Appeals : Arbitrator
Decisions : #17 - September 19th, 2001
D E C I S I O N
1. On May 10, 2001, the Administrator denied the claim for
compensation as a Primarily-Infected Person under the Transfused
HCV Plan. The claim was denied on the basis that the Claimant
did not receive transfused blood within the Class Period from
a donor who is determined to be HCV antibody positive.
2. The Claimant requested that the Administrator's denial
of his claim be reviewed by an arbitrator.
3. Both parties waived a hearing to review the Administrator's
denial of the claim.
4. The Claimant provided written submissions in support of
his claim. These submissions have been carefully considered
but, unfortunately for the Claimant, they are of no assistance
to him for the reasons set out below.
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 June 1986
and August 1991.
(c) When the claim was made, the Administrator directed
the required Traceback Procedure to be carried out by Canadian
Blood Services.
(d) By letter dated October 5, 2000, the Administrator
was advised that all class period donors were cleared as
not testing positive for HCV antibodies.
(e) The donor of the blood transfused to the Claimant in
1991 was found to be HCV antibody positive.
(f) The Administrator denied the claim on the basis that
the Claimant did not receive a blood transfusion from a
primarily infected person during the Class Period.
(g) Following the filing of the claim, Fund Counsel requested
further information from Canadian Blood Services concerning
the Traceback process carried out with respect to the Claimant,
which confirmed and supported the facts noted above.
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
June 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
were six units of blood transfused, all on June 24, 1986.
Each of the donors was identified by using the computerized
information system that tracks blood donor information. It
was determined, using the same system, that all of the donors
had made subsequent donations; 3 in 1998, 2 in 1997 and one
in 1994. In each case, the donors were tested to detect HCV
antibodies at the time they made their donations and, in each
case, the result of the test was negative.
12. The Claimant does not dispute the facts. However, he
submits that the Plan should read differently than it does
and that eligibility should be determined when the blood was
donated, not when it was transfused.
13. On the basis of the facts of this case, the Administrator
had no alternative but to deny the Claim. 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 must administer the Plan
in accordance with its terms. The Administrator does not have
the authority to alter or ignore any of the provisions of
the Plan and neither does an arbitrator when called upon to
review a decision of the Administrator.
14. Accordingly, I find that the Administrator's denial of
the claim must be upheld.
Dated at Vancouver, British Columbia, this 19th day of September
2001.
_____________________________
Heather J. Laing,
Arbitrator
|