Appeals : Arbitrator
Decisions : #21 - August 15th, 2001
D E C I S I O N
[1] The Claimant applied for compensation as a Primarily-Infected
Person pursuant to the Transfused HCV Plan ("the Plan").
[2] By letter dated March 19, 2001, the Administrator denied
the Claim on the basis that, having carefully reviewed the
material provided in support of the claim, the Claimant had
not provided sufficient evidence to support his claim that
he had received blood during the period from January 1, 1986
- July 1, 1990 ("the Class Period").
[3] By way of Notice of Appeal dated May 7, 2001, the Claimant
requested that an arbitrator review the denial of his claim
by the Administrator. In paragraph 4 of his Notice of Appeal,
the Claimant stated that he wished to review the Administrator's
decision for the following reasons:
"I feel I am entitled to Compensation for illness
through contaminated Blood transfusion. Only received letter
today as I have spent the four months at the U. of A. Hospital
for Liver Transplant."
[4] The Claimant checked off the box in paragraph 5 of the
Notice of Appeal that certified that he had provided all necessary
documents upon which he relies for his claim to the Administrator
and does not intend to file any further documents with the
Administrator. There were no checkmarks or other notations
on paragraph 6 of the Notice of Appeal, which provides space
for a Claimant to indicate that he wishes to have witnesses
testify before the Arbitrator. Finally, there were no checkmarks
or other notations on paragraph 7 of the Notice of Appeal,
which states:
"There will be an in-person hearing if you and/or
Fund Counsel intend to present oral evidence (testimony).
Where no oral evidence is required, it is within the sole
discretion of the arbitrator
as to whether an in-person
hearing is required. If you believe an in-person is required,
please state the reason below
"
[5] On May 16, 2001, Fund Counsel wrote to the Claimant,
enclosing the appeal case summary, inviting the Claimant to
advise as to whether he wished to have an in-person hearing
and stating that the Administrator does not require an in-person
hearing. Counsel also invited the Claimant to provide written
submissions and advised that if he had nothing further to
provide, Fund Counsel would prepare written submissions on
behalf of the Administrator and deliver a copy to the Claimant
and the Arbitrator.1
[6] Notwithstanding that the Claimant did not indicate in
his Notice of Appeal that he wished to have witnesses testify
before the Arbitrator or that he requested an "in-person
hearing", the following initiatives were undertaken by
the Arbitrator in order to ensure that the Claimant's intentions,
wishes and rights in this regard were fully respected:
May 17, 2001
The Arbitrator wrote to the Claimant (at the address
listed in his Notice of Appeal) and Fund Counsel, inviting
the Claimant to provide a telephone number where he could
be reached and advise as to whether he intended to represent
himself in the matter or preferred to retain legal counsel.
The Claimant was invited to advise the Arbitrator by May 31,
2001 as to whether an "in-person" hearing was requested
(in which case available dates and preferred hearing locations
were sought) or if he preferred that the matter be decided
on the basis of written materials only. This letter was sent
to the Claimant by ordinary mail. The Claimant provided no
response of any kind.
June 6, 2001
The Arbitrator again wrote to the Claimant (at the address
listed in his Notice of Appeal) and Fund Counsel, enclosing
a further copy of the May 17th letter and again explicitly
inviting the Claimant to provide a telephone number and advise
as to whether he planned to represent himself or retain counsel,
whether an in-person hearing was requested or if he preferred
that the matter be decided on the basis of written materials
only, inviting the Claimant to advise as to whether he intended
to file additional written materials, and if so, when they
could be made available. This letter was sent to the Claimant
by Express Post. Canada Post records confirm that the Claimant
signed for the letter on June 14, 2001. The Claimant did not
respond to this letter.
July 9, 2001
The Arbitrator attempted many times to telephone the
Claimant at the number listed for him in the telephone directory
for the community in which the Claimant resides. There was
no answer and no answering device. The Arbitrator then telephoned
the Claimant's brother, who lives in the same community as
the Claimant and whose name and telephone number were set
out under Contact Authorization in the Claimant's Information
Form filed with the Claim Centre. The Claimant's brother returned
the Arbitrator's call on July 9, 2001 and advised the Arbitrator
that although the Claimant was out of town that day, he would
return later that week. The Claimant's brother undertook to
pass a message on to the Claimant asking him to telephone
the Arbitrator collect. The Claimant's brother also confirmed
that the telephone number for the Claimant as gleaned from
the telephone directory was correct and that the Claimant
had received both of the above items of correspondence from
the Arbitrator.
July 10, 2001
The Arbitrator again wrote to the Claimant (at the address
listed in his Notice of Appeal) and Fund Counsel, again by
Express Post.2 This letter stated,
in part:
I have attempted on numerous occasions to reach (Claimant)
by telephone. I have been able to contact (Claimant's brother)
who confirmed that (Claimant) has in fact received my previous
letters of May 17th and June 6th, 2001. I have not heard
directly from (Claimant) in response to these letters nor
have I received a request for an "in-person" hearing.
Therefore, I am proceeding on the following assumptions:
1. That (Claimant) does not intend to be represented by
legal counsel and will be representing himself in this matter;
and
2. That (Claimant) does not request an "in-person"
hearing and is content to have the matter decided on the
basis of written materials.
If I am incorrect in either of these assumptions, I
invite (Claimant) to call me (collect) immediately upon
receipt of this letter to discuss his intentions.
I am enclosing for (Claimant's) benefit and assistance
a copy of Schedule A to the January 1, 1986 - July 1, 1990
Hepatitis C Settlement Agreement, namely the Transfused
HCV Plan and Appendices A, B and D to that agreement, Appendix
D being the "Arbitration Rules" that apply to
this matter
In order to ensure that both sides have the opportunity
to address all issues that arise in this appeal, I am setting
out the following additional ground-rules:
1. By not later than July 31, 2001, Ms. Horkins will have
provided (Clamant) with her written submissions, outlining
the position that Fund Counsel, representing the Administrator,
is taking in support of the Administrator's position
2. By not later than July 31, 2001, (Claimant) will have
provided Ms. Horkins with any written submissions he wishes
to make with respect to this reference, outlining his position
in support of his appeal.
3. If either party wishes to respond to any of the written
materials supplied by the other party, such response shall
be provided to the other party by not later than August
14, 2001.
4. In each case, I ask that copies of materials that you
supply to each other also be supplied to me at the same
time.
July 25 - July 28, 2001
As there had been no response by the Claimant to any
of the Arbitrator's written communications to him or telephone
discussion with his brother, the Arbitrator attempted on 6
different occasions, including early morning and late evening,
to contact the Claimant at his telephone number. There was
no answer and again, no answering device. The Arbitrator again
contacted the Claimant's brother by telephone and left a message
for him inviting him to ask the Claimant to call the Arbitrator
collect. (No response was received in respect of this message,
either from the Claimant or his brother.)
July 30, 20013
The Arbitrator again wrote separately to the Claimant
(both at his own address and in care of his brother's address)
and Fund Counsel, forwarding another copy of the letter of
July 17, 2001, restating the same terms and adding the following:
If I am incorrect in either of these assumptions (as stated
in July 17, 2001 letter) I invite (Claimant) to call me (collect)
immediately upon receipt of this letter to discuss his intentions.
Both counsel for the Administrator and myself are agreeable
to an in-person hearing, should this be requested by (Claimant).
However, I will need to receive a request from (Claimant)
in that regard before this can be arranged.
As I have indicated, I am prepared to be flexible with the
ground-rules and amend them accordingly, if (Claimant) contacts
me to request an in-person-hearing or if he has any other
comments or submissions he wishes to make in regard to this
arbitration process. If I have not heard from (Claimant) or
received additional submissions on his behalf by August 14,
2001, I will have no alternative but to render my decision
with respect to this arbitration based on the materials provided
to date.
[7] The Claimant did not respond to any of the above written
or telephone communications from the Arbitrator. The Arbitrator
did receive a letter from Fund Counsel dated August 2, 2001,
a copy was shown as being sent to the Claimant, in which Fund
Counsel states:
"I received a telephone call from (Claimant) on August
1st
I explained to him that I represent the Administrator
and that I am not his lawyer. Based on my discussions with
(Claimant), it is my understanding that he does not wish
to have an in-person hearing. He is content to have his
appeal conducted in writing. He has also advised me that
he does not have anything further in writing to submit.
I asked that he communicate his position to you directly
by telephone."
[8] There has been no written or telephone contact from
the Claimant to the Arbitrator. In all the circumstances,
while it would have clearly been preferable to proceed following
direct communication with the Claimant, in view of all the
communications to the Claimant from both the Arbitrator and
Fund Counsel, the Arbitrator is satisfied that the Claimant
has no wish for an in-person hearing, is content to have the
matter decided based on written materials supplied and has
no additional materials to provide. In the result, the matter
will indeed be adjudicated upon based of the written materials
provided by Fund Counsel, including the Claims file, which
includes submissions of the Claimant.
B. Facts
[9] Pursuant to the terms of the January 1, 1986- July 1,
1990 Hepatitis Settlement Agreement ("the Settlement
Agreement") and the Plan, the Class Period is the only
period of time in respect of which compensation may be available.
In the Claimant's General Claimant Information Form (TRAN
1) dated May 4, 2000 the Claimant stated that he had received
3 blood transfusions in Canada in his lifetime, once prior
to and once during the class period. In his accompanying Declaration
(TRAN 3), the Claimant stated that to the best of his knowledge,
information and belief, he had resided at Grand Prairie, Alberta
during the Class Period, more specifically on November 1,
1988. However, the Claimant did not complete the next question
on the Declaration, in which the Declarant is to set out,
to the best of his knowledge, information and belief, the
place where he received his first Blood transfusion in Canada
during the Class Period.
[10] Dr. K, the Claimant's attending physician from his Saskatchewan
community, completed the Treating Physician Form ("TRAN
2") and stated that, having regard to the definition
of blood, the Claimant did receive a blood transfusion during
the class period. Dr. K also indicated that the Claimant's
medical history indicated that he had been infected with Hepatitis
Non-A, Non-B or the Hepatitis C virus prior to the Class Period,
noting that the Claimant had received a blood transfusion
in 1982.
[11] The Claim file includes health records that confirm
that the Claimant had in fact received the following blood
transfusions:
August 28, 1981 - University of Alberta Hospital
January 6, 1991 - Queen Elizabeth II Hospital
[12] However, the above transfusions occurred before and
after the class period, respectively.
[13] Having carefully reviewed the Claim file, including
the materials provided by the Claimant, there is only one
conclusion to draw. In this case there is no evidence that
the Claimant received a blood transfusion during the Class
Period.
[14] As Dr. K's statement in TRAN 2 conflicted with the available
blood transfusion records, Carol Miller, a nurse at the Hepatitis
C Claims Centre ("the Centre") contacted Dr. K on
May 11, 2001 to seek clarification. Her note to file states:
"I called Dr. K, the doctor who completed the Tran
2 and asked him if he answered YES to the question re Blood
transfusions during the class period from his records or
from the patient telling him the information. The doctor
stated he answered it from patient information and in review
of his records he stated that the dates of transfusion were
in 1981 and 1991. This confirms no blood in class period."
[15] Prior to this, on October 14, 2000, the Centre records
indicate that Ms. Miller called the Claimant at which time
the Claimant informed her that although the doctor indicated
that the Claimant had received blood in 1988, the Claimant
only received blood in 1981 and 1991. On August 18, 2000,
the Claimant was called by another representative of the Centre
and admitted that he did not receive blood during the class
period and advised that he awaited a letter from the Administrator
and would like a copy of all the material he had sent to the
Centre.
[16] The following are the material findings of fact in this
case:
(a) The Claimant is infected with Hepatitis C:
(b) Such infection was probably the result of a blood transfusion:
(c) The Claimant received blood transfusions in August 1981
and January 1991; and
(d) The Claimant did not receive any blood transfusions
during the Class Period from January 1, 1986 to and including
July 1, 1990.
C. Analysis
[17] Based on the foregoing facts, by the Claimant's own
admission, it is clear that the Administrator's denial of
the Claimant's request for Compensation must be sustained.
[18] Both the Settlement Agreement and the Plan define "Class
Period" as meaning "the period from and including
1 January 1986 to and including 1 July 1990." The Plan
defines "Primarily-Infected Person" as meaning "a
person who received a Blood transfusion in Canada during the
Class period." Article 3.01 of the Plan stipulates that
the burden lies on the individual claiming to be a Primarily-Infected
Person to provide materials that demonstrate his or her entitlement.
This burden, while not onerous, is at the same time not flexible.
A person claiming to be a Primarily Infected Person must provide
the Administrator with medical "records demonstrating
that the Claimant received a Blood transfusion in Canada during
the Class Period." Article 3.03 sets out "additional
proof" that may be required of the Claimant by the Administrator,
including provision of, among other materials, further health
records and a consent to a Traceback Procedure.4
[19] The Claimant's illness is undeniably very serious and
he could no doubt be significantly assisted in his medical
battle by the availability of funds. Regrettably for the Claimant,
he was unable to provide the proof required by Article 3.01
because his transfusions did not occur during the Class Period,
albeit that the second transfusion did occur within 7 months
of the termination of the Class Period. The time parameters
of the Settlement Agreement and Plan, as specified by the
Honourable Mr. Justice Winkler in approving the class action
settlement in his judgment of October 22, 1999, are finite
and explicit. If a blood transfusion was not received during
the Class Period, then the Claimant is not entitled to receive
compensation. The Administrator has an obligation to assess
each claim and determine whether or not the required proof
for compensation exists. The Administrator has no discretion
to allow compensation where the required proof does not exist.
The financial sufficiency of the Fund depends upon the Administrator
properly scrutinizing each claim and determining whether the
Claimant qualifies. An Arbitrator similarly has no jurisdiction
to alter, enlarge or disregard the terms of the Settlement
Agreement or Plan, or to extend or modify coverage. These
principles are reaffirmed in Arbitrator's Decision # 15,
in which, tragically for the claimant in that case, he was
transfused with blood on December 31, 1985, a scant few hours
prior to the commencement of the Class Period. He was found
not to be entitled to compensation. Other arbitrators have
taken a consistent and appropriate position in that regard.6
[20] While the Claimant must undoubtedly feel that he is
being denied compensation on the basis of a technicality,
and while this is in a broad sense accurate, it must be remembered
that the rights embodied in the Settlement Agreement and Plan
were hard-fought. Establishing the time period in relation
to which the Settlement Agreement and Plan apply and in relation
to which funding has been supplied must have been an agonizing
task, recognizing that there would indeed by Hepatitis C sufferers
like the Claimant, whose personal circumstances would fall
outside of the Plan criteria. However, the Agreement and Plan
do not apply and were never intended to apply to person infected
as a result of blood transfusions received at other times.
[21] There are other class actions under way, which are as
yet unresolved, relating to other time periods. If he has
not already done so, the Claimant would be well served by
seeking immediate legal counsel as to whether his circumstances
are such that he may perhaps ultimately benefit from the resolution
of those other class actions.
D. Decision
[22] Upon careful consideration of the facts, Settlement
Agreement, Plan, Court orders and materials provided, the
Administrator's denial of the Claimant's application for compensation
is hereby upheld.
Dated at Saskatoon, Saskatchewan, this 15th day of August
2001.
________________________________
DANIEL SHAPIRO, Q.C.
Arbitrator
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