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Appeals: Confirmed
Referee Decisions : #146 - June 1, 2004
Decision of the Court having jurisdiction in the Class Action attached - November 9, 2005
D E C I S I O N
Claimant presented a claim as a primarily infected person explaining that he had received two or four blood transfusions during the period between January 1, 1986 to January 1, 1990.
Upon further investigation, it was established that claimant had indeed received two transfusions on June 10, 1987 and three on June 11, 1987. All these transfusions were received at the Royal Victoria Hospital in Montreal.
It was also established that claimant had received three transfusions back in May 1979. These donors remain untraceable due to the fact that the Canadian Red Cross database (or that of Héma-Québec) does not allow to traceback donors of blood units collected before 1982.
Of the claim period donors, four were located and tested negative, while one remained to be contacted.
It is on the basis of this incomplete or inconclusive traceback that the claim was approved in April 2003 and a fixed payment of $10,904.06 was made to claimant.
In June 2003, Héma-Québec completed its traceback and determined that all five donors of 1987 blood were negative.
Based on Section 13 of the Class Action Settlement Traceback Protocol which reads as follows:
" Where a Claim is accepted, it may be later rejected if information concerning the HCV antibody status of the donors or units of the Blood received by the person claimed to be a Primarily-Infected Person or other means of infection becomes known which would have resulted in rejection of the Claim had that information been considered at the time when the Administrator's decision was taken. The claimant shall thereafter become disentitled to future payments under the Plan. Absent fraud on the part of the claimant, the claimant shall not be obligated to repay any monies under the Plan prior to becoming disentitled under the Plan." (the underlines are my own)
claimant was advised by letter of July 16, 2003 that he no longer qualified as a class member and that he was therefore not entitled to any further payment.
Claimant appeals this decision, giving as a reason for such appeal:
"I wish to review the Administrator's decision for the following reason: because on April 24, 2003, Claim number 10274 was accepted."
Claimant does not contest the traceback results but contests the Administrator's right to deny the claim which it had previously approved.
However, I consider that the words of the plan and of section 13 of the Traceback Protocol are clear and are not ambiguous. The Administrator must deny a claim where the traceback result shows that all donors are determined not to be HCV antibody positive (3.04 ( 1 ) ).
It is not disputed that claimant is infected with Hepatitis C nor is it disputed that he did receive five units of blood in 1987. However, all five donors tested negative and claimant has not provided any evidence to refute the results of the traceback procedure, nor does he appear to contest the result of such traceback procedure.
Section 3.04 (1) requires that the Administrator reject the claim in circumstances such as these. I find that claimant does not qualify as a primarily infected person and that he is not entitled to compensation under the terms of the transfused HCV Plan.
As mentioned in numerous previous decisions, the Administrator is required, under the Settlement Agreement, to administer the transfused HCV Plan in accordance with its terms and conditions. The Administrator does not have authority to vary the terms and conditions of the plan. The arbitrator or, as in this case, the referee, is also bound by the terms and conditions of the plan and has no authority to modify same.
For the above reasons, I have no alternative but to uphold the Administrator's denial of the claimant's request for further compensation.
MONTREAL, June 1st, 2004
Jacques Nols
Referee
J U D I C I A L D E C I S I O N
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