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"
_____________________________
Vincent R.K. Orchard, Arbitrator
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