Appeals : Arbitrator Decisions : #16 - September 11th, 2001

D E C I S I O N

1. The Claimant applied for compensation as a Primarily-Infected Person pursuant to the Transfused HCV Plan (the "Plan").

2. By letter dated March 19, 2001, the Administrator denied the claim on the basis that the Claimant had not provided sufficient evidence of having received a blood transfusion within the Class Period.

3. The Claimant appealed the Administrator's denial of the claim by way of arbitration.

4. Both parties waived the requirement for an oral hearing and elected to proceed on the basis of the written record. I have carefully reviewed the written record.

5. In order to determine the Claimant's eligibility for compensation under the Plan, the threshold question is whether there is sufficient proof that the Claimant received a blood transfusion during the Class Period, January 1, 1986 to and including July 1, 1990.

6. There is no dispute that the Claimant has had a positive HCV antibody test. The Claimant therefore meets one requirement for a potential claim.

7. The Claimant submits and I find, honestly believes, that he received a blood transfusion during surgery in January 1989 at a Vancouver hospital and that transfusion is the cause of his positive HCV test. It is not disputed that the Claimant underwent the surgery on January 4, 1989. Indeed, the Claimant's treating physician has indicated in a Treating Physician Form dated May 1, 2000, referred to as a TRAN2 form, that the Claimant received a blood transfusion during the Class Period. However, a close review of the facts shows the Claimant and his doctor must be mistaken.

8. The Administrator caused an investigation to be made of whether the Claimant actually received blood during the surgery in January 1989.

9. That investigation reveals the following: The hospital records indicate by way of an orthopaedic operative note that the Claimant's estimated blood loss was 200 cc. The records also contain a blood transfusion request. There is further evidence in the orthopaedic operative note that the Claimant received 1000 cc of a crystallized solution, essentially a saline solution, as I understand it. There is no indication in the hospital records that the Claimant was actually transfused with any units of blood. The operative note actually indicates that no blood was given to the Claimant. Moreover, the documents on file reveal that the Canadian Blood Services conducted a traceback and reported that while units of blood were held for the Claimant in the blood bank for his surgery, the Claimant did not actually receive any units of blood at the time. The file record also contains written documentation from the Vancouver hospital confirming that the Claimant was not transfused according to medical and blood bank records. That this is the case, is further confirmed in a Canadian Blood Services record dated April 22, 1999.

10. Article 3.01 of the Transfused HCV Plan provides that a person claiming to be a Primarily-Infected Person must provide the Administrator with, inter alia, "records demonstrating that the Claimant received a blood transfusion in Canada during the Class Period."

11. The onus is on the Claimant to show that he received a blood transfusion in Canada during the Class Period. As I indicated at the outset the Claimant must first pass over this threshold to establish entitlement to compensation.

12. Fund Counsel submits, and I agree, that the Administrator under the Plan has an obligation to review a claim to determine whether the required proof for compensation exists. The Administrator has no discretion to allow a claim where the required proof has not been produced. Nor has the Administrator the authority to alter or ignore the terms of the Plan. As an Arbitrator called upon to review the decisions of the Administrator, I have no power to amend the Plan or act contrary to its terms.

13. It is therefore my decision that the Administrator properly determined that the Claimant is not entitled to compensation under the Plan. The Administrator was correct in finding that there was not sufficient evidence that the Claimant received a blood transfusion in Canada during the Class Period. It has not been proven that the Claimant received a blood transfusion in Canada during the Class Period. Indeed, the record clearly indicates that in fact the Claimant did not receive a blood transfusion during surgery in January 1989.

DATED at Vancouver, British Columbia this 11th day of September 2001.

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Vincent R.K. Orchard, Arbitrator