|
Appeals: Confirmed
Referee Decisions : #137 - April 12, 2004
Decision of the Court having jurisdiction in the Class Action attached - September 21, 2005
D E C I S I O N
1. The Claimant, an Ontario resident, has submitted an application for compensation as a primarily infected person under the HCV Transfused Plan(1).
2.
By letter dated January 16, 2003 the Administrator denied the claim on the basis that the results of the Traceback investigation confirmed that a donor of a unit of blood transfused to the Claimant before the Class Period tested positive for the HCV antibody.
3.
The Claimant submitted a Request for Review by Arbitrator/Referee(2), dated January 22, 2003. In the Request for Review, the Claimant requested that he be afforded more time to seek further documents in support of his claim. This matter was adjourned, on consent, for a further six months to allow the Claimant to continue in his search for further evidence. A conference call was convened on October 14, 2003 and a further extension of time was granted to the Claimant.
4.
By letter dated January 12, 2004, the Claimant requested that this matter proceed on the basis of a review of the Appeal Record compiled by the Administrator and written submissions from the parties.
Facts
5.
There was no dispute with respect to the Claimant’s transfusion history and it can be summarized as follows:
a.
Between November 1976 to sometime in 1991, the Claimant received regularly scheduled blood transfusions for a chronic red cell deficiency. Although he was treated in clinics set up for Thalassemia Major patients, he has not been diagnosed with Thalassemia Major or Hemophilia.
b.
As part of his treatment, the Claimant had extensive transfusions both in and outside of the class period. He received 686 units of blood; 398 units before the class period, 286 units during the class period and 36 units after the class period.(3)
c.
Canadian Blood Services (“CBS”) provided a Traceback Report indicating that a positive donor was identified in the pre-class period: the traceback on units transfused to the Claimant in 1984 confirmed that the HCV status of the donor of blood transfused to the Claimant on 1984-09-05 was positive. The Traceback investigation performed by the CBS did not locate and clear all of the donors in the Class Period.
6.
The Claimant submitted a request for compensation, received by the Administrator on July 28, 2000. The request was filed under the Hemophiliac Plan as the Claimant wanted to be treated as a Thalassemia Major claimant (who are dealt with under the Hemophiliac Plan). The Administrator informed the Claimant that his claim would be processed under the Transfused Plan and that a full traceback would be required.
7. After receiving the final traceback results from Canadian Blood Services, the Administrator advised the Claimant that his claim would be denied because the “HCV antibody was present in the blood or blood products received prior to January 1, 1986.” In accordance with Section 3.04(2) of the Transfused HCV Plan, the Claimant was given the opportunity to provide additional information to establish that he was first infected in the class period, notwithstanding the earlier Traceback. The Claimant sought and was granted a series of extensions to file additional information. No further evidence was submitted and the Administrator issued a final letter of denial on January 16, 2003.
Submissions
8.
The Claimant submits that he has been disadvantaged by the Administrator’s failure to provide him with the Traceback Protocol in a timely fashion. The Claimant referred to a letter sent to him by the Administrator on April 24, 2000 that states that the Traceback protocol had not yet been approved, and that it would be forwarded as soon as it was confirmed. The Claimant submitted his request for compensation without having reviewed the Traceback protocol. He now claims that it is seriously flawed and is inappropriate in cases such as his where he has received hundreds of transfusions from multiple donors. In particular, he suggests that the donor may have cleared the infection prior to the donation or may have been infected subsequent to his transfusion. In either case, the Traceback results may not prove that he was infected prior to the Class Period.
9.
In support of the Administrator’s decision, Fund Counsel submitted that, pursuant to Article 3.04 of the Settlement Agreement, the Administrator was obliged to deny the claim once it received a positive Traceback report for a pre-class blood transfusion. The Claimant was afforded every opportunity to present further evidence and he was unable to provide medical documentation that he was infected in the Class Period. Moreover, with respect to the specific criticisms of the Traceback protocol, the CBS confirmed that the blood components transfused to him were also transfused to another recipient who has also subsequently tested anti HCV positive. CBS has also confirmed that the donor was subsequently tested and was confirmed as positive for the antibody for Hepatitis C.
The Plan
10.
The Plan provides, in part, as follows:
ARTICLE THREE
3.04 Traceback Procedure
(1) Notwithstanding any other provisions 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 January 1 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 anti-body 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 Primarily Infected Person or Opted-Out Primarily Infected Person …
(2) A claimant may prove that the relevant Primarily Infected Person or Opted-Out Primarily Infected Person was infected, for the first time, with HCV by a Blood transfusion received in Canada during the Class Period … For greater certainty, the costs of obtaining evidence to refute the results of a Traceback Procedure must be paid by the claimant unless otherwise ordered by a Referee, Arbitrator or Court.
Analysis
11. The Claimant has applied for compensation under the terms of the Hepatitis C 1986-1990 Class Action Settlement, as approved by Court Order dated October 22, 1999. There is no dispute that the Claimant has been diagnosed with Hepatitis C. Nor does the Claimant challenge the Administrator’s submission that his claim is properly determined under the Transfused Plan. The sole issue on this Reference is how his claim for compensation is to be determined in light of the Traceback Report that a pre-class donor tested positive for the HCV antibody.
12. The terms of the settlement provide a detailed outline of who is eligible for compensation, and how eligibility is to be determined. In accordance with the terms of the Settlement, the Administrator must reject a claim where there is evidence that the claimant received blood before the Class Period from a donor who is or was HCV antibody positive. The only exception provided in the Settlement is if the claimant can produce evidence that he was infected, for the first time, with HCV by a blood transfusion received in Canada during the Class Period.
13. In this case, the Claimant was unable to provide any evidence to refute the presumption of infection prior to the Class Period. He was provided a number of extensions in order to gather this evidence, however, in the end he was not able to supply the required evidence. Ultimately, his claim must be determined in accordance with the requirements of the Settlement Agreement.
14. Although the Claimant has suggested that the Traceback Protocol is unfair and was not provided to him by the Administrator in a timely way, it is not the Traceback Protocol but the terms of the Settlement Agreement that precludes the Claimant from admission to the Class. Article 3.04 expressly excludes a claim such as this where a Traceback confirms one of the donors of Blood received by a HCV-Infected Person before January 1 1986 is or was HCV antibody positive.
15. I would also note that, on the facts of this case, the evidence does not support the Claimant’s concerns with respect to the accuracy of the assumptions contained in the Traceback Protocol. The CBS responded to the Claimant regarding his specific concerns:
a. the donor identified to be the cause of the Claimant’s infection also provided transfused blood products to a second recipient; the other recipient has also tested anti HCV positive;
b. for this donation, the anti body testing was repeated and confirmatory tests produced a positive result for the antibody for Hepatitis C.
16. In a letter attached to the request for review of the Administrator’s decision, the Claimant also suggested that the passage of time has made it far more difficult for him to obtain further evidence as contemplated by Article 3.04 (2). I appreciate that the Claimant has pursued several avenues and that he has been unable to locate any evidence to support his claim. Regrettably, that is the only manner in which he could have his claim reassessed. The Plan is clear that the Claimant has the burden of obtaining evidence to refute the results of a Traceback Procedure.
17. I understand the Claimant’s frustration and his anger. Nonetheless, I am bound by the terms of the Plan and neither I nor the Administrator have the discretion to vary the terms of the Settlement Agreement. The Plan does not, and was never intended to apply to all persons infected with Hepatitis C. Compensation under the HCV Transfused Plan is limited to a defined class of individuals, and inevitably there will be some individuals, like the Claimant, who are infected with Hepatitis C but who are not entitled to receive compensation.
18. On the basis of the evidence before me, I conclude that one of the donors of Blood received by the Claimant before January 1, 1986 is HCV antibody positive and that the Claimant has not provided evidence to refute the Traceback Procedure. Therefore, pursuant to Article 3.04, he is not eligible for compensation under the terms of the Settlement Agreement. I recommend that the decision of the Administrator be upheld.
Dated April 12, 2004
________________________________________________
Reva Devins, Referee
(1) The Claimant initially submitted his claim for compensation under the Hemophiliac Plan, however, he has been processed under the Transfused Plan. The Claimant has not challenged that classification.
(2) In his Request for Review, the Claimant did not indicate whether he wished to proceed by Reference or Arbitration. As greater rights of Appeal are afforded on Reference, I am proceeding to determine this Appeal as a Referee.
(3) The CBS report identifies transfusion of 258 units of blood in the Class Period. Nothing turns on this discrepancy and Fund Counsel has not taken issue with the amount recorded in the Claimant’s statement.
J U D I C I A L D E C I S I O N
|
