Appeals: Confirmed Referee Decisions : #99 - August 15, 2003

D E C I S I O N

1. On November 29, 2002, the Administrator denied the claim for compensation as a primarily infected person pursuant to the Transfused HCV Plan on the basis that the Claimant had not provided sufficient evidence that he was infected for the first time with HCV by a blood transfusion received in Canada within the Class period.

2. The Claimant requested an oral hearing by a Referee to review the decision of the Administrator.

3. The Claimant resides in Wainwright, Alberta and claimed to have received a unit of transfused blood on February 12, 1986 at the Calgary Foothills Hospital in Calgary, Alberta during back surgery. He also believed that he was transfused with a unit of blood on August 15, 1977 at the Red Deer Hospital during surgery to a laceration on his left forearm.

4. The hearing was held on July 22, 2003 at Wainwright, Alberta.

5. Neither party disputed the following facts:

(a) The clinical records from the Calgary Foothills Hospital related to an admission for back surgery which resulted in the removal of a lumbar-sacral disk.

(b) The Claimant was discharged on February 22, 1986.

(c) He was diagnosed with Hepatitis C on September 5, 2001.

(d) A trace back was initiated in September, 2002.

(e) In a letter of November 29, 2002, the Claimant was told that the Calgary Foothills Hospital had searched their records and there was no record he received a transfusion. Thus he did not qualify for compensation based on Article 3.01(1.a.) of the 1986 - 1990 Hepatitis C Settlement Agreement because he did not have a blood transfusion between January 1, 1986 and July 1, 1990.

(f) Prior to the hearing, the Claimant stated he wanted to have produced all the records from the Calgary Foothills Hospital and the Red Deer Hospital to satisfy himself there were no blood transfusions that occurred during those hospitalizations.

(g) At the time of the hearing, I reviewed the Calgary Foothills Hospital record, the Tran 1, Tran 2, Tran 3, Tran 4 and Tran 5 records and the Other Risk Factor Inquiry Form together with the Claimant, Fund Counsel and Carol Miller, the Appeals Coordinator of the Hepatitis C January 1, 1986 - July 19, 1990 Claims Centre.

(h) The Tran 2 indicated that Dr. Martin Botha had known the HCV infected person for a period of three years prior to the date of execution of the certification dated May 20, 2002. Under Section F, HCV disease verification, he identified the following risk factors:

(i) Blood transfusions prior to January 1, 1986 and July 1, 1990;

(ii) The transmission from an infected spouse or parent;

(iii) Intra-nasal drug use;

(iv) Significant surgeries or trauma before January 1, 1986.

(i) In answer to Question 25: "Based on the above definition of Blood, did the primarily infected person received a Blood Transfusion in the period January 1, 1986 - January 1, 1990?" He answered "Yes".

(j) In answer to Question 26: "Is there anything in the HCV infected person's medical history that indicates he or she was infected with Hepatitis non-A, non-B, or the Hepatitis C virus prior to January 1, 1986?" He answered "No".

6. The Claimant testified that he had provided all of the information entered on the Tran 2 to Dr. Botha.

7. The Claimant related his prior medical history from birth which included the following:

(a) He had been diagnosed with jaundice, or hepatitis A, at age 14,

(b) From his early twenties onward, he had been advised by his family doctors to restrict his consumption of alcohol to only moderate amounts,

(c) He admitted that he nevertheless periodically consumed up to nine bottles of beer at a time on weekends,

(d) On two occasions inhaled a substance held out to be cocaine,

(e) His father was an alcoholic,

(f) His wife lost approximately 18 units of blood during the birth of their first child, now aged twenty five; required a significant number of transfusions during that procedure and she has also been diagnosed with Hepatitis C although the doctor advises that she has since cleared the virus.

(g) His wife also required transfusions during the birth of their second child, born August 25, 1984.

(h) He is aware that his wife could have contracted Hepatitis C as a result of the transfusions during those births.

(i) Although he has no specific recollection of receiving a transfusion in 1987, he was hospitalized for a severe laceration to his left forearm, resulting in the cutting of tendons and that he was hospitalized for over a week. He considered it possible he could have then received a blood transfusion with tainted blood.

8. With respect to the hospitalization in February, 1986, the Claimant reported a specific recollection that he had awoken from the anesthetic during the operation and that it was necessary for the hospital staff to restrain him while he was administered more anesthetic. He had a specific recollection of waking up in a recovery room and observing an I.V. pole containing a bag with a dark brown or red substance. He recalled remaining for at least half an hour in a recovery room while the blood bag emptied into his arm.

9. He disclosed that by reason of the severe back pain, he was suffering prior to the surgery, he had been placed on the narcotic, Demerol as long as five months before the surgery. He felt he had become addicted to the medication, which made him irritable.

10. The operative summary made reference to the discontinuation of Demerol in the 48 hours which resulted in some withdrawal symptoms in the patient, including hallucinations for a period of some 24 hours.

11. He testified that his belief that he was infected at the time of that surgery was supported by information he received subsequently from physicians who have advised him it was common in that time period to receive blood after this type of surgery.

12. He testified that as early as 1987 he had he suffered classic symptoms of Hepatitis C including chronic fatigue and short term memory problems, as well as confusion later in the day.

13. He denied any other episode of jaundice since his first diagnosis or any other procedures undergone that may have resulted in a blood transfusion.

14. The Claimant had taken the initiative of writing to the Red Deer Hospital and to the Calgary Foothills Hospital for the records and had been told that the records from the Red Deer Hospital had been destroyed.

15. At the request of Fund Counsel, a new request was made to both hospitals for full disclosure of their hospital records.

16. As a result of that request, the Calgary Foothills Hospital produced a more detailed collection of records which included doctor's orders and nurse's notes.

17. At the hearing, these hospital records were reviewed in detail. They contained no doctor's order for blood, no contemplation of any blood transfusion pre-operatively, no mention of any blood transfusion required during the operative note and nothing in the anesthesiologist's records or the nurses' notes to suggest any transfusion had been given.

18. The request to the Red Deer Hospital produced a further discharge summary evidencing a brief attendance in March of 1987 for a laceration to the thigh which recorded the administration of 5 sutures but no order for medication or transfusion of blood.

19. The Claimant attempted to locate the treating surgeon, Dr. Taylor, but was advised that he was no longer registered because he had retired.

20. With the permission of the Claimant and Fund Counsel prior to the hearing, I contacted the referring doctor and the resident involved in the back surgery, one Dr. Boake and one Dr. Wertzler and provided copies of the hospital records with the request that they advise what recollection they had of the Claimant's treatment. Both responded that they had no recollection of any blood transfusions being required in this case.

21. During the hearing, with notice to the parties, I contacted the Alberta College of Physicians and Surgeons to determine if there was any current address for Dr. Botha. I subsequently was advised that the Alberta College of Physicians and Surgeons has no current record of Dr. Botha.

22. From a review of all of the documentation submitted by the Claimant together with his oral evidence at the hearing, I concluded the declaration by Dr. Botha in the Tran 2 was likely made without the knowledge of all the relevant medical information, in particular, the entire medical chart from the Calgary Foothills Hospital, which contains no reference to any requirement for a blood transfusion. While Dr. Botha mentioned certain risk factors in the Tran 2, he did not comment on the same or on the possible risk factors of a previously diagnosed Hepatitis A affected by immoderate use of alcohol over an extended time period. Moreover, he made no comment as to whether the Claimant was at risk for infection from his spouse.

23. On the other hand, there is no suggestion in any of the hospital records from Calgary Foothills or Red Deer to suggest a blood transfusion occurred.

24. Based on all the foregoing, I conclude there was no reliable evidence presented at this hearing to show on the balance of probabilities or otherwise, that this Claimant was infected for the first time with HCV by a blood transfusion received in Canada during the Class Period.

25. Accordingly, I uphold the Administrator's denial of the Claimant's request for compensation.

Dated at Edmonton, Alberta, this 15th day of August, 2003.

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Shelley L. Miller, Q.C. Referee