Appeals: Confirmed
Referee Decisions : #98 - August 21, 2003
D E C I S I O N
This is an Ontario-based Claimant. Claim ID number 1000278.
1 The Claimant applied for compensation as a primarily-Infected
person pursuant to the Transfused HCV Plan.
2 By letter dated March 1, 2002, the Administrator denied
the claim, based on the fact that all the donors of the blood
transfused by the Claimant in the Class Period tested negative
for the HCV antibody.
3 The Claimant requested that the Administrator's denial
of his claim be reviewed by a Referee.
4 The Claimant originally requested an oral hearing, but
ultimately indicated that he was not well enough for a physical
hearing, but also that at such hearing, he would "only
be repeating what I have told many departments repeatedly
for the past ten years." Consequently, the matter was
determined based on the written record.
5 The Claimant received three transfusions on April 30, 1990
during the Class Period. He is infected with the Hepatitis
C virus.
6 The Claimant submits that if the transfusions received
during the Class Period were negative, then it is impossible
to account for the fact that he only began to feel extreme
fatigue after the transfusions in 1991. He submits that there
is no other possible source of infection. Prior to 1990, the
Claimant was able to work many hours a week, in many cases
over 60 hours. Subsequent to the transfusion, he is not able
to work anything like what he did previously. He has suffered
from prolonged and debilitating fatigue. Indeed, he has suffered
numerous layoffs and terminations from six different employers
in the period 1991 - 2002 as a direct result of his illness.
As a result of his fatigue and illness and loss of employment,
the Claimant has encountered severe financial difficulty,
having to refinance his home at great personal cost and risk.
The Claimant has also had to withdraw all of his retirement
savings. In the Claimant's words, his world was turned upside
down after the transfusion, and his personal circumstances
are very difficult.
7 Following the claim filed by the Claimant in this matter,
a traceback procedure was undertaken pursuant to section 3.04
of the Hepatitis C Class Action Settlement, which provides
as follows:
"3.04 Traceback Procedure
(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,
Departments and Family Members."
8 Under the provisions of section 3.04(1), if the results
of the traceback procedure demonstrate that none of the donors
of the blood received by the claimant in the Class Period
was HCV antibody positive, the Administrator must reject the
claim.
9 In this case, the traceback procedure identified that two
other traceback investigations in respect of the Claimant
had previously been commenced, one in 1994 and another in
1998. The 1998 traceback contained a hospital report which
confirmed that three units of packed red blood cells were
transfused to the Claimant, all on the same date, in April,
1990.
10 Under the traceback procedure, it could be determined
that all the donors associated with the units donated in 1990
had, at a later time, made donations and tested negative at
that time for the Hepatitis C antibody. The last date of one
of the subsequent donor tests was in 1993, and the other two
were in June and July of 2000. The screening test used for
the 1993 subsequent donor test was HCV 2.0 EIA, whereas the
test used for the two subsequent tests in 2000 was the HCV
3.0 EIA test.
11 In addition, the donor who was tested in 1993 made at
least three donations of blood after April 1990 and up to
1993, all of which tested negative. The donor tested in July
2000 had donated blood subsequent to April 1990 and prior
to July 2000 at least 20 times, and the donor who was tested
in June 2000, had donated subsequent to April 1990 over 30
times. On each of the subsequent donations, the donors have
been tested for different transmissible diseases, including
anti-HCV. None of the subsequent tests for anti-HCV had shown
any reaction. No subsequent testing was done in these cases
because the screening test conducted on all the donors, as
set out above, were negative.
12 Aside from the three transfusions noted above, there is
no other source of blood transfusions that has been identified
and searches have been conducted in all appropriate facilities
named by the Claimant where blood could possibly have been
transfused to him.
13 In this case, no expert or viva voce evidence was
tendered before me. However, I note that even in those cases
where such evidence was tendered, it was held, inter alia,
that the absence of a different form of testing on the traceback,
namely PCR tests, which has been done in some cases, is irrelevant
given the wording of the plan on the traceback protocol. While
under Article 3.04(2) of the Plan, a Claimant can prove infection
for the first time with HCV by a blood transfusion in the
Class Period in order to overcome Article 3.04(1), in this
case, there is no specific evidence related to this Claimant
that can show that this Claimant was infected for the first
time by a blood transfusion in the Class Period.
14 While the Claimant's personal circumstances are clearly
very difficult because of his suffering from Hepatitis C,
the Settlement Agreement in this case ties the hands of the
Administrator, which effectively had no discretion to grant
the claim. Therefore, I can find no legal basis for interfering
with the Administrator's decision
DATED at Toronto this 21st day of August 2003
_____________________________________
C. Michael Mitchell
Referee
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