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Appeals: Confirmed
Referee Decisions : #97 - August 4, 2003
Decision of the Court having jurisdiction in the Class Action attached - April 28, 2005
D E C I S I O N
BACKGROUND
1. On June 26, 2002, 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 provided sufficient evidence that
he received a blood transfusion within the Class Period.
2. The Claimant requested that the Administrator's denial
of his claim be reviewed by a referee.
3. Fund counsel, on behalf of the Administrator, filed written
submissions on January 23, 2003.
4. On April 21, 2003, I conducted an oral hearing in Toronto.
After the hearing, I contacted the Claimant's physician and
Sunnybrook & Women's Health Sciences Centre ("Sunnybrook")
in order to obtain hospital records. The hearing concluded
on July 30, 2003 after I received the Claimant's hospital
records.
Facts
5. The Claimant is infected with Hepatitis C.
6. On June 19, 2001, the Claimant stated in the Blood Transfusion
History Form that he believed that he received a blood transfusion
when he was hospitalized in 1990 at Sunnybrook due to a compound
fracture.
7. On December 31, 2001, Canadian Blood Services confirmed
that Sunnybrook had no record that the Claimant received a
blood transfusion in 1990.
8. On April 21, 2003, at the hearing conducted in Toronto,
the Claimant and his mother both testified that they believed
that the Claimant was transfused during his hospitalization
at Sunnybrook in 1990.
9. After the oral hearing concluded, I contacted both the
Claimant's former physician and Sunnybrook. The Claimant's
former physician did not have any records of a blood transfusion.
On July 30, 2003, Sunnybrook forwarded to me the Claimant's
hospital records and confirmed that there was no record of
a blood transfusion in 1990.
ANALYSIS
10. 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 ...".
11. 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.
12. Section 3.01 (1) (a) of the Plan requires that a person
claiming to be a Primarily-Infected Person must deliver to
the Administrator an application form together with:
medical, clinical, laboratory, hospital, the Canadian Red
Cross Society, Canadian Blood Services or Hema-Quebec records
demonstrating that the claimant received a Blood transfusion
in Canada during the Class Period.
13. In circumstances where a Claimant cannot provide the
required proof for compensation under Section 3.01(1)(a),
Section 3.01(2) of the Plan states:
Notwithstanding the provisions of Section 3.01(1)(a), if
a claimant cannot comply with the provisions of Section 3.01(1)(a),
the claimant must deliver to the Administrator corroborating
evidence independent of the personal recollection of the claimant
or any person who is a Family Member of the claimant establishing
on a balance of probabilities that he or she received a Blood
transfusion in Canada during the Class Period.
14. I find that the Claimant did not provide the proof required
by Section 3.01 to
establish that he was infected as a result of a blood transfusion
during the Class Period. He did not provide the medical or
hospital records demonstrating that he received a Blood transfusion
in Canada during the Class Period. As well, the Claimant did
not provide corroborating evidence independent of his personal
recollection and that of a Family Member.
15. The Administrator under the Settlement Agreement is required
to administer the Plan in accordance with its terms. Unfortunately,
the Claimant has not provided the evidence required by the
Plan to prove that he received a Blood transfusion during
the Class Period. 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.
CONCLUSION
16. I uphold the Administrator's denial of the Claimant's
request for compensation.
August 4, 2003
DATE
JUDITH KILLORAN
Referee
J U D I C I A L D E C I S I O N
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