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Appeals: Confirmed
Referee Decisions : #112 - October 30, 2003
Decision of the Court having jurisdiction
in the Class Action attached - March 10, 2004
D E C I S I O N
1. On June 27, 2002, the Administrator denied the claim for
compensation of the Claimant filed on the basis of qualifying
as a primarily-infected person under the transfused HCV Plan.
The claim was denied on the grounds there was insufficient
evidence that the Claimant received blood within the Class
period from a donor who was determined to be HCV antibody
positive.
2. The Claimant requested that the Administrator's denial
of her claim be reviewed by a Referee.
3. Following a series of pre-hearing telephone conference
calls and an exchange of correspondence, the parties waived
a hearing to review the Administrator's denial of the claim.
4. The Claimant submitted documentation in support of her
claim, which has been reviewed and considered, initially by
the Administrator and subsequently in connection with these
proceedings.
5. The relevant facts are not in dispute and can be summarized
as follows:
(a) The Claimant is infected with Hepatitis C.
(b) In her claim, the Claimant stated she received two blood
transfusions in her lifetime; one in November 1988 at St.
Joseph's Hospital, and the other, in December 1987 at Victoria
General Hospital.
(c) As a consequence of information that required clarification
in the file, further documentation and analysis of the records
from Victoria General Hospital was sought by the Administrator.
(d) The Administrator directed that a Traceback Procedure
be carried out by Canadian Blood Services.
(e) The results of these initiatives disclosed there were
no transfusions of blood at either St. Joseph's Hospital or
Victoria General Hospital. The Claimant did receive Rh Immune
Globulin in December 1987 at Victoria General Hospital and
also received Rh Immune Globulin at St. Joseph's Hospital
in March 1988.
(f) Examination of the medical records also disclosed the
Claimant has a tattoo on her right shoulder. In addition,
she has undergone surgery in December 1987 and July 1989.
There was no indication of a blood transfusion disclosed by
an examination of the hospital records for either of these
surgical procedures. On another occasion, in November 1988,
blood was ordered and cross-matched, but it was not used.
6. When the information noted above was provided to her,
the Claimant made additional submissions and supplied further
hospital records relating to surgery in 1986 at Victoria General
Hospital. Those records do not contain any indication that
a blood transfusion was given to her. The Claimant also asked
that a particular blood unit identified by number be checked
by the Administrator. It appears this particular unit was
cross-matched for the Claimant, but since there is no record
or indication that it was transfused to her, no further action
was taken.
7. The principle concern of the Claimant is that she is convinced
she contracted Hepatitis C either "threw blood or threw
hospital" (sic). In her request for a review, the Claimant
advises that she had been a hospital worker for the preceding
five years and had worked in sterilized equipment rooms where
"blood and germs sit beside sterilized waiting to go
in machines" (sic).
8. Several conference calls were held with the parties in
a further attempt to ascertain if there were other material
facts available that would assist the Claimant. In addition,
the Administrator initiated a letter addressed to the Director
of the Blood Recipient Notification Program. The reply is
dated February 19, 2003. In the light of the information supplied,
the Administrator was unable to find a basis to reverse the
decision to deny the claim.
9. Based on these facts, it is clear the Administrator's
decision to deny the claim must be sustained.
10. 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 . . . ".
11. 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."
12. Blood is specifically defined in the "Transfused
HCV Plan" (Article 1.01) as follows:
"Blood" means whole blood and the following blood
products: packed red cells, platelets, plasma (fresh frozen
and banked) and white blood cells. Blood does NOT include:
Albumin 5%, Albumin 25%, Factor VIII, Porcine Factor VIII,
Factor IX, Factor VII, Cytomegalovirus Immune Globulin, Hepatitis
B Immune Globulin, Varicella Zosten Immune Globulin, Rh
Immune Globulin, Immune Serum Globulin, (FEIBA) FEVIII
Inhibitor Bypassing Activity, Autoplex (Active Prothrombin
Complex), Tetanus Immune Globulin, Intravenous Immune Globulin
(IVIG) and Antithrombin III (ATIII). (emphasis added)
13. It is clear from the definition of blood quoted above
that Rh Immune Globulin is an excluded blood product. The
Plan specifically provides that if a Claimant does not receive
"blood" as defined by the Plan within the Class
period, the Claimant is not entitled to receive compensation
and the claim must be denied because an essential element
has not been met.
14. It is the role and responsibility of the Administrator,
under the settlement agreement, to administer the Plan in
accordance with its terms. The Administrator has an obligation
under the Plan to review each claim to determine whether the
required proof for compensation exists. The words of Article
3.01 of the Plan are clear and unambiguous that the Administrator
has no alternative but to reject the claim in circumstances
such as these. The Administrator has no discretion to allow
a claim where the required proof of receiving blood, as defined,
has not been produced. The Administrator must administer the
Plan in accordance with its terms and he does not have the
authority to alter or ignore the terms of the Plan. A Referee,
called upon to review a decision of the Administrator is also
bound by the terms of the Plan and can not amend it or act
contrary to its terms.
15. I acknowledge the personal feelings and frustrations
of the Claimant in having her claim rejected. It is understandable
that she feels as she does regarding circumstances which have
left her with no clear evidence of how she could have contacted
Hepatitis C. Unfortunately, in view of the various risk factors
in her life experiences, it is possible she may never learn
the cause of her illness. While that is a result that is unsatisfactory
for her, neither the Administrator nor a Referee appointed
under the Plan has the authority or discretion to Award her
claim.
16. Accordingly, for the reasons set out above, I find that
the Administrator has properly determined that the Claimant
was not entitled to compensation under the Plan. I further
find that the Administrator's decision must be sustained.
Dated at Vancouver, British Columbia, this 30th day of October,
2003.
John P. Sanderson, Q.C.
Referee
JUDICIAL DECISION
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