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Appeals: Confirmed
Referee Decisions : #120 - January 8, 2004
Decision of the Court having jurisdiction in the Class Action attached - December 15, 2004
D E C I S I O N
The Claimant submitted a request for compensation further
to the Transfused HCV Plan. In his request for compensation
and documentation submitted in support of his claim, the Claimant
indicates that he received two (2) blood transfusions in February
1987 and that he had been diagnosed as being HCV positive
in 1998. He therefore establishes a link between this HCV
infection and one or the other of the transfusions received
in 1987, adding that he does not have any other known risk
factor.
On June 26, 2002, the Fund Administrator rejected the request
for compensation justifying his dismissal on the fact "that
there was insufficient proof that the first infection occurred
during the Class Action Period".
Following such a decision, the Claimant submitted a Request
for Review. This case was heard on November 18, 2003 and therefore,
I now have to render a decision as a Referee.
At the Hearing, the Claimant submitted three (3) letters provided
by his attending physicians, a General Practitioner, a Cardiologist
and a Physician working for the Hepatogastroenterology Department
of one of the large Montreal university centers. In each of
these reports, the physicians confirm that the Claimant suffers
from hepatitis C and that otherwise, they have not been able
to identify risk factors other than the blood transfusions.
However, donors of the two (2) transfusions received in 1987
have been identified and tests completed by Hema-Quebec came
out negative. In one case, the donor showed up eight (8) times
between 1991 and 1998 and tested negative on each of those
occasions. As for the other donor, his blood preserved in
a serum bank was tested in 1990 and again in February 2000
(ORTHO 3.0) and also came out negative.
Section 3.04(1) of the Transfused HCV Plan (1986-1990) as
implemented provides that if results of a Traceback Procedure
demonstrate that none of the donors is or was anti-HCV positive,
the Administrator must reject this HCV person's claim. Therefore,
it is on this basis that the Administrator rejected the request
for compensation.
Section 3.04(2) otherwise provides that the Claimant can prove
that he had been infected for the first time following a transfusion
despite the Traceback Procedure results. To this effect, the
Claimant bases his request on the three (3) letters mentioned
above, on other letters provided by the same physicians of
which copies are included in the investigation file and on
the fact that he is convinced, as he claims, that there was
a handling or labeling mistake, and therefore, that the blood
he had received really does not come from the two (2) tested
donors.
It is possible that effectively, there was a handling or labeling
mistake, but indeed there has been no evidence submitted to
support this theory.
It is possible, as raised by the Fund Counsel, that the illness
had been contracted during one of the surgeries that the Claimant
underwent at the end of the '70s or early in the '80s or again,
that it had been contracted following an albumin transfusion
received in 1996. However, it is possible, if not likely,
that the exact cause of the Claimant's HCV infection might
never be known.
Section 3.04(2) puts a heavy and difficult burden of proof
on the Claimant which requires, to say the least, a more thorough
proof than the one which is before me. The Claimant has not
been able to convince me that his mishandling mistake theory
was based on some serious factual element. He raised possibilities,
but nothing more, and the Claimant has not met the onus under
Section 3.04(2).
I am otherwise satisfied with the Claimant's most entire good
faith. One cannot but sympathize with the difficulties of
this man who has been married for more than 40 years and who
has had to suffer this terrible illness and who continues
to live with it.
But I must regrettably conclude that the Claimant has not
been able to demonstrate that his illness has resulted from
one of the 1987 transfusions. I therefore consider that the
Administrator's decision to reject this request for compensation
was well founded.
I therefore reject the Request for Review.
Montreal, January 8, 2004
(S) JACQUES NOLS
Jacques Nols
Referee
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