Appeals : Arbitrator Decisions : #159 - August 27, 2004

D E C I S I O N

1. The Claimant submitted a claim for compensation under the Transfused HCV plan (the “Plan”) as a Primarily-Infected Person. The Administrator denied the claim on the ground that the Claimant received a blood transfusion prior to the Class Period from a donor who was determined to be HCV antibody positive.

2. The Claimant seeks review of the Administrator’s denial of his claim by way of arbitration.

3. The Claimant did not request an in-person hearing.

4. The documentary record discloses that the Claimant had blood transfusions both within and outside the Class Period.

5. Traceback results provided by Canadian Blood Services under the Court approved Traceback Protocol confirmed that the Claimant received transfusions before and in the Class Period. The Traceback Procedure confirmed that one of the pre-Class Period donors tested HCV antibody positive. Specifically a donor associated with a 1982 transfusion tested positive for the HCV antibody in 1999.

6. Article 3.04(1) of the Plan and section 8(a) of the Traceback Protocol stipulate that where one of the donors or units of Blood received before the Class Period is HCV antibody positive, the Administrator must reject the claim.

7. In a recent similar appeal, HCV Settlement Agreement Claim No. 1300143, 2004 BCSC 697, Mr. Justice Pitfield upheld the decision of Referee Sanderson where one of the donors of Blood which the claimant received by transfusion in 1982 tested positive for the HCV antibody in 2000. In that appeal, the Claimant also received Blood during the Class Period by way of transfusion and one of the donors in the Class Period also tested positive for the HCV antibody. Mr. Justice Pitfield noted that Article 3.04(1) of the Plan compels rejection of a claim if the Traceback Procedure identifies an HCV antibody positive pre-Class Period donor.

8. Mr. Justice Pitfield made the following comments concerning the class action litigation settlement which resulted in the court approved Plan and Traceback Protocol:

[9] The settlement concluded with the defendants was designed and intended to operate for the benefit of persons infected in the class period for the first time. It was not intended to compensate those infected outside the class period. The settlement resulted from extensive negotiations on behalf of the parties to the litigation. Those who were infected by the Hepatitis C virus were ably represented by counsel in that process. The parties settled upon the criteria by which claims were to be established. The court has no discretion to depart from the Settlement Agreement even in circumstances where the result flowing from the application of its terms may appear to be inequitable. The court is governed by the terms of the Settlement Agreement as is every member of the Class and every part to the Agreement.

[10] There is nothing to indicate that the traceback procedure followed by Canadian Blood Services in this case was improperly pursued. The 1982 donor was tested in the year 2000 and found to be positive in the manner contemplated by the traceback procedure protocol approved by the court in conjunction with the Settlement Agreement. The assumption that a person currently HCV antibody positive would be regarded as HCV antibody positive at the time of donating blood was agreed to by the parties at the time the Transfused HCV Plan was settled. The assumption may work to the detriment of some, as in this case, just as it may work to the advantage of others should they have received a transfusion of blood donated in the class period by an individual who was not infected at the time of donation but who became infected after the close of the period before the traceback.

[11] While the Referee concluded that Article 3.04(2) might have application in the circumstances, it is my opinion that it cannot. The exception in Article 3.04(2) is directed at permitting a Claimant to prove infection by means of a blood transfusion notwithstanding negative traceback results. It cannot be construed to provide an exception to the mandatory denial of a claim in the event of a positive traceback in respect of a pre-class period donor.

9. In this arbitration, there is no substantive evidence to bring the Traceback results into question. As an arbitrator called upon to review decisions of the Administrator, I am bound by the terms of the Plan and cannot amend it or act contrary to its terms.

10. The Administrator had no discretion in the matter. The Administrator had no authority to alter or ignore the terms of the Plan when a positive pre-Class donor exists. Based upon the Plan and the Traceback Procedure, the Administrator was mandated to reject the claim.

11. In the result, I uphold the Administrator’s decision to deny the claim.

Dated at Vancouver, the 27th day of August, 2004.

“Vincent R.K. Orchard”

Vincent R.K. Orchard,

Arbitrator