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Appeals : Confirmed
Referee Decisions : #53 - August 1, 2002
Decision of the Court having jurisdiction
in the Class Action attached - May 9, 2003
D E C I S I O N
The Claimant appeals the denial of his claim for Compensation
under the Transfused HCV Plan as a Primarily Infected Person.
The Claimant tested positive for the Hepatitis C virus in
May, 1997. He claims that he became infected in the class
period of June 1, 1986-July 1, 1990. In the general Claimant
Information Form ("Tran 1") he indicates that he
received one blood transfusion in the period, which occurred
on August 22, 1987 at G. R. Baker Memorial Hospital in Quesnel,
British Columbia, as a result of epistaxis (nosebleed).
A letter from Dr. Henry Wong, a specialist in gastroenterology
and internal medicine to Dr. Samoil, the Claimant's physician,
indicates that the Claimant denied any other blood transfusions
and denied any other blood product transfusion, tattoos, or
intravenous drug use. Dr. Wong stated in this letter that
the Claimant was likely Hepatitis C positive from previous
blood product transfusion.
A traceback procedure was conducted. It was determined that
the Claimant received three units of red cells in August 1987.
According to the traceback information, the donors of all
three of those units were subsequently tested for Hepatitis
C Virus and were negative.
In a letter from Canadian Blood Services to the Administrator
dated January 16, 2001, Canadian Blood Services states "There
are possible unknowns in the pre-class period. All class period
donors are cleared."
According to Section 3.04(1) of the Transfused Plan, where
all of the donors of blood received by the person claiming
to have been primarily infected during the Class Period are
determined not to be HCV antibody positive, the Administrator
shall reject the claim.
The Claimant has indicated that his reason for asking for
a review of the Administrator's decision is "Check out
Traceback Doners [sic]".
The Claimant has provided no additional information relating
to this claim. He did not indicate in his Request for Review
form that he wished to have anyone testify in person on this
review. Fund Counsel wrote to the Claimant on June 4, 2001
indicating that it was assumed that the review would be conducted
by written submissions rather than oral hearing, and that
he was entitled to file supplementary submissions.
No further submissions were made by the Claimant in response
to that letter. On August 15, 2001, I was advised in writing
by fund counsel that the Claimant did not require an in person
hearing and that he had told fund counsel in a telephone conversation
that he did not know there was any other way he could have
contracted Hepatitis C other than from his transfusions. Further
details of the traceback procedure were provided by Fund Counsel
on August 27, 2001.
Submissions of Fund Counsel were provided on September 5,
2001. No response was received from the Claimant.
On the basis of all of the material provided to me, I am
unable to conclude that the Claimant has submitted the proof
required by the Plan for compensation. Specifically, he has
failed to prove as required by the Plan that he was infected
by a blood transfusion during the Class period from a donor
who was determined to be HCV antibody positive.
Like the Administrator, a Referee is bound by the terms of
the Plan and does not have discretion to act contrary to the
terms of the Plan. I therefore uphold the decision of the
Administrator denying this claim.
Dated this 1st day of August, 2002.
Robin J. Harper
J U D I C I A L D E C I S I O N
Judge Pitfield's Decision - May 9, 2003
[1] Claimant 1300593 opposes confirmation of a Referee's decision
dismissing his appeal from the Administrator's denial of benefits
under the 1986-1990 Hepatitis C Settlement Agreement. The denial
followed upon a negative traceback in respect of a blood transfusion
the Claimant received in 1987.
[2] While the appeal form permitted him to do so, the Claimant
omitted to identify any witnesses or documents he would adduce
in support of his appeal. Instead, the Claimant advanced the
appeal on the ground that he wished to "check out traceback
doners [sic]". The application to oppose confirmation
of the Referee's decision was similarly framed: "request
review of all files and doner [sic] tests as stated previously".
No new documents or witnesses were identified in the course
of appeal nor on this application.
[3] The Claimant's application to oppose confirmation of the
Referee's decision might be dismissed on the narrow ground
that in neither the appeal nor this application does the Claimant
say that, regardless of the traceback result, there is evidence
to support the conclusion his infection was caused by the
1987 blood transfusion. Rather, the Claimant wants to know
the names of the donors of the blood with which he was transfused.
He does not specify what he would do with the information,
were it made available to him.
[4] With respect, the Claimant's request for the names of
donors is not the proper subject matter of an appeal from
the Administrator's decision or an application to oppose confirmation
of the Referee's decision. At the same time, a broader discussion
may assist in providing an understanding of the overall administration
of the 1986-1990 Settlement Agreement, and the purpose and
meaning of Article 3.04 and the appeal process.
[5] The base question in relation to an appeal from a denial
of benefits is this. What may be done by a Claimant infected
by the Hepatitis C antibody to perfect a claim to compensation
that has been rejected because of a negative traceback?
[6] The facts in relation to this Claimant are these. The
Claimant was identified as a person who received a blood transfusion
in British Columbia on August 19, 1987. He tested positive
for the Hepatitis C virus on May 1, 1997. On March 3, 1998,
a physician requested a traceback in relation to the 1987
transfusion. On June 6, 2000, the Claimant applied for compensation
under the 1986-1990 Hepatitis C Settlement Agreement. The
Administrator asked Canadian Blood Services to continue the
traceback. On January 16, 2001 Canadian Blood Services advised
the Administrator that the traceback had been completed and
the result was negative. On March 19, 2001, the Administrator
advised the Claimant his claim would be rejected unless he
provided further evidence that he was infected for the first
time with the Hepatitis C antibody by a blood transfusion
received in the class period from January 1, 1986 to July
1, 1990 inclusive. No information was forthcoming from the
Claimant. On May 10, 2001, the Administrator advised the Claimant
that his claim had been rejected.
[7] In the course of his appeal to the Referee, the Claimant
was provided with details of the traceback conducted in relation
to the transfusion he had received in 1987. The traceback
process identified the hospital at which the Claimant was
transfused, the units of blood he received, and the donors
of that blood. The process determined that each of the donors
of the blood transfused in 1987 had donated blood on subsequent
occasions. The traceback process determined those later donations
had been tested for the Hepatitis C antibody with negative
results.
[8] Given the result of the traceback, the Administrator was
obliged to reject the Claimant's claim because of Article
3.04 of the Settlement Agreement which provides as follows:
(1) Notwithstanding any other provision of this Agreement,
if the results of a Traceback Procedure demonstrate that one
of the donors or units of Blood received by a HCV-Infected
Person or Opted-Out HCV Infected Person before 1 January 1986
is or was HCV antibody positive or that none of the donors
or units of Blood received by a Primarily-Infected Person
or Opted-Out Primarily Infected Person during the Class Period
is or was HCV antibody positive, subject to the provisions
of Section 3.04(2), the Administrator must reject the Claim
of such HCV Infected Person and all Claims pertaining to such
HCV Infected Person or Opted-Out HCV Infected Person including
Claims of Secondarily-Infected Persons, HCV Personal Representatives,
Dependants and Family Members. [emphasis added]
(2) A claimant may prove that the relevant Primarily-Infected
Person or Opted-Out Primarily-Infected Person was infected,
for the first time, with HCV by a Blood transfusion received
in Canada during the Class Period or that the relevant Secondarily-Infected
Person or Secondarily-Infected Person who opted out of the
Class Action in which he or she would otherwise be a Class
Member was infected for the first time with HCV by his or
her Spouse who is a Primarily-Infected Person or Opted-Out
Primarily-Infected Person or Parent who is a HCV Infected
Person or Opted-Out HCV Person, notwithstanding the results
of the Traceback Procedure. For greater certainty, the
costs of obtaining evidence to refute the results of a Traceback
Procedure must be paid by the claimant unless otherwise ordered
by a Referee, Arbitrator or Court. [emphasis added]
[9] Article 3.04(1) applies notwithstanding any other provision
of the Settlement Agreement except Article 3.04(2). Article
3.04(1) provides that the Administrator must reject a claim
for compensation if either of two conditions is satisfied:
the Claimant received blood prior to January 1, 1986 and the
traceback in respect of that transfusion indicates that the
blood donor was infected with the Hepatitis C antibody, or
the Claimant received a transfusion or transfusions in the
class period and the traceback in respect of that or those
transfusions indicates that neither the donor nor donors of
the blood transfused in the class period tested Hepatitis
C antibody positive.
[10] Article 3.04(2) provides an exception to Article 3.04(1).
Notwithstanding traceback results, a Claimant may prove that
he or she was infected with the Hepatitis C antibody for the
first time by a blood transfusion received in the class period.
The Settlement Agreement is silent with respect to the applicable
burden of proof and the nature of the evidence that might
refute the traceback result.
[11] A number of observations are warranted in the face of
Article 3.04. First, the principal basis specified in the
Settlement Agreement for the purpose of determining eligibility
is receipt of an infected transfusion in the class period.
However, receipt of an infected transfusion in the class period
is insufficient to establish eligibility if the Claimant also
received an infected transfusion prior to the commencement
of the class period. In addition, a Hepatitis C infected person
is prima facie ineligible if the traceback in respect
of class period transfusions demonstrates that none of the
donors of that transfused blood tested positive for the Hepatitis
C antibody.
[12] While those who are infected with Hepatitis C but denied
coverage because of Article 3.04 might feel aggrieved, the
provisions of the Settlement Agreement were proposed by counsel
for all parties and endorsed by the supervising courts in
British Columbia, Ontario and Quebec. The traceback protocol
by which eligibility is to be assessed initially was endorsed
by the supervising courts. Because tests to identify the presence
or absence of the Hepatitis C antibody had not been conducted
in the class period, the protocol provided that steps were
to be taken to identify the donors of the blood transfused
to a claimant in the class period, whether those donors donated
blood after the close of the class period, whether those subsequent
donations were tested for the Hepatitis C antibody, and whether
the result of the test was positive or negative. If the donor
could not be identified or had not made a later donation of
blood, antibody test results were not available in relation
to those later donations, or the HCV antibody test results
were positive, the Claimant was eligible for compensation.
[13] The traceback protocol was developed in accordance with
prevailing science. The Settlement Agreement and the protocol
were approved by counsel for the members of the class and
the defendants, and subsequently by court order. The protocol
was considered the best means of relating infection to blood
transfusion for which the Settlement Agreement is intended
to compensate.
[14] While the primary basis for the determination of eligibility
is the traceback process, a Claimant may adduce evidence on
appeal in support of the claim that he or she was infected
for the first time in the class period notwithstanding a negative
traceback result. In my opinion, Article 3.04(2) does not
permit a Claimant to conduct his or her own traceback procedure.
The Article contemplates that there might be evidence which
would establish that the source of the infection, more likely
than not or on the balance of probabilities, was a transfusion
received in the period. It is not an answer to a Claimant's
attempt to provide such evidence to say that some small percentage
of the population may be infected by HCV from unknown sources.
Were such an assertion an answer, a Claimant could never refute
the traceback result because the Claimant could never prove
that he or she was not one of that small percentage of the
population who might have been so infected.
[15] The evidence the Claimant would be required to adduce
on appeal would include, at the least, complete family and
personal medical history and detailed evidence of all aspects
of the Claimant's lifestyle including evidence of the absence
of opportunity to be infected by needles or injections, however
and for whatever purpose received. The kinds of evidence I
have described are not intended to be exhaustive. Rather they
are intended to point to the process that must be followed
in the attempt to refute the traceback result.
[16] A simple denial by a Claimant of personal history or
actions that have been identified as potential non-transfusion
sources of HCV infection will not suffice. The reliability
of the assertion which is subjective in nature would have
to be tested by reference to all known objective evidence.
One of the pieces of objective evidence is the negative traceback
result following upon the application of, and adherence to,
the approved traceback protocol. Contradictory objective evidence
would have to be very persuasive if the traceback result is
to be refuted.
[17] In this case, the Claimant provided no evidence of any
kind to the Administrator, the Referee, or on this application,
that would approach the level required to refute the negative
traceback result.
[18] The application to oppose confirmation of the Referee's
decision is dismissed.
"I.H. Pitfield, J."
The Honourable Mr. Justice I.H. Pitfield
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