Appeals: Confirmed Referee Decisions : #92 - June 18, 2003

D E C I S I O N

The Claimant submitted a request for compensation in the context the 1986-1990 Hepatitis C Settlement Agreement claiming that he had contracted Hepatitis C following receipt of one or more blood transfusions in 1987.

After a lengthy exchange of correspondence and documentation between the Administrator and the Claimant, the Administrator finally rejected the Claimant's request for compensation on August 23, 2002, on the basis that he had not provided sufficient evidence that his first infection had occurred during the Class Action Period.

The Claimant signed a Request for Review and asked that the Administrator's decision be reviewed by a Referee. The Claimant did not specify the reasons for his Request for Review, but he evidently wants to be compensated according to the relevant Transfused HCV Plan.

It is agreed that, during the Class Action Period, i.e., in 1987, the Claimant received five units of blood. The Claimant indicated for his part in his claim for compensation that he had received only two units of blood whereas the Claimant's medical record indicated five units.

An examination of the donors of the five units of blood and of the letter signed by Héma-Québec's Medical Director dated June 7, 2002 revealed that donors of each of the 1987 blood transfusions tested negative on the Hepatitis C tests. The letter of the same Héma-Québec Medical Director, this time dated February 17, 2003 (pages 164 to 166 of the Claimant's record) confirms the same thing, but also provides in an appendix a list of the said transfused units and details on the tests conducted for each of the donors. All donors of the October 1987 transfused units gave blood afterward and all came out negative, and this, at least on two occasions. One of the donors even gave blood 15 times and always tested negative. The Claimant submitted no evidence against Héma-Québec's traceback.

Given these facts, has the Claimant established to the satisfaction of the Undersigned and especially in compliance with the wording of the Class Action Settlement Agreement that he had contracted HCV as a result of one or the other of these five transfused units during the Class Action Period?

The Transfused HCV Plan's Section 3.04 reads as follows:

" 3.04 Traceback Procedure

(1) Notwithstanding any other provision of this Agreement, if the results of a Traceback Procedure demonstrate that one of 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 Representatives, Dependants and Family Members. "

This 3.04(1) paragraph, when read with the definitions contained in Section 1.01, tells us therefore that if the results of a targeted Traceback Procedure demonstrate that none of the donors or units of blood received by the Claimant is or was HCV antibody positive, the Administrator must reject this HCV Infected Person's claim.

Therefore, applying the evidence concerning this Claimant to the wording of the Settlement Agreement and the wording provided in the Plan (in particular to the aforementioned Section 3.04), it appears evident to me that the Claimant did not establish evidence that he had contracted HCV as a result of the blood transfusions in 1987 and that the Administrator had no choice but to reject the request for compensation submitted by the HCV infected Claimant. As Referee, the Undersigned must come to the same conclusion.

Neither the Referee nor the Administrator have any discretionary authority to approve a claim or a referral if the evidence required under the Agreement has not been provided. The Referee nor the Administrator for that matter have the authority to ignore or modify the terms, conditions and provisions of the Agreement.

The Claimant did remove the burden of proof establishing evidence that he had received a transfusion (in fact, he received 5 transfusions) during the Class Action Period but was unable to remove the burden of proof that he had contracted HCV as a result of one of these transfusions.

The Administrator has thus rightly rejected the claim for compensation, and I maintain such a decision to reject the request for compensation by the Claimant.

Montreal, June 18, 2003

(S) Jacques Nols

Jacques Nols
Referee