Appeals : Arbitrator Decisions : #136 - March 15, 2004

D E C I S I O N

1. On February 3, 2003, the Administrator denied the claim for compensation as a Primarily-Infected Person pursuant to the Transfused HCV Plan on the basis that the claim by the Claimant as a Personal Representative on behalf of the deceased’s estate had not provided sufficient evidence that the deceased Claimant was infected for the first time with HCV by a blood transfusion received in Canada within the Class Period.

2. On February 3, 2004, the Claimant’s Representative requested a document review of the decision of the Administrator by an Arbitrator.

3. Neither party disputed the following facts:

(a) The Claimant died in January 2003 and the claim is advanced through her Personal Representative.

(b) The Claimant was admitted to the Foothills Hospital in Calgary for elective surgery, which was to take place on October 20, 1987.

(c) The Claimant’s representative asserted in the application that the deceased was transfused with two units of blood in October, 1987 at the Foothills Hospital for a surgery/diabetic/foot repair and filed in support a letter from the Calgary Health Region which enclosed a Cross Match Report dated August 20, 1987.

(d) The Claimant further asserted that there was no evidence of any risk factors including the use of IV drugs.

(e) The Cross Match report indicated that the surgery was to commence at 7:50a.m on October 20, 1987 and that two units of blood were cross-matched on October 19, 1987 for use in the surgery.

(f) The cross match was to be cancelled as of October 21, 1987 at 7:00a.m.

(g) The Administrator requested the Canadian Blood Service (CBS) to determine whether the Claimant had been transfused during the Class Period and CBS made a request of the Hospital, which advised that there was no history of blood and blood product transfusions from the chart 1985-1993.

4. Fund Counsel asserted that a cross match is not proof of a transfusion and thus further confirmation of a transfusion is required.

5 Fund Counsel also noted that the report from the Foothills Hospital contained the following notes:

“Dr. Ross’s summary (1985) indicates IV drug & alcohol abuse”

“Dr. A. Plows Summary (1987) indicates IV drug abuse.

6. Both parties agreed that I should request from the Hospital in Red Deer and the Calgary Foothills Hospital their complete records to rule out the possibility of any other transfusions.

7. These requests were made and the hospital records were produced to the parties on December 9, 2003.

8. I was then asked by the Personal Representative on February 3, 2004 to conduct a document review and make my decision based upon such review.

9. I reviewed all the documentation and noted that Dr. Quail signed the Tran 2 in which he indicated in response to question 24 that the HCV Infected Person had none of the risk factors for the Hepatitis C virus but he also stated in response to questions 20 and 21 that he had known and treated the deceased for only 6 months and the last date of treatment was November 15, 2002.

10. I reviewed the hospital records requested and noted that all of those attendances occurred well after the Class Period.

11. I concluded the declaration by Dr. Quail in the Tran 2 was likely made without knowledge of all the relevant medical information, in particular the relevant risk factors present prior to her hospitalization including the IV drug and alcohol abuse.

12. The records produced showed no evidence of any transfusions at all or in the Class Period, however there was further documentation of a history of use of drugs.

13. From a review of all the documentation submitted I concluded that the relevant factors present prior to her hospitalization including IV drug abuse and alcohol abuse could have put her in contact with the Hepatitis C virus in other high-risk activities without her knowledge or recollection.

14. Section 5.01 of the Settlement Agreement requires that the Claimant’s Representative establish that the deceased had a blood transfusion by which she contracted Hepatitis C and that the Hepatitis C caused her death. I found no evidence to show on a balance of probabilities or otherwise, that she was infected for the first time with HCV a blood transfusion received in Canada during the Class Period.

15. 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.

16. Accordingly, I uphold the Administrator’s denial of the Claimant’s Representative’s request for compensation.

Dated at Edmonton, Alberta, this 15 day of March 2004.

Shelley L. Miller, Q.C.
Arbitrator