (2) notices to this effect were sent to the Claimant by registered mail, on July 27 and on August 30, 2004. The delivery certificate confirms that the Claimant has effectively received those two (2) notices. However, the Claimant did not show up on the agreed date.

I sent a letter to the Claimant on September 28, 2004, and the latter advised me that he had not been able to come because of health problems. On November 8, the Claimant informed my Assistant that he no longer wanted an oral hearing and that he agreed that I render my decision on the basis of the documents already in my possession. I confirmed all this by letter addressed to the Claimant on November 10, 2004, letter that as yet has remained unanswered.

Therefore, I will reach this decision on the basis of the documents transmitted to me, including two (2) letters that were transmitted to me by the Claimant in July 2004.

I reviewed these documents thoroughly, but nothing in the file indicates that the Claimant received a blood transfusion during the period covered by the Agreement (1986 - 1990).

Incidentally, in his General Claimant Information Form (TRAN 1), the Claimant does not mention that he had received any transfusion and on the Treating Physician Form (TRAN 2), the Treating Physician did not check any of the answer boxes concerning blood transfusions during the 86 -90 period, indicating rather, with a question mark, that there was a possibility that the Claimant has been infected through transmission by an infected spouse or parent.

In his Request for Review, the Claimant describes himself as being a Secondarily-Infected Person, without giving any more details, and says that he wished that the Administrator's decision be changed, because " you boasted about having surplus funds in the federal HCV Plan related to infected persons. He also explains that he could have possibly been infected by contact (with a third party) during the Agreement period, without providing any more information.

We know that the Claimant is HCV infected, but that is all we know.

According to the file and the above-mentioned facts, the present Claimant's request as a transfused person appears groundless to me.

Moreover, even if I reviewed his claim as a Secondarily-Infected Person, I should also reject his request, since I do not find any information or proof that he has effectively been infected in a context related to the definitions and rules pertaining to the Transfused HCV Plan.

Rather, the claim for compensation and the Request for Review of this Claimant seem to relate to a context where the Claimant feels that it is unfair that he be excluded from compensation under the Plan. Unfortunately for the Claimant, the 1986-1990 Hepatitis C Agreement is not a universal program, which compensates all those who have contracted the Hepatitis C virus. The Claimants must rather meet certain conditions of which the first is to establish that one has effectively received a transfusion during the period covered by the Agreement, something that the Claimant has not done. The Administrator does not have the discretion to allow compensation to a person, even if he is HCV infected, if this person cannot demonstrate that he received a transfusion during the Class Action Period.

The Administrator does not have any more discretion to allow compensation, if the Claimant is not able to establish a link between his illness, the person from whom he alleges he has contracted the virus and a transfusion received during the Agreement period.

Like the Administrator, I cannot, as a Referee, go beyond the wording of the Agreement and try to compensate a person who does not meet the criteria of the Settlement Agreement.

The Agreement does not apply to this Claimant and I allow the Administrator's decision to refuse any compensation to the Claimant pursuant to the 86-90 Transfused HCV Plan.

Montreal, January 5, 2005

Jacques Nols
Referee

J U D I C I A L D E C I S I O N

Judge Morneau's Decision - December 20, 2005

 

 

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