Appeals : Arbitrator Decisions : #67 -October 28, 2002

D E C I S I O N

1.The Claimant applied for compensation as a Primarily-Infected Person pursuant to the Transfused HCV Plan .

2. By letter dated February 6, 2002, the Administrator denied the claim on the basis that the Claimant had not provided sufficient evidence to establish that he received blood during the Class Period.

3. The Claimant requested that the Administrator's denial of his claim be reviewed by an arbitrator.

4. An oral hearing was held on July 19, 2002.

5. The uncontested facts are as follows:

(i) the Claimant was admitted to hospital on May 23, 1989, where he was diagnosed as suffering from a compound, depressed skull fracture;

(ii) the Claimant was cross-matched for four units of blood in preparation for emergency surgery;

(iii) the Claimant underwent emergency surgery;

(iv) the Claimant was discharged from hospital on May 30, 1989;

(v) the Claimant was readmitted to hospital on May 31, 1989 and discharged on June 3, 1989;

(vi) the Claimant subsequently developed hepatitis C infection.

6. The Claimant's position is that he was infected with hepatitis C as a result of the blood transfusion which he believes he received during his surgery on May 23, 1989.

7. A traceback was carried out by Canadian Blood Services on the four units of blood for which the Claimant was cross-matched in preparation for surgery. The results of the traceback showed that three of the units were transfused to other patients between May 31, 1989 and June 6, 1989, and the fourth unit was returned to CBS on June 7, 1989 because it was outdated.

8. The Claimant disputes the accuracy of the traceback results. At the hearing, he said that, when he went to the hospital to get his medical records a few years ago, he saw what he described as an "official lab report" which was yellow in colour. He recalled being told by someone working in the medical records department of the hospital that there should have been a red stamp on the yellow copy of the lab report saying that the cross-matched units were cancelled if they had not in fact been transfused to him.

9. The Claimant's mother was at the hospital on the night of his surgery. She said that she was told by hospital staff before the surgery that the Claimant was going to receive a transfusion and that she was always under the impression that he had been transfused. The Claimant's father, who was also at the hospital on the night in question, was under the same impression.

10. At the conclusion of the oral hearing, I directed that the Claimant's hospital records from May 23, 1989 to June 3, 1989 be produced. The Claimant voluntarily consented to the release of the documents and they were subsequently obtained from the hospital. Copies were provided to the Claimant and counsel for the Administrator.

11. The medical records were reviewed by Carol Miller, RN, Appeal Coordinator. She summarized her findings in a memo dated October 2, 2002 to counsel for the Administrator. The memo states that the records show only that the Claimant was cross-matched for four units of blood and that there is no indication in any of the doctors' notes, nurses' notes or other medical documents that the Claimant was transfused.

12. A copy of Ms. Miller's memo was sent to the Claimant on October 10, 2002 and he was requested to provide any comments he might have on the memo by October 18, 2002. No response has been forthcoming from the Claimant.

13. Based on the evidence before me, I find that the Claimant has not been able to establish, on the balance of probabilities, that he received a transfusion during the Class Period. The traceback results and the hospital records are persuasive evidence to the contrary.

14. Accordingly, the Administrator's denial of the Claimant's request for compensation is hereby upheld.

DATED at Halifax, Nova Scotia, this 28th day of October, 2002.

S. BRUCE OUTHOUSE, Q.C.
Arbitrator