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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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