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