Appeals : Arbitrator Decisions : #101 - August 25, 2003

D E C I S I O N

The wife of the claimant, born in August 1919, received two units of blood in 1987, thus during the 1986-1990 class period. All indications are that she had no significant known risk factor prior to receiving these units of blood (no i.v. drug use, no tattoos, no blood transfusions prior to 1986).

Subsequent to 1990, the wife of the claimant tested positive for Hepatitis C and she passed away on May 24th, 2000 of hepato-cellular carcinoma and complications of hepatic failure.

The husband of the deceased submitted a claim to the Administrator of the Fund as personal representative of a deceased infected with Hepatitis C virus, in accordance with the Tansfused HCV Plan (Schedule A).

A Traceback Study was started and it was established that one of the 1987 donors had given blood on 12 occasions from 1993 to January 2000 and had always tested negative.

The other donor could not be located and the claim for compensation was therefore approved. A sum of $229,132.84 was sent to the claimant in April 2001. The letter accompanying the compensation cheque had a paragraph which read as follows:

"Please note that according to sections 7.01(2) and 7.05 of the Settlement Agreement, the Administrator may reassess at any time the compensation payable to a claimant. If it is later determined that the claimant is not entitled to further compensation, the claimant will not be accountable for any amounts paid to date."

The second 1987 donor was subsequently located and the Traceback Report indicates that such donor tested negative on February 14th, 2002 (ortho 3.0).

Claimant was advised that the results of the traceback confirmed that both donors had tested negative for the HCV antibody and that in light of such information, the claim was denied.

Claimant was not asked to refund the compensation previously paid to him.

Claimant appeals the above decision, and his reasons for appeal can be summarized as follows:

· HCV can only be transmitted by blood;

· the only time that his wife had received blood was during the class period;

· his wife lived a "clean life" and had no risk factor;

· claimant added that he had doubts as to the testing and traceback procedure.

Claimant has asked that the decision be made by an arbitrator. Neither the appellant nor the attorney representing the Fund have asked for a hearing and the present decision is therefore rendered on the basis of the complete claim record, as well as the written submissions made by the Fund Counsel.

The fact that the primary infected person received two (2) units of blood during the period is admitted and there is certainly no evidence suggesting that the victim had received blood prior to 1996. The treating physician confirms that there was no "risk factor" known, such as i.v. drug use or tattoos and indeed all evidence is that the victim had, to use claimant's words, a clean life. The grief of the claimant is easily understandable, especially when one considers that he and his wife were married for 58 years and one may suspect that the appeal is much more a question of principle than of money.

The undersigned, as is the Administrator, is obliged to render his decision on the basis of the information provided by the parties, but also and above all on the basis of the terms of the Settlement Agreement. I have looked at all the elements of the present claim, including the Traceback Procedure, to see if such claim falls within the parameters of the settlement agreement.

Sections 3.04(1) and section 3.04(2) must be considered.

3.04(1) Notwithstanding any other provision of this Agreement, if the results of a Traceback Procedure demonstrate (…) that none of the donors or units of Blood received by a Primarily-Infected Person (…) during the Class Period is or was HCV antibody positive, (…), the Administrator must reject the Claim of such HCV Infected Person and all Claims pertaining to such HCV Infected Person (…).

Article 3.04(2) provides an exception to article 3.04(1). Notwithstanding traceback results, a claimant may prove that he or she was infected with the HCV for the first time by a blood transfusion received in the Class Period.

The Agreement does not give information as to the nature of the evidence which may refute the traceback result. Some insight has been given as to such burden by Arbitrator Tanja Wacyk in decision No. 40 (February 16th, 2002):

"In my view, subsection 3.04(2) requires evidence that is specific to a particular claimant , and that proves, on a balance of probabilities, that claimant was infected for the first time with HCV by a blood transfusion received in Canada during the Class Period." (par. 30)

Claimant has made no such evidence, relying instead on a general statement that he had doubts as to the testing procedure and that his wife had lived a clean life. While I accept for the purposes of this decision that the primary infected person had lived a "clean life", general doubts as to the testing or Traceback Procedure are certainly not sufficient to meet the threshold imposed by 3.04(2).

Article 3.04(1) is clear and it directs the Administrator to reject a claim where the Traceback Procedure shows that all the donors of the blood received by the Primary Infected Person during the Class Period are determined not to be HCV antibody positive. Such were the facts in this case.

My decision has to be based on the same article and on the same facts and I arrive at the same conclusion as the administrator, i.e. that claimant has failed to show that his wife was infected with the HCV for the first time by a blood transfusion received in the Class period. Having arrived at such conclusion, I do not consider it necessary to speculate as to whether the Hepatitis C could have been contracted as a result of a transfusion of albumin received by the wife of the claimant after the 1990 cut-off date. No information can be obtained on the pool of donors of this albumin and no matter what conclusion I draw regarding such transfusion, it cannot help claimant with his present appeal. I therefore confirm the decision of the Administrator to deny the Claimant compensation under the Hepatitis C 1986-1990 Class Action Settlement.

Montreal, August 25, 2003

(S) JACQUES NOLS

Jacques Nols
Arbitrator