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Appeals : Confirmed
Referee Decisions : #83 - March 17, 2003
D E C I S I O N
A. Background
1. In May 2000, the Claimant submitted an application for
compensation as a Primarily-Infected Person under the Tranfused
HCV Plan (the "Plan"), as set out under the terms
of the 1986-1990 Hepatitis C Settlement Agreement (the "Settlement
Agreement").
2. By letter dated September 25, 2002, the Administrator denied
the claim on the basis that the Claimant had not provided
sufficient evidence that he had received a blood transfusion
between January 1, 1986 and July 1, 1990 (the "Class
Period").
3. By way of Notice of Appeal dated September 27, 2002, the
Claimant requested that a Referee review the denial of his
claim by the Administrator. In paragraph 4 of his Notice of
Appeal, the Claimant stated that he wished to review the Administrator's
decision for the following reasons:
"I feel that the decision was made a long time ago and
they took their time to say it."
4. Both parties waived the right to an oral hearing and acceded
to a decision of a Referee based on a review of written submissions
and the materials contained in the claim file from the 86-90
Hepatitis C Claims Centre (the "Claims Centre").
I have reviewed the written submissions and the written record.
B. Facts
5. I summarize the pertinent facts from the evidence as follows:
(a) The Claimant is infected with Hepatitis C;
(b) On the General Claimant Information form, dated May 9,
2000, the Claimant indicated that he believed he was infected
with Hepatitis C through a blood transfusion received in Canada
between January 1, 1986 and July 1, 1990. On the same form,
he indicated that he had received a blood transfusion once
in his lifetime (Appeal Record, p.100-103);
(c) On the Blood Transfusion History Form, the Claimant stated
that he believed he was transfused at the Montford Hospital
in Ottawa in April of 1987 while being treated for a "fracture
fixation" (Appeal Record, p.92);
(d) The Treating Physician Form, dated May 17, 2000 and signed
by Dr. Gidon Frame, indicated that the Claimant received a
Blood transfusion during the period, January 1, 1986 to July
1, 1990. Dr. Frame further indicated that the Claimant had
a history of the following risk factors for the Hepatitis
C virus: blood transfusions outside the period January 1,
1986 to July 1, 1990, prison incarceration and tattoos (Appeal
Record, p.87-91);
(e) The medical records provided by the Claimant in support
of his claim did not provide evidence of any blood transfusion
(Appeal Record, pp. 109-205);
(f) In response to traceback investigation inquiries made
by the Claims Centre, Montford Hospital confirmed that there
was no record of any blood transfusion found on the patient
record during the period of April 13, 1962 to January 25,
1989 (Appeal Record, p.222);
(g) In response to a further inquiry by the Claims Centre,
Dr. Frame replied that his response on the claim form that
the Claimant had received a Blood transfusion during the period,
January 1, 1986 to July 1, 1990, was provided as a result
of a verbal report from the Claimant (Appeal Record, p.224);
(h) There is no documentation on the claim file that indicates
the Claimant received a blood transfusion during the period
from January 1, 1986 to July 1, 1990.
C. The Position of the Parties
Claimant
6. The Claimant, both in his Request for Review and his written
submission, complained of the delay in receipt of the decision
of the Administrator. He cites several instances in which
the Claim Centre requested further information in order to
assess his claim to which he complied by cooperating to the
extent that he could.
7. The Claimant is in extremely poor health and has been advised
by his physicians to stop working and accept disability benefits.
He argues that he is not in a position to pursue the information
in Ontario and that he cannot remember all the relevant information.
He claims that he should be compensated as a result of the
ordeal that he has been through in attempting to substantiate
his claim.
The Administrator
8. In his written submission, Mr. Callaghan, Fund Counsel
for the Administrator, explains that the delay associated
with processing the claim was unavoidable and was primarily
the result of a lack of information regarding the transfusion
reported by the Claimant.
9. Mr. Callaghan argues that the Plan requires that a claimant
be transfused during the Class Period, adduce evidence of
transfusion during the Class Period and have Hepatitis C.
Thereafter, the Administrator has an obligation to ensure
that a claimant was first infected as a result of a transfusion
during the Class Period and not from some other source.
10. Since the Claimant failed to provide evidence that he
was transfused during the Class Period, the Claims Centre
undertook an investigation to determine whether the Claimant
had in fact been transfused. Mr. Callaghan argues that since
the inquiries of Montford Hospital did not reveal any transfusion,
the Administrator correctly denied the Claimant's claim.
D. Analysis
12. The terms of the Plan determine who is eligible for compensation
and how eligibility can be proven. In order to qualify for
compensation and to be accepted as a Primarily-Infected Person,
the Claimant must first demonstrate that he received a blood
transfusion in the Class Period by providing "records
demonstrating that the Claimant received a Blood transfusion
in Canada during the Class Period" or, alternatively,
"corroborating evidence independent of the personal recollection
of the claimant…". Article Three of the Plan entitled
"Required Proof of Compensation" provides:
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
and 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.
(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.
13. The onus is on the Claimant to show he received a blood
transfusion during the Class Period.
14. Montford Hospital confirmed that there was no record of
any blood transfusion found on the patient record during the
period of April 13, 1962 to January 25, 1989. The Claimant
has not produced any other evidence of transfusion. Indeed
the Claimant recollected only one transfusion, presumably
in 1987. Dr. Frame reported transfusions outside the Class
Period, but there was no medical documentation evidencing
a transfusion at any time.
15. While the other risk factors identified by Dr. Frame could
constitute an alternative source of infection outside the
scope of compensation under the Settlement Agreement, there
was also no evidence addressing these additional risk factors.
In any event, I do not need to consider them in reaching my
decision.
16. Based on all of the evidence and documentation provided
in the present claim, I find that the Claimant did not provide
the proof required by Article 3.01 to establish that he was
infected as a result of a Blood transfusion during the Class
Period. He has failed to pass over the initial threshold to
establish entitlement to compensation.
17. To the extent that the Claimant requests compensation
based upon the passage of time between his claim for compensation
and the Administrator's decision, such passage of time cannot
assist the Claimant where the required proof of entitlement
does not exist. Neither the Administrator nor a Referee has
any discretion to grant compensation to individuals with Hepatitis
C who cannot show they received a transfusion within the Class
Period.
18. As a result, I find that the Administrator correctly determined
that the Claimant is not entitled to compensation under the
Plan.
Determination
19. Accordingly, I find that the Administrator's denial of
the claim must be upheld.
DATED at Vancouver, British Columbia, this 17th day of March,
2003.
"Vincent R.K. Orchard"
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Vincent R.K. Orchard, Referee
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