Appeals: Confirmed Referee Decisions : #182 - March 30, 2005

D E C I S I O N

Request for Review no 3838

This claim by a Personal Representative of an HCV Infected Person was referred to me as Referee; the HCV Infected Person submitted a claim as a Primarily-Infected Person in December 2000.

The Claimant’s original claim was rejected in December 2003 when the Fund Administrator indicated that there was no proof that the Claimant had received blood during the Class Action Period, i.e., from January 1, 1986 to July 1, 1990.

Unfortunately, the Claimant died on July 7, 2004, but her children and her stepson who acted as Personal Representative of the Infected Person chose to continue with this Request for Review and to have a hearing before me.

The hearing, originally scheduled for June 1, 2004, was postponed because of the Claimant’s health condition and finally proceeded on August 25, 2004.

The Fund Administrator’s Representative, present at the hearing along with the Fund Counsel, accepted that the Request for Review proceed even though all documents confirming the name of the Personal Representative of the Infected Person were not all completed. All Family Members recognized before me that the Deceased Claimant’s Son-in-law had received the mandate and was authorized to act as Representative. I therefore proceeded on that basis.

Three of the original Claimant’s daughters, a son and her son-in-law took turns to testify before me with a great deal of emotion and with what appeared to me as a great deal of sincerity. They spoke about a woman who had lived a life of love and peacefulness and whose life was turned upside down because of this terrible illness and who died at 59 years of age.

In reviewing the documentary and testimony evidence, I note that the Information Form (TRAN1) completed by the Claimant indicated that she had received a blood transfusion between January 1, 1986 and July 1, 1990. The Claimant was hospitalized at the Hôpital du Sacré-Cœur in Montreal in March and in April 1989, and she underwent a complete abdominal hysterectomy and a left salpingo-oophorectomy. However, there is no readily available evidence in the Hôpital du Sacré-Cœur records that the patient had indeed received a transfusion during her hospitalization.

The Treating Physician Form for the purposes of this claim was completed by Dr. Claude Bernier, Gastroenterologist. This doctor indicated in section F of the said document that the Primarily Infected Person did not receive a blood transfusion during the period from January 1, 1986 to July 1, 1990. Also on this subject, the Primarily Infected Person’s Son-in-law said that he was present when Dr. Bernier signed the TRAN2 and confirmed that Dr. Bernier had the Claimant’s complete Hôpital du Sacré-Cœur record, and that he « had gone through » the record before filling out the Form.

I also looked at a document signed by the person in charge of the blood transfusion safety at Hôpital du Sacré-Cœur and the document indicated that there was no proof of a transfusion in the Claimant’s record. This same information was found in the report signed by Héma-Québec’s Medical Management Director in September 2003.

Yet, the two daughters of the Claimant testified and said that they had gone to the hospital center in 1989 and remembered that their mother was then receiving a blood transfusion. All the witnesses asserted before me that their mother or mother-in-law, as the case may be, said while she was alive, and this was said repeatedly, that she was sure that she had received blood during her hospitalization at Sacré-Coeur.

I must therefore analyze this contradictory evidence in the light of the wording of the Agreement .

Article 3.01 of the 1986-1990 Hepatitis C Settlement Agreeme nt provides that a person claiming to be a Primarily-Infected Person must deliver to the Administrator an application form prescribed by the Administrator together with 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.

However, article 3.01(2) provides that n otwithstanding 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. But article 3.01(2) adds that this corroborating evidence must be “independent of the personal recollections of the Claimant and of all the persons who are members of the Claimant’s family”.

However , a rticle 3.05 refers to the claim by the Personal Representative of an HCV Infected Person and who is now dead and refers directly to the evidence required by article 3.01 mentioned above. Thus it is the standards of articles 3.01 (1) (a) and 3.01 (2) that must apply here.

Only the members of the Deceased Claimant’s family testified before me to the effect that the Claimant had received a transfusion in 1989. There is no proof to that effect in the Sacré-Coeur Hospital record extracts which were provided to me during the hearing, the statement signed by the Treating Physician (TRAN2) is to the opposite effect and this negative information is also found in the Héma-Québec record. I did not find in the record any independent corroborating evidence of the recollections of any member of the Claimant’s family who testified before me.

In order not to leave any evidence aside, I asked the Claimant’s Personal Representative to sign an authorization allowing me to consult the Claimant’s record at Sacré-Coeur with regard to her hospitalization in 1989.

After a long wait, I indeed received this record of about 60 pages and examined it closely. I find in it a note to the effect that 1000 cc's. of blood had been set aside for the surgery, but there is nothing on the record to suggest that such a transfusion was required and was indeed given. The notes of the various participants at the hospital center seem to be exhaustive and complete to me and do not indicate that the blood that had been put aside had been transfused.

The current request for compensation is presented in the context of the 1986-1990 Hepatitis C Settlement Agreement as approved by a Superior Court of Quebec Order in September 1999.

The terms of the Agreement explain in detail who is eligible for compensation and how they can establish their eligibility.

To this effect, let me quote a paragraph of Mr. Justice J. Winkler of Ontario, in the context of a motion of opposition to the confirmation of a decision rendered by a referee in June 2001 (decision 004).

The referee denied the Claimant's appeal on the basis that the Claimant did not provide evidence of a blood transfusion within the class period as required under the Settlement Agreement. The Claimant's testimony was that she had received a blood transfusion during the class period in the course of a hospital stay in 1989. However, the Claimant had no independent evidence to verify her claim as required under the Agreement. Further, as found by the referee, the Claimant's hospital and medical records did not corroborate her evidence but rather was to the opposite effect, expressly indicating that she had not received a blood transfusion during her time in hospital in 1989. Under the terms of the Settlement Agreement, the recollection of the class member or a person related to the class member is not sufficient evidence to establish entitlement. In the result the referee found that she was unable to conclude that the Claimant had received a blood transfusion in the class period. As this is an essential qualification for class membership and compensation entitlement, the referee upheld the decision of the Administrator and denied the Claimant's appeal. (emphasis added)

Having noted that the Claimant had testified to the effect that she had indeed received a blood transfusion in 1989 but that the Claimant's hospital record had not substantiated her allegations, and mostly having noted that the Claimant did not have independent evidence to verify her claim as required by the Settlement, Mr. Justice Winkler confirmed the referee’s decision who had rejected the Claimant's appeal.

I am well aware that, in our case, during the last 10 years of her life, the Claimant had a difficult time that necessarily and unfortunately had consequences for all the members of her family. All the witnesses who appeared before me seemed sincere and their desire to respect the memory of their mother or mother-in-law transpired in each of their testimony and can only do them honor. Unfortunately, like Mr. Justice Winkler in the matter mentioned above, I must come to the conclusion that there is no proof to the effect that the Deceased Claimant received a transfusion between January 1, 1986 and July 1, 1990. Since it is an essential requirement, in order to be member of a Class Action and be entitled to compensation, I conclude that this appeal is groundless.

The Administrator's decision is therefore upheld.

Montreal, March 30, 2005

Jacques Nols
Referee

JN/mb