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Appeals: Confirmed Referee Decisions : #139 - April 19, 2004

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.

2. By letter dated June 27, 2002 the Administrator denied the claim on the basis that the Claimant did not provide sufficient evidence that she received blood during the Class Period. The Claimant requested that a Referee(1) review the decision of the Administrator.

Facts

3. In her application for compensation, the Claimant submitted a blood transfusion history in which she stated that she had received a blood transfusion at St. Joseph’s Hospital in Hamilton, Ontario on August 2, 1986 as a consequence of a C-section delivery performed by Dr. M. Murray. In the Treating Physician Form, the Claimant’s current physician, Dr. Syty-Golda, similarly reported that the Claimant had received a blood transfusion in the Class Period.

4. When the Claimant’s medical records were searched, there were no records that she had received any blood products at St. Joseph’s Hospital in Hamilton in the Class Period. Nor was there any notations in her hospital files that she was transfused.

5. At the request of the Claimant, an oral hearing was convened in Hamilton on February 9, 2003. The Claimant did not produce any further evidence of transfusion nor was she able to recall whether she had been transfused. Nonetheless, the hearing was adjourned to permit further inquiries with respect to other sources of evidence of transfusion.

6. The following sources were pursued in an effort to gather medical documentation of transfusion:

a. The Claimant’s current treating physician, Dr. Syty-Golda was asked to provide the basis for her opinion that the Claimant received a blood transfusion in the Class Period: In a fax transmission dated February 16, 2004, Dr. Syty-Golda stated,

“I apologise for the error on my form dated July 18/00.My patient did NOT receive a blood transfusion during the C-section & other TX’s by Dr. M. Murray.”

b. The Administrator was ordered to obtain a complete copy of the Claimant’s medical file compiled by Dr. Murray (now deceased): The file was retrieved but it did not contain any evidence that the Claimant received a transfusion in the Class Period;

c. The Administrator was ordered to request and receive a complete copy of the Claimant’s medical file from St. Joseph’s Hospital in Hamilton: The records confirmed admissions in 1986, 1987 and 1988, however, there was no evidence that the Claimant received a transfusion during any of these admissions.

7. The parties were asked to submit final written submissions. Fund Counsel filed submissions on March 11, 2004. The Claimant did not provide any further submissions.

Analysis

8. 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. The terms of the settlement provide a detailed outline of who is eligible for compensation, and how eligibility can be proven:

ARTICLE THREE

REQUIRED PROOF FOR COMPENSATION

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, or Canadian Blood Services or Hema Quebec records demonstrating that the claimant received a Blood transfusion in Canada during the Class Period;

(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.

9. In order to qualify as an eligible class member, the Claimant must demonstrate that she received a blood transfusion in Canada in the period January 1, 1986 to July 1, 1990. She can do this by producing one of the approved documents listed in the settlement, such as a medical or laboratory record. Or, if the designated records are not available, she can prove her entitlement by supplying independent evidence to support her claim.

10. In this case every effort was made to gather evidence that might establish eligibility under the terms of the Settlement Agreement. Regrettably, the Claimant has not been able to supply any evidence to support her claim that she was transfused between January 1, 1986 and July 1, 1990. None of the medical records that were produced support a conclusion that the Claimant received blood in the Class Period. Moreover, although her treating physician initially indicated that the Claimant was transfused in the Class Period, she has since acknowledged that she was mistaken and that the Claimant did not receive a blood transfusion.

11. Based on the evidence and submissions provided on this Reference, I find that the Claimant has not demonstrated that she received blood in the Class Period and she is therefore not eligible for compensation under the terms of the Court approved HCV Transfused Plan. I recommend that the decision of the Administrator be upheld.

Dated April 19, 2004:

________________________________________________

Reva Devins, Referee

1. The Claimant originally requested that an Arbitrator review the decision of the Administrator, however, at her oral hearing she confirmed that she wished to proceed by Reference.

 

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