logo
Hepatitis C - Class Actions Settlement
HomeSearchContact UsFrançaisPrivacy

Claimants:
Essential Information
Claimants:
Additional Information
Claimants:
Loss of Income / Loss of Support / Loss of Services
Periodic Re-Assessment by the Courts
Appeals
Documents
Forms
Contacts and Links
Annual Reports
Administrator


Appeals : Confirmed Referee Decisions : #42 - March 11, 2002

D E C I S I O N

Claim ID: 1000695

BACKGROUND

1. On November 23, 2001, the Administrator denied the Claimant's request for compensation as a Primarily-Infected Person under the Transfused HCV Plan. The claim was denied on the basis that both donors of the blood transfused to the Claimant during the Class Period tested negative for the HCV antibody.

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

3. Both parties waived their entitlement to an oral hearing.

4. The Claimant did not file submissions but requested that the referee review all the material in his claim file from The 86-90 Hepatitis C Claims Centre.

5. Fund counsel, on behalf of the Administrator, filed written submissions on February 19, 2002.

6. The hearing concluded on March 4, 2002 when the Claimant declined to submit reply submissions.

EVIDENCE

7 It is not disputed that the Claimant is infected with Hepatitis C.

8. The Claimant's transfusion records were forwarded to him by the hospital as attachments to a letter dated November 25, 1999. The Treating Physician Form was completed on May 22, 2000. The Treating Physician confirmed that the Claimant was transfused with two units of blood on August 31, 1989.

9. The Treating Physician also identified that the Claimant had other risk factors for the Hepatitis C virus such as prison incarceration and at least 14 other operations.

10 The Adminstrator directed that the required Traceback Procedure be conducted by Canadian Blood Services.

11. By letter dated September 18, 2000, Canadian Blood Services advised the Administrator that both donors of the blood transfused to the Claimant had tested negative for the HCV antibody on June 13, 2000 and September 28, 1992, respectively .

ANALYSIS

12. The Claimant seeks compensation as a Primarily-Infected Person under the Transfused HCV Plan. The Transfused HCV Plan defines "Primarily-Infected Person", in part, as meaning "a person who received a Blood transfusion in Canada during the Class Period and who is or was infected with HCV unless:

(a) it is established on the balance of probabilities by the Adminstrator that such person was not infected for the first time with HCV by a Blood transfusion received 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 Transfused HCV Plan.

14. Article 3.01 of the Transfused HCV 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. I find that the Claimant did provide the evidence required by Article 3.01 to establish that he received a blood transfusion during the Class Period. Based on the evidence before me, the Claimant received a blood transfusion on August 31, 1989, which is within the Class Period.

16. 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 none of the donors or units of Blood received by a Primarily-Infected Person ...during the Class Period is or was HCV anitbody positive, subject to the provisions of Section 3.04(2), the Administrator must reject the Claim of such HCV Infected Person ..."

17. 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.

18. A traceback has been conducted which confirms that the donors of the blood used to transfuse the Claimant have tested negative for the Hepatitis C antibody.
The Claimant has not provided any evidence, as provided for by Article 3.04(2), to refute the results of the Traceback Procedure.

19. I find that the Adminstrator has established on the balance of probabilities that the Claimant was not infected with HCV by a blood transfusion received 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. Article 3.04(1) requires that the Administrator must reject the Claim in circumstances such as these.

20. The Administrator under the Settlement Agreement is required to administer the Transfused HCV Plan in accordance with its terms. 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

21. I uphold the Administrator's denial of the Claimant's request for compensation.

______________________
March 11, 2002
JUDITH KILLORAN
DATE
Referee



 

Disclaimer