Appeals: Confirmed Referee Decisions : #102 - August 27, 2003

D E C I S I O N

The Claimant submitted a claim for compensation as a Primarily Infected Person in accordance with the terms of the 1986-1990 HCV Fund Plan.

On September 4, 2001, the Administrator wrote to the Claimant informing him that he was rejecting his claim on the basis that the donors investigation had revealed that none of the donors of the blood products that the Claimant had received during the Class Action Period had tested HCV positive.

The Claimant filed a reference notice that I now have the duty to review as a Referee.

The Claimant confirmed that he was not requesting a hearing, nor had he other documents to submit. The Claimant did not express any specific motive for his reference notice.

The file confirms that the Claimant received nine (9) transfusions during the 1986-1990 Class Action Period. However, we know that he has received blood transfusions and other blood products such as albumin, during the Pre-1986 Period, particularly in 1981 and 1984.

With the Claimant's agreement and that of the Fund Counsel's, I wrote to the physician who had completed the Attending Physician's Form, since it seemed to me that his Form was providing contradictory information. To the written answer, of which copies were also sent to the Claimant and the Fund Counsel, the Attending Physician tells us that it is very difficult to "know on which of the 3 dates (1981, 1985 or 1986) the infection took place". Referring to the Form completed as the Attending Physician, he added: "To clarify my thought, I wanted to specify clearly that it was possible that the infection took place before January 1st, 1986 or after January 1st, 1986 and that no element currently on the medical file could help me decide."

In his note, the Attending Physician was adding that the only way to determine the infection date would be to find the blood donors' file related to the Claimant and determine which one was HCV infected. However, the nine (9) blood donors during the 1986-1990 Class Action period were all investigated by Héma-Quebec and all proved to be HCV negative. In fact, the details of such traceback tests were transmitted to the plaintiff and can be found on pages 63 and following on the Fund Counsel's file.

In accordance with Section 3.04(1) of the Transfused HCV Plan, the Administrator must reject the HCV infected person's claim when results of the Traceback Procedure demonstrate that none of the donors tests or tested HCV positive.

Having submitted no proof that could counter the results of the Traceback Procedure (Section 3.04(2)), the Administrator had no discretion, and, indeed, according to the Agreement, had the obligation to reject the claim.

After having completed a comprehensive review of the file, taking into consideration the traceback results covering the 1986-1990 period, taking into consideration the absence of proof to the contrary and also the multiplicity of transfusions received in 1981 (at least 35 units) and 1984, I conclude that the Administrator's decision was well founded and the Claimant's reference is therefore rejected.

Montreal, August 27 2003

(S) JACQUE NOLS

Jacques Nols
Referee