Appeals: Confirmed Referee Decisions : #163 - October 20, 2004

D E C I S I O N

This is an Ontario-based claimant, claim #1401529

1. An interim decision in this matter was issued on November 16, 2003. The Claimant was given additional time to advise that she wished to purse this claim, but no further advice that she wished to pursue it was received, and accordingly, I have proceeded to decide this matter in accordance with the submissions without any further hearing, as set out in the earlier decision.

2. There was no issue in this case that the Claimant suffers from Hepatitis C, and received three separate units of blood in the class period. Specifically, the Claimant received three separate units of blood on May 8, 1989. The Claimant donated blood in the early 1990s and was told at that time that she had Hepatitis C. The blood transfusions in 1989 were the only ones that the Claimant was aware of receiving.

3. Canadian Blood Services (“CBS”) performed a traceback procedure with respect to the three transfused units. The CBS report on the tracebacks is contained in a letter to the Fund Administrator dated April 29, 2003. Essentially, the report details how testing was conducted with respect to three different donors who were associated with the units of blood received by the Claimant in 1989. Those tests took place at various points in 2001 and 2002, and all tested negative. I was advised at the hearing that the tests conducted were all second or third generation tests, and there was no material difference in the two generations of tests.

4. At the hearing no real issue was taken with the reliability of the tests conducted by CBS, and thus no real issue was taken with the reliability of the traceback procedure.

5. The Claimant has submitted that there was an error in the transfusion summaries done by CBS in its report, since the dates of the transfusion were mistated. It appears that CBS did, inadvertently, rely upon the date the blood was drawn from the donor, as opposed to the transfusion dates originally, but this was corrected in CBS’s final report, and since the correct dates are now acknowledged by everyone, there is no basis for any concern in that regard.

6.The Claimant has requested that I order a further testing of the donors who, on a voluntary basis, provided blood for testing purposes to CBS in 2001 and 2002. While I would leave for another case whether or CBS can properly be directed to redo a test or what consequences would flow from the failure to obtain a further sample, in the particular circumstances of this case, I can see no basis that would warrant my directing the Administrator to seek a further test, since the test results of the donors were done as recently as 2001 and 2002, and there are no other circumstances in this case that would lead me to the conclusion that a further test should be ordered.

7. As a final matter, the Claimant takes issue with the fact that the traceback took place after the six-month deadline provided for in the Plan. Under the Court approved Protocol, the requirement that the Administrator make its decision to accept or reject a claim under paragraph 4 within six months after the date in which the Claimant has met the requirements of section 3.01(1)(a) and (b) of the Plan, and provided Form TRAN4 and Form TRAN5, which the Claimant met, is subject to the other requirements of paragraph 3 of the Protocol. Under paragraph 3, the Administrator is required to carry out additional investigations where one or more of the types of indicia enumerated at paragraph 11 of the Protocol are present. In this case, the Administrator identified that there was under paragraph 11(h) an indication of one or more of the risk factors outlined in a form submitted by the treating physician, or in other documentation received by the Administrator. In fact, in this case, there were additional risk factors in the TRAN2 form submitted by the Claimant, including tattoos and incarceration. In this case, the request from the Administrator for additional information was made in July 2001, and it was not received until May 26, 2002, by which time all the tracebacks which had not been done by the earlier time had been completed. Thus, in all the circumstances, the Administrator was entitled to rely upon the traceback information that it had received, and conducted itself in accordance with the Protocol.

8. As set out in the interim decision in this case, the matters enumerated above were essentially argued and explained to the Claimant in the hearing in November, 2003 by counsel for the Administrator. The Claimant was advised at the hearing and in the decision that it would appear that the kind of evidence that she would be required to adduce on the appeal in order to refute the traceback was additional evidence with regard to her personal history. Certainly the Claimant strenuously claimed at the hearing that the only conceivable source of the HCV infection in her case were the transfusions in question, since there was no other possible result given her lifestyle. However, in this regard she was advised that if she wished to adduce that kind of evidence, what would likely be required, based on the earlier decision of Justice Pitfield, would be a complete family and personal medical history, and detailed evidence of all aspects of the Claimant’s lifestyle. As indicated, the Claimant has determined not to proceed in putting in that kind of evidence, and while there is certainly no inference that I would draw from her not putting in such evidence, in the circumstances, given the tracebacks, I have no legal basis upon which I can interfere with the Administrator’s decision. Accordingly the Administrator’s decision is upheld, and the Claimant’s appeal is dismissed.

DATED at Toronto this 20th day of October, 2004

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C. Michael Mitchell

Referee