Appeals : Confirmed Referee Decisions : #96 - July 23, 2003

D E C I S I O N

1. On June 27, 2002, the Administrator denied the claim for compensation as a Primarily-Infected Person pursuant to the Transfused HCV Plan on the basis that the Claimant had not provided sufficient evidence that she had received a transfusion of blood within the Class Period.

2. The Claimant requested an in person hearing by a Referee to review the decision of the Administrator.

3. The hearing took place in Calgary, Alberta, on April 15, 2003 but was adjourned to July,2003.

4. Neither party disputed the following facts:

(a) The Claimant, who now resides in Alberta, received a form letter dated April 14, 1997 under the signature of Dr. John Miller, Provincial Health Officer on behalf of the Ministry of Health addressed to her then Vancouver address, citing her date of birth and her BC Health Care Card number. The letter included the following statements:

"the British Columbia Ministry of Health is informing people who received blood or blood products between January 1985 and June 1990 of the possible risk of the having received the Hepatitis C virus (HCV). …

A search of hospital blood bank records indicates you likely received a blood bank product between January 1985 and June 1990. It is estimated that about 2 out of every 100 people who received blood products during that time may have acquired Hepatitis C. However, we do not know which blood products may have been infected, therefore, we encourage you to be tested for Hepatitis C."

(b) The Claimant received a second letter from the Ministry of Health dated June 23, 1999 under the signature of the Associate Deputy Minister. This letter included the following statements:

"the British Columbia Supreme Court has ordered the Ministry of Health and Ministry Responsible for Seniors to provide Notice of the proposed settlement to all transfusion recipients who may have been infected with Hepatitis C during this period. The Ministry conducted a Blood Recipient Notification Project in 1997 to identify those persons who likely received blood transfusions at British Columbia hospitals between 1985 and 1990 and advised them to be tested for Hepatitis C. …
" Matching these records identified you as a person who likely received a blood transfusion during the period covered by the class action suit and has tested positive for Hepatitis. C….

5. The Claimant presented the following medical history of hospitalizations:

(a) she was treated at Prince George Hospital under her now deceased former family physician, Dr. Rosario, between 1984 and 1986 for a laceration to her eye.

(b) She underwent surgery on both feet at Prince George Regional Hospital in 1986.

(c) She underwent emergency surgery at the Vancouver General Hospital ("VGH") for severe facial injuries sustained when her vehicle was hit by a moose on September 7, 1987.

(d) She was medivaced to the Prince Rupert hospital due to uncontrollable vomiting in December of 1987. She was told by a physician that she had a major infection and that her white blood cell count was 200 times the normal.

(e) She underwent eye surgery and foot surgery and sustained a head injury in 1988, but no records of this hospitalization have been located or produced.

(f) She had a self-directed investigation into her head injury in 1989. Hospital records from the VGH have been produced which disclose an admission on May 27, 1990 until June 5, 1990 for a craniotomy and reinforcement of vascular anomaly (dilated loop of middle cerebral artery), hereafter referred to as the "brain surgery".

6. The Claimant has no personal recollection of any blood transfusion in any of the aforesaid hospitalizations.

7. As a result of the April 14, 1997 letter from the British Columbia Ministry of Health, she underwent Hepatitis C testing several months later which produced a positive result.

8. The Claimant's current family physician, Dr. Marr, and a virus specialist, Dr. Farley, assisted her in filling out her application for compensation. She noted that both doctors signed the Tran2. Dr. Farley answered affirmatively to the question "having regard to the definition of Blood, did the Primarily-Infected Person receive a blood transfusion in the period January 1, 1986 to July 1, 1990." He answered in the negative question 3 which asks "is there anything in the HCV infected person's medical history which indicates he or she was infected with Hepatitis non-A, non-B or the Hepatitis C virus prior to January 1, 1986?.

9. When the Claimant submitted her application form and her letter of December 20, 2001, she referenced a belief that there were missing records within the Canadian Red Cross and the VGH.

Hospitalization for the Moose-Car Crash

The hospital records produced evidenced that:
(a) she was first admitted on September 10, and remained in VGH until September 21, 1987 under the care of Dr. D. A. Kester, a plastic surgeon.

(b) A discharge summary was a re-dictation of the discharge summary dated October 15, 1987 under the signature of J.H. Gray, M.D. Resident to Plastic Surgery, copied to Dr. Kester, Dr. Claridge and Dr. Rosario.

(c) A history sheet indicated that the injury occurred on September 7 and caused a scalp laceration, severe blow to the mid-face, but her scalp was sutured in Prince George and she was transported to VGH for management of the facial fractures.

(d) The OR summary note of September 13, 1987 by Dr. Gray described the surgery and stated "no complications".

(e) A consultation note by Dr. Claridge dated September 17, 1987 indicates that during the hospitalization for the moose car crash, she was assessed for a foot condition described as metatarsalgia. She was en route to Prince George for this review which followed bilateral bunion surgery performed by Dr. Mackenzie in December of 1986. He discussed her procedure including complications such as wound infection, injury to the arteries and nerves and recurrence of the problem as well as incomplete relief of discomfort.

(f) The records show Dr. Kester as the surgeon for the facial surgery described as an open reduction and plate fixation of bilateral fractured zygomas and plating of le fort II fractured maxilla.

(g) The operative report, signed by Dr. Foley and dictated September 13, 1987 described the procedure with the concluding line as follows: "the patient tolerated the procedure well. The blood loss was approximately 150 cc."

(h) The anesthesia record made no mention of a transfusion.

(i) The operation for the left fore foot reconstruction performed September 18, 1987 made no mention of a blood transfusion.

(j) The radiological consultation dated September 11, 1987 describes the fractures as follows: "3 mm cuts through the facial structures in both planes demonstrate fracture of all the walls of both maxillary sinuses, a fracture through the left side of the hard palate as well as through the base of both pterygoig plates. The right zygomatic arch is fractured at its temporal insertion. The nasal bones are fractured and slightly tilted toward the left and fractures of the lateral walls of both orbits are seen." Fractures of both sides of the cribriform plate and of the lamina papyricea bilaterally as well as deviation of the bony nasal septum are present."

(k) The VGH referral patient cumulative summary for September 17, 1987 reported hemoglobin on September 10, 1987 at 117 and on September 17, 1987 at 121.

(l) Doctor's Orders dated September 10, 1987 reference admission of the patient to Dr. Foley, but no note for any blood transfusion.

(m) Similarly, Doctor's Orders dated September 13, 1987 entitled "post-op" contain no mention of any blood transfusion.

(n) No nurses' notes were produced among the hospital records for the 1987 facial surgery at VGH.

10. The Claimant recalled that in the-moose car crash, her facial injuries bled profusely covering her clothing and truck with blood.

Hospitalization for Brain Surgery

11. The Claimant was first investigated for her head injury by the head of clinical psychology at the University of British Columbia in 1990. Dr. Herwitz, a psychiatrist at the University of British Columbia Hospital, ordered a cerebral angiogram and suspected an aneurysm which led to the subsequent brain surgery.

12. The VGH history sheet, the anesthesia record, the intra-operative record and the operating note also contain no mention of a blood transfusion. Indeed, the operative report dated May 28, 1990 signed by Dr. Woodhurst specifically states: "estimated blood loss was less than one unit and none has been replaced."

13. This record also contains a document entitled VGH Blood Bank Cross-Matched blood which indicates that the surgeon contemplated a potential need for a blood transfusion and noted that the Claimant's blood type was A+.

14. The chart also contains nurse's notes which make no reference to any blood transfusion.

Attempt to Conduct Traceback

15. On January 8, 2001, through her family doctor, the Claimant initiated a request to Canadian Blood Services

16. The Trace-back Coordinator wrote to Canadian Blood Services on January 18, 2002 advising that the Claimant could not obtain transfusion or blood bank records supporting evidence of a transfusion during the class period of January 1, 1986 through July 1, 1990 which supported the request of the Administrator to confirm any transfusion related information with the transfusing hospital's blood bank.

17. There was no record of a blood transfusion in 1987 and thus the trace-back could not be conducted and the investigation was closed.

18. Fund Counsel generated an inquiry by letter of January 9, 2003 to Dr. David Pi of the British Columbia Ministry of Health to elicit an explanation for the delivery of a notification to the Claimant from the Blood Recipient Notification Project, if there was no transfusion. They request that Dr. Pi, or his representative, report to the Administrator in writing with respect to proof that the Claimant did receive a blood transfusion in the course of her life and that she received one or more transfusions during the class period from January 1, 1986 to July 1, 1990.

19. Dr. Pi on February 19, 2003 wrote to advise that the Claimant was recorded in their data base as having received a product at the VGH on May 28, 1990, but that the trace back investigation located no record of a blood transfusion.

20. Dr. Pi opined that "the discrepancy in the VHHSC trace back information in the blood recipient data may have been due to a data entry error that resulted in a letter being sent to this patient during the blood recipient notification project." He goes on to state as follows:

"As the notification program requires large scale retroactive data entry, there is a small but definitive chance that a person may be notified through the program but was subsequently known not to be transfusion recipient. This small chance of false notification was accepted by the program design for the fact that the overall objective of the program was to heighten the awareness of the transfusion infectious risk. "

21. On March 10, 2003, Fund Counsel issued a letter to the Claimant which confirmed rejection of her claim for compensation.

22. The Claimant objected to the denial of her claim merely because the hospital records produced disclose no evidence that any transfusion was ever made in her case. She contended that the hospital records are not complete, and the fact that the British Columbia Ministry of Health corresponded to her on two occasions must have some meaning.

23. Despite her admitted lack of personal knowledge of any blood transfusion, her contention was that based on the evidence she led at the hearings, there was most likely a blood transfusion during the hospitalization for the facial injuries in the moose car crash.

24. In support of her contention, she attached a letter from her surgeon, Dr. D.A. Kester who was in the operating theatre at the time of her facial surgery. The letter set out his opinion that it was highly likely she did receive a blood transfusion at the conclusion of the operation.

25. In addition, she produced an affidavit from a Mr. H, a man who was in a common law relationship with her at the time of the surgery, but not at the time of execution of the affidavit. He deposed that he observed the Claimant to receive a blood transfusion when she arrived back at the ward from the operating theatre.

Claimant's Oral Testimony

26. During the hearing, the Claimant outlined in detail, both orally and in written submission a chronological account of her own personal history as well as the history of her discovery of her condition of Hepatitis C and her experience through the process of the claim settlement. Essentially her appeal, as I understand it, may be summarized as follows:

· She has been in good health all her life subject to the aforementioned surgeries,
· During my questioning of her previous medical history, she related that her tonsils had been removed as a child and her ears pierced at age 13. As well, she had had major dental surgery performed at the McBride Hospital when she was age 35 resulting in removal of all of her teeth,
· Testing for and the diagnosis of Hepatitis C occurred in July of 1997,
· It is unlikely she could have contracted Hepatitis C unless it was from a blood transfusion during one of the surgeries.

Oral Testimony of Former Partner

27. She also led oral evidence via telephone conference from a Mr. H who said he had witnessed a blood transfusion occur while awaiting the return of the Claimant from the operating room. He specifically recalled a nurse of Japanese extraction who was monitoring the inclusion of a dark substance, which he was told was blood, into the Claimant via a tube. He was anxious about whether the right blood was being transfused into the Claimant and was assured by the nurse that it was AB+ and was being properly transfused. He testified that he kept a journal of events at the time of the surgery, but can no longer locate the journal. He saw the bag of blood and conversed with the nurse at the bedside and the nursing station. Mr. H admitted that he has no specific medical background.

Oral Testimony of Dr. Kester

28. She led the evidence of Dr. D. A. Kester via telephone conference. He testified to his professional background as a surgeon with at least 20 years of experience in the Vancouver area. He had personally performed operations in several facial smash cases and specifically recalled that of that number, he had three cases of facial smashes in three moose-car accidents. While he did not specifically remember any blood transfusion occurring in the operating room under his supervision, he did remember this Claimant, her condition and the hospitalization under consideration.

29. Dr. Kester specifically remembered the Claimant's facial condition and said that the blood loss was severe. He had reviewed all of the hospital records which had been provided to him by Fund Counsel and submitted to cross examination by Fund Counsel and by me with respect to the absence or omission of any reference whatsoever to the need for blood or the existence of a blood transfusion.

30. Dr. Kester confirmed the opinion set out in his letter which was that he considered it highly probable the Claimant received a transfusion of blood because it would be normal in a severe facial fracture of the kind she had. He opined that in the Vancouver area in the context of a severe fracture and the accompanying blood loss, the infusion of one unit of blood would not be unusual or likely to be regarded by any of the surgeons or residents within the operating theatre either as a complication or as an emergency need.

31. He testified that he had performed hundreds of facial smashes in 26 years.

32. He conceded, under cross-examination by Fund Counsel, that it was unusual that notation of a blood transfusion was not made by the anesthetist, but noted that he expected it to be referenced in the nursing notes which are no longer available.

33. He found support for his conclusion in the hemoglobin readings recorded after the surgery and, in particular, the fact that the hemoglobin reading went up after the surgery, which he would not expect unless she had received an injection of blood.

34. Dr. Kester said that if an emergency arose during the course of surgery, a unit of O blood could be ordered from the OR. He noted that her pre-operative hemoglobin level was recorded at 117 which he interpreted as being on the low side and following surgery would have expected a hemoglobin reading to be in the range of 105 to 110. He noted that her reading was 121 would represent usually an increase of hemoglobin by about 10 units. He was doubtful that that increase could have occurred without the injection of blood. Although he agreed that a blood transfusion should have been noted in the anesthesia record and should have been mentioned in the operative summary, as there was a re-dictation of the operative summary, it would not necessarily have been mentioned since it may not have been remembered days or weeks after the event.

35. He did note that the Claimant was taking fluids on September 15, 1987 and the only way he could be 100 percent satisfied was if he could review the nursing notes which had been purged. In his experience, 150-200 cc's of recorded blood loss by the resident would usually be underestimated because there is a lot of oozing in fractures of this type. He said if the Claimant lost 200 cc's of blood or more the hemoglobin reading should have been lower. He said blood taken for a cross-match may have been hung up. He stated that blood transfusion records would not normally have been kept. He said if the doctor had given a verbal order in the operating room, he would tell the anesthesiologist to do so, but the anesthesiologist would not note that he had typed and crossed the blood. He considered that if blood had been ordered in the operating room or by the anesthesiologist in the operating room it may not have been noted.

36. Dr. Kester was not clear as to whether the hospital invariably maintained cross-match records. He maintained that it was hard for him to believe the hemoglobin was at the reading it was without her receiving an infusion of blood. Without a blood transfusion he thought the hemoglobin reading should have been lower by a significant amount.

37. He admitted that the pulse was steady but did observe that the blood pressure did drift down to 100/60 which could have been suggestive of a blood loss. The surgery took place over three hours and that the Claimant lost a fair bit of fluid during the procedure, but that would not be indicative one way or the other of a blood transfusion.

38. He would not have had any problem with any request that the common-law husband be present as she departed the OR to recovery.

39. Dr. Kester admitted that he had undertaken no clinical investigation prior to the surgery to rule out the possibility that the Claimant was Hepatitis C positive before this operation.

40. Dr. Kester was not shaken upon any cross-examination and despite his acknowledgement that there was no reference to blood transfusion or cross-matching or doctors' orders of any type of need for a blood transfusion, his conclusion remained unchanged.

Oral Testimony of Claimant's daughter

41. The Claimant led oral evidence from her daughter who has been a registered nurse engaged at the Foothills Hospital in Calgary for several years and who assisted her in interpreting the medical documentation. Her daughter testified that it is common for significant blood loss in an accident of that nature. She admitted she was not an operating room nurse and had no personal knowledge of the accident in question, nor was she present during any part of that hospitalization. She agreed with Dr. Kester and opined that the Claimant probably received a blood transfusion at Prince George as well as at VGH as she would have had to be stable before she could be put on a plane for transfer.

Prince George Hospital Records

42. Fund Counsel advised that just prior to the hearing, the Claimant brought to his attention that she had recently queried whether she could have received a transfusion from the Prince George Hospital and Fund Counsel initiated a request for those hospital records upon securing an executed consent form from the Claimant during the hearing. The Prince George Hospital records were produced in July of 2003. Both Fund Counsel and the Claimant reviewed the records and agreed there was no reason to reconvene the hearing to review the records or to submit the same to Dr. Kester for reconsideration of his opinion.

Record of Government of British Columbia as to Purged Records

43. The Claimant produced correspondence dated October 22, 2002, from the Government of British Columbia to Fund Counsel which confirmed that pursuant to the Hospital Act (section 13(1)), certain hospital records were purged ten years from the date of discharging hospital treatment in the case of hospital records which she claimed put it beyond her power to locate the medical records to support her claim.

44. I note that her surgery occurred in September of 1987. She was notified by the BRNP in April of 1997 that she may be within a class of people who have contracted Hepatitis C. Had she acted promptly to undergo testing upon receipt of notification she might well have been in a position to require all of the requisite hospital records before the ten year interval had elapsed, but I find that her reluctance to do so was a natural and understandable human reaction in the circumstances.

45. Fund Counsel also referenced the Standard Operating Procedure ("SOP") relating to claims where the hospital records are available but do not confirm any transfusions and where the person claimed to be a primarily infected person and received notification under the BRNP, the relevant portion of which is reproduced as follows:

Evidence Where There Are No Hospital Records Or Where Hospital Records Are Available But Do Not Confirm Transfusion And The Person Claimed To Be A Primarily-Infected Person Received Notification As Part Of A Blood Recipient Notification Program

2. Where a person claimed to be a Primarily-infected Person has been the subject of a British Columbia blood recipient notification project (BRNP) and has hospital records that do not confirm that blood was transfused, or subject to paragraph 1, where hospital records are destroyed or unavailable, the Administrator shall accept the following in satisfaction of section 3.01(2) of the Transfused HCV Plan:

(a) a letter from the British Columbia Ministry of Health… ("BRNP notification letter") pertaining to the person claiming to be a Primarily Infected Person in substantially similar form to those found at Appendix "A" to this SOP as proof of transfusion; and

(b) a consent form signed by or on behalf of the person claiming to be a Primarily Infected Person authorizing the Administrator to obtain information from any relevant provincial health authority (such as BRNP) or hospital which may have information about the unit numbers of blood transfused to the person claimed to be a Primarily-Infected Person and/or the dates of transfusion. If the BRNP Notification Letter does not confirm that the transfusion took place during the Class Period, the Administrator shall make inquiries of the relevant provincial authority as to the dates of transfusion; and

(c) unless the information obtained through paragraphs 1 or 2(a) or (b) confirms that the date of the alleged transfusion(s) was during the Class Period, an affidavit of the person who was not the person claimed to be a Primarily Infected Person or Family Member of the person claimed to be a Primarily-Infected Person confirming that the person claimed to be a Primarily Infected Person was hospitalized during the Class Period, and providing the following particulars:

i The month and year of the hospitalization(s);

ii The reason for the hospitalization(s);

iii The basis of the affiant's personal knowledge that the person claimed to be a Primarily Infected Person was hospitalized; and

iv Whether or not the affiant has personal knowledge that the person claimed to be a Primarily-Infected Person was transfused during the hospitalization(s) and if so the basis of that knowledge.

(d) For the purposes of clarity, the Administrator must be satisfied on a balance of probabilities that the transfusion referred to in a BRNP Notification Letter took place during the Class Period.

(e) 3. The Administrator shall attempt to obtain from the hospital(s) blood bank the unit numbers of blood transfused to the person claimed to be a Primarily Infected Person. If the Administrator obtains the unit numbers or some of them, the Administrator shall apply the Court Approved Protocol-Criteria for Traceback Procedure for Persons Claimed to Be Primarily Infected Persons - Transfused HCV Plan.

46. Fund Counsel referred me to a decision from Saskatchewan referee Shapiro interpreting the effect of the SOP was without the authority of a court ordered protocol and that the Plan takes precedence over the SOP. Based on the reasoning in this decision, I understand that the SOP may be treated by me as a guideline which I should follow unless there are very highly persuasive reasons for any departure therefrom.

47. As a result of the viva voce evidence of the Claimant's witnesses, heard for the first time during the hearing, I offered Fund Counsel the opportunity to call rebuttal evidence, but he elected not to do so and was content to rely upon the exhibits he had tendered into evidence in support of his submissions.

48. In summary, the Claimant argues that the fact that the hospital records produced to date do not disclose the occurrence of a blood transfusion should not be regarded as sufficient evidence against her case.

49. Fund Counsel submits that the cause of this Claimant's infection may not be determinable and that in ten percent of cases of Hepatitis C in US data, the source of infection cannot be identified.

50. The parties agree that the narrow issue which I am asked to consider in this hearing is whether or not, on the balance of probabilities, a blood transfusion was given to the Claimant, either from the Prince George hospital slightly before the operation, during the operation or just as she was leaving the operating room for the facial fracture surgery which took place on September 13, 1987.

Analysis of effect of BRNP notification

51. I considered the explanation provide by Dr. Pi and I did observe that a request for cross-matching did occur during the Claimant's hospitalization for brain surgery. It was suggested by Fund Counsel that very probably, in the case of that surgery, the attending surgeon ordered the same in advance on the basis of an expectation that such a transfusion might be required. I think there cannot be any doubt, by specific mention in the operative note that no blood was replaced, that there clearly was no blood transfusion during that surgery. I also concluded it was unlikely the Claimant received any blood transfusion in the surgeries of 1986 and 1988.

52. I consider it likely that the BRNP Notification process was triggered by the existence of the cross-match record contained in the hospital notes of the May 1990 surgery, which I find anticipated a blood transfusion to the Claimant.

Analysis of Effect of Testimony of Mr. H

53. Fund Counsel argues the testimony of Mr. H is governed by Article 3.01(2).The Claimant denies that he was a spouse. I consider his position at the time of the surgery was analogous to a spouse, which may have put him in a highly emotional state of concern over her welfare, such that technical details may not have been recalled with great precision. Although I accept that the evidence by Mr. H was truthful and based on the best of his memory, his assertion that the blood being transfused was AB+ (whereas the Claimant's blood type is recorded as A+ ), was doubted by Dr. Kester who said that would be a surprising occurrence. It seemed unlikely that she was transfused with AB+ blood particularly, when no physician had called for blood prior to the surgical procedure.

54. In any case, I conclude that his testimony alone was not sufficient to provide the requisite supporting evidence required by the Claimant.

Analysis of Effect of Hospital Records and Testimony of Dr. Kester

55. If the evidence before me consisted of the hospital records, without more, I would have concluded that no blood transfusion occurred because I would have expected a mention of the same in the operative note or in the anesthesia record. Here however I have to consider evidence of an attending surgeon who suggests that the hospital records could be incomplete.

56. I have given serious consideration to the evidence of Dr. Kester. Dr. Kester has no family connection to or professional relationship with the Claimant with respect to her various medical conditions apart from the specific facial surgery, in respect of which he testified. His opinion was buttressed by his specific recollection of his surgeries involving moose car crashes and the condition of this Claimant when she arrived at hospital. While his opinion letter as not reduced to affidavit form, he did give oral testimony which I was prepared to treat as viva voce evidence, as if given under oath in a court of law.

57. I regarded his evidence as of equal caliber to that of an expert medical witness in a court proceeding. His evidence that blood transfusion records normally were not retained at the time at VGH. While he conceded there were omissions about a blood transfusion in some of the hospital records where they would be expected, he did not concede that the anomalies in the record undermined his opinion. His evidence was uncontradicted that it was highly likely and highly probable that the Claimant had received a transfusion at the time of surgery over which he presided. I note that where records exist, ie for the rise in hemoglobin, Dr. Kester firmly states that fact is more suggestive of a blood transfusion than the converse. I have considered the fact that his opinion is not based on actual recollection of a transfusion but rather on his experience. The former would have been preferable and thus I have cannot accept his opinion without weighing the evidence. Thus I have to weigh against the credibility of oral evidence of a highly experienced surgeon, the evidence of hospital and other records which are admittedly incomplete, and probably flawed.

58. He has said that if it was decided to transfuse the patient just at the conclusion of the operation, a cross-match doctor's order would not have been generated. He has also explained that the need for one unit of blood at the end of serious surgery of this type would not be treated by him or his colleagues as a "complication" and that would explain the lack of mention of the same in the operative note. He did not agree that had there been a transfusion the hemoglobin would necessarily have been monitored regularly after the surgery until the date of discharge. He refuted the suggestion that he or his colleagues in the circumstances would have made a notation on the operative report of a transfusion or that providing a transfusion would be inconsistent with the statement that the patient tolerated the procedure well. He thought the reference to the blood loss, taking into account the hemoglobin readings in question would be consistent with the transfusion. In respect of the doctor's discharge summary, he noted that it had been re-dictated several days later and opined that owing to such a delay, the reference to what was in the circumstances a routine transfusion would not necessarily been noted.

59. I noted that Dr. Kester, while lead surgeon supervising in the operating theatre at all material times, did not perform the actual surgery. He advised that he did not consult with either of the residents who had also been present and involved with the surgery, because he did not think they would remember if the transfusion had occurred. I thus note that his opinion is not based on an actual recollection of the event but instead upon his experience in facial smashes, and in particular, those caused in moose car crashes.

60. In my view Dr. Kester's evidence must be treated as the best evidence before me and where there are inconsistencies between his testimony and the hospital records, I find his oral evidence overrides because of his familiarity with the usual practices of surgeons at VGH in facial smash surgeries of this type, and in particular, by reason of his specific recollection of this particular operation. While I am not prepared to agree that it is highly probable, I must conclude that his unchallenged opinion convinces me it is likely, or probable, that the Claimant received a blood transfusion on September 13, 1987 in connection with the facial surgery performed by Dr. Kester. Without the weight of Dr. Kester's viva voce evidence, I would have been unable to conclude that there was requisite evidence on the balance of probabilities to satisfy the requirements of the Plan.

61. My decision in this case may put a nearly impossible burden upon the Administrator to undertake a trace-back of blood apparently transfused into this Claimant for which no record can ever be found. In light of all the foregoing, I conclude that this case must very likely be confined to its own peculiar facts.
Dated at Edmonton, Alberta, this 23rd day of July, 2003.

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Shelley L. Miller, Q.C. Referee