Appeals: Confirmed Referee Decisions : #107 - September 17, 2003

D E C I S I O N

1. On May 20, 2003, the Administrator denied the claim for compensation of the Claimant filed on the basis of qualifying as a primarily-infected person under the transfused HCV Plan. The claim was denied on the grounds there was insufficient evidence that the Claimant received blood within the Class period from a donor who was determined to be HCV antibody positive.

2. The Claimant requested that the Administrator's denial of his claim be reviewed by a Referee.

3. Following a series of pre-hearing telephone conference calls and an exchange of correspondence, the parties waived a hearing to review the Administrator's denial of the claim.

4. The Claimant submitted documentation in support of his claim, which has been reviewed and considered, initially by the Administrator and subsequently in connection with these proceedings.

5. The relevant facts are not in dispute and can be summarized as follows:

(a) The Claimant is infected with Hepatitis C.

(b) The Claimant received blood transfusions in 1965, 1966, 1968, 1986 and 1999. All such transfusions were administered at Vancouver General Hospital in Vancouver, B.C.

(c) Accordingly, it is evident the Claimant received one blood transfusion in the Class period, January 1, 1986 to July 1, 1990. That transfusion was administered October 10, 1986. The blood transfusion in question consisted of one unit of blood.

(d) When the claim was made, the Administrator directed the required Traceback Procedure to be carried out by Canadian Blood Services.

(e) By letter dated August 2, 2002, the Administrator was advised that the HCV status of the donor of the blood transfused on October 10, 1986, was negative. The Administrator was advised there are no center records available for the transfusions that occurred in 1968 and 1966.

(f) The Administrator requested further information from Canadian Blood Services concerning the traceback procedure initiated with respect to the Claimant. By letter dated June 26, 2003, Canadian Blood Services reviewed the testing results of the donor of the blood transfused on October 10, 1986 and confirmed that the donor associated with that unit of blood, subsequently tested negative for the Hepatitis C antibody.

(g) The Claimant was provided all the information referred to above and was given an opportunity to provide further evidence in support of his claim. No such evidence was forthcoming.

6. Based on these facts, it is clear that the Administrator's decision must be sustained.

7. The 1986 - 1990 Hepatitis C Settlement Agreement defines "Class Period", as the title implies, as the period "from and including 1 January 1986 to and including 1 July 1990." The Transfused HCV Plan provides the identical definition. The Plan defines a "Primarily-Infected Person", a status a successful Claimant must achieve, as "a person who received a Blood transfusion in Canada during the Class Period . . . ".

8. Pursuant to Article 3.01 of the Plan, a person claiming to be a Primarily-Infected Person is required to produce to the Administrator medical records "demonstrating that the Claimant received a Blood transfusion in Canada during the Class Period."

9. In this case, it is not disputed that the Claimant did receive a blood transfusion in the Class Period, namely in October 1986. However, Article 3.04(1) of the Plan provides as follows:

Notwithstanding any other provision of this Agreement, if the results of a Traceback Procedure demonstrate that one of the donors or units of Blood received by a HCV-Infected Person or Opted-Out HCV Infected Person before 1 January 1986 is or was HCV antibody positive or that none of the donors or units of Blood received by a Primarily-Infected Person or Opted-Out Primarily Infected Person during the Class Period is or was HCV antibody positive, subject to the provisions of Section 3.04(2), the Administrator must reject the Claim of such HCV Infected Person and all Claims pertaining to such HCV Infected Person or Opted-Out HCV Infected Person including Claims of Secondarily-Infected Persons, HCV Personal Representatives, Dependants and Family Members.

10. A Traceback Procedure is defined in Article 1.01 of the Plan as follows:

"Traceback Procedure" means a targeted search for and investigation of the donor and/or the units of Blood received by a HCV Infected Person.

11. As has been noted, the evidence is that a Traceback Procedure was conducted. As a consequence, it was established there was one unit of blood cells transfused, in October 1986. The donor was identified by using the computerized information system that tracks blood donor information. Canadian Blood Services investigated and determined that the donor subsequently tested negative for the Hepatitis C antibody. I have no reason to question the reliability of the testing procedure that was used at that time.

12. The Claimant does not dispute these facts. He has stated he is not satisfied with the Administrator's decision but he concedes he has no further evidence to support his claim.

13. On the basis of the facts of this case, the Administrator had no alternative but to deny the Claim. Unfortunately for the Claimant, he did not receive a blood transfusion during the Class period from a donor who was determined to be HCV antibody positive.

14. It is the role and responsibility of the Administrator, under the settlement agreement, to administer the Plan in accordance with its terms. The Administrator has an obligation under the Plan to review each claim to determine whether the required proof for compensation exists. The words of Article 3.04(1) of the Plan are clear and unambiguous that the Administrator " . . . must reject the Claim . . ." in circumstances such as these. The Administrator has no discretion to allow a claim where the required proof has not been produced. The Administrator must administer the Plan in accordance with its terms and he does not have the authority to alter or ignore the terms of the Plan. A Referee, called upon to review a decision of the Administrator is also bound by the terms of the Plan and can not amend it or act contrary to its terms.

15. Accordingly, for the reasons set out above, I find that the Administrator has properly determined that the Claimant was not entitled to compensation under the Plan. I further find that the Administrator's decision must be sustained.

Dated at Vancouver, British Columbia, this 17th day of September, 2003.

John P. Sanderson, Q.C.
Referee