Appeals : Confirmed
Referee Decisions : #85 - March 26, 2003
D E C I S I O N
1. On July 12, 2002, the Administrator denied the claim for
compensation as a Primarily-Infected Person under the Transfused
HCV Plan. The claim was denied on the basis that the Claimant
did not receive transfused blood within the Class Period from
a donor who is determined to be HCV antibody positive.
2. The Claimant requested that the Administrator's denial
of his claim be reviewed by a referee.
3. Both parties waived a hearing to review the Administrator's
denial of the claim.
4. The Claimant provided written submissions in support of
his claim and additional information was supplied in telephone
conference calls. These submissions have been carefully considered
but, unfortunately for the Claimant, they are of no assistance
to him for the reasons set out below.
5. The relevant facts are not in dispute and can be summarized
as follows:
(a) The Claimant is infected with Hepatitis C.
(b) The Claimant received blood transfusions in May 1986
consisting of nine units of blood at St. Paul's Hospital,
Vancouver.
(c) When the claim was made, the Administrator directed the
required Traceback Procedure to be carried out by Canadian
Blood Services.
(d) By letter dated April 5, 2002, the Administrator was
advised that all class period donors were cleared as not testing
positive for HCV antibodies.
(e) The Administrator denied the claim on the basis that
the Claimant did not receive a blood transfusion from a primarily
infected person during the Class Period.
(f) Following the filing of the claim, Fund Counsel requested
further information from Canadian Blood Services concerning
the Traceback process carried out with respect to the Claimant,
which confirmed and supported the facts noted above.
6. Based on these facts, it is clear that the Administrator's
decision must be sustained.
7. The 1986 - 1990 Hepatitis C Settlement Agreement defines
"Class Period", as the title implies, as the period
"from and including 1 January 1986 to and including 1
July 1990." The Transfused HCV Plan provides the identical
definition. The Plan defines a "Primarily-Infected Person",
a status a successful Claimant must achieve, as "a person
who received a Blood transfusion in Canada during the Class
Period . . . ".
8. Pursuant to Article 3.01 of the Plan, a person claiming
to be a Primarily-Infected Person is required to produce to
the Administrator medical records "demonstrating that
the Claimant received a Blood transfusion in Canada during
the Class Period."
9. In this case, it is not disputed that the Claimant did
receive a blood transfusion in the Class Period, namely in
May 1986. 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 one
of the donors or units of Blood received by a HCV-Infected
Person or Opted-Out HCV Infected Person before 1 January 1986
is or was HCV antibody positive or that none of the donors
or units of Blood received by a Primarily-Infected Person
or Opted-Out Primarily Infected Person during the Class Period
is or was HCV antibody positive, subject to the provisions
of Section 3.04(2), the Administrator must reject the Claim
of such HCV Infected Person and all Claims pertaining to such
HCV Infected Person or Opted-Out HCV Infected Person including
Claims of Secondarily-Infected Persons, HCV Personal Representatives,
Dependants and Family Members.
10. 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.
11. As has been noted, the evidence is that a Traceback Procedure
was conducted. As a consequence, it was established there
were ten units of blood cells and two units of plasma transfused,
all in May 1986. Each of the donors was identified by using
the computerized information system that tracks blood donor
information. In each case, the donors were tested to detect
HCV antibodies at the time they made their donations and,
in each case, the result of the test was negative, based on
second and third generation testing.
12. The Claimant does not dispute the facts. However, he
submits that there are discrepancies regarding the use of
the plasma as well as the unit numbering system used by CBS.
These concerns were adequately explained by the evidence before
me. Additionally, the Claimant suggested he contracted HCV
through the transfusion he received because several days later
he was admitted into an Edmonton Hospital. However, an examination
of the medical records reveals no sign of infection with the
HCV virus at that time.
13. On the basis of the facts of this case, the Administrator
had no alternative but to deny the Claim. The words of Article
3.04(1) of the Plan are clear and unambiguous that the Administrator
" . . . must reject the Claim . . ." in circumstances
such as these. The Administrator must administer the Plan
in accordance with its terms. The Administrator does not have
the authority to alter or ignore any of the provisions of
the Plan and neither does a referee when called upon to review
a decision of the Administrator.
14. Accordingly, I find that the Administrator has properly
determined that the Claimant was not entitled to compensation
under the Plan and the Administrator's decision is hereby
upheld.
Dated at Vancouver, British Columbia, this 26th day of March
2003.
John P. Sanderson, Q.C.
Referee
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