Appeals : Arbitrator Decisions : #47 - June 17, 2002

D E C I S I O N

A. Introduction

[1] The Claimant applied for compensation as a Primarily-Infected Person pursuant to the Transfused HCV Plan ("the Plan").

[2] By letter dated February 6, 2002, the Administrator denied the Claim on the basis that, having carefully reviewed the material provided in support of the claim, the Claimant had not provided sufficient evidence to support her claim that she had received blood during the period from January 1, 1986 - July 1, 1990 ("the Class Period").

[3] By way of Notice of Appeal dated February 4, 2002, the Claimant requested that an Arbitrator review the denial of her claim by the Administrator. In paragraph 4 of her Notice of Appeal, the Claimant stated that she wished to review the Administrator's decision, for the following reasons:

I was given blood transfusion when I was in R.U.H. (Royal University Hospital, Saskatoon). In 1998 I was in the hospital for over a week and now they are saying I was never in there. The doctor is either dead or retired. I have tried phoning the (College of) Physicians and Surgeons but they are playing dumb like everyone else.

[4] The Claimant replied as follows in the box of paragraph 5 of the Notice of Appeal in terms of additional documents, which the Arbitrator should consider in support of her appeal:

There are the only papers I could get as they say I wasn't in that hospital, which is wrong because I was there.

[5] In Box 6, the claimant indicated that she wished to have the following person testify in person before the Arbitrator:

H.I., construction worker, (deceased) because he was the one that drove me to the hospital.

[6] The matter was referred to the Arbitrator on or about April 16, 2002. On April 20, 2002, the Arbitrator wrote to the Claimant explaining the differences between a Review by Arbitrator or Referee and invited the Claimant to confirm that she preferred to have the matter decided by an Arbitrator, notwithstanding that an Arbitrator's decision is final and not subject to being reviewed by a Superior Court Judge. The Claimant confirmed that she indeed wished to have the matter determined by way of Arbitration and she requested an "in-person" hearing.

[7] A hearing date was therefore set for May 10, 2002 in Saskatoon. Both parties provided written submissions and viva voce evidence was lead by both parties. The Claimant testified on her own behalf and Carol Miller, Appeals Coordinator of the Hepatitis C January 1, 1986 - July 1, 1990 Claims Centre (the "Claims Centre"), testified on behalf of the Administrator. In the result, the matter will indeed be adjudicated upon based on the written materials and testimony provided by the parties.

B. Facts, Summary of Evidence

[8] Pursuant to the terms of the January 1, 1986 - July 1, 1990 Hepatitis Settlement Agreement ("the Settlement Agreement") and the Plan, the Class Period is the only period of time in respect of which compensation may be available. While there are many possible sources of infection with respect to the Hepatitis C virus, the Plan only provides compensation for individuals who received transfusions of defined blood products in Canada during the Class Period.
[9] The Claims Center file, consisting of 93 pages, was entered in evidence at the hearing. In Section A, Box 1 of the Claimant's General Claimant Information Form (TRAN 1) dated October 15, 2000, the Claimant checked off the box indicating:

I believe that was infected with the Hepatitis C virus through a Blood transfusion received in Canada between January 1, 1986 and July 1, 1990.

In boxes 11-13, the Claimant indicated that she had received blood transfusions twice in her lifetime, once prior to 1986 and once during the class period.

[10] In her accompanying Declaration (TRAN 3) dated October 15, 2000, the Claimant stated that to the best of her knowledge, information and belief:

Box 4 - She has never used non-prescription intravenous drugs.

Box 5 - She was not infected with the Hepatitis Non-A Non-B or the Hepatitis C virus prior to January 1, 1986.

Box 6 - Saskatchewan was her place of residence at the time of her application.

Box 7 - Saskatchewan was her place of residence when she first received a Blood transfusion during the class period.

Box 8 - The place where she received her first Blood transfusion during the Class Period was Saskatoon.

[11] In her Blood Transfusion History Form ("TRAN 5"), dated March 5, 2001, the Claimant indicated that she had received a blood transfusion in 1975 at Regina General Hospital in respect of a broken right leg, together with a 1988 transfusion at RUH Saskatoon, in connection with "pneumonia, anemia."

[12] The Treating Physician Form ("TRAN 2"), confirming that the Claimant was at Disease Level 2, was completed by Dr. A., the Claimant's physician on September 8, 2000. This form indicated that the physician knew the Claimant for a period of 11 months. Under Section F - Box 2 was checked off as "no" following the statement:
Having regard to the definition of Blood, did the Primarily-Infected Person receive a Blood transfusion during the period January 1, 1986 to July 1, 1990?

[13] Under Section F, Box 1 of TRAN 2, with respect to whether the Claimant had a history of risk factors for the Hepatitis C virus, Dr. A. checked off the box indicating "Blood transfusions outside the period January 1, 1986 to July 1, 1990". He did not complete Box 3, which asks the question:
Is there anything in the HCV Infected Person's medical history that indicates that he or she was infected with Hepatitis Non-A, Non-B or the Hepatitis C virus prior to January 1, 1986?"

[14] Following a Traceback request from the Claims Centre, Canadian Blood Services (CBS) conducted a search of blood bank records regarding transfusion history. On June 26, 2001, CBS reported that there was "no record of transfusion" with respect to the Claimant. As the Claimant indicated that she has two given names that she is known by, at the Request of the Centre, CBS investigated into whether or not there may have been a record of a transfusion under either given name. Be way of letter dated March 21, 2002, CBS reported as follows:

Regina General Hospital did find a record of transfusion in 1975 but is unable to identify the unit numbers.

The documentation from RUH, in Saskatoon, states that the above patient was not transfused. Also, there is no indication of any need of any need for transfusion in the patient's chart. Both (given) names were searched.

[15] The Claimant testified that she was born and raised in Saskatchewan. For many years she worked either in the kitchen or as a nurses' aid in a small hospital and a care home. She testified to a mishap in 1975 when she slipped on ice and needed surgery at Regina General Hospital, where she received a blood transfusion.

[16] At to the circumstances that lead to her hospitalization at RUH in 1988, she recalls having been ill at home for about a week. Her neighbor, H.I., drove her to RUH. She recalls seeing Dr. S., an older physician from the RUH Family Medicine Department, who she has since attempted to track down, without success. Dr. S. told her about pneumonia and anemia and she recalls him telling her that if she did not receive a blood transfusion, she was at risk to suffer a heart attack. She recalls receiving 5 or 6 bags of blood from a bag hanging from a pole in her hospital room. She recalls one nurse setting it up.

[17] The Claimant acknowledged that she was unconscious for much of the period of time she was in hospital and was under an oxygen tent. Her family was out of province at the time and did not visit her. She recalls a friend of hers, Sarah L and her son visiting her in hospital but she has been unable to locate her. H.I. also saw her in hospital, but he passed away 6 years ago.

[18] Carol Miller also testified. She stated that invariably two nurses come in to set up blood as one spells out the name on the arm band requisition and the other carefully double checks the numbers. She also testified that, while she had not seen the RUH health record for the Claimant, it could well be that antibiotics would have been administered intravenously with respect to pneumonia. Vitamins could have been added to the I.V. fluids, adding colour or tint. She testified that there are normally numerous areas in the patient's health record that would document both the need for blood and the fact that it was requisitioned, cross-matched and transfused, if in fact the need existed and if blood was in fact transfused.

[19] The Claimant indicated that she was concerned that she had encountered difficulty in obtaining copies of her RUH health record for the 1988 hospitalization. She was eager to know what became of those records and confidant that they would obtain the evidence of transfusion that she sought. Therefore, in an effort to ensure that no stone was left unturned in the pursuit of evidence that might assist the Claimant, at the conclusion of the in-person hearing, the Arbitrator requested that the Claimant execute a consent to enable the Arbitrator to obtain a copy of her RUH health record for 1988, which the Claimant was kind enough to do.

[20] On May 17, 2002, the RUH health records librarian supplied a copy of the Claimant's health record for 1988. Having carefully reviewed these documents, it can be stated that there is no reference in these records to blood being required, requisitioned, cross-matched or transfused. There is reference to a "microcytic anemia", which was treated with iron therapy. The Claimant's pneumonia was treated with intravenous antibiotics. Clinical Records showed no evidence of blood transfusion in the areas of the health record where this would be expected to be recorded.

[21] On May 17, 2002, copies of the Claimant's RUH health record were supplied to both parties by the Arbitrator, with a request that they supply any further comments by June 7, 2002. Counsel for the Administrator indicated that the records confirmed that there was no blood transfusion during the Claimant's 1988 hospitalization at RUH. The Claimant did not supply anything further.

[22] The Arbitrator is satisfied that the Claimant was labouring under the honest but mistaken belief that she had in fact received blood transfusions during the course of her admission to RUH in July 1998. The Claimant's suspicion and distrust of RUH and the CBS were clearly exacerbated by the difficulty she had in terms of obtaining copies of her records. However, hopefully the receipt of her RUH records, albeit late in the process, will allay her concerns in this regard and provide answers to some of her questions.

[23] Given the absence of any reference to blood products being supplied, when there are so many components in the health record that would have been expected to refer to such blood products, and given the absence of any evidence from the RUH health record to suggest that the Claimant needed blood, the Claimant is lacking the required evidence upon which an Arbitrator could reasonably conclude that she did receive blood or blood products during the class period.

[24] The Transfused Blood Plan, being Schedule A to the January 1, 1986 - July 1, 1990 Hepatitis C Settlement agreement, sets out the key criteria for eligibility for benefits:

ARTICLE THREE
REQUIRED PROOF FOR COMPENSATION
3.01 Claim by Primarily-Infected Person

(1) A person claiming to be a Primarily-Infected Person must deliver to the Administrator an application form prescribed by the Administrator together with:

(a) medical, clinical, laboratory, hospital, The Canadian Red Cross Society, Canadian Blood Services or Hema-Quebec records desmontratring that the claimant received a Blood transfusion in Canada during the Class Period; …

(2) Notwithstanding the provisions of Section 3.01(1)(a), if a claimant cannot comply with the provisions of Section 3.01(1)(a), the claimant must deliver to the Administrator corroborating evidence independent of personal recollection of the claimant or any person who is a Family Member of the claimant establishing on a balance of probabilities that he or she received a Blood transfusion in Canada during the Class Period."
[emphasis added]

[25] Based on an analysis of the Plan as applied to the foregoing facts, it is clear that the Administrator's denial of the Claimant's request for Compensation must be sustained.

[26] Both the Settlement Agreement and the Plan define "Class Period" as meaning "the period from and including 1 January 1986 to and including 1 July 1990." The Plan defines "Primarily-Infected Person" as meaning "a person who received a Blood transfusion in Canada during the Class period." While the Claimant clearly received a transfusion prior to the Class Period, any may have rights arising from a separate class actions settlement relating to that prior period (Ms. Miller has undertaken to supply the Claimant with the materials necessary to apply under that Plan), the Claimant has failed to meet the burden imposed by Article 3.01 of the Plan, stipulating that the burden lies on the individual claiming to be a Primarily-Infected Person to provide materials that demonstrate his or her entitlement. A person claiming to be a Primarily Infected Person must provide the Administrator with medical "records demonstrating that the Claimant received a Blood transfusion in Canada during the Class Period." While Article 3.01(2) allows the Claimant to introduce to establish transfusion during the class period even if the health records do not support such a finding, here the Claimant was unable to introduce evidence "independent of her personal recollection". In this case, the Claimant's personal recollection was admittedly and understandably hazy due to periods of being unconscious and the passage of time.

[27] The Claimant is a most co-operative, pleasant and kind individual. Her grandchildren have had difficulty coming to terms with the limitations caused her illness. There is considerable temptation to wish to assist her in regard to her difficult financial circumstances caused by her Hepatitis C condition, if the evidence allowed one to do so.

[28] However, regrettably for the Claimant, she was unable to provide the proof required by Articles 3.01 and/or 3.02, because she could not establish that she received a transfusion during the Class Period, either by health records of other defined corroborating evidence. The provisions of the Settlement Agreement and Plan, as specified by the Honourable Mr. Justice Winkler in approving the class action settlement in his judgment of October 22, 1999, are finite and explicit. If a Claimant cannot establish the threshold requirement that a blood transfusion was received during the Class Period, (ignoring for the moment the requirements with respect to establishing that the blood so transfused was infected), then the Claimant is not entitled to receive compensation. The Administrator has an obligation to assess each claim and determine whether or not the required proof for compensation exists. The Administrator has no discretion to allow compensation where the required proof does not exist. The financial sufficiency of the Fund depends upon the Administrator properly scrutinizing each claim and determining whether the Claimant qualifies. An Arbitrator similarly has no jurisdiction to alter, enlarge or disregard the terms of the Settlement Agreement or Plan, or to extend or modify coverage.

D. Decision

[29] Upon careful consideration of the Settlement Agreement, Plan, Court orders and the viva voce and documentary evidence tendered, the Administrator's denial of the Claimant's application for compensation is hereby upheld.

Dated at Saskatoon, Saskatchewan, this 17th day of June 2002.

________________________________
DANIEL SHAPIRO, Q.C.
Arbitrator