Appeals: Confirmed Referee Decisions : #109 - October 13, 2003

D E C I S I O N

BACKGROUND:

1. The Claimant submitted an application for compensation as a Primarily Infected Person under the Transfused HCV Plan ("the Plan"), as set out under the terms of the 1986-1990 Hepatitis C Settlement Agreement ("the Settlement Agreement").

2. By letter dated December 12, 2001, the Administrator denied his claim on the basis that the Claimant did not provide sufficient evidence to support his claim that he received blood during the period from January 1, 1986 - July 1, 1990 ("the Class Period").

3. The Claimant maintained that he contracted Hepatitis C as a result of a blood transfusion he received when he underwent surgery for a hernia in January 1989. The Claimant requested that a Referee review the decision of the Administrator in an in-person hearing.

4. On April 4, 2002, the first day of the hearing into this matter, the Claimant requested and was granted an adjournment to permit his representative at the time to obtain further information.

5. The matter reconvened on September 30, 2002, with the Claimant representing himself. At that time, in addition to testifying himself, the Claimant called two witnesses; Mr. B, a friend; and the Claimant's wife. The Claimant also filed two letters from his daughters outlining the difficulty their father's diagnosis of Hepatitis C has caused, as well as their frustration that their father's assertion that he first contracted the disease as a result of a blood transfusion has not been accepted.

6. Following the hearing on September 30, 2002, the matter was again adjourned to permit the Claimant to obtain additional evidence regarding his claim. No such information has been forthcoming and in the fall of 2003, the Claimant advised that the matter should be determined on the basis of the evidence already submitted. That evidence is set out below.

THE EVIDENCE:

The Testimony of the Claimant

7. The Claimant testified regarding his difficult adolescent years. While he admitted to heavy drinking and drug use, he denied ever using intravenous drugs. When asked why two physicians had indicated otherwise in their records(1) the Claimant indicated that was because at the time, (presumably of his discussions with them) he had been unaware of what "intravenous" meant.

(1)The first reference is in a 1992 report of Dr. Alexander, an emergency room physician who indicated that "[t]here is a remote history of IV drug use. The second reference was made in a report dated September 25, 1992, by Dr. Haber, a gastroenterologist who examined the Claimant regarding his hepatitis. In his report, Dr. Haber indicates that the Claimant has a history of intravenous drug abuse about 20 years ago.

8. The Claimant testified regarding his medical history, which included accidentally amputating two fingers in 1978. He subsequently had his appendix removed, and had a significant bowel operation.

9. In January 1989, the Claimant developed a hernia while working and was subsequently scheduled for surgery. On January 15, 1989, he was admitted into hospital, and the operation took place on January 16, 1989. The Claimant testified that at no time during his stay in hospital did anyone indicate that he would require a blood transfusion.

10. The Claimant testified that following the operation, when he awoke in his room, he noticed that there were two bags on an I.V. pole. One was a long bag, and the other was a shorter bag, about 6"- 8" square with a red cross on it. According to the Claimant, the shorter bag was opaque and containing a dark red liquid. The liquid from those two bags joined together into a tube, which was inserted into his arm. The Claimant recalled that he said "Why am I getting blood?" or something like that. However, he testified that he was never advised why he was getting blood, or even that he did get blood.

11. The Claimant indicated that he recalled the I.V. bag being on the pole for approximately 20 minutes or so. The Claimant maintained that his wife and mother were there at the time. He then recalled that Mr. B came in and they joked about AIDS because it was "just breaking and was a big deal at the time."

12. The Claimant stated that when the nurse removed the blood bag he asked why he was receiving blood. However, the nurse simply placed the bag in the garbage can and did not reply. The Claimant testified that he thought this was strange because he had thought the blood bag had to be discarded in a special garbage receptacle. He also recalled mentioning to his wife that she should take the bag home and put it in the freezer and she responded "Oh, stop it!"

13. The Claimant testified that following the surgery, when he went to see his family doctor, he asked why he had received a blood transfusion. However, his doctor responded that there was no record of his having received any blood.

14. The Claimant advised that subsequent to his operation in 1989, he had another hernia operation, as well as gallstones removed. However, he maintained that other than as a result of his operation in January, 1989, he did not receiver a blood transfusion at any other time.

15. In Dr. Haber's report, footnoted earlier, Dr. Haber also noted that the Claimant had "obvious tattoos" over his body. When questioned about the tattoos, the Claimant indicated that he had administered them himself using a sewing needle and ink. He testified that he began giving himself tattoos at the age of nine, and administered his last tattoo when he was 15 years of age. He indicated that his brother may have used the same needle, but that it was not used by anyone else - although he indicated he had been given tattoos by others using his equipment. The Claimant noted that his brother did not have Hepatitis C.

The Testimony of Mr. B.

16. Mr. B. has known the Claimant for more that twenty-five years, and the Claimant's sister is married to Mr. B's brother. Mr. B. , a truck driver, testified that on January 11, 1989, he was on a delivery from Innisfil to Peterborough, and called the Claimant on impulse. The Claimant's daughter advised him that the Claimant was in the hospital.

17. Mr. B. testified that he then proceeded to the hospital to visit the Claimant. Mr. B. could not recall many of the details of the Claimant's hospitalization, such as the reason he was hospitalized, how long he had been in the hospital, or what floor he was on.

18. However, Mr. B. testified that he visited with the Claimant for approximately 20 minutes, and that during that time, he noted that the Claimant had "a thing in his arm" and had an I.V. pole with a red bag. He testified that he and the Claimant joked about the Claimant getting AIDS from "bad blood," although he could not recall exactly what was said.

19. In cross-examination, Mr. B. could provide few additional details regarding what he had observed. He initially testified that he could not describe the size of the bag he saw on the I.V. pole but subsequently described it as about the size of a scheduling journal that was in the room - which appeared to be about 8" by 10". Mr. B. indicated he could not see inside the bag and could not recall whether the bag was full or empty, or where the intravenous was inserted into the Claimant's body. Also, while Mr. B. testified he was certain the bag was red, he could not describe whether it was the bag itself that was red or the liquid in the bag.

The Testimony of the Claimant's Wife

20. The Claimant and his wife have been married for 26 years. She testified that she first attended at the hospital the day the Claimant had his surgery. However, the Claimant was sleeping in his bed and was "too dopey" to speak. On that occasion, the Claimant's wife testified that she saw what she believed to be "sugar bags" attached to the I.V. While no one discussed the bags with her, the Claimant's wife indicated she knew from her own experience that sugar bags are given after surgery.

21. The Claimant's wife, testified that she returned to the hospital with her mother the second day after the surgery. She stated that on that occasion she met the Claimant in the smoking lounge and he had an I.V. pole with a red bag. She described the bag as being eight inches high, and indicated she believed it was clear with blood inside of it. She asked the Claimant why he had the bag and he replied, "They put it on and said I needed it." According to his wife, the Claimant further explained that he needed blood because his blood count was fluctuating.

22. The Claimant's wife recalled seeing Mr. B. as he came in and she was leaving. The Claimant's wife testified that while at the hospital, she never spoke to a doctor or to the nurses other than to introduce herself, and no one spoke to her regarding her husband receiving a blood transfusion.

ANALYSIS:

23. In order to qualify for compensation under the terms of the Transfused HCV Plan the Claimant must satisfy the criteria set out in that Plan.

24. Article 3.01(1)(a) of the Transfused HCV Plan provides that a person claiming to be a Primarily-Infected Person must provide the Administrator with, amongst other things, "medical, clinical, laboratory, hospital, The Canadian Red Cross Society, Canadian Blood Services or HemaQuebec records demonstrating that the Claimant received a Blood transfusion in Canada during the Class Period. As indicated above, the Settlement Agreement establishes the "Class Period" to be "the period from and including 1 January 1986 to and including 1 July 1990."

25. No records demonstrating that the Claimant received a blood transfusion in Canada during the Class Period were produced. Rather, the preponderance of evidence suggests the Claimant has never had a blood transfusion.

26. Specifically, the Admission Report (p.104 of the Claimant's file) does not indicate any intention to either provide a blood transfusion or even request that blood be set aside for the operation. The progress notes commence on January 15, 1989, the day before the Claimant's operation. On January 16, 1989, at 09:00 hrs. the progress notes indicate that the Claimant was taken to the operating room. A post-operation assessment appears to have been done at 11:20 hrs. and an I.V. was provided at that time, which appears to have been discontinued at 11:30 hrs. (P.106)

27. Later in the day on January 16, 1989, the progress notes make no mention of an I.V. or a blood transfusion during the evening assessment. (p.107) It is noted that the Claimant was up and about walking the halls. He is referred to as being "stable." On January 17, 1989, at approximately 13:00 hrs., the nurse wrote "up and about. showered. diet taken well ... condition stable."

28. The next notation was for January 19, 1989, at which time there were multiple complaints raised by the Claimant. However, there is no mention of an I.V. or blood transfusion in the notes (p. 108). On January 20, 1989, the nurse wrote "condition stable. ambulatory discharge with Rx" (p. 109).

29. While the Claimant's medical records make no reference to a blood transfusion they are not necessarily determinate. Article 3.01(2) of the Plan provides that not withstanding the provisions of section 3.01(1)(a), if a claimant cannot comply with the provisions of 3.01(1)(a), 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 received a Blood transfusion in Canada during the Class Period. "Family Member" is defined under the plan and precludes me from relying solely on the evidence of either the Claimant or his wife.

30. In this instance, while the Claimant's evidence and that of his wife is corroborated by the evidence of Mr. B., I find this is not sufficient to overcome the lack of supporting medical documentation. Rather , I find that the evidence of the Claimant, his wife and Mr. B. is too inconsistent to establish, on a balance of probabilities, that the Claimant received a blood transfusion as the result of the surgery he underwent in January, 1989.

31. For example, contrary to his wife's testimony, the Claimant states that he was receiving the blood transfusion when he awoke following his surgery which, according to the medical records, would have been January 16, 1989. His wife, testified that she saw the blood transfusion on the second day after the surgery, which be January 18, 1989. Mr. B., on the other hand, testified that he saw the Claimant with an intravenous on January 11, 1989, four days prior to his admission into hospital. I also found Mr. B.'s testimony to be so devoid of detail as to render it of little assistance.

32. Furthermore, the Claimant had no explanation as to why he might have received blood, which was also contrary to his wife's testimony that he told her he received the blood transfusion because his blood count was fluctuating.

33. In light of the hospital records, which show that the only I.V. received by the Claimant was removed 10 minutes following his surgery, and in the absence of records indicating he had been transfused, I am not convinced by the testimony of the Claimant, his wife and Mr. B. that, on a balance of probabilities, the Claimant received a blood transfusion as a result of his surgery in January, 1989.

DECISION:

34. The Claimant's appeal is denied and the Administrator's denial of the Claimant's application for compensation is upheld.

DATED AT TORONTO, THIS 13TH DAY OF OCTOBER 2003.

"Tanja Wacyk"
Referee