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Appeals: Confirmed
Referee Decisions : #111 - October 22, 2003
D E C I S I O N
INTRODUCTION
1. The Claimant applied for compensation under the Transfused
HCV Plan (the "Plan") as a Primarily-Infect Person.
2. By letter dated June 27, 2002 the Administrator denied
the claim because the Claimant failed to provide sufficient
evidence that she received a blood transfusion during the
Class Period in Canada between January 1, 1986 and July 1,
1990.
3. The Claimant requested that the Administrator's denial
of her claim be reviewed by a Referee.
4. Following an exchange of correspondence and a telephone
conference on September 15, 2003 involving the Claimant and
Fund Counsel, Mr. Ferguson, the parties waived an in-person
hearing and asked for a decision based on documents only.
5. As of the date of this decision, I have carefully reviewed
all documents and submissions provided by and on behalf of
the Claimant, Fund Counsel's submissions and all documents
on the Claimant's claims file.
6. In order to determine the Claimant's eligibility for compensation
under the Plan, the threshold question is whether there is
sufficient proof that the Claimant received a blood transfusion
during the Class Period.
FACTS
7. The relevant facts can be summarized as follows:
a. The Claimant is infected with Hepatitis C.
b. The Claimant states she contracted Hepatitis C as a result
of a hospital admission to Royal Columbian Hospital in New
Westminster, B.C. after a serious motor vehicle accident in
February, 1989 or from related treatment.
c. The Administrator initiated a Traceback Procedure to search
transfusion and other blood bank records.
d. Pursuant to the Traceback Procedure, Canadian Blood Services
("CBS") conducted records searches of a number of
hospitals where the Claimant indicated she had been admitted
on various occasions.
e. CBS determined that the Claimant was not transfused at
Royal Columbian Hospital during her admission in February
1989. CBS confirmed their findings in a letter dated April
5, 2002. The hospital records indicate that the Claimant was
admitted to Royal Columbian Hospital on February 27, 1989,
the day of the Claimant's motor vehicle accident, and that
a request was made to determine her blood type but there was
no indication in the records that a cross match was carried
out or that a transfusion occurred.
f. CBS also conducted a search of records for Eagle Ridge
(Port Moody) Hospital for 1990 and 1991 as the Claimant indicated
that she was transfused during a second operation as a result
of her motor vehicle accident. The records of Eagle Ridge
Hospital indicate that the Claimant was admitted in February
1991, had an operation, but there was no transfusion. In any
event that admission is after the Class Period. The records
of Eagle Ridge Hospital confirm no admission in 1990 during
the Class Period.
g. Another hospital, Langley Memorial Hospital, was the subject
of a search by CBS and again there is no record that the Claimant
was transfused at that hospital during the Class Period.
h. In summary, as a result of information provided by the
Claimant, a Traceback Procedure was carried out, involving
searches of the records of Royal Columbian Hospital, Eagle
Ridge Hospital and Langley Memorial Hospital. No record of
a transfusion was found at any of the hospitals during the
Class Period.
i. The Claimant was provided all the information referred
to above and was given an opportunity to provide further evidence
to support her claim that she was first infected with HCV
by blood transfusion received in Canada between January 1,
1986 and July 1, 1990. No further relevant evidence was forthcoming.
ANALYSIS
8. To be entitled for compensation under the Plan as a Primarily-Infected
Person, a claimant must provide records as set out in Article
3.01(1)(a) proving that he or she received a blood transfusion
in Canada during the Class Period. If a claimant cannot provide
the records required by Article 3.01(1)(a), Article 3.01(2)
states that a claimant must deliver evidence establishing
on a balance of probabilities that her or she received a blood
transfusion in Canada during the Class Period. If a blood
transfusion was not received during the Class Period, then
the claimant is not entitled to receive compensation.
9. In her Request for Review the Claimant states:
I had contracted Hep C presumably in result of deadly serious
car crash I had in 1989 (Febr) and an afterward medical treatment
I'd received in N. Westm. Hospital & Ambulance
Service. (claim file pages 5-7)
10. As Fund Counsel has submitted, it may never be determined
how the Claimant contracted Hepatitis C. Nevertheless, she
is only entitled to compensation under the Plan if she can
establish it was from a blood transfusion during the Class
Period.
11. Based on the facts established by the documents in this
case, it is clear that the Administrator's decision must be
sustained. On the basis of the facts before the Administrator,
the Administrator had no alternative but to deny the claim.
There was simply no proof that the Claimant received a blood
transfusion in Canada during the Class Period. It has been
said many times that the Administrator has no discretion to
allow compensation where the required proof does not exist.
The Administrator has no authority to alter or ignore the
terms of the Plan. As a Referee, called upon to review a decision
of the Administrator, I am also bound by the terms of the
Plan and cannot amend it or act contrary to its terms.
12. Accordingly, I find that the Administrator has properly
determined that the Claimant was not entitled to compensation
under the Plan. I uphold the Administrator's denial of the
claim.
DATED at Vancouver, British Columbia, this 22nd day of October,
2003.
"Vincent R.K. Orchard"
_____________________________
Vincent R.K. Orchard, Referee
J U D I C I A L D E C I S I O N
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