Appeals: Confirmed Referee Decisions : #130 - March 24, 2004

D E C I S I O N

Hepatitis C Claim No. 7928

Review of Decision of the Plan Administrator
and Decision of the Referee

1. On October 16, 2003, the Plan Administrator denied an application by this Claimant for compensation under the 1986-1990 Hepatitis C Settlement Agreement.

2. On October 20, 2003 Claimant #7928 requested that the Administrator's decision be reviewed by a Referee. The Claimant stated that reason for the review was a Blood transfusion he received at the Victoria General Hospital in 1990.

3. The requested review was to be based on documentation submitted as part of the original claim and only the claimant would be called to testify.

4. A telephone hearing was held on March 15, 2004. The relevant facts can be summarized as follows:

5. The 1986-1990 Hepatitis C Settlement Agreement defines the "Class Period" as the period "from and including 1 January 1986 to and including 1 July 1990." The same definition of "Class Period" is found in the Transfused HCV Plan.

6. Section 3.01(1)(a) of the Transfused HCV Plan requires a claimant to provide the Administrator with records "demonstrating that the claimant received a Blood transfusion during the Class Period."

7. Section 3.01(2) states that "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 during the Class Period."

8. While the claimant has not produced, and acknowledges that he cannot produce, records demonstrating that he received a Blood transfusion during the defined period, he maintains that he did receive a blood transfusion during his stay in the Victoria General Hospital Claimant in June 1990.

9. In contrast to the claimant's assertion that he received a transfusion, the Victoria General Hospital, in a letter dated January 7, 2002, states that "there is no documentation on our records of any blood products being administered during [the claimant's] stay of June 14-22, 1990."

10. The situation is further complicated by the information provided to the Traceback Coordinator by CBS Winnipeg which states that the units of blood ordered for this claimant on June 14 were discarded on June 3.

11. I am satisfied that the claimant is sincere in his belief that he received a Blood transfusion while a patient at the Victoria General Hospital in June, 1990. He is understandably frustrated by the inconsistencies in the records that show blood being discarded eleven days before it was requisitioned.

12. The claimant relies on these inconsistencies to argue that the hospital records cannot be relied upon to establish that he received no Blood products in June 1990 while a patient at the Victoria General Hospital. However, in the absence of any corroborating evidence and after reviewing all of the hospital records, I am satisfied that, notwithstanding the problems with the documentary evidence accounting for the disposition of the Blood products in question, they were not administered to the claimant while he was in the Victoria General Hospital.

13. The claimant is not able to provide the corroborating evidence required by Section 3.01(2) to establish that on a balance of probabilities he received a Blood transfusion during the period in question.

14. The terms of the Settlement Agreement are clear in recognizing only those claims that relate to persons who received Blood transfusions during the defined period of January 1, 1986 to July 1, 1990. The Administrator has no authority to vary either the terms or requirements of the Plan.

15. The decision of the Administrator to deny this claim is upheld.

Dated at Winnipeg, Manitoba this 24th day of March, 2004.

Harvey L. Secter
Referee