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.
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March 11, 2002
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JUDITH KILLORAN
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DATE
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Referee
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