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
|