Appeals: Confirmed
Referee Decisions : #124 - February 12, 2004
D E C I S I O N
BACKGROUND
1. On July 9, 2003, the Administrator denied the Claimant's
request for compensation as a Primarily-Infected Person under
the Transfused HCV Plan (the "Plan") on the basis
that the Claimant had not provided sufficient evidence to
support his claim that he received a transfusion of blood
during the Class Period.
2. On July 17, 2003, the Claimant requested that the Administrator's
denial of his claim be reviewed by a referee.
3. On July 17, 2003, the Claimant requested an in-person
hearing. However, on September 15, 2003, the Claimant confirmed
that he would like a written hearing. He requested that the
referee review all of the material in his file from the 1986-1990
Hepatitis C Claims Centre. The Claimant indicated that he
would provide further information by way of documents and
affidavits from his sister and his lawyer.
4. On December 22, 2003, fund counsel, on behalf of the Administrator,
filed written submissions.
5. I extended the deadline from November 21, 2003 to January
9, 2004 and finally, to February 6, 2004, for receiving evidence
and submissions from the Claimant. The Claimant confirmed
with my office that he had not been successful in obtaining
any further documents or evidence to support his claim. Therefore,
I concluded the hearing on February 6, 2004, when the Claimant
filed no further evidence or submissions.
EVIDENCE
6. It is not disputed that the Claimant is infected with
Hepatitis C.
7. The Claimant indicated in his General Claimant Information
Form that he had received blood three times in his lifetime.
He claimed to have received no blood prior to 1986 and to
have received blood once or twice between January 1, 1986
and July 1, 1990.
8. The Claimant's treating physician indicated that he had
treated the patient for the past four years while he was incarcerated.
He stated that the Claimant had other risk factors for HCV,
including prison incarceration and tattoos.
9. In his Blood Transfusion History Form dated December 28,
2002, the Claimant stated that he was transfused in August
1986 at Plummer Hospital in Sault Ste Marie where he was treated
for a stab wound. He also stated that he was transfused on
two occasions in 2002 at the Kingston General Hospital.
10. The 1986-1990 Hepatitis C Claims Centre asked the Claimant
to complete an Other Risk Factor Inquiry Form. In that form
dated March 9, 2003, the Claimant listed a stabbing to his
stomach in 1986, 25 tattoos received from 1981 to 1985 and
prison incarceration since August 22, 1987. He also indicated
that he had taken heroin since 1996 but did not share needles
until 1998.
11. A traceback was conducted by Canadian Blood Services.
On April 29, 2003, Plummer Hospital confirmed that it had
no records for anyone with the Claimant's name and birth date.
However, the hospital did have records for someone of the
same name with a birth date just one year earlier. There were
two admissions in the record for that person: one admission
for whooping cough and another for fainting spells. There
was no information about transfusions.
ANALYSIS
12. 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 ..."
13. 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.
14. Article 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."
15. The Claimant has not provided any evidence to establish
that he was transfused during the Class Period. There have
been no records filed of any blood transfusion.
16. I find that the Claimant did not provide the evidence
required by Article 3.01 to establish that he was infected
as a result of a blood transfusion during the Class Period.
Therefore, the Claimant does not qualify as a Primarily-Infected
Person and is not entitled to compensation under the terms
of the Transfused HCV Plan.
17. The Administrator under the Settlement Agreement is required
to administer the Transfused HCV Plan in accordance with its
terms. The Plan was never intended to apply to all those who
became infected with Hepatitis C. Compensation is limited
to a defined class of individuals. Unfortunately, the Claimant
does not qualify for compensation. 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
18. I uphold the Administrator's denial of the Claimant's
request for compensation.
February 12, 2004
DATE
JUDITH KILLORAN
Referee
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