Appeals : Arbitrator Decisions : #45 - May 23, 2002

D E C I S I O N

BACKGROUND

1. On February 6, 2002, the Administrator denied the Claimant's request for compensation as a Primarily-Infected Person under the Transfused HCV Plan. The claim was denied due to lack of evidence that the Claimant received a blood transfusion during the Class Period.

2. The Claimant requested that the Administrator's denial of his claim be reviewed by an arbitrator.

3. Both parties waived their entitlement to an oral hearing.

4. The Claimant filed written submissions on March 11, 2002 together with two exhibits.

5. Fund counsel, on behalf of the Administrator, filed written submissions on April 12, 2002.

6. The hearing concluded on May 9, 2002 when the Claimant declined to submit reply submissions.

EVIDENCE

7 It is not disputed that the Claimant is infected with Hepatitis C.

8. The Claimant completed a Blood Transfusion History Form in which he states that he received a blood transfusion in 1987 or 1988.

9. The Claimant claims that he was transfused at a particular hospital. On September 3, 1997, the hospital wrote that it had reviewed its records from February 9, 1986 to December 31, 1990 inclusive. The hospital records indicated that the Claimant had visited the hospital on fourteen occasions. Each visit was an emergency room visit rather than an in-patient hospitalization. The hospital confirms that it "did not find any medical records evidence that the patient received any blood products during any of these visits".

10. In an undated letter, the hospital responded to the Claimant's letter of January 3, 2001 requesting records relating to blood transfusions in 1987 and 1988. The hospital enclosed its records and confirmed that the records "show no transfusions during that time period".

11. In another letter dated October 16, 2001, the Release of Information Clerk at the hospital confirmed that she had reviewed the records again from 1986 and "found no records of any blood transfusion". The clerk did indicate that there was one missing record from March 6, 1986. This was an emergency visit from 10:45 a.m. to 13:01 p.m. for a lacerated forearm

12. On December 29, 2001, The 86-90 Hepatitis C Claims Centre queried the Claimant's physician about his completion of the Treating Physician Form where he had indicated that the Claimant had transfusions during the Class Period. The Claimant's physician was asked whether his reply was based on a verbal response from the patient or on medical documents confirming a transfusion between January 1, 1986 and July1, 1990. The physician's response on December 31, 2001 was that the Claimant felt certain that he had a transfusion during the time period but the physician had no written confirmation of this.

ANALYSIS

13. The Claimant seeks compensation as a Primarily-Infected Person under the Transfused HCV Plan. The Transfused HCV Plan defines "Primarily-Infected Person", in part, as meaning "a person who received a Blood transfusion in Canada during the Class Period and who is or was infected with HCV".

14. The 1986-1990 Hepatitis C Settlement Agreement defines "Class Period" as meaning "the period from and including 1 January 1986 to and including 1 July 1990." "Class Period" is defined identically in the Transfused HCV Plan.

15. Article 3.01 (1) (a) of the Transfused HCV Plan requires that a person claiming to be a Primarily-Infected Person must deliver to the Administrator an application form together with, among other things, medical "records demonstrating that the Claimant received a Blood transfusion in Canada during the Class Period ..."
16. Article 3.01 (2) of the Transfused HCV Plan provides that if a Claimant cannot obtain the necessary medical records as a means of proof, the Claimant must deliver corroborating evidence to the Administrator independent of the personal recollection of the Claimant or any person who is a family member. I have received no evidence, independent of the Claimant's personal recollection, to establish that he received a blood transfusion.

17. I find that the Claimant did not provide the evidence required by Article 3.01 to establish that he received a blood transfusion during the Class Period. Consequently, the Claimant has not established on the balance of probabilities that he was infected with HCV by a blood transfusion received during the Class Period. Therefore, the Claimant does not qualify as a Primarily-Infected Person and is not entitled to compensation under the terms of the Transfused HCV Plan.

19. The Administrator under the Settlement Agreement is required to administer the Transfused HCV Plan in accordance with its terms. The Administrator does not have authority to vary the terms of the Plan nor does an arbitrator or a referee when asked to review the Administrator's decision.

CONCLUSION

20. I uphold the Administrator's denial of the Claimant's request for compensation.

Date: May 23, 2002

JUDITH KILLORAN
Arbitrator