Appeals : Arbitrator Decisions : #80 - January 29, 2003

D E C I S I O N

BACKGROUND

1. On September 24, 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 an arbitrator.

3 Initially, the Claimant requested an oral hearing, which was scheduled for January 24, 2003. However, she changed her mind and requested a written hearing. Both parties waived their entitlement to an oral hearing.

4. The Claimant did not file submissions but requested that the arbitrator 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 January 10, 2003.

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. The traceback procedure conducted by Hema-Quebec confirmed that two units of blood were transfused to the Claimant on December 27, 1989, during the class period. However, on October 30, 2001, Hema-Quebec reported that the traceback procedure revealed that the donors of the blood transfused to the Claimant during the class period tested negative for the HCV antibody.

9. On January 6, 2003, Hema-Quebec sent a letter to the Administrator describing the traceback procedure with respect to the Claimant and confirming that the two blood donors tested negative for the HCV antibody.

ANALYSIS

10. The 1986-1990 Hepatitis C Settlement Agreement was approved by the courts and determined to be fair, reasonable and in the best interest of the class members. The Honorable Madame Justice Nicole Morneau, J.S.C., approved the Settlement Agreement for the Quebec class members, in her judgment dated September 21, 1999. The Honorable Mr. Justice Winkler approved the Settlement Agreement for the Ontario class members in his judgment dated October 22, 1999.

11. The Claimant seeks compensation as a Primarily-Infected Person under the Transfused HCV 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 ..."

12. 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.

13. 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 ..."

14. 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 two units of blood on December 27, 1989, which is within the Class Period.

15. 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 ..."

16. 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."

17. A traceback has been conducted which confirms that the donors of the blood used to transfuse the Claimant have tested negative for the Hepatitis C antibody. The Claimant has not provided any evidence, as provided for by section 3.04(2), to refute the results of the Traceback Procedure.

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

19. 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.

20. 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

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

JUDITH KILLORAN
Arbitrator

January 29, 2003
DATE