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Appeals: Confirmed Referee Decisions : #95 - July 28, 2003

D E C I S I O N

BACKGROUND

1. On February 27, 2003, the Administrator denied the Claimant's request for compensation as a Primarily-Infected Person under the Transfused HCV Plan (the "Plan") on the basis that the Claimant had not received a transfusion of "Blood" within the Class Period.

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

3. On May 23, 2003, fund counsel, on behalf of the Administrator, filed written submissions and copies of previously rendered decisions.

4. On July 10, 2003, an oral hearing was conducted in Barrie, Ontario.


EVIDENCE

5. Carol Miller, Appeal Coordinator for the Fund, appeared on behalf of the Administrator. She filed 52 pages of evidence contained in the Claimant's file.

6. The Claimant made oral submissions at the hearing and requested that the referee review all the material in her claim file from The 86-90 Hepatitis C Claims Centre.

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

(a) The Claimant is infected with Hepatitis C.

(b) Records from the Sunnybrook and Women's College Health Sciences Centre confirm that the Claimant received two units of RHIG in November 1986. RHIG is a short form for the product known as Rh Immune Globulin.

(c) The Claimant's family doctor completed the Treating Physician Form. He stated that the Claimant did receive a blood transfusion in the period January 1, 1986 to July 1, 1990. However, no evidence has been presented of a transfusion other than the transfusion of Rh Immune Globulin.


ANALYSIS

8. The Claimant seeks compensation as a Primarily-Infected Person under the Plan. The Plan defines "Primarily-Infected Person", in part, as meaning "a person who received a Blood transfusion in Canada during the Class Period ...".

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". "Class Period" is defined identically in the Plan.

10. Article 3.01 of the Plan requires that a person claiming to be a Primarily-Infected Person must deliver to the Administrator an application form together with, among other things, medical "records demonstrating that the Claimant received a Blood transfusion in Canada during the Class Period".

11. The definition of Blood for the purposes of the Plan is as follows:

"Blood" means whole blood and the following blood products: packed red cells, platelets, plasma (fresh frozen and banked) and white blood cells. Blood does not include Albumin 5%, Albumin 25%, Factor VIII, Porcine Factor VIII, Factor IX, Factor VII, Cytomegalovirus Immune Globulin, Hepatitis B Immune Globulin, Rh Immune Globulin, Varicella Zoster Immune Globulin, Immune Serum Globulin, (FEIBA) FEVIII Inhibitor Bypassing Activity, Autoplex (Activate Prothrombin Complex), Tetanus Immune Globulin, Intravenous Immune Globulin (IVIG) and Antithrombin III (ATIII).

12. The definition of blood in the Plan specifically excludes Rh Immune Globulin. With a blood product such as Rh Immune Globulin, a traceback cannot be conducted to determine whether the donors who contributed to the blood product were infected with Hepatitis C.

13. There have been a number of decisions which confirm that compensation is not available to those who received Rh Immune Globulin because it is specifically excluded from the definition of "Blood" under the Plan.

14. I find that the Claimant did not provide the evidence required by Article 3.01 to establish that she was infected as a result of a blood transfusion during the Class Period. Based on the evidence before me, the Claimant's received a pooled blood product known as Rh Immune Globulin. This product is excluded from the definition of "Blood" under the Plan. Therefore, the Claimant does not qualify as a Primarily-Infected Person and is not entitled to compensation under the terms of the Transfused HCV Plan.

15. Despite my findings, I must add that the Claimant was extremely eloquent at the hearing and presented a very human face to this tragedy. She objected to being viewed as simply a number, another innocent victim of negligent conduct. She questioned who would care for her young son, financially and emotionally, if she were to become disabled because of this progressive disease. Finally, she expressed that this should not be her problem, that someone should be held accountable for the tragic consequences suffered by her and so many others. The Claimant stated that this entire process is extremely unfair and she should not have to suffer because she received a blood product that does not meet the definition of blood under the Plan.

16. The Administrator under the Settlement Agreement is required to administer the Transfused HCV Plan in accordance with its terms. The Plan was never intended to apply to all those who became infected with Hepatitis C. Compensation is limited to a defined class of individuals. Unfortunately, the Claimant does not qualify for compensation. The Administrator does not have authority to vary the terms of the Plan nor does an arbitrator or a referee when asked to review the Administrator's decision. While I am sympathetic to the Claimant's position, I am bound by the terms of the Plan.

CONCLUSION

17. I uphold the Administrator's denial of the Claimant's request for compensation.



July 28, 2003
DATE

JUDITH KILLORAN
Referee

 

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