Appeals : Confirmed Referee Decisions : #8 - July 6th, 2001

D E C I S I O N

1. The Claimant applied for compensation as a Primarily-Infected Person pursuant to the Transfused HCV Plan.

2. By letter dated March 19, 2001, the Administrator denied the claim on the basis that the Claimant had not provided sufficient evidence to establish that she received blood during the Class Period.

3. The Claimant requested that the Administrator's denial of her claim be reviewed by a referee.

4. Both parties waived the requirement for an oral hearing.

5. A very brief written submission was received from the Claimant on May 22, 2001, reiterating her belief that she is entitled to compensation because she was infected with Hepatitis C as a result of a blood transfusion which she received in the year 1990.

6. A written submission was received from Fund counsel, on behalf of the Administrator, on July 5, 2001.

7. The relevant facts are not in dispute and can be summarized as follows:

(a) the Claimant is infected with Hepatitis C;

(b) such infection was probably the result of a blood transfusion which the Claimant received while a surgical patient at the Aberdeen Hospital in New Glasgow, Nova Scotia, to which she was admitted on November 1, 1990;

(c) on November 2, 1990, the Claimant underwent surgery at which time she was transfused with five units of blood and also received two units of fresh frozen plasma;

(d) the Claimant did not receive any blood transfusions during the period from January 1, 1986 to and including July 1, 1990.

8. Based on the foregoing facts, it is clear that the Administrator's denial of the Claimant's request for compensation must be sustained.

9. The 1986-1990 Hepatitis C Settlement Agreement defines "Class Period" as meaning "the period from and including 1 January 1986 to and including 1 July 1990". The Transfused HCV Plan contains the identical definition.

10. The Transfused HCV Plan defines "Primarily-Infected Person" as meaning "a person who received a Blood transfusion in Canada during the Class Period...".

11. Article 3.01 of the Transfused HCV Plan provides that 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".

12. Unfortunately for the Claimant, she was unable to provide the proof required by Article 3.01 because her transfusion was subsequent to the Class Period.

13. The problem with any plan which has a definite start and end date, of course, is that there will frequently be persons who fail to qualify for the benefits of such plan by a few days or, as in this case, a few months; however, this does not mean that the time lines in the plan can or should be modified or overlooked to accommodate cases of apparent hardship. Otherwise, the start and end dates would become meaningless.

14. The role of the Administrator under the Settlement Agreement is to administer the Transfused HCV Plan and Hemophiliac HCV Plan in accordance with their respective terms. The Administrator does not have the authority to alter or disregard the terms of the Plans, nor does a referee when called upon to review decisions of the Administrator.

15. I realize that the Claimant feels she is being denied compensation on the basis of a technicality and, in a sense, this is true. On the other hand, it must also be recognized that the Hepatitis C Settlement Agreement was only intended to cover claims relating to a defined time period - namely, January 1, 1986 to July 1, 1990 - and has been funded on that premise. It does not apply and was never meant to apply to persons infected with Hepatitis C as a result of blood transfusions received at other times. I note that there are other class actions which are ongoing with respect to other time periods and the Claimant may well benefit from those when they are settled or otherwise resolved.

16. In the result, the Administrator's denial of the Claimant's request for compensation is hereby upheld.

DATED at Halifax, Nova Scotia, this 6th day of July, 2001.

S. BRUCE OUTHOUSE, Q.C.
Referee