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Appeals : Arbitrator Decisions : #105 - September 16, 2003

D E C I S I O N


1. The Claimant applied for compensation as a Primarily-Infected Person pursuant to the Hemophiliac HCV Plan.

2. By letter dated February 3, 2003, the Administrator denied the claim on the basis that the Claimant had not provided sufficient evidence to establish that he had received blood during the Class Period.

3. The Claimant requested that the Administrator's denial of his claim be reviewed by an Arbitrator.

4. Subsequently, the Administrator rescinded its decision to deny the claim in order to permit further investigation of the Claimant's assertion that he had received blood during the Class Period.

5. By letter dated June 20, 2003, the Administrator again denied the claim on the basis that the Claimant had not provided sufficient evidence to establish that he received blood during the Class Period.

6. The Claimant thereupon renewed his request that the denial be reviewed by an Arbitrator.

7. An oral hearing was held on September 3, 2003. The uncontested facts are as follows:

(i) The Claimant has a congenital clotting factor defect or deficiency.

(ii) The Claimant has been infected with Hepatitis C.

(iii) The Claimant has not been able to produce any medical, clinical, laboratory, hospital, The Canadian Red Cross Society, Canadian Blood Services or Hema-Quebec records demonstrating that he received or took blood during the Class Period.

(iv) The treating physician form, which was completed by the Claimant's family doctor, indicates that the Claimant received blood during the Class Period; however, the doctor did not have any supporting documentation to this effect and he did not testify at the hearing, having moved to England.

(v) In a handwritten note dated August 14, 2002, the same doctor stated that the Claimant "had blood products during dental extraction between 1986-1990 to the best of our knowledge".

(vi) All dental surgery on the Claimant was performed at one particular hospital in Prince Edward Island and, according to the Claimant, by the same dental surgeon.

(vii) The only hospital record of the Claimant undergoing dental surgery was in 1979.

(viii) Inquiries of the dental surgeon in question produced no record that he had performed surgery on the Claimant during the Class Period.

8. At the hearing, the Claimant stated that he felt he received blood products twice during the Class Period. On one occasion, he thought in 1987 or 1988, he had dental surgery. On another occasion, sometime around 1990 or 1992, he had a major artery rupture in his nose. He recalled being treated at the local hospital in these instances. Again, however, the records of the hospital in question do not indicate that the Claimant was given blood during the Class Period.

9. The Claimant alleged in his appeal and at the hearing that relevant hospital records are missing. Dr. Lamont Sweet, the Chief Health Officer for Prince Edward Island, has written several letters in this regard. In a memorandum to the Claimant's family physician dated April 15, 2002, Dr. Sweet made the following observations:

"RE: DOCUMENTATION OF RECEIPT OF BLOOD AND BLOOD PRODUCTS IN P.E.I.

I am writing in response to a request I had from you regarding failure to find medical record documentation for receipt of blood and blood products. As I understand it, two patients of yours who have hemophilia have been unable to obtain verification of their receipt of coagulation products.

This has been a matter of concern to me because of the need to identify lot numbers for blood and platelet transfusions in order for tracing and testing donors. We have encountered considerable difficulties in obtaining accurate blood transfusion records for those receiving products before 1984 in P.E.I. In fact, we were unable to set up a blood notification system for transfusion before 1984 because reliable information was so often not available.

Similarly if we are notified of a patient who has hepatitis C and we try to obtain documentation from medical records, it is not uncommon to find a lack of information when the event occurred before 1984. Often there is cross matching information, but verification of which units were given is not available.

For those receiving coagulation products, the information is much more difficult to obtain. The blood bank cross matching records tend to be of little help. Often the product was given in the Emergency Room where records are very difficult to obtain.

I am almost always asking for information relating to contact tracing from a public health point of view. However, a similar situation arises when a patient wants documentation for other reasons. Although I cannot make a statement about what is or was in missing records, I can explain the situation and offer an opinion as to whether it appears likely that blood or blood products were received. Hopefully that is in the best interest or [sic] patients whom sometimes appear to be put in a difficult position simply because they received blood or blood products before record keeping was at today's standard.

I hope this helps in summarizing the dilemma I have encountered regarding this issue."
[emphasis added]


10. In a letter dated May 29, 2002 addressed to the Hepatitis C Class Action Settlement, Dr. Sweet specifically addressed the circumstances surrounding the claims of the Claimant and his brother as follows:


"May 29, 2002

Ms. Joan Learning
Hepatitis C Class Action Settlement
P.O. Box 2370, Station D
Ottawa, ON K1P 5W5

Dear Ms. Learning:
...

I have been asked by these two patients to write to you regarding the probability that they received blood products as a source of their hepatitis C.

First, I have reviewed all the medical records which were available at the Queen Elizabeth Hospital in Charlottetown regarding their past history. On several occasions it was noted that they both were hemophiliacs.

Second, unfortunately none of the records verified the receipt of blood or blood products. This is not unusual for blood and quite common for coagulation products which are often given in Emergency Departments where documentation is more difficult to find than for hospital admissions.

Third, when I obtained a case history on both of these patients their attending physician gave no indication that they had any other risk factors for hepatitis C. Usually there is some suspicion of other risk factors, particularly intravenous drug use. I therefore was quite confident in classifying their risk factors receipt of coagulation products. Without documentation, it is impossible to provide details like lot numbers; but the history is highly consistent with blood products being the reason for their hepatitis C positivity.

Fourth, to pin point a time period during which the product was received is impossible to prove. Looking at it from the alternate aspect, I would not be at all surprised to learn that they had received product at any time in the past.

Fifth, although I am the officer for the Province, and not their attending physician, my major involvement with the...brothers has been to determine what the source of their hepatitis C is and what kind of investigation should be carried out by the Canadian Blood Services. I do feel that they are the victims of circumstances since I believe their condition is due to coagulation products, and I regret their dilemma of not being able to provide adequate documentation.

I hope this provides you with more insight into the situation and hope you can assess their claims with fairness in light of their unfortunate situation.

Sincerely,

Lamont Sweet, M.D., FRCP, MHSc.
Chief Health Officer..."
[emphasis added]

11. Finally, in a letter to the Claimant's brother dated February 7, 2003, Dr. Sweet indicated that the absence of documentation of a blood product in hospital or blood bank records does not prove that they were not received and should not, in his view, be taken as evidence that they were probably not received.

12. Article 3 of the Hemophiliac HCV Plan is entitled Required Proof for Compensation. It provides, in part, as follows:


"3.01 Claim by Primarily-Infected Hemophiliac

(1) A person claiming to be a Primarily-Infected Hemophiliac must deliver to the Administrator an application form prescribed by the Administrator together with:

(a) medical, clinical, laboratory, hospital, The Canadian Red Cross Society, Canadian Blood Services or Hema-Quebec records demonstrating that (i) the claimant has or had a congenital clotting factor defect or deficiency and (ii) the claimant received or took Blood during the Class Period;

(2) Notwithstanding the provisions of Section 3.01(1)(a), if a claimant cannot comply with the provisions of Section 3.01(1)(a)(i) or (ii), 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 has or had a congenital clotting factor defect or deficiency and received or took Blood during the Class Period."


13. In the present case, as already noted, the Claimant has not been able to produce any "medical, clinical, laboratory, hospital, The Canadian Red Cross Society, Canadian Blood Services or Hema-Quebec records" indicating that he received or took blood during the Class Period. Consequently, the Claimant is driven to rely on Article 3.01(2) and it is the Claimant's contention that he has produced sufficient corroborating evidence to show that he received or took blood during the Class Period.

14. Unfortunately, the evidence does not support the Claimant's contention. Both the Claimant and the Administrator have made extensive efforts to obtain all relevant medical records. The hospitals involved have confirmed that they have the Claimant's medical records but that such records do not disclose that the Claimant received or took any blood during the Class Period. There is always the possibility, of course, that some of the Claimant's medical records have gone missing or, as intimated by Dr. Sweet, were never properly created in the first instance, at least prior to 1984. In the final analysis, however, all that Dr. Sweet could say is that the Claimant probably was infected with Hepatitis C as the result of receiving coagulation products. However, he was very clear in stating that it was impossible to prove when the Claimant received such products, adding only that he "would not be at all surprised to learn" that the Claimant had done so "at any time in the past". Consequently, it is clear that Dr. Sweet simply was not in a position to offer any opinion on the critical issue of whether the Claimant received blood during the Class Period.

15. Based on the record before me, I am compelled to find that there is no corroborating evidence independent of the personal recollection of the Claimant to establish on the balance of probabilities that he received or took blood during the Class Period. Under Article 3.01(2), the burden is on the Claimant to bring forward the required corroborating evidence. The burden is not on the Administrator, as the Claimant seemed to suggest, to prove that the Claimant did not receive blood during the Class Period. One cannot help feeling sympathy for the Claimant; however, the terms of the Plan have to be respected.

DATED at Halifax, Nova Scotia, this 16th day of September, 2003.



S. BRUCE OUTHOUSE, Q.C.
Arbitrator








 

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