|
Appeals: Confirmed
Referee Decisions : #86 - May 23, 2003
Decision of the Court having jurisdiction in the Class Action attached - May 25, 2004
D E C I S I O N
1. On December 9, 2002, the Administrator denied the claim
for compensation as a Primarily-Infected Person under the
Transfused HCV Plan. The claim was denied on the basis that
the deceased person, on whose behalf the claim was brought,
was not considered to be "first infected" by a blood
transfusion received during the Class Period.
2. The Claimant requested that the Administrator's denial
of the claim be reviewed by a referee. Following extensive
correspondence between representatives of the parties and
a series of conference calls, the claimant requested a hearing
to review the Administrator's denial of the claim. That hearing
was held in Kamloops, British Columbia, on May 14, 2003.
3. The relevant facts are not in dispute and can be summarized
as follows:
a) The Claimant and his deceased wife resided in Kamloops,
British Columbia. The Claimant's wife died on October 5, 1999.
b) At the time of her death, she was suffering from Hepatitis
C.
c) Her husband, the Claimant, submitted a claim for her estate
under the Transfused HCV Plan as a personal representative
of a primarily infected person.
d) When the claim was made, a Traceback was initiated, which
revealed the deceased person received blood transfusions prior
to and during the Class Period, from donors who were determined
to be HCV antibody positive.
e) Prior to her death, the deceased had undergone significant
surgery on various occasions, requiring blood transfusions.
f) The Traceback revealed that the deceased person received
ten blood transfusions at Royal Inland Hospital in Kamloops
of January of 1982 and, in March 1982, she received one blood
transfusion at the same hospital. In January 1985, she received
four blood transfusions at Royal Jubilee Hospital in Victoria,
and in March 1988, she received six blood transfusions at
the same hospital.
g) By letter dated January 9, 2001, Canadian Blood Services
summarized the Traceback results with respect to all of the
above-noted blood transfusions. The results disclosed that
two of the donors were found to be HCV antibody positive,
one in the timeframe before the commencement of the Class
Period and the other, during the Class Period.
h) Canadian Blood Services provided extensive documentation
to the Administrator concerning the records supplied by the
appropriate hospitals, which included findings concerning
the two donors in question and as a consequence of queries
from the Claimant regarding certain discrepancies in the hospital
records. The effect of these discrepancies is of no material
consequence in these proceedings.
i) Having reviewed the further information supplied by Canadian
Blood Services concerning the Traceback procedure and after
reviewing the complete hospital records, the Administrator
affirmed the denial of the claim on the basis that the deceased
received a blood transfusion prior to the Class Period, the
donor of which tested positive for the HCV antibody.
4. At the hearing, the representative of the Claimant provided
certain evidence of a hearsay nature, which was not disputed
by the Counsel for the Administrator, that the deceased's
lifestyle and life history were such that there was no opportunity
for her to become infected with Hepatitis C prior to the commencement
of the Class Period. In addition, it appears there was no
outward manifestation or indication of Hepatitis C symptoms
prior to her being tested for the HCV antibody during the
Class Period. In his submission, the representative of the
Claimant urged me to find that there is no clear and compelling
evidence that she had been infected before the Class Period
commenced, and therefore, I should conclude that she was primarily
infected during the Class Period.
5. While I have considerable sympathy for the position of
the Claimant, I am obliged to find, for the reasons expressed
below, that the Administrator's denial of the claim must be
sustained.
6. The 1986-1990 Hepatitis C Settlement Agreement defines
"Class Period" as the title implies, as the period
"from and including one January 1986 to and including
one July "90" ". Article 3.04(1) and (2) of
that Agreement, the provisions that are determinative of the
issue before me, read as follows:
(1) Notwithstanding any other provision of this Agreement,
if the results of a Traceback Procedure demonstrate that on
eof the donors or units of Blood received by a HCV-Infected
Person or Opted-Out HCV Infected Person before 1 January 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 antibody 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
HCV Infected Person or Opted-Out HCV Infected Person including
Claims of Secondarily-Infected Persons, HCV Personal Representative,
Dependants and Family Members. [emphasis added]
(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 or that the relevant Secondarily0Infected
Person or Secondarily-Infected Person who opted out of the
Class Action in which he or she would otherwise be a Class
Member was infected for the first time with HCV by his or
her Spouse who is a Primarily-Infected Person or Opted-Out
Primarily-Infected Person or Parent who is a HCV Infected
Person or Opted-Out HCV Person, notwithstanding the results
of the Traceback Procedure. 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. [emphasis added]
7. In this case, it is not disputed that the deceased received
blood transfusions in the period before the commencement of
the Class Period and during the Class Period. The real issue
before me deals with the application of Article 3.04(2) in
the circumstances of this particular claim. Put differently,
the question is whether the facts justify a conclusion that
the exception provided in Article 3.04(2) applies, not withstanding
the Traceback result which in the ordinary course of events
requires the Administrator - and a referee - to reject the
claim.
8. I have had the opportunity to consider the reasons for
judgement of Mr. Justice Pitfield with respect to claim number
1300593. In that case, the issue was similar to the question
before me, in that the claimant was seeking to invoke the
exception provided in Article 3.04(2). The most helpful paragraphs
of the decision read as follows:
[9] Article 3.04(1) applies notwithstanding any other provision
of the Settlement Agreement except Article 3.04(2). Article
3.04(1) provides that the Administrator must reject a claim
for compensation if either of two conditions is satisfied:
the Claimant received blood prior to January 1, 1986 and the
traceback in respect of that transfusion indicates that the
blood donor was infected with the Hepatitis C antibody, or
the Claimant received a transfusion or transfusions in the
class period and the traceback in respect of that or those
transfusions indicates that neither the donor nor donors of
the blood transfused in the class period tested Hepatitis
C antibody positive.
[10] Article 3.04(2) provides an exception to Article 3.04(1).
Notwithstanding traceback results, a Claimant may prove that
he or she was infected with the Hepatitis C antibody for the
first time by a blood transfusion received in the class period.
The Settlement Agreement is silent with respect to the applicable
burden of proof and the nature of the evidence that might
refute the traceback result.
...
[15] The evidence the Claimant would be required to adduce
on appeal would include, at the least, complete family and
personal medical history and detailed evidence of all aspects
of the Claimant's lifestyle including evidence of the absence
of opportunity to be infected by needles or injections, however
and for whatever purpose received. The kinds of evidence I
have described are not intended to be exhaustive. Rather they
are intended to point to the process that must be followed
in the attempt to refute the traceback result.
[16] A simple denial by a Claimant of personal history or
actions that have been identified as potential non-transfusion
sources of HCV infection will not suffice. The reliability
of the assertion which is subjective in nature would have
to be tested by reference to all known objective evidence.
One of the pieces of objective evidence is the negative traceback
result following upon the application of, and adherence to,
the approved traceback protocol. Contradictory objective evidence
would have to be very persuasive if the traceback result is
to be refuted.
9. I agree with this analysis. Whether the exception of Article
3.04(2) applies is essentially a factual issue to be decided
by a consideration of the objective evidence and relevant
information presented in the specific case. There is no generic
or abstract principle to be applied in every case. The question
the referee or arbitrator appointed under the Settlement Agreement
must answer is whether there is sufficient persuasive evidence
to overcome the Traceback result.
10. The Claimant has submitted that the deceased's life history
is such that there was no opportunity for her to become infected
outside the Class Period. It is not disputed that her life
style was admirably healthy. At the same time, neither is
there any dispute that she had significant surgeries that
necessitated a number of blood transfusions prior to the commencement
of the Class Period. The important point is that the evidence
on which the Complainant relies is not persuasive of any particular
result; at best, it may allow one to conclude that if it had
not been for the surgeries and transfusions that occurred,
she might never have become infected. The objective facts
are that the surgeries did occur, blood transfusions were
required, and two donors of the blood involved tested positive
for HCV antibody, one before the start of the Class Period
and one during the Class Period.
11. On the basis of a consideration of this evidence, I am
unable to find that the evidence approaches "the level
required to refute the Traceback result". (see paragraph
17 of Mr. Justice Pitfield's Reasons). As I read the language
of Articles 3.04(1) and (2), there must be sufficient objective
evidence to persuade me, on a balance of probabilities, that
the Traceback result should not govern my decision. As I have
said, the Claimant has presented all of the relevant information
that is available, but it is not of sufficient objective value
so as to persuade me to find that subsection(2) of Article
3.04 applies, rather than subsection(1). Accordingly, I am
obliged to find the claim does not succeed and the Administrator's
decision to reject the claim, given the result of the Traceback,
must be upheld.
Dated at Vancouver, British Columbia, this 23rd day of May,
2003.
John P. Sanderson, Q.C.
Referee
J U D I C I A L D E C I S I O N
|
