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 Subsequently, the Administrator rescinded its decision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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