Appeals : Confirmed Referee Decisions : #81 - January 28, 2003

D E C I S I O N

BACKGROUND

1. On October 2, 2002, the Administrator denied the Claimant's request for compensation as a Primarily-Infected Person under the Transfused HCV Plan (the "Plan"). The claim was denied on the basis that the donors of the blood transfused to the Claimant during the Class Period tested negative for the HCV antibody.

2. The Claimant requested that the Administrator's denial of her claim be reviewed by a referee.

3. Both parties waived their entitlement to an oral hearing.

4. The Claimant did not file submissions but requested that the referee review all the material in her claim file from The 1986-1990 Hepatitis C Claims Centre.

5. Fund counsel, on behalf of the Administrator, filed written submissions on December 12, 2002.

6. The hearing concluded on January 19, 2003 when the Claimant confirmed that she would not be filing reply submissions.

EVIDENCE

7. It is not disputed that the Claimant is infected with Hepatitis C.

8. In February 1990, the Claimant was admitted to hospital. Three units of blood were cross-matched and reserved for the Claimant, if required, until February 10, 1990.

9. Only two of the three units of blood were transfused to the Claimant, according to the hospital records.

10. The Administrator initiated a six-month traceback procedure in December 2000 to determine whether the transfused blood was the source of the Claimant's infection.

11. The Class Action Traceback Protocol requires that the Administrator make a decision on a claim after the expiration of the six-month period even if the traceback procedure has not been completed.

12. The Claimant's claim was approved based on an inconclusive traceback. On July 12, 2001, the claim was approved at disease level 1. The Administrator mailed the Claimant a court approved release for her signature.

13. Shortly after the approval, the traceback procedure was completed. In a letter dated July 23, 2001, Canadian Blood Services reported that the HCV status of both blood donors was confirmed to be negative.

14. On July 26, 2001, the Administrator received the executed release from the Claimant.

15. Section 13 of the Traceback Protocol provides:

Where a claim is accepted, it may be later rejected if information concerning the HCV antibody status of the donors or units of the Blood received by the person claimed to be a Primarily-Infected Person or other means of infection becomes known which would have resulted in rejection of the Claim had that information been considered at the time the Administrator's decision was taken. The claimant shall thereafter become disentitled to future payments under the Plan. Absent fraud on the part of the claimant, the claimant shall not be obligated to repay any monies received under the Plan prior to becoming disentitled under the Plan.

16. Fund Counsel submitted a Canadian Liver Foundation medical information update which states that in 10% of the cases of Hepatitis C, according to U.S. data, the source of infection cannot be identified. Fund Counsel also submitted an article from "The Canadian Journal of Infectious Diseases" (November/December 2001) titled "Enhanced Surveillance of Acute Hepatitis B and C in Four Health Regions in Canada, 1998-1999", which states that the percentage of people where the source of HCV infection is unknown is 20.8%.

ANALYSIS

17. The Claimant seeks compensation as a Primarily-Infected Person under the Plan. The Plan defines "Primarily-Infected Person", in part, as meaning "a person who received a Blood transfusion in Canada during the Class Period and who is or was infected with HCV unless:

(a) it is established on the balance of probabilities by the Administrator that such person was not infected for the first time with HCV by a Blood transfusion received in Canada during the Class Period ..."

18. The 1986-1990 Hepatitis C Settlement Agreement defines "Class Period" as meaning "the period from and including 1 January 1986 to and including 1 July 1990." "Class Period" is defined identically in the Plan.

19. Section 3.01 of the Plan requires that a person claiming to be a Primarily-Infected Person must deliver to the Administrator an application form together with, among other things, medical "records demonstrating that the Claimant received a Blood transfusion in Canada during the Class Period ..."

20. I find that the Claimant did provide the evidence required by section 3.01 to establish that she received a blood transfusion during the Class Period. Based on the evidence before me, the Claimant received blood transfusions in February 1990, which is within the Class Period.

21. However, section 3.04(1) of the Plan provides as follows:

Notwithstanding any other provision of this Agreement, if the results of a Traceback Procedure demonstrate ... that none of the donors or units of Blood received by a Primarily-Infected Person ...during the Class Period is or was HCV antibody positive, subject to the provisions of Section 3.04(2), the Administrator must reject the Claim of such HCV Infected Person ..."

22. A Traceback Procedure is defined in section 1.01 of the Plan as "a targeted search for and investigation of the donor and/or the units of Blood received by a HCV Infected Person."

23. A traceback procedure has been conducted which confirms that the donors of the blood used to transfuse the Claimant have tested negative for the Hepatitis C antibody. Unfortunately, due to the results of the completed traceback, the Claimant is disentitled to payments under the Plan. Both blood donors tested negative, which means that they were not the source of the Claimant's infection. The Claimant has not provided any evidence, as provided for by section 3.04(2), to refute the results of the traceback procedure.

24. I find that the Claimant does not qualify as a Primarily-Infected Person and is not entitled to compensation under the terms of the Transfused HCV Plan. Section 3.04(1) requires that the Administrator must reject the claim in circumstances such as these.

25. The Claimant has asked that I also review the Administrator's decision about out-of-pocket expenses, which were denied. Section 4.07 stipulates that only an Approved HCV Infected Person is entitled to be compensated for out-of-pocket expenses. An "Approved HCV Infected Person" is defined as "a HCV Infected Person whose Claim made pursuant to Section 3.01 or 3.02 .... has been accepted by the Administrator." Unfortunately, the Claimant does not qualify as an Approved HCV Infected Person as her claim has not been accepted by the Administrator. Therefore, she is not entitled to be compensated for out-of-pocket expenses.

26. The Administrator under the Settlement Agreement is required to administer the Transfused HCV Plan in accordance with its terms. The Administrator does not have authority to vary the terms of the Plan nor does an arbitrator or a referee when asked to review the Administrator's decision.

CONCLUSION

27. I uphold the Administrator's denial of the Claimant's request for compensation.

JUDITH KILLORAN
Referee

January 28, 2003
DATE