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Appeals: Confirmed Referee Decisions : #100 - August 7, 2003

D E C I S I O N

On October 2000, the Claimant submitted a claim for compensation as a Primarily- Infected Person, under the 1986-1990 Hepatitis C Settlement Agreement.

By letter dated February 11, 2002, the Administrator rejected the claim on the basis that the Claimant had not provided sufficient proof that she had received blood (as defined in Section 1.01 of the "Transfused HCV Plan") during the period covered by the Plan. In his refusal letter, the Administrator wrote "(you have) received an injection of Immune Serum Globulin for Hepatitis A. The Immune Serum Globulin is a product which comes from several donors and does not meet the definition of the word "blood" ( ) according to the 1986-1990 Hepatitis C Settlement Agreement".

The Claimant is submitting a Reference Notice and is asking the Referee to reverse the Administrator's decision. There was a hearing before Me Martin Hébert, on February 25, 2003, but before having the chance to complete this hearing and render his decision, Me Hébert had been appointed as a Court of Quebec Judge. The undersigned had therefore no choice but to start a new hearing, which took place on July 30, 2003.

The Claimant is a 58-year old lady who received a prophylactic treatment on July 15, 1986 following diagnosis of an unidentified illness on her son, who was then 6 years old. Therefore, on July 15, 1986, the lady received 2ml of Immune Globulin, but the precise type of Immune Globulin received is not available.

The Claimant's argument can be summarized as follows:

· the Hospital Center's file where the lady received a " blood product" in July 1986, is silent as to the precise type of Immune Globulin received;

· the steps taken on this matter by the Claimant and by Héma-Quebec did not provide any more information;

· since the physicians were uncertain in July, 1986 as to whether her son was suffering from either Hepatitis A or B, the Claimant said that she had not necessarily received Immune Serum Globulin (for Hepatitis A), nor the Hepatitis B Immune Globulin, but possibly what she describes as being a Hyper Hepatitis A Hepatitis B Immune Globulin which is not excluded from the definition of blood, as provided in Section 1.01 of the Plan;

· having proven to have received Immune Globulin during the Settlement Agreement Period and having been diagnosed some years later as suffering from Hepatitis C, the lady is of the opinion that she has met the required threshold to be entitled to a compensation;

· having provided the required proof, it is then up to the Fund, she said, to establish that what she received is excluded from the definition and thus, she adds, the Fund did not provide this proof;

· the Immune Globulin received in July, 1986 is the only possible source of infection.


The fact that this lady has been infected with Hepatitis C since 1995 is not challenged nor is the fact that she received Immune Globulin on July 15, 1986. The exact nature of such Immune Globulin is challenged, since the lady argues that, as mentioned above, it is possible that it was Serum Globulin or an Anti-Hepatitis B Immune Globulin, but that more probably, it would be a Hepatitis A-Hepatitis B Hyper-Immune Globulin. She does not know, however, if such a Hyper-Immune Globulin was available at the hospital where she received her prophylactic treatment or even if such a product existed in 1986. No proof has been presented on this matter.

Whereas the Immune Globulin related to Hepatitis B is specifically excluded from the definition of blood, what is provided as a prophylactic treatment for Hepatitis A is not clearly mentioned. In a written report signed by Dr. Martin Champagne, Medical Director at the Sainte-Justine Hospital's Blood Bank, a report dated May 28, 2003 and filed by the Fund Counsels, Dr. Champagne indicated that "Immune Globulin administered through a Prophylactic Treatment against Hepatitis A… are Immune Serum Globulin as stated in Section 1.01 of the Transfused Plan.

The Claimant submitted written arguments and a well a structured and quite emotional testimony. She is convinced that she was infected with Hepatitis C as a result of the Immune Globulin Transfusion in July 1986 and she feels that she has done her homework in order to benefit from the Agreement. If the Fund's Administrators do not agree with her claim, it is up to them to prove that she has no right to the benefits and she adds that the Fund's people have not been successful in bringing their proof.

Section 3.01(1) of the Transfused Plan reads as follows

"A person claiming to be a Primarily-Infected Person must deliver to the Administrator an application form prescribed by the Administrator together with:

a) medical, clinical, laboratory, hospital, The Canadian Red Cross Society, Canadian Blood Services or Héma-Quebec records demonstrating that the claimant received a Blood transfusion in Canada during the Class Period;

(emphasis added)

Does the Claimant meet this first criterion of having received a blood transfusion in accordance with the Agreement during the period covered by such an Agreement? Blood is defined as follows under Section 1.01:

"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).

The proof that is submitted to me is that, at the time, whatever was given as protection against Hepatitis C is Immune Serum Globulin (Dr. Champagne's aforementioned report). However, the Immune Serum Globulin is included in the long list of exclusions provided under the definition of blood. So, if the lady received protection against Hepatitis B, this Anti-Hepatitis B Immune Globulin is also expressly included in the same exclusions. I cannot accept the unsubstantiated possibility from any proof whatsoever that this lady could have received anything other than Immune Serum Globulin or other than Anti- Hepatitis B Immune Globulin.

I therefore regretfully come to the conclusion that the only blood products that this lady has received during the Agreement Period are excluded from the definition of blood and as such, the Claimant's reference cannot succeed.

The Claimant raises the fact that the proof required from victims in the Hemophiliac Program is different from that required from Non-Hemophiliac Transfused Persons and therefore, the Compensation Program opened to her is discriminatory. I cannot come to this same conclusion. I only note that the burden of proof is effectively different in that certain blood products (such as certain Clotting Factors and Cryoprecipitate) are included in the definition of blood according to Appendix B (Hemophiliac Plan), but not under Appendix A. All I can conclude is that the Parties who negotiated and agreed upon some definitions wanted to implement two different plans under which victims must fall, in order to claim benefits from either one of the two programs. In fact, even though it is not necessarily significant in this case, I note that even in the case of an Hemophiliac Claimant, Immune Serum Globulin and the Anti-Hepatitis B Immune Globulin are excluded from the definition of blood.

The Claimant draws an argument from the following text of Justice Nicole Morneau's decision in the matter of David Page versus the Attorney General of Canada et al. (500-06-000068-987 Superior Court, District of Montreal):

" The Agreement eliminates for members of the group, the difficulties resulting from the burden of proof and the risk of dismissal of the prescriptive motive. The time that has elapsed since the diagnosis of the infection and that of the institution of the action would be fatal, in many cases." [Our translation]

Incidentally, we also find an almost identical text in the Dominique Honhon versus the Attorney General of Canada et al. decision, (500-06-000016-960, Superior Court, District of Montreal).

Therefore, the Claimant draws this extract from Justice Morneau's decision to the effect that the burden of proof has been reversed and that it is now incumbent upon the Fund Administrator to provide the proof.

I cannot draw from those two decisions the argument that the Claimant seems to find. The "Group Members" only have to meet the requirements as provided under the Plan [such as those under Section 3.01(1)] and thus, they have a far less costly and onerous burden of proof than would have been the case, if they had instituted an action against the author of the wrongdoings. Nevertheless, they still have to submit proof and I feel that the Claimant has unfortunately failed to do so.

I have closely read and reread the Claimant's written arguments and I am very deeply touched by the human drama that she and her husband have lived since 1995. Unfortunately, it may be possible that proposed regulations are quite imperfect regarding her case, but they have been approved by the Courts and are now Law. As Referee, my role is not so much that of rendering a decision on what I would have liked to see in the Agreement or on what would accommodate more Claimants of good faith as is the case with this Claimant. I must look at the wording of the Agreement as written and approved by the Courts.

In spite of my overall sympathy for the Claimant and her husband, I conclude that the Administrator's decision has been rendered correctly and that the Reference Notice is groundless.

Montreal, August 7 2003

Jacques Nols
Referee

 

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