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Appeals : Arbitrator
Decisions : #5 - June 1st, 2001
D E C I S I O N
1. The Claimant has submitted an application for compensation
as a primarily infected person under the HCV Transfused Plan.
2. By letter dated March 19, 2001, the Administrator denied
her claim because she did not provide sufficient evidence
that she received a blood transfusion in Canada between January
1, 1986 and July 1, 1990.
3. The Claimant requested that an Arbitrator review the decision
of the Administrator.
Facts
4. In 1995 the Claimant was diagnosed with Hepatitis C.
She believes that she contracted the infection as a result
of a blood transfusion that she received in 1983 during the
caesarian section birth of her child. She readily admits,
and her physician confirmed, that she has not received any
other blood transfusions. Specifically, the Claimant concedes
that she did not receive a blood transfusion during the Class
Period, between January 1, 1986 and July 1, 1990.
5. At the hearing, the Claimant acknowledged that she understood
the limits of the settlement, however, she felt that it was
unfair to compensate some people and not others. She became
infected with Hepatitis C as a result of tainted blood, and
she now has serious concerns about her health, her future
and her ability to provide for her family. In her view, someone
should be held accountable to help pay for her medication
and other needs.
6. In support of the Administrator's decision, Fund Counsel
submitted that the Claimant did not receive a blood transfusion
in the Class Period and she is therefore not eligible for
compensation. In Fund Counsel's submission, neither the Administrator
nor an Arbitrator have any authority to deviate from the eligibility
requirements set out in the Court approved Settlement Agreement.
Analysis
7. 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.
8. In order to qualify for compensation, there are a number
of factual elements that must be established. In this case,
to be accepted as a primarily infected person under the HCV
Transfused Plan, the Claimant must first demonstrate that
she received a blood transfusion in the Class Period. The
January 1, 1986 - July 1, 1990 Hepatitis C Settlement Agreement
defines "Class Period" as meaning "the period
from and including 1 January 1986 to and including 1 July
1990". Membership in the class is a pre condition of
eligibility for compensation.
9. By the Claimant's own admission it is clear that she does
not satisfy the eligibility requirements of the HCV Transfused
Plan. The only blood transfusion that she has received was
in 1983, which is clearly outside the Class Period.
10. I do not doubt that the Claimant contracted Hepatitis
C in the manner that she has described, and I fully appreciate
her anger and sense of frustration with the lack of relief
available to her. Given her circumstances, it is entirely
understandable that she should seek financial compensation
if it is available. Unfortunately, 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 recipients, and inevitably there will be
some individuals, like the Claimant, who are infected with
Hepatitis C but who are not eligible for compensation under
this Plan.
11. In determining eligibility for compensation under the
terms of this settlement, I am limited by the conditions set
out by the Order as approved by the Court. In this case, the
1983 blood transfusion received by the Claimant is outside
of the Class Period. I must therefore conclude that the Claimant
has not met the eligibility requirements for compensation
under the HCV Transfused Plan, and I would uphold the decision
of the Administrator.
Dated June 1, 2001
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Reva Devins, Arbitrator
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