|
Appeals : Arbitrator
Decisions : #125 - February 27, 2004
D E C I S I O N
Claim No. 1000492
Province of Infection - Nova Scotia
1. The Claimant applied for compensation as a Primarily-Infected
Person pursuant to the Transfused HCV Plan.
2. By letter dated November 23, 2001, the Administrator denied
the claim on the basis that the Traceback confirmed that no
donors of the blood transfused to the Claimant during the
Class Period tested positive for the HCV antibody.
3. The Claimant requested that the Administrator's denial
of her claim be reviewed by an arbitrator.
4. Both parties were requested to indicate whether they wished
to have an oral hearing but neither of them did so.
5. Two affidavits were filed by the Claimant's counsel. The
first affidavit was sworn by the Claimant on February 4, 2003.
The second affidavit was sworn by the Claimant's husband on
February 5, 2003.
6. A written submission was received from Fund Counsel on
October 1, 2003. Counsel for the Claimant declined the opportunity
to make a written submission.
7. The relevant facts can be summarized as follows:
(i) The Claimant was diagnosed in 1997 as being infected
with Hepatitis C.
(ii) The Claimant received blood transfusions at the Hants
Community Hospital in Windsor, Nova Scotia, on February 27,
1990 and February 28, 1990.
(iii) In accordance with the standard procedure, a Traceback
was conducted by the Canadian Blood Service of the blood received
by the Claimant on both occasions. The donors were successfully
traced and did not test positive for the HCV antibody.
(iv) The Claimant believes she also received a blood transfusion
at the Hants Community Hospital when she was admitted there
in connection with the birth of her first child in March of
1988. However, she has not been able to produce any record
demonstrating that she was transfused on that occasion. On
the contrary, the hospital records concerning her admission
in March of 1988 specifically indicate that she was not transfused.
8. Section 3.01 of the Transfused HCV Plan reads as follows:
|
"3.01 Claim by Primarily-Infected Person
|
(1) A person claiming to be a Primarily-Infected Person
must deliver to the Administrator an application form
prescribed by the Administrator together with:
|
(a) medical, clinical, laboratory, hospital, The Canadian
Red Cross Society, Canadian Blood Services or Hema-Québec
records demonstrating that the claimant received a Blood
transfusion in Canada during the Class Period;
|
(b) an HCV Antibody Test report, PCR Test report or
similar test report pertaining to the claimant;
|
| (c) a statutory declaration of the claimant including
a declaration (i) that he or she has never used non-prescription
intravenous drugs, (ii) to the best of his or her knowledge,
information or belief, that he or she was not infected
with Hepatitis Non-A Non-B or HCV prior to 1 January 1986,
(iii) as to where the claimant first received a Blood
transfusion in Canada during the Class Period, and (iv)
as to the place of residence of the claimant, both when
he or she first received a Blood transfusion in Canada
during the Class Period and at the time of delivery of
the application hereunder." |
9. In the present case, the Claimant has satisfied the requirements
set out in subparagraphs (b) and (c). She has also satisfied
the requirement in subparagraph (a) with respect to the transfusions
she received in February of 1990. However, she has not done
so with respect to any other transfusion during the Class
Period and, in particular, the transfusion which she alleges
she received in March of 1988.
10. Unfortunately for the Claimant, the result of the Traceback
Procedure was that none of the donors of the blood she received
in February of 1990 was HCV antibody positive.
11. Section 3.04 of the HCV Transfused Plan provides, in
part, as follows:
"3.04 Traceback Procedure
|
(1) 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....
|
| (2) A claimant may prove that the relevant
Primarily-Infected Person...was infected, for the fist
time, with HCV by a Blood transfusion received in Canada
during the Class Period..., notwithstanding the results
of the Traceback Procedure. For greater certainty, the
costs of obtaining evidence to refute the results of a
Traceback Procedure must be paid by the claimant unless
otherwise ordered by a Referee, Arbitrator or Court." |
12. In the present case, the results of the Traceback Procedure
have not been refuted. Paragraph 7 of the Claimant's affidavit
states:
| "...I have no other risk factors associated with
hepatitis C. I have no tattoos and any eye examinations
I have had prior to contracting hepatitis C involved only
looking through a lens. I do not have any history of taking
intravenous drugs." |
13. I accept the foregoing as true statements of belief on
the part of the Claimant. However, I find that they are insufficient
to refute the results of the Traceback Procedure.
14. Mr. Justice Pitfield discussed the importance of the
Traceback Procedure and the type of evidence required to refute
a Traceback result in Claim No. 1300593. Mr. Justice Pitfield
stated:
"[11] A number of observations are warranted in the
face of Article 3.04. First, the principal basis specified
in the Settlement Agreement for the purpose of determining
eligibility is receipt of an infected transfusion in the
class period. However, receipt of an infected transfusion
in the class period is insufficient to establish eligibility
if the Claimant also received an infected transfusion
prior to the commencement of the class period. In addition,
a Hepatitis C infected person is prima facie ineligible
if the traceback in respect of class period transfusions
demonstrates that none of the donors of that transfused
blood tested positive for the Hepatitis C antibody.
|
[12] While those who are infected with Hepatitis C but
denied coverage because of Article 3.04 might feel aggrieved,
the provisions of the Settlement Agreement were proposed
by counsel for all parties and endorsed by the supervising
courts in British Columbia, Ontario and Quebec. The traceback
protocol by which eligibility is to be assessed initially
was endorsed by the supervising courts. Because tests
to identify the presence or absence of the Hepatitis C
antibody had not been conducted in the class period, the
protocol provided that steps were to be taken to identify
the donors of the blood transfused to a claimant in the
class period, whether those donors donated blood after
the close of the class period, whether those subsequent
donations were tested for the Hepatitis C antibody, and
whether the result of the test was positive or negative.
If the donor could not be identified or had not made a
later donation of blood, antibody test results were not
available in relation to those later donations, or the
HCV antibody test results were positive, the Claimant
was eligible for compensation.
|
[13] The traceback protocol was developed in accordance
with prevailing science. The Settlement Agreement and
the protocol were approved by counsel for the members
of the class and the defendants, and subsequently by court
order. The protocol was considered the best means of relating
infection to blood transfusion for which the Settlement
Agreement is intended to compensate.
|
[14] While the primary basis for the determination of
eligibility is the traceback process, a Claimant may adduce
evidence on appeal in support of the claim that he or
she was infected for the first time in the class period
notwithstanding a negative traceback result. In my opinion,
Article 3.04(2) does not permit a Claimant to conduct
his or her own traceback procedure. The Article contemplates
that there might be evidence which would establish that
the source of the infection, more likely than not or on
the balance of probabilities, was a transfusion received
in the period. It is not an answer to a Claimant's attempt
to provide such evidence to say that some small percentage
of the population may be infected by HCV from unknown
sources. Were such an assertion an answer, a Claimant
could never refute the traceback result because the Claimant
could never prove that he or she was not one of that small
percentage of the population who might have been so infected.
|
[15] The evidence the Claimant would be required to
adduce on appeal would include, at the least, complete
family and personal medical history and detailed evidence
of all aspects of the Claimant's lifestyle including evidence
of the absence of opportunity to be infected by needles
or injections, however and for whatever purpose received.
The kinds of evidence I have described are not intended
to be exhaustive. Rather they are intended to point to
the process that must be followed in the attempt to refute
the traceback result.
|
[16] A simple denial by a Claimant of personal history
or actions that have been identified as potential non-transfusion
sources of HCV infection will not suffice. The reliability
of the assertion which is subjective in nature would have
to be tested by reference to all known objective evidence.
One of the pieces of objective evidence is the negative
traceback result following upon the application of, and
adherence to, the approved traceback protocol. Contradictory
objective evidence would have to be very persuasive if
the traceback result is to be refuted."
[emphasis added] |
15. I adopt Justice Pitfield's reasoning. To do otherwise
would circumvent the language and intent of Section 3.04.
Under the circumstances, I am compelled to find that paragraph
7 of the Claimant's affidavit constitutes little more than
a bare denial of other risk factors and is insufficient to
refute the Traceback results.
16. Turning to the transfusion which the Claimant believes
she received in March of 1988, it has already been noted that
the Claimant did not produce any records confirming same as
required pursuant to Section 3.01(1)(a). In such circumstances,
Section 3.01(2) applies. It states:
"3.01 Claim by Primarily-Infected Person
|
| (2) Notwithstanding the provisions of Section 3.01(1)(a),
if a claimant cannot comply with the provisions of Section
3.01(1)(a), the claimant must deliver to the Administrator
corroborating evidence independent of the personal recollection
of the claimant or any person who is a Family Member of
the claimant establishing on a balance of probabilities
that he or she received a Blood transfusion in Canada
during the Class Period." |
17. As can be readily seen, Section 3.01(2) requires corroborating
evidence which is independent of the personal recollection
of the claimant or any person who is a Family Member of the
claimant. The only evidence before me that the Claimant received
a transfusion in March of 1988 is the Claimant's own affidavit
and the affidavit of her spouse. Accordingly, I am compelled
to find that the Claimant has not satisfied the requirements
of either Section 3.01(1)(a) or 3.01(2).
18. It goes without saying that one cannot help but be sympathetic
towards the Claimant and the plight in which she finds herself.
However, the role of the Administrator under the Settlement
Agreement is to administer the Transfused HCV Plan in accordance
with its terms. The Administrator does not have the authority
to alter or disregard the terms of the Plan, nor does an arbitrator
when called upon to review decisions of the Administrator.
19. In the result, the Administrator's denial of the Claimant's
request for compensation is hereby upheld.
DATED at Halifax, Nova Scotia, this 27th day of February,
2004.
_______________________________________
S. BRUCE OUTHOUSE, Q.C.
Arbitrator
|
