Appeals : Arbitrator Decisions : #77 - January 20, 2003

D E C I S I O N

A. INTRODUCTION

1. The Claimant submitted a claim under the Transfused HCV Plan (the "Plan"), as a Primarily-Infected Person. His claim was denied because the Traceback Procedure indicated the Claimant did not receive a Blood transfusion during the Class Period from a donor who was determined to be HCV antibody positive.

2. The Claimant requested that the Administrator's denial of his claim be reviewed by an arbitrator at an in-person hearing.

3. A hearing was conducted on January 14, 2003 at Hope, British Columbia.

B. FACTS

4. The Claimant is infected with Hepatitis C.

5. It is common ground that the Claimant received a Blood transfusion during the Class Period.

6. The Blood Transfusion History Form ("TRAN 5") (page 33, tab 3, Exhibit 1) indicates a transfusion at Chilliwack General Hospital in May 1990. The Report of Transfusion-Related Infection (page 55, tab 3, Exhibit 1) shows that the Claimant received a transfusion of Blood unit number 885377 on May 25, 1990 in an ambulance en route to Chilliwack Hospital from Fraser Canyon Hospital. There was also an additional unit of blood (no. 885363) that was cross-matched and stored for the Claimant but was not given.

7. The Traceback Procedure results are summarized in an attachment to a letter dated December 14, 2000 from Canadian Blood Services ("CBS") (pp. 45 and 46, Tab 3, Exhibit 1). A Records Search indicated a negative HCV antibody test in 1994, the last time the donor was tested.

8. A further letter dated May 25, 2001 from CBS includes documentation from the appropriate hospitals confirming that only one unit of blood (no. 885377) was transfused to the Claimant and another unit was ordered but not transfused (pages 53 -56, tab 3, Exhibit 1).

9. The Administrator denied the claim as the donor of the unit of blood the Claimant received during the Class Period tested negative for the HCV antibody.

10. During the arbitration process Fund Counsel requested the Administrator obtain further information from CBS concerning the Traceback Procedure carried out in respect of the Claimant. A letter dated January 2, 2002 from CBS provided a comprehensive summary concerning the Traceback Procedure (tab 4, Exhibit 1). CBS advised that the donor associated with the unit transfused to the Claimant made at least 11 subsequent donations since testing for the HCV antibody was implemented in June 1990. The donor tested negative for the HCV antibody at least 11 times. The most recent test result in the records of CBS was in 1994.

11. In the Chilliwack Hospital records provided by the Claimant there is a cross-match record dated May 25,1990 (page 114, tab 3, Exhibit 1). Six units of blood were cross-matched for the Claimant. The Administrator requested CBS to make further inquiries of Chilliwack Hospital concerning these units. Chilliwack Hospital responded to CBS and confirmed, by production of an Inter-Hospital Exchange of Blood Products form dated May 25, 1990, that only one unit of blood was transfused to the Claimant and that was unit 885377, transfused to the patient in the ambulance en route from Fraser Canyon Hospital to Chilliwack Hospital. The other unit of blood, no. 885363, was, according to the document, given to another patient (tab 5, Exhibit 1).

C. THE PLAN

12. Article 3.01 of the Plan sets out what claimants must submit to the Administrator to be entitled to compensation as a Primarily-Infected Person.

13. Traceback Procedure based on testing for the HCV antibody is stipulated in Article 3.04.

14. The amended Court Approved Protocol-Criteria for Traceback Procedure ("Traceback Protocol") for persons claimed to be Primarily-Infected Persons under the Plan has been approved by an Order pronounced by the British Columbia Supreme Court on the 6th day of February 2001.

15. Section 7(a) of the Traceback Protocol stipulates that where all of the donors of the Blood received by the person claiming to be a Primarily-Infected Person during the Class Period are determined not to be HCV antibody positive, the Administrator shall reject the claim as provided in Article 3.04(1) of the Plan.

16. The results of the Traceback Procedure initiated for this Claim demonstrated that the Class Period donor was HCV antibody negative.

17. In accordance with Article 3.04(2) of the Plan, notwithstanding the results of the Traceback Procedure, a claimant has the opportunity to prove infection for the first time with HCV by a Blood transfusion in the Class Period.

D. REASONS FOR REVIEW AS IDENTIFIED BY THE CLAIMANT

18. In the Request for Review by Arbitrator dated December 8, 2001, (pages 5-7, tab 3, Exhibit 1) the Claimant states that: "I had the Hepatitis C virus at the time of tainted blood being used. Doctors records of having Hepatitis C" and "Documents submitted appear to be unsatisfactory". The Claimant stated at the hearing that he did not have Hepatitis C before May 25, 1990, when he was injured and went to hospital, but he had it afterwards. He can think of no reason but the transfusion for having Hepatitis C. The Claimant states he has no know Hepatitis C risk factors.

E. CONCLUSION

19. I agree with Fund Counsel that the Administrator has an obligation to assess each claim to determine whether the required proof for compensation exists. The Administrator has no discretion to allow compensation where the required proof does not exist. The evidence shows that the Claimant did not receive a Blood transfusion during the Class Period from a donor determined to be HCV antibody positive. The Traceback Procedure demonstrated that the Class Period donor tested negative for the HCV antibody. The Administrator was therefore required to deny the claim under Article 3.04(1).

20. The Claimant has not provided any proof to the contrary allowed under Article 3.04(2) that he was infected, for the first time, with HCV by a Blood transfusion received in Canada during the Class Period.

21. I must conclude that the Administrator properly determined that the Claimant was not entitled to compensation under the Plan. There was no evidence that the Claimant received a Blood transfusion during the Class Period from a donor who was infected with Hepatitis C.

22. Accordingly, I find that the Administrator's denial of the claim must be upheld.

DATED at Vancouver, British Columbia, this 20th day of January, 2003.
"Vincent R.K. Orchard"
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Vincent R.K. Orchard, Arbitrator