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

Decision of the Court having jurisdiction in the Class Action - June 14, 2002

D E C I S I O N

Claim ID number 130043

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

D E C I S I O N of the Court having jurisdiction in the Class Action

June 14, 2002

[1] The Claimant opposes confirmation of a Referee's decision that upheld the Administrator's ruling that the Claimant is not entitled to compensation under the HCV 1986-1990 Transfused Settlement Agreement.

[2] The facts are these. The Claimant is infected with the Hepatitis C virus. He received two units of transfused blood on April 12, 1990. He made application for compensation as a primarily-infected person under the settlement agreement designed to benefit individuals infected by a transfusion of blood in the period from January 1, 1986 through July 1, 1990.

[3] The Transfused Settlement Agreement requires the Administrator to determine whether the source of the Claimant's infection with the Hepatitis C virus was the transfused blood. As contemplated by Article 3.04(1) of the Settlement Agreement, the Administrator resorted to the "traceback procedure" for the purpose of demonstrating whether the donor of either of the units of transfused blood was the source of the Claimant's infection. The traceback procedure indicated neither of the donors with whose blood the Claimant had been transfused tested positive for the Hepatitis C virus. As a result, on November 23, 2001 the Administrator advised the Claimant that his application for recognition as a primarily-infected individual had been rejected.

[4] The Claimant appealed from that decision. His stated reason was the following:

That a invalid traceback was used. The Traceback is dated 1992-07-15 and 1993-03-29. The court made a order dated May 5, 1999 that 'a court ordered traceback will be used'. The traceback being used is over six years before the court order was made and therefore improper. The Administrator is not following the Court's Order.

[5] A letter dated January 2, 1992 from Canadian Blood Services describing the traceback process that had been carried out in respect of the Claimant was provided to the Referee. The letter described the process as one that had involved both Canadian Red Cross Society and Canadian Blood Services. Canadian Blood Services acknowledged it had relied upon work that had been done by Canadian Red Cross to identify the hospital at which the blood had been transfused and the unit numbers of the transfused products. Canadian Blood Services then advised as follows in respect of the traceback relating to the Claimant:

The above unit numbers were input into CBS's blood information system ("BLIS Data Base") a computerized information system that tracks blood donor information. The BLIS Data Base allows CBS to link unit numbers to the donors of those units. The donors associated with each of the above unit numbers were identified.

It was determined that all donors associated with the above products had subsequently made donations and were tested at the time of their subsequent donation.

[6] The subsequent blood donations were made in 1992 and 1993 and tested by Canadian Red Cross Society. The tests produced negative results. From the information it reviewed, Canadian Blood Services concluded that neither donor had contributed to the Claimant's infection.

[7] Because the traceback investigation was commenced by Canadian Red Cross but completed by Canadian Blood Services, I asked fund counsel to obtain an explanation from Canadian Blood Services of the manner in which it had assessed the nature and results of the Canadian Red Cross Society work. The Claimant has been provided with a copy of the response. He has advised that he does not require an oral hearing as a consequence of the explanation which has been offered.

[8] In a letter dated May 27, 2002 Canadian Blood Services has advised as follows:

...The CRCS had completed the following work on the investigation:

1. Notified the [Hospital] and received a report from the Hospital identifying the unit numbers and products received by the Recipient;

2. Identified the two donors associated with the transfused units;

3. Identified that each of the associated donors had subsequently made donations and had tested negative for the antibody for Hepatitis C ("anti-HCV") at the time of the subsequent donation(s); and

4. Retrieved anti-HCV test result for each of the donors.

All of this information was placed on the traceback file. When CBS took over and finalized the traceback investigation, all of the steps taken by CRCS in the traceback investigation were reviewed, as was all of the information on the file. CBS conducted this review to ensure that the work done by CRCS on the traceback investigation was done correctly and to verify that all of the information on the file was consistent and reliable. Prior to concluding the investigation and closing the traceback file, the file was reviewed again by the Medical Director. As part of that review, the Medical Director reviewed the test results of the associated donors to verify that the associated donors tested negative for anti-HCV.

Please note that at the time this traceback investigation was finalized, CBS continued to use the work instructions and standard operating procedures for traceback investigations that were in use by the CRCS at the time CRCS conducted its work on the file.

[9] In my opinion, when asked by the Administrator to carry out a traceback Canadian Blood Services is entitled to rely upon information, screening processes and results obtained by the Canadian Red Cross Society in the course of a traceback provided Canadian Blood Services satisfies itself that the steps taken in relation to the process prior to the receipt of a request from the Administrator for the conduct of a traceback procedure, comply with accepted scientific and clinical standards so as to be reliable. Canadian Blood Services is not obliged to repeat that which was done in relation to the Claimant's transfusion unless Canadian Blood Services identifies a deficiency in the process.

[10] In the circumstances I conclude that the Referee correctly concluded that the Administrator was obliged to deny the Claimant's claim because of Article 3.04(1) of the Transfused Settlement Agreement. The Administrator is prohibited from approving the Claimant as a "Primarily-Infected Individual" by nature of the negative donor test results.

"The Honourable Mr. Justice Pitfield"