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Appeals : Unconfirmed
Referee Decisions : #31 - January 7, 2002
D E C I S I O N
Claim ID 1400386
- Introduction
- The Claimant applied for compensation as a Primarily-Infected
Person pursuant to the Transfused HCV Plan ("the
Plan").
-
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").
-
By way of Notice of Appeal dated March 25, 2001,
the Claimant requested that a Referee 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 numerous and lengthy reasons. In essence, however,
these reasons may be distilled to the Claimant's central
position, whereby he maintains that he received "Transfused
Blood Products", within the meaning of the Plan,
while hospitalized at the Plains Health Centre in
Regina, Saskatchewan, at some point between November
7-10, 1989 and possibly also on November13, 1989.
-
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,
"unless released to me and my lawyer. I cannot
provide all donors or proper donor numbers unless
they have been released to me and my lawyer and evidence
shows they have not provided all numbers in their
traceback." The Claimant further checked off
the box in paragraph 6 of the Notice of Appeal, which
provides space for a Claimant to indicate that he
wished to have witnesses testify before the Referee
and indicated in paragraph 7 of the Notice of Appeal
that he requested an in-person hearing.
-
At the request of the Referee, each party provided
advance written submissions. Fund Counsel's written
submissions, dated August 17, 2001, set out the position
of the Administrator. Although the Administrator concedes
that the Claimant had undergone two operations at
the Plains Health Centre in November 1989 (within
the Class Period), and while the records indicate
that blood products were cross-matched and set aside
for the first of these operations, those blood products
were never transfused to the Claimant. Fund Counsel
went on to submit that this was confirmed by way of
a traceback request and further that the Regina Health
District (owner/operator of the Plains Health Centre)
had done a disposition search and reported that the
two units of packed cells that had been cross-matched
and reserved and set aside for the Claimant were instead
transfused on November 20th and 21st of 1989 to another
patient, the identity of which must remain confidential.
- Initially, an in-person hearing date was set for
September 13, 2001, which date had to be postponed due
to the inability of Fund Counsel and her witness to
travel to Saskatchewan because of the tragic events
of September 11, 2001. The hearing date was therefore
re-scheduled to November 28, 2001, at which time viva
voce evidence was lead by both parties. The Claimant
testified on his 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. In the result,
the matter will indeed be adjudicated upon based on
the written materials and testimony provided by the
parties.
- Facts, Summary of Evidence
- 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. While there are many possible sources
of infection with respect to the Hepatitis C virus,
the Plan only provides compensation for individuals
who received transfusions of defined blood products
during the Class Period.
-
The Claims Center file, consisting of 164 pages,
was entered as Exhibit 1 at the hearing.1
In the Claimant's General Claimant Information Form
(TRAN 1) dated August 9, 2000,2
the Claimant stated that he had received blood transfusions
"once maybe twice" in Canada in his lifetime,
both times during the class period. In his accompanying
Declaration (TRAN 3) dated August 14, 20003
, the Claimant stated that to the best of his knowledge,
information and belief, he had resided in Saskatchewan
during the Class Period, more specifically on November
9, 1989. The Claimant further declared it to be "true"
that to the best of his knowledge, information and
belief, he "was not infected with Hepatitis Non-A
Non-B or the Hepatitis C virus prior to January 1,
19864 . In Box 4
on TRAN 3, the Claimant checked off the "false"
box and added in the word "Absolutely" beside
the declaration that he "has never at any time
used non-prescription intravenous drugs." [In
testimony, the Claimant indicated that he was confused
by the wording of box 4 and intended to make it clear
that he had in fact never used non-prescription intravenous
drugs.]5 When the
Claimant filled out a revised TRAN 3 on February 8,
20016, he checked
off "true" on Box 4 of the Declaration.
- The Treating Physician Form ("TRAN 2")7
was purported to have been completed by Dr. G., the
Claimant's physician on "00.8.9" in which
Section F - Box 2 was checked off as "yes"
following the statement: "Having regard to the
definition of blood, the Claimant did receive a blood
transfusion during the period January 1, 1986 to July
1, 1990. "None" was checked off under Section
F, Box 1, with respect to whether the Claimant had a
history of risk factors for the Hepatitis C virus other
than a blood transfusion during the class period. This
form also purported to indicate that the physician had
known the Claimant for 25-30 years and treated him "off
and on throughout."
-
Exhibit 2 is a letter dated November 6, 1998 from
the Canadian Blood Services (CBS) to the Claimant
dated November 6, 1998, in response to the Claimant's
request for a traceback, together with traceback Investigation
Notes, dated August 15-21, 2000 and accompanying Reports
of Transfusion-Related Infection, dated November 11,
1998, with respect to the Pasqua Hospital8
and the Plains Health Centre. The latter record states:
"This patient was not transfused at the Plains
Health Centre in November, 1989. The units were cancelled
after the surgery."
-
The traceback Investigation Notes indicate that
the CBS reported that there were two units of blood
in the logbook that were cross-matched for the Claimant,
shown as numbers 45
60 and 13..59. They were
cancelled post-op and then transfused to a different
patient on November 20 and 21 (1989).
-
Dr. S., now deceased, provided a letter dated June
28, 1999, stating that the Claimant "received
a blood transfusion in 1989 at the Plains Hospital
in Regina, Saskatchewan and serial testing in the
last four years has been positive for Hepatitis C."
In his testimony, the Claimant acknowledged that Dr.
S. obtained the information with respect to transfusion
from the Claimant. However, he was also of the understanding
that Dr. S. had made some calls on his own to the
Plains Health Centre in that regard, presumably to
obtain confirmation. The Claimant was therefore unable
to say whether someone else may have also provided
information to Dr. S. about a transfusion. As to Dr.
G.'s report, at TRAN 2, the Claimant was not sure
if Dr. G obtained the information about the transfusion
from Dr. S. or from the Claimant.
-
The Claimant is of the view that the Plains Health
Centre has been less than forthcoming in terms of
providing co-operation and documentation that he had
requested. He was, at least prior to hearing the testimony
of Carol Miller, of the firm view that four units
of blood had been ordered but only two were on record,
leaving two units unaccounted for, one or both of
which presumably led to his infection with the Hepatitis
C virus. He also felt that there were many contradictions
in what various physicians had told him. He recalled
that his doctor advised him that he was anemic prior
to the surgery and therefore in need of blood products.
-
With respect to his prior medical history, the Claimant
testified that he had surgery in 1969 at the Grey
Nun's Hospital in Regina, which involved having his
ankle pinned. He had a further operation in 1977 as
a result of a serious knee injuries sustained after
leaving a bar, when a car drove over him in a parking
lot. He was not sure if the surgery in that regard
took place in Weyburn or in Regina. He received general
anaesthetic at the time and was therefore not sure
about receiving blood products. Finally, he had gall
bladder surgery in 1995 or 1996 in Prince Albert,
Saskatchewan.
-
The Claimant testified that he had been an accomplished
professional touring musician, that he has never been
an intravenous drug user and that he drank occasionally
but is not an alcoholic. He was very upset with certain
reports that suggested that he was a drug abuser.
-
As to the surgical procedures during which the Claimant
believes he was transfused with blood products, he
had been admitted to the Plains Health Centre for
investigation of myasthenia gravis9
. Investigations showed a thymic abnormality as a
result of which it was recommended by a surgeon, Dr.
F., that the Claimant undergo a median sternotomy10
and thymectomy11
on November 8, 1989. Prior to the surgery, the Claimant
recalled Dr. F. telling him about anemia and slow
blood coagulation, saying that he thought the Claimant
should receive packed cells, as Dr. F. did not want
to take any chances on bleeding. The surgeon told
him that his thymus was enlarged and the safest way
to deal with it was to "yard it out", that
it was easier than tonsils and that the surgeon had
performed hundreds of these procedures. The Claimant
asked to see x-rays of the thymus but was not shown
them.
-
The Claimant testified that he recalled that on
November 7, 1989, a big nurse came into his room and
brought blood, in advance of the surgery. He described
seeing two large bags of blood, close to or roughly
1 foot square in size, the first of which he received
before his operation and the second of which he recalls
seeing while in the operating room. He did not agree
to receive blood until he spoke to the surgeon, as
he was worried about contracting HIV from blood, but
the surgeon assured him that the blood would be safe.
He also recalls having seen blood in the operating
room, in the same bag format as previously described,
before he lost consciousness. He recalls waking up
in the operating room and Dr. F. saying that he did
not need all the blood and that they only ended up
needing 2 bags. He believes that he may have seen
blood in the recovery room, although he was not thinking
clearly at that time due to the effects of morphine.
His sternum had been wired shut in the surgery and
the Claimant was advised not to cough or to hold a
pillow over his chest if he had to cough, in order
to prevent these sternal wires from breaking.
-
Unfortunately, on November 13, 1989, the Claimant
inhaled some toast and as a result experienced a serious
coughing fit. He believes that at that time, the doctors
"reefed on" his chest, as a result of which
the sternum wires were broken, and it was determined
that he would have to undergo surgery again, this
time to repair the sternum wires.
-
The second operation took place on November 13,
1999. This time the Claimant was taken to a different
operating room and he "kind of thinks" he
saw blood in the ward afterwards, but was not at all
sure about any blood involvement in the second operation,
as morphine was again required.
-
The Claimant stated that he needed Demerol for many
years after these operations to control pain. He tried
to enroll in a methadone program to attempt to "get
off the Demerol", but the doctor in charge of
the program would not treat him unless he admitted
that he was an I.V. drug user, which he refused to
do.
-
The Claimant moved to Manitoba in 1990 and was working
12-16 hour days logging. He also built a ranch. However,
soon he could not even work 5-6 hour days as he was
encountering bad fatigue and burning pain in the side,
by the liver. In 1995 or 1996, he went in for HIV
testing, after he learned that HIV could be contracted
by means of heterosexual relations, although he had
not been with lots of women. The doctor conducted
Hepatitis C testing at the same time and confirmed
that the Claimant was infected with the virus.
- In addition to his own recollection of seeing blood
products being transfused into him, some of the factors
that the Claimant believes support his contention that
he did receive blood products during the course of one
or both of his November 1989 operations are:
- He believes that his PT testing showed blood coagulation
problems.
- He was told that packed cells act as a coagulant.
- He is still anemic today.
- A Dr. F2 evidently told the Claimant that he did not
need the first operation. From this the Claimant deduced
that both the Plains Health Centre and Dr. F wished
to cover up the fact that he had received blood. If
he received $150,000 from the Hepatitis C Fund, they
would be concerned that he could sue them.
- The Director of the Plains Health Centre had been
fired and Dr. F. had been sent back to New Brunswick.
- The Requisition for Blood12
looked like part of it had been "scissored."
It also showed 4 units of packed cells having been requisitioned,
whereas only 2 were accounted for.13
- He is a Sagittarian. Sagittarians are known for their
natural talent for determining when people are "yanking
their chains."
- He was convinced that both the Physician's Orders14
and the Individual Care Plan15,
both dated November 7, 1989, read "Give I.V. 2
units packed cells." 16
- He was concerned that there was no lab requisition
for blood with respect to the surgery of November 13,
1989 and assumed that this was missing from the health
records supplied by the Plains Health Centre. 17
- When he attended on Linda Bird, Director, Health Information
Management Services of Regina District Health, although
his file happened to be opened on her desk at the time,
she had informed him that she could not find the cancellation
records, and advised him: "maybe the CBS has them."
Yet she wrote to advise that only two units of blood
were ordered18, whereas
the records clearly showed that it was actually four
units, so she had failed to account for the disposition
of 2 units.
- What evidently caused the Claimant the most suspicion
is the fact that there was no record of the original
surgeon's "Report of Operation", with respect
to the surgery of November 8, 1989. Instead the "Report
of Operation" that was produced by the Plains Health
Centre with respect to that surgery is shown as dictated
on December 5, 1989 and transcribed on December 6, 1989,19
with the report starting out with the following statement:
"This Operative Report has previously been dictated
and apparently lost. I can therefore not be sure of
the immediate operative details but to the best of my
knowledge, the following is true."
- There is no reference in this replacement Report
of Operation to blood products having been required.
The Claimant appears to attribute great significance
to the fact that the original Report of Operation was
missing, which in his view would presumably have corroborated
his version of events, with respect to the matter of
receipt of blood products.
-
The Claimant had discussions with Dr. Alport, Medical
Officer, Regina Centre of CBS, one of which was recorded
on tape that was played during the Reference hearing.
These discussions caused the Claimant to conclude
that Dr. Alport was involved in attempting to cover-up
the transfusion(s).
- The Claimant was able to produce, as Exhibit 3, a
clearer copy of page 140 of Exhibit 1, consisting of
lab records that simply confirm the numbers assigned
to the two units of blood that the CBS had confirmed
as a result of a traceback to have been transfused to
another patient following the Claimant's November 8,
1989 operation. The Claimant also produced Exhibit 4,
which was a clearer copy of page 150 of Exhibit 1, the
Blood Transfusion Daily Log. This document clearly shows
the 2 unit numbers identified previously, together in
each case with the notation "Canc." 20
- There was no cross-examination of the Claimant. Fund
Counsel did tender a letter from Dr. G. to Ms. Miller
dated August 28, 2001, Exhibit 5, in which he states,
in reference to the Claimant, whose name was referred
to in the letter's caption:
Dr. G. has reviewed the form sent by you on the above
named patient. There is no record on (Claimant's) file
that he in fact had a transfusion. The signature on
the form is Dr. G.'s but the pen used to fill out the
form is not what Dr. G. uses. Hoping this clarifies
the situation.
Thank You.
Yours Truly,
[signed]
Dr. G.
- The writing contained in the report (TRAN 2, Exhibit,
pages 83-87) initially attributed to and then substantially
repudiated by Dr. G., bears a striking resemblance to
that of the Claimant. The Claimant did not say for sure
whether he may have completed the document, but notes
that in any case, Dr. G. did sign it.
- Carol Miller, the Centre Claims Coordinator testified
at the behest of Fund Counsel. Ms. Miller's impressive
background includes 23 years in nursing, in Nova Scotia,
Newfoundland, Manitoba and Ontario, and in virtually
every hospital department, including but not limited
to such areas as surgery, medicine, pediatrics and geriatrics.
She has extensive experience with the cross matching
and giving of blood in her capacity as a nurse.
- The Claimant's PCR test of July 29, 199821
was positive. Having reviewed the most recent pathology
report, 22 which showed
Periportal Hepatitis with definite cirrhosis (Stage
4, Grade III), Ms. Miller stated that it is clear that
the disease progression is such that the Claimant is
at Level 5.
- Upon a detailed review of the materials provided by
the Claimant and the Plains Health Centre, Ms. Miller
was able to offer her opinion as to what most likely
occurred. In reference to the surgical report, which
was re-dictated less than a month after the surgery,
she testified that one would normally have seen a reference
in such record if there had been a surgical complication
requiring blood. However, in this case, the report concludes
as follows:23
The patient tolerated the procedure well and no operative
complications were noted. The patient was extubated,
transferred to a stretcher and then to Recovery in satisfactory
condition."
- The Report of Operation with respect to the procedure
of November 13, 1989 ended similarly.24
- The Claimant was in hospital for 1-2 days pre-operatively.
Ms. Miller had the benefit of hearing the Claimant's
testimony. The Claimant had described bags of blood
being close to 1' square. However, units of packed cells
are contained in much smaller bags of the approximate
dimensions of 3.5" x 5.5". Further, while
the Claimant described receiving blood in his room prior
to surgery, Ms. Miller testified that is highly unlikely
that one would receive blood in his hospital room over
this period of time as blood can only be left unrefrigerated
for 4 hours in total. When asked what type of fluids
might have been given pre-operatively, Ms. Miller noted
that since the Claimant is a diabetic, he would probably
have required nourishment through the I.V, since it
is necessary to fast for 8 hours prior to surgery and
diabetics cannot safely fast. Normally such I.V. fluids
would be colourless, but there could have been some
vitamins that would give the solution a yellow colour.
- There was some discussion surrounding the bleeding
time tests25 that were
conducted on the Claimant pre-operatively, and which
he felt supported his conclusion that blood products
would be required with respect to the surgery. However,
Ms. Miller testified that the Prothrombin Time (PT)
test produced 10.4 seconds versus a control of 9.8 seconds
and the Partial Thromboplastin time (PTT) tests showed
a test time of 36 seconds versus a control of 31 seconds.
She testified that both of these tests were within normal
limits and were not suggestive of any coagulation problems.
- Ms. Miller further testified that the CBC hemoglobin
results would be of definitive significance in terms
of determining whether or not blood would be required.
In this case,26 the
Claimant's hemoglobin was reported as 155, which is
the normal level for males. There was no history or
suggestion of anemia recorded anywhere in the chart.
- Notwithstanding the lack of any indications in the
pre-operative testing to suggest that blood would be
required, the first surgery would have been considered
as major surgery because the chest cavity was to be
opened and bleeding could therefore reasonably be anticipated.
It was for this reason that two units of packed cells
(not the four as the Claimant had thought, from an honest
but mistaken reading of the Lab Report (page 24.) Further,
having reviewed the operation record from the second
operation, she noted that there was no hint of complications
or bleeding. Indeed, this was minor to moderate surgery,
involving opening the skin, attending to the wiring
problems, without the necessity of going near the lungs
and heart, in a situation where they knew where they
were going.
- The Record of Anaesthesia27
was of significance in several respects. First, the
reference to "Losses: .300" related to blood
loss. In this case, the blood loss was less than a cup,
which is considered minimal surgical blood loss. Second,
beside this there is a reference to:
Blood
Fluid 1900
Whereas the Claimant thought that this 1900 notation
related to blood, the proper reading of the chart was
such that this pertained to I.V. fluids administered.
Finally, if the patient was losing blood during surgery,
the heart rate would increase (here it remained steady
at between 50 and 60 beats per minute) and the blood
pressure would drop significantly, which did not occur
in this case. Finally, on this record there is a spot
to record Anaesthetic Agents and I.V. fluids, on which
blood would be normally recorded if it had been supplied.
Here, the entries were limited to insulin, 5% dextrose
and water and Ringers Lactate. The Operative Record28
would not normally record blood.
Further, complications requiring blood transfusion would
as a matter of course be reported on the Discharge Summary,29
which in this case showed nothing of the kind.
- The Physician's Orders30
were for grouping and cross-matching two units of packed
cells, which were carried out as ordered, as confirmed
in the Individual Care Plan31
prepared by the nursing staff. Very often, blood is
readied and not used. It is not normally recorded when
blood is cancelled (although here Exhibit 4 clearly
does in fact show that the blood was cancelled in this
case.) It had been requested for 24 hours. While the
shelf life for blood in the lab is 30 days, shelf life
for packed cells to be saved for one person is 3 days.
It is therefore automatic that you would no longer have
blood after 24 hours, as the blood would be allowed
to go back into circulation. In reference to the Lab
Report32 that the Claimant
thought had been altered, Ms. Miller explained how these
labels are prepared and affixed to the chart and testified
that in this case they appeared to be in order. In reference
to the nursing Progress Record 33,
the Claimant had formed the view that the reference
to "O" on November 8, 1989, proved that he
had received type O blood. Ms. Miller pointed out that
"O" is simply the nursing abbreviation for
"objective."
- Ms. Miller identified the following additional components
of the Claimant's health record that would normally
refer to blood products if blood had been given, but
in relation to which there were no such references here:
- Progress Records 34
- Physicians' Progress Record 35
- The post-operative records 36
- The Daily Fluid Record 37
- The Intravenous Flow Sheet38
and Daily Fluid Records 39
- In reviewing Linda Bird's response to the Claimant's
inquiries40, Ms. Miller
felt that Ms. Bird went above and beyond the call of
duty by ascertaining that the cancelled blood products
that had been set aside for the Claimant had actually
been transfused to another patient, as it is not normal
to try to find out where the blood went.
- Not only would the Physicians' Progress Record41
have normally shown if blood was needed, it would also
have shown if there was a history of anemia, which was
not recorded or suggested here. In this case, the Claimant's
hemoglobin readings definitively ruled out anemia.
- On November 11, 1989 the Physician's Orders show
that the I.V. was discontinued. Thereafter, there would
have been no way to get blood in without starting a
new I.V. line. There was no suggestion of a new IV line
having been started.
- Analysis
- The following are the material findings of fact in
this case:
- The Claimant is infected with Hepatitis C.
- The probable source of such infection was not
established in evidence.
- Although two units of packed blood cells were
cross-matched and reserved for him with respect
to the surgery of November 8, 1989, the evidence
is overwhelming that the Claimant did not receive
a blood transfusion before, during or after that
surgery.
- No blood products were either cross-matched or
reserved for or transfused to the Claimant with
respect to the surgery of November 13, 1989.
- Accordingly, the Claimant has failed to establish
that he received any blood transfusions during the
Class Period.
- I am satisfied that the Claimant was labouring under
the honest but mistaken belief that he had in fact received
blood transfusion(s) with respect to one or both November,
1989 operations. The Claimant's suspicion and distrust
of the Plains Health Centre, the surgeon and the CBS,
were clearly exacerbated by the unusual and unexplained
loss of the original Operation Record with respect to
the November 8, 1989 surgery. The loss of the original
surgical record is regrettable. However, given the absence
of any reference to blood products being supplied, when
there were so many other components in the health record
that would have been expected to refer to such blood
products, and given the absence of any evidence that
the Claimant needed blood (the CBC testing and lack
of significant surgical bleeding being key), I am unable
to conclude or even infer any sinister intent or "cover-up"
in that regard. Finally, while the Claimant undoubtedly
felt this to be true, the records with respect to hemoglobin
levels and bleeding time tests conclusively disprove
the Claimant's belief that he was suffering from both
anemia and abnormal or prolonged bleeding time.
- The Claimant has reviewed the health records with
a fine-toothed comb, in a diligent manner, without the
benefit of recent assistance from legal counsel and
with no medical or nursing background, earnestly hoping
that they would be interpreted in such a manner as to
support his contentions. Certainly, without the benefit
of Ms. Miller's testimony, I can well understand how
a diligent layperson in the Claimant's circumstances
could have reached the conclusions that the Claimant
did.
- Based on the foregoing facts, it is clear that the
Administrator's denial of the Claimant's request for
Compensation must be sustained, a conclusion that, after
hearing Ms. Miller's evidence interpreting the health
record, the Claimant appeared to appreciate would be
inevitable.
- 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. Having heard the evidence, I am
satisfied that the Claims Centre was not looking for
ways of denying this claim, but rather was merely ensuring
that it complied with the parameters of the Plan. Indeed,
I find that Ms. Miller was most fair and even-handed
in her testimony.
- The Claimant's illness is undeniably very serious
and he is clearly in dire financial circumstances. The
Claimant is a resourceful and colourful street-smart
individual with many skills and a diverse background
and skill-set. His circumstances have now been greatly
reduced in consequence of his illness. He could no doubt
be significantly assisted in his medical battle by the
availability of funds. One cannot help but have considerable
empathy for him and the difficulty of his plight. There
is a considerable temptation to wish to assist him in
that regard, if the evidence allowed one to do so.
-
However, regrettably for the Claimant, he was unable
to provide the proof required by Article 3.01 because
he could not establish that he received a transfusion
during the Class Period. The provisions 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 Claimant cannot establish
the threshold requirement that a blood transfusion
was received during the Class Period, (ignoring for
the moment the requirements with respect to establishing
that the blood so transfused was infected), 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.
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.
- Decision
- 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 7th day of January
2002.
________________________________
DANIEL SHAPIRO, Q.C.
Referee
- All references
throughout to page numbers are from Exhibit 1, unless otherwise
specified.
- Pages 79 -
82
- Pages 88 -
89
- Page 88
- In her testimony,
Carol Miller stated that the Claims Centre read this to
mean that the Claimant did use I.V. drugs.
- Page 155
- Pages 83 -
87
- The record
indicates: "No records are available prior to 1977
and this patient has no record of transfusion since then."
The Claimant had attended at some point at the Pasqua Hospital
and requested that the records of this hospital also be
searched with respect to a possible blood transfusion. The
letter of November 6, 1998 states: "The Pasqua Hospital
and the Plains Health
- A chronic
progressive muscular weakness.
- An incision
into or through the sternum.
- Removal of
the thymus gland.
- Pages 95 and
128
- Carol Miller
later testified that this Lab Report referred to a "request:
to supply 2 units of packed cells", on the left hand
side of the page and the reference on the right hand side
of the page, initialing off "2 units of packed cells",
simply confirmed that the request to reserve 2 units had
in fact been fulfilled. This document could therefore not
be interpreted as suggesting that 4 units had been reserved,
as the Claimant had incorrectly assumed.
- Page 62
- Pages 63and
119
- Carol Miller
later testified that the notes in question read: "Gr
X for 2 u p.c.", which simply means "Group and
cross-match for 2 units of packed cells."
- Carol Miller
later testified that while the first operation would be
considered major surgery, since the chest cavity was opened
and bleeding was readily foreseeable, the second surgery
would be considered minor-moderate surgery since it was
not necessary to open up the chest. In the latter case,
it would simply be a question of repairing the wire, and
no significant blood loss would be anticipated.
- Page 147
- Page 31
- Ms. Miller
later confirmed that "canc" is simply an abbreviation
for "cancelled."
- Page 35
- Page 34
- Page 31
- Page 33
- Page 96
- Page 97
- Page 40
- Page 41
- Page 33
- Page 62
- Page 63
- Page 66
- Page 69
- ibid
- Page 70
- Page 73
- Page 77 -
These would normally show blood in the "Solution"
column, if it had been administered, but there was no such
entry here.
- Page 111
- Page 112
- Page 148
- Page 70
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