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Appeals : Arbitrator
Decisions : #104 - September 5, 2003
D E C I S I O N
1. The Claimant has the Hepatitis C virus. He submitted a
claim under the HCV Transfused Plan (the "Plan")
as a Primarily-Infected Person. His claim was denied by the
Administrator in a letter dated June 20, 2002 for failure
to provide sufficient evidence of a blood transfusion during
the Class Period of January 1, 1986 to July 1, 1990.
2. The Claimant requested a review of the Administrator's
decision by way of arbitration.
3. An in-person hearing was held in Abbotsford, British Columbia
on July 7, 2003.
4. I ordered an adjournment to obtain clinical records from
a hospital in Windsor, Ontario, where the Claimant was admitted
for surgery during the Class Period.
5. The Claimant testified at the in-person hearing as did
Carol Miller, the Appeal Coordinator for the Administrator.
6. The Claimant believes that he must have received "blood
by-products" during surgery but he does not believe he
actually had a transfusion. He began experiencing symptoms
in 1988 or 1989. In 1990 or 1991 a doctor informed him that
he had Hepatitis C. He believes he must have been infected
with the virus during his hospital admissions during the Class
Period because he cannot think of any other way he would have
contracted Hepatitis C.
7. Dr. Farley, an internist and infectious diseases specialist,
wrote a letter dated November 26, 2002 on behalf of the Claimant
stating, "It is possible that he may have contracted
the hepatitis C virus infection between 1986 and 1991."
The Claimant stated that Dr. Farley expressed his views with
greater certainty to him when they spoke but Dr. Farley did
not testify.
8. The Claimant had tattoos in 1969 and 1970 when he was in
the Canadian Navy. The Claimant believes his tattoos are "too
old" to be the cause of his Hepatitis C virus; however,
tattoos are identified as a risk factor for HCV.
9. The Claimant's general practitioner completed the treating
physician form ("TRAN2"). In question 1, section
(f), the general practitioner was asked if the Claimant received
a blood transfusion in the period January 1, 1986 to July
1, 1990. He did not state yes or no but rather answered with
a question mark.
10. The Administrator's office requested a search through
Canadian Blood Services ("CBS") for transfusion
and/or blood bank records relating to the Claimant from the
hospital in Windsor where he had surgery during the Class
Period. A senior technologist of transfusion services with
the Windsor hospital confirmed admissions in July 1987 and
February 1988 during the Class Period. The senior technologist
also confirmed that the hospital's transfusion department
records were searched and there was no transfusion of blood
or blood products for the Claimant during the Class Period.
The search was completed November 28, 2001 as part of a Traceback
by CBS.
11. My order directed to the hospital in Windsor requiring
production of copies of hospital records pertaining to the
admissions of the Claimant during the Class Period did not,
unfortunately, result in production of any records. The hospital
in question stated that the records were no longer available
as the hospital's policy is to keep records only for ten years.
Therefore, I am left with a record that fails to show any
transfusions of blood or blood products for the Claimant during
the Class Period.
12. According to Article 3.01(1)(a) of the Plan a person claiming
to be a Primarily-Infected Person must deliver:
medical, clinical, laboratory, hospital, the Canadian Red
Cross Society, Canadian Blood Services or Hema-Québec
records demonstrating that the claimant received a Blood transfusion
in Canada during the Class Period.
13. The Claimant was unable to deliver such records. The Plan
allows for proof by other means under Article 3.01(2) which
states:
Notwithstanding the provisions of Section 3.01(1)(a), if
a claimant cannot comply with the provisions of Section 3.01(1)(a),
the claimant must deliver to the Administrator corroborating
evidence independent of the personal recollection of the claimant
or any person who is a Family Member of the claimant establishing
on a balance of probabilities that he or she received a Blood
transfusion in Canada during the Class Period.
14. The Claimant has not provided other corroborating evidence
independent of his personal recollection. Indeed, the Claimant
actually has no personal recollection of a blood transfusion.
15. The Plan sets out the required proof for entitlement to
compensation. A claimant must demonstrate that he received
a "Blood transfusion in Canada during the Class Period".
Regrettably for the Claimant there is no evidence to support
his claim under Article 3.01(1)(a) or Article 3.01(2).
16. The Administrator has an obligation to assess each claim
to determine whether the required proof for entitlement to
compensation exists. The Administrator has no discretion to
allow compensation when the required proof does not exist.
The Administrator was correct in determining that the Claimant
is not entitled to compensation under the Plan. I uphold the
Administrator's decision.
DATED at Vancouver, British Columbia, this 5th day of September,
2003.
"Vincent R.K. Orchard"
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Vincent R.K. Orchard, Arbitrator
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