Appeals : Unconfirmed Referee Decisions : #39 - February 6, 2002

D E C I S I O N

Claim ID: 1300430

1. On December 7, 2001, the Administrator denied the claim for compensation as a Primarily-Infected Person under the Transfused HCV Plan. The claim was denied on the basis that the Claimant did not receive transfused blood within
the Class Period from a donor who is determined to be HCV antibody positive.

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

3. Both parties waived a hearing to review the Administrator's denial of the claim.

4. The Claimant provided written submissions in support of his claim. These submissions have been carefully considered but, unfortunately for the Claimant, they are of no assistance to him for the reasons set out below.

5. The relevant facts are not in dispute and can be summarized as follows:

(a) The Claimant is infected with Hepatitis C.

(b) The Claimant received a blood transfusion in April 1990.

(c) When the claim was made, the Administrator directed the required Traceback Procedure to be carried out by Canadian Blood Services.

(d) By letter dated December 11, 2000, the Administrator was advised that all class period donors were cleared as not testing positive for HCV antibodies.

(e) The Administrator denied the claim on the basis that the Claimant did not receive a blood transfusion from a primarily infected person during the Class Period.

(f) Following the filing of the claim, Fund Counsel requested further information from Canadian Blood Services concerning the Traceback process carried out with respect to the Claimant, which confirmed and supported the
facts noted above. This information is contained in a letter - more accurately a report - describing the traceback process with respect to the claimant in terms of the methodology employed and the results attained, namely that both donors tested negative as to the presence of HCV antibodies.

6. Based on these facts, it is clear that the Administrator's decision must be sustained.

7. The 1986 - 1990 Hepatitis C Settlement Agreement defines "Class Period", as the title implies, as the period "from and including 1 January 1986 to and including 1 July 1990." The Transfused HCV Plan provides the same definition. The Plan defines a "Primarily-Infected Person" as "a person who received a Blood transfusion in Canada during the Class Period . . . ".

Under the Agreement, a successful Claimant must achieve this status.

8. Pursuant to Article 3.01 of the Plan, a person claiming to be a Primarily-Infected Person is required to produce to the Administrator medical records "demonstrating that the Claimant received a Blood transfusion in Canada during the Class Period."

9. In this case, it is not disputed that the Claimant did receive a blood transfusion in the Class Period, namely in April, 1990. However, Article 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 one of the donors or units of Blood received by a HCV-Infected Person or Opted-Out HCV Infected Person before 1 January 1986 is or was HCV antibody positive or that none of the donors or units of Blood received by a Primarily-Infected Person or Opted-Out 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 and all Claims pertaining to such HCV Infected Person or Opted-Out HCV Infected Person including Claims of Secondarily-Infected Persons, HCV Personal Representatives, Dependants and Family Members.

10. A Traceback Procedure is defined in Article 1.01 of the Plan as follows:

"Traceback Procedure" means a targeted search for and investigation of the donor and/or the units of Blood received by a HCV Infected Person.

11. As has been noted, the evidence is that a Traceback Procedure was conducted. As a consequence, it was established there were two units of blood transfused, all on April 12, 1990. Each of the donors was identified
by using the computerized information system that tracks blood donor information. It was established that each of the donors had made subsequent donations - in one case on eight occasions and in the other, three occasions.
In each case, the donors were tested to detect HCV antibodies at the time they made their donations and, in each case, the result of the test was negative.

12. The Claimant does not dispute the facts. However, the Claimant asserts that "an invalid traceback" was used. According to the Claimant, the traceback procedure that was used predated an order of the court and was
therefore improper since only a court ordered traceback may be used.

13. The Order of the British Columbia Supreme Court, dated October 28, 1999, contains the court approval investigative procedure. By order of the Court dated August 14, 2000, the Protocol Criteria for Traceback Procedure for
Persons Claimed to be Primarily Infected Persons was approved. On February 6, 2001 an amended Protocol was approved. The definition of Traceback Procedure contained in the February 6, 2001 Order reads as follows:

"means a targeted search for and the investigation of the donor and/or the units of Blood received by an HCV Infected Person in Canada and for the purpose of this Protocol includes any one or more of the following stages of
search: a Records Search, a Class Period Search and/or a Pre-Class Period Search;" (enclosure 4).

It is clear that the traceback procedure followed in this case falls within this definition. Accordingly, the contention of the Claimant that the traceback procedure was improper cannot be accepted.

14. On the basis of the facts of this case, I am obliged to find the Administrator had no alternative but to deny the Claim. The words of Article 3.04(1) of the Plan are clear and unambiguous that the Administrator " . . .
must reject the Claim . . ." in circumstances such as these. The Administrator must administer the Plan in accordance with its terms. The Administrator does not have the authority to alter or ignore any of the provisions of the Plan. Similarly, a referee when called upon to review a decision of the Administrator, must apply the relevant provisions of the Plan to the individual circumstances of the Claimant and may not alter or ignore any of its terms.

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

Dated at Vancouver, British Columbia, this 6th day of February, 2002.

John P. Sanderson, Q.C.
Referee