Appeals : Arbitrator Decisions : #9 - July 6th, 2001

D E C I S I O N

Background:

1. The Claimant submitted a general claimant information form under the Haemophiliac HCV Plan. As there was no evidence she is a haemophiliac her claim was assessed as a primarily infected person under the HCV Transfused Plan.

2. By letter dated March 19, 2001, the Administrator denied the claim on the basis that the Claimant did not provide sufficient evidence to support her claim that she received blood during the Class Period.

3. The Claimant requested that an Arbitrator review the decision of the Administrator.

4. The review hearing took place in Thunder Bay, Ontario, June 27, 2001.

Evidence:

5. The following was not in dispute.

- The Claimant was diagnosed with Hepatitis C in 1991.

- The History and Treatment Record for the Claimant from the Duluth Clinic Ltd., dated 9/3/91, states that "the patient denies having had any blood transfusions in her lifetime."

- The Progress Note from the Ontario Cancer Treatment and Research Foundation (the "Foundation"), dated July 15, 1991, states that "[a]gain reviewing her chart and by history, she was not exposed to any blood products ..."

- The Progress Note from the Foundation, dated August 27, 1991, states that "[the Claimant] has no history of blood transfusion but did have a hysterectomy 18 years ago during which she is not certain for sure if she received any blood products."

- A pre-operative report, dated March 20, 1997, and prepared at the Thunder Bay Regional Hospital - Port Arthur, indicates that "[s]he did have blood transfusions in the past which may be responsible for hepatitis C."

- There is no documentation which indicates the Claimant received a blood transfusion during the period from January 1, 1986 to July 1, 1990.

Submissions:

6. The Claimant did not argue that she had contracted Hepatitis C as the result of a blood transfusion. However, she suggested this may have been the case, and that the transfusion was simply not recorded.

7. It was clear from the Claimant's submissions that some of her interaction with the health care system has resulted in a loss of confidence regarding an adherence to standards and procedures by all its members. However, she also acknowledged that without proof of a transfusion there was "no hope" of succeeding in her appeal.

Analysis:

8. In order to qualify for compensation under the terms of the Hepatitis C 1986-1990 Class Action Settlement, as approved by Court Order dated October 22, 1999, the Claimant must satisfy the criteria set out in that Settlement.

9. In this instance, the Claimant must first show that she received a blood transfusion during the eligible period, or as it is referred to in the Settlement, the "Class Period." The Settlement Agreement establishes that period to be "the period from and including 1 January 1986 to and including 1 July 1990."

10. The Claimant acknowledges she cannot prove that she received a blood transfusion during the qualifying time period. Nor does she assert this was the case.

11. The preponderance of evidence suggests that the Claimant has never had a blood transfusion. The reference to "blood transfusions in the past" contained in the pre-operative report referred to above, contains no basis for the assertion and provides no details. The Claimant does not rely on it.

12. In light of all of the above, I find that the Claimant has failed to establish that she received a blood transfusion during the Class Period.

13. While it is clear the Claimant has encountered many difficulties in her life, and feels she has been let down by the medical system, there is little comfort which can be offered to her through the Class Action Settlement. Neither the Administrator, nor I, as an Arbitrator, have any discretion to grant compensation to individuals with Hepatitis C who cannot show they received a transfusion within the clear time lines of the Class Period.

14. Accordingly, I find that the Administrator correctly determined that the Claimant is not entitled to compensation pursuant to the Hepatitis C 1986-1990 Class Action Settlement, as she has not demonstrated that she received a blood transfusion during the Class Period.

Determination:

15. The decision of the Administrator to deny the Claimant compensation pursuant to the Hepatitis C 1986-1990 Class Action Settlement is upheld.

DATED at Toronto, this 6th Day of July, 2001.

Tanja Wacyk, Arbitrator