Appeals: Unconfirmed Referee Decisions : #48 - June 12, 2002

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 July 17, 2001, the Administrator denied this Claim because the Claimant did not establish that she received blood, as defined by the Settlement Agreement, during the Class Period.

3. The Claimant requested the decision of the Administrator be reviewed as to the method of appeal. During a hearing held in Moncton, New Brunswick on June 10, 2002, the Claimant was granted her request to have the matter dealt with as a Reference rather than an Arbitration. Counsel on behalf of the Fund Administrator did not object to that request and it was granted.

Facts

4. The facts in this matter are not in dispute. The Claimant acknowledged that the evidence establishes that the only blood product received during the Class Period was Rh Immune Globulin. The Claimant's Physician, in completing the Treating Physician Form, stated that, in light of the definition of Blood for the purposes of the Plan, the Claimant did not receive a blood transfusion in the Class Period.

5. The Physician further confirmed that the Claimant did receive Rh Immune Globulin, a pooled blood product specifically excluded from the definition of Blood under the Settlement Agreement.

6. At the hearing, the Claimant and her husband, while acknowledging the specific limitations of the Settlement Agreement, argued that she deserved to be compensated. Among a number of frustrations they expressed, the Claimant and her husband were very annoyed by the failure of the Parties to adopt the recommendations of the Krever Report in the Settlement Agreement. They argued that the Agreement was politically motivated and resulted from the lobbying efforts of special interest groups.

7. Fund counsel, on behalf of the Administrator, submitted that Rh Immune Globulin is not a blood product under the terms of the Plan and indeed is expressly excluded from the definition along with a number of other blood by-products.

8. In the submission of Fund Counsel, since the Claimant did not receive Blood as defined under the Settlement Agreement, the Claimant is not eligible for compensation.

Decision

9. 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 in considerable detail who is eligible for compensation, and how eligibility can be proven.

10. One of the initial requirements to qualify for compensation as an eligible Class member is to establish that the Claimant received blood in the Class Period. Membership in the Class is a pre-condition for compensation.

11. "Blood" is specifically defined under the terms of the Settlement Agreement as follows:
"Blood means whole blood and the following blood products: packed red cells, platelets, plasma (fresh frozen and banked) and white blood cells. Blood does not include Albumin 5%, Albumin 25%, Factor VIII, Porcine Factor VIII, Factor IX, Factor VII, Cytomegalovirus Immune Globulin, Hepatitis B Immune Globulin, Rh Immune globulin, Immune Serum Globulin, (FEIBA) FEVIII Inhibitor Bypassing Activity, Autoplex (Activate Prothrombin Complex), Tetanus Immune Globulin, Intravenous Immune Globulin (IVIG) and Antithrombin III (ATIII)."

12. As other Referees have held, we are limited in our jurisdiction to deal with the express terms of the Settlement Agreement. The Claimant has only been able to establish that she was in receipt of Rh Immune globulin during the Class Period.

13. That blood product is not included in the definition of "Blood" in the Settlement Agreement.

14. I can fully appreciate the frustration and disappointment felt by the Claimant who has contracted Hepatitis C. She is very disappointed with the definitions as set forth in the Settlement Agreement.

15. However, the Plan was never intended to apply to all individuals who contracted Hepatitis C. Compensation and eligibility are tied specifically to a defined Class of individuals. Unfortunately, this means that some individuals, including the Claimant, are not entitled to receive compensation.

16. In determining eligibility for compensation, I am limited by the conditions set out by the Order approved by the Court.

17. Based on the evidence, it is my finding that the Claimant has not met the eligibility requirements for compensation under the HCV Transfused Plan contained in the Hepatitis C 1986 - 1990 Settlement Agreement. Therefore, the Decision of the Administrator is confirmed.

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Dated at Halifax, Nova Scotia this 12th day of June 2001
Gregory I. North, Q.C., Referee