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Appeals: Confirmed
Referee Decisions : #144 - May 16, 2004
Decision of the Court having jurisdiction in the Class Action attached - September 21, 2005
D E C I S I O N
Background:
1. The Claimant submitted an application for compensation as a Primarily Infected Person under the Transfused HCV Plan (“the Plan"), as set out under the terms of the 1986-1990 Hepatitis C Settlement Agreement (“the Settlement Agreement").
2. By letter dated October 16, 2003, the Administrator denied his claim on the basis that the Claimant did not receive a Blood transfusion during the period from January 1, 1986 - July 1, 1990 ("the Class Period").
3. The Claimant requested that a Referee review the decision of the Administrator via written submissions. Having received the submissions of the Administrator, the Claimant indicated he had nothing to add to the written submissions which accompanied his application for review.
Evidence:
4. In the General Claimant Information Form, the Claimant states that he received one blood transfusion in Canada during his lifetime. However, he also indicated this Blood transfusion did not occur in the Class Period (January 1, 1986-July 1, 1990). (Claim file, pages 18-21)
5. Dr. William McMullen, who indicated he has know the Claimant for 22 years, completed the Treating Physician Form. Dr. McMullen states that having regard to the definition of Blood, the Claimant did not receive a blood transfusion during the class period. He also identifies three other risk factors for the Hepatitis C virus: blood transfusions outside the Class Period; prison incarceration; and tattoos. (Claim file, pages 22-26)
6. In the Blood Transfusion History Form, the Claimant states that he received one transfusion in 1966 or 1967, at the St. Joseph's Hospital in Sudbury, Ontario. The transfusion was required as a result of a head injury experience by the Claimant when he was struck on the head with a baseball bat. (Claim file, page 30) Correspondence from the Claimant’s mother, one of the Claimant’s former teachers, and a former student, support this assertion. (Claim file, pages 44-47)
7. The Claimant does not argue that his transfusion occurred within the Class Period. However, he maintains that his Hepatitis C is the result of the blood transfusion he received outside the Class Period. He sets out the difficulties he has experienced coping with his illness, and points out that his experience is the same as others who will be compensated. He argues that it is unfair that he should be excluded from compensation simply because of the narrow timeframe for which compensation is available.
Analysis:
8. In order to qualify for compensation under the terms of the Transfused HCV Plan, the Claimant must satisfy the criteria set out in that Plan.
9. Article 3.01 of the Transfused HCV Plan provides that a person claiming to be a Primarily Infected Person must provide the Administrator with, amongst other things, "records demonstrating that the Claimant received a blood transfusion in Canada during the Class Period." As indicated above, the Settlement Agreement establishes the Class Period to be the period from and including 1 January 1986, to and including 1 July 1990.
10. It is not disputed that any Blood transfusion received by the Claimant occurred outside of the Class Period.
11. Neither the Administrator, nor I, as a Referee, have discretion to grant compensation to individuals infected with Hepatitis C who cannot show they received a transfusion within the timelines of the Class Period.
12. Accordingly, I find the Administrator correctly determined that the Claimant is not entitled to compensation pursuant to the Hepatitis C 1986-1990 Class Action Settlement, as he has not demonstrated that he received a blood transfusion during the Class Period.
Determination:
The decision of the Administrator to deny the Claimant compensation pursuant to the Hepatitis C 1986-1990 Class Action Settlement is upheld.
DATED at Toronto, this 16th Day of May, 2004.
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Tanja Wacyk, Referee
J U D I C I A L D E C I S I O N
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