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Appeals : Arbitrator Decisions : #66 - November 1, 2002

D E C I S I O N

A. Introduction

[1] The Claimant applied for compensation as a Primarily-Infected Person pursuant to the Transfused HCV Plan ("the Plan").

[2] However, by letter dated March 1, 2002, the Administrator denied the Claim, having carefully reviewed the material provided in support of the claim, along with a committee of three (3) senior evaluators, for the following reasons:

The results of your Traceback confirmed the donor of the unit of blood transfused to you, during the class period, has tested negative for the HCV antibody. In light of this information, your claim was denied. You indicated in your response to our first letter that you would be sending in further evidence. The information you submitted was reviewed and did not favourably influence the previous results of your traceback. Therefore, based on Article 3.04 of The 86-90 Hepatitis C Settlement Agreement, Transfused Plan, you do not meet the criteria for compensation and your claim is denied.

[3] By way of Request for Review by Arbitrator/Referee (the "Notice of Appeal") dated March 17, 2002, the Claimant requested a review of the denial of his claim by the Administrator.

[4] In paragraph 4 of his Notice of Appeal, the Claimant stated that he wished to review the Administrator's decision, for the following reasons:
Somebody is lying either the (Hosp) or infected persons and hospital say there were (2) units available that night it - it has happened before, where they switched labels, because they made a mistake.

Additional information of what I have found out is:

(1) With this Hospital in recent times they have been found guilty of not telling the truth about certain procedures.
(2) I have never used drugs supplied by needles.
(3) I have lived a clean healthy life never even had needles by doctors who I was involved with…
(5) Only after 3 to 4 years did this hospital ask me to take a verification if something was wrong and my family doctor at that time was Dr. R… and it came back positive from the lab that I was infected with Hep C…
(7) This has been an ongoing fight for my rights.
(8) I ask you people to take a real look at these forms, and what the returns have been on your own investigation. I plead for some kind of consideration for what I have been dealt…
(10) I have previously sent forms concerning my statement of where I received it and other documents are in your hands.

I am not a demanding person but I know I am in the right.

P.S. I thank you for deepest sympathy for really looking into this. I feel I have been shut out for no reason of my own. I plead mercy, thank you.

[5] The Claimant advised that he wished the matter to proceed by way of Arbitration rather than Reference and he requested an in-person hearing. The Arbitrator wrote to the Claimant and Fund Counsel on April 13, 2002, stating, inter alia:

1. In his Request for Review, (Claimant) checked off the box indicating that he wished to have this matter reviewed by an Arbitrator, as opposed to a Referee. I will be deciding the matter in either case. However, as an Arbitrator's ruling is final, whereas a Referee's ruling is subject to being confirmed by a Superior Court Judge, I invite (Claimant) to either confirm that he prefers an Arbitrator to a Referee, or advise as to whether he prefers a Referee.

[6] The Clamant advised that he indeed wished to have the matter decided by way of Arbitration, as opposed to Reference. At the outset of the in-person hearing on August 13, 2002, the Claimant was again invited by both the Arbitrator and Fund Counsel to reconsider and have the matter decided by way of Reference. The Claimant was again adamant that he wished the matter to be decided by Arbitration. The matter was therefore dealt with by way of Arbitration.

[7] Fund Counsel's written submissions, dated April 4, 2002, set out the position of the Administrator. The Administrator concedes that the Claimant was hospitalized at Saskatoon City Hospital in December 1989 at which time he was transfused with two units of blood. Hospital records confirm that a total of 5 units of blood were cross-matched, meaning that they were available to be used for the Claimant if necessary. However, only two of these units were actually transfused to the Claimant. Hospital records confirm that three units were cancelled and therefore not transfused. A Traceback was conducted in respect of the two units that were in fact transfused to the Claimant during the Class Period. The Traceback confirmed that in each case the donor was negative. The Claimant's physician indicates that the Claimant received blood transfusions in 1961 and 1962 as a result of three partial gastrectomies in Kingston Ontario. The blood transfusions received prior to the Class Period are identified as a risk factor for the Hepatitis C Virus (HCV).

[8] An in-person hearing was held in Saskatoon on August 13, 2002. The Claimant testified on his own behalf and Carol Miller, Appeals Coordinator of the Hepatitis C January 1, 1986 - July 1, 1990 Claims Centre (the "Claims Centre"), testified on behalf of the Administrator. In the result, the matter will indeed be adjudicated upon based on the written materials and testimony tendered by the parties.


B. Facts, Summary of Evidence

[9] Pursuant to the terms of the January 1, 1986 - July 1, 1990 Hepatitis Settlement Agreement ("the Settlement Agreement") and the Plan, the Class Period is the only period of time in respect of which compensation may be available. Further, while there are many possible sources of infection with respect to the Hepatitis C Virus ("HCV"), the Plan only provides compensation for individuals who received transfusions during the Class Period of defined blood products, the donors of which have been tested and found to be infected with the HCV.

[10] In the Claimant's General Claimant Information Form (TRAN 1) dated May 17, 2000, the Claimant stated that he believed that he was infected with the HCV through a Blood Transfusion received in Canada during the class period. He stated that he had received one Blood Transfusion in Canada during the Class Period and candidly acknowledged receiving Blood transfusions 4 times prior to the Class Period. In his accompanying Declaration (TRAN 3) dated May 17, 2000 , the Claimant further declared it to be "true" that to the best of his knowledge, information and belief, he "was not infected with Hepatitis Non-A Non-B or the Hepatitis C virus prior to January 1, 1986." In Box 4 on TRAN 3, the Claimant checked off the "true" box beside the declaration that he "has never at any time used non-prescription intravenous drugs." The Treating Physician Form ("TRAN 2") was completed by the Claimant's physician, Dr. R., on May 10, 2000. Section F - Box 2 was checked off as "yes" following the statement: "Having regard to the definition of blood, the Claimant did receive a blood transfusion during the period January 1, 1986 to July 1, 1990." The physician checked "no" in answer to the question: "Is there anything in the HCV Infected Person's medical history that indicates he or she was infected with Hepatitis Non-A, Non-B or the HCV prior to January 1, 1986?" In Section F, Box 1, with respect to whether the Claimant had a history of risk factors for the Hepatitis C virus other than a blood transfusion during the class period, the physician checked off the box indicating "Blood transfusions outside the period January 1, 1986 to July 1, 1990." This form also indicated that the physician had known the Claimant since 1983 and treated him since 1998.

[11] Exhibit 2 is a letter dated April 18, 2002 from the Canadian Blood Services (CBS) to Ms. Miller, setting out in considerable detail the particulars of the Traceback procedure undertaken with respect to the Claimant's file. The two units of Red Blood Cells that were transfused to the Claimant on December 12, 1989 at Saskatoon City Hospital were each identified by unit number and transfusion date, after which the letter stated:

No other units were identified as having being transfused to the Recipient during the class period. CBS sent a memorandum to Royal University Hospital (RUH) Blood Bank on March 5, 2001 and RUH responded by hand-written note on CBS' memorandum on March 7, 2001, stating that the Recipient was cross-matched for a total of five units; two were issued and transfused and three were cancelled. A copy of this memorandum is attached.

The unit numbers for the backed red blood cells indicated on the Reports were input into CBS; Blood Information System ("BLIS database"), a computerized information system that tracks blood donor information. The BLIS database allows CBS to link unit numbers to the donors of those units. The donors associated with each of the unit numbers were identified.

It was determined that the two donors associated with the units transfused during the class period subsequently tested negative for the Hepatitis C antibody.

[The testing results for the donors associated with the class period were dated 1992-06-05 and 1999-09-16 respectively and were conducted by CRCS and Gamma Dynacare respectively.]

The screening test, which CBS currently uses to detect the antibody to Hepatitis C, is HCV 3.0 EIA, which came into use in or about June 1996. Health Canada has approved this screening test for use in Canada. HCV 2.0 EIA was in use by CRCS prior to HCV 3.0 EIA. At the time testing of the donor associated with unit # … was conducted (using HCV 2.0 EIA) , the CRCS operated the blood system in Canada and tested the donor… For the purposes of its Traceback program CBS relies upon the HCV 2.0 EIA test and the HCV 3.0 EIA test.


For the purpose of this Traceback, CBS also relies upon the results of the testing conducted by Gamma Dynacare in respect of the donor associated with unit #… Gamma Dynacare has confirmed that at the time of testing of the (said ) donor, it was using HCV 3.0 EIA.

The HCV EIA screening test is extremely sensitive and occasionally picks up reactions in healthy individuals who do not have an infection ("false positives.") If any of the screening tests show a reaction that might indicate infection, a further confirmatory test is done to clarify the result. The screening tests conducted on the donor associated with the donation in the class period were negative. Therefore, no confirmatory testing was required.


[11] Exhibit 3 is a series of Physicians Orders relating to the Claimant's hospitalization at Saskatoon City Hospital in December, 1989, as provide by the Claimant. The Claimant was encountering difficulties prior to the hearing in obtaining certain lab reports he was seeking from his physician. As a result, the Arbitrator wrote to the Claimant's physician, Dr. R., with the Claimant's consent, requesting copies of such records. Dr. R's reply, dated July 29, 2002, with attached copies of lab reports and consultation reports from the Claimant's Infectious Disease Specialist, were entered collectively as Exhibit 4. Finally, Mr. Callaghan tendered as Exhibit 5 a Medical Information Update re: Hepatitis C from the Canadian Liver Foundation, which details possible sources of infection of HCV, together with the following statement: "In 10% of cases of hepatitis C, according to U.S. data, the source of the infection cannot be identified."

[12] Ms. Miller testified as to the process utilized to assess the Claimant's file, including the Claimant's obligation to establish both: (a) proof of receipt of Blood products during the Class Period (here the Claimant was able to do so) and; (b) a Traceback producing a positive result (here the Claimant was unable to do so). She further testified as to the Traceback Protocol as approved by the Court. Sometimes a claimant obtains his or her own health records with the unit numbers recorded thereon, or the CBS can be asked to produce blood bank records. Tracebacks can only conducted where a claimant has tested positive. The CBS can go into the system to access information about donors - e.g. are they HCV positive or not? If there are no records one way or the other, the CBS follows the donor and arranges for testing. Here the CBS tested both donors, each of whom was found to be HCV negative. Even though one of the tests was done in 1999, the HCV antibody would still be in the donor's system if he/she had ever been tested positive. If the donor did not have the antibody in 1999 then the donor never had the virus before then. In this case, Saskatchewan Health wrote to the Claimant on October 6, 1997, indicating that records showed that the Claimant had received blood products prior to 1990, which may have been infected with HCV and inviting the Claimant to arrange for HCV testing.

[13] Ms. Miller further testified in relation to the three units of blood that were reserved (or set aside if needed) for the Claimant on December 3, 1989, but noted that the records specifically show that these units were cancelled on December 5, 1989, indicating that they were not required for the Claimant. She also commented on the Physician's Orders supplied by the Claimant. These reflect the attending physician's order to transfuse 2 units of blood on December 5, 1989 but canceling the order after that. This is also reflected in the lab tests records and nurses notes, in which the bar codes for the two units of blood that were in fact transfused form part of the chart. The bar codes are taken off the units of blood and placed on the flow chart and nurses notes. The Transfusion Summary shows the negative Traceback results with respect to the two units of blood that were transfused to the Claimant, and also shows the 3 units of blood that were not. This is perfectly consistent with what she had seen from the cross-match records and the physician's orders supplied by the Claimant. If the wrong unit number had been recorded it would not have matched the Blood Bank records. Notwithstanding these results, the Centre wished to confirm the results obtained and again contacted the Traceback Coordinator, who wrote back confirming that both the Blood Bank and patient chart were rechecked and the results were the same. The CBS had written to the Blood Bank to check for records and to write down all the units received. If either donor had tested positive, the Claimant would have been notified. Here, however, because both donors tested negative, the Claimant's file was not flagged, so he received the letter from Saskatchewan Health at the same time as everyone else. In this case, in reviewing Exhibit 2, Ms. Miller noted that the CBS did not have to find the donors, as they had already been tested because these same donors had given blood after the transfusion to the Claimant, at which time their blood had already been tested and shown to be negative for the virus.

[14] Ms. Miller also noted that the Claimant's family physician, Dr. R., had set out 3 possible previous transfusions to the Claimant in 1961 and 1962 with respect to 3 partial gastrectomies in hospital in Kingston.

[15] The Arbitrator questioned Ms. Miller as to the likelihood of the Claimant contracting the HCV in 1961 or 1962 but remaining asymptomatic for almost 30 years. Ms. Miller noted that the most recent testing of donors is the most reliable testing method available. She also noted that 80% of infected persons develop symptoms but 20% do not. In other words, most people who are infected would get sick within 20 years, but if one fell within the other category, this would not necessarily be the case. She also noted that in roughly 10% of cases, the source of the infection cannot be identified.

[16] The Claimant testified on his own behalf. He is 72 years of age. He stated that at present his liver appears to be okay. He had kidney stone problems in 1988 at which time he had surgery at the Salvation Army Hospital in Winnipeg, which left him with a large scar. He did not remember transfusions at that time, but he was under general anesthetic, so cannot say for sure. He also had surgery for appendicitis in the late 1940s or early 1950s. He recalls there being a long time between the appendicitis surgery and the gastrectomies. He recalls having tuberculosis when working in the North West Territories in the early 1960s and ended up in hospital in Edmonton for approximately 7 months.

[17] At the conclusion of the hearing, there was discussion surrounding the Claimant's surgery and hospitalization at the Salvation Army Grace Hospital in Winnipeg in 1988. Given the nature of the surgery, which occurred within the class period, in order to leave no stone unturned in considering the Claimant's claim for benefits, it was felt that steps should be taken to identify whether or not the Claimant had received blood products while hospitalized in Winnipeg. It was therefore determined as follows:

(a) The Arbitrator would write to the Claimant's present physician, Dr. R., to request copies of any records that he may have relative to the Claimant's hospitalization in Winnipeg;
(b) Ms. Miller would contact the Winnipeg Blood Centre in order to locate any records that would indicate if the Claimant had received blood products at that time; and
(c) Any responses from the above investigations could be received as evidence, on the understanding that both parties would have the opportunity to provide further submissions relating to those replies, if so advised.

[18] On August 15, 2002, the Arbitrator wrote to Dr. R., as follows:

You were kind enough to enclose copies of the consultation reports of Dr. W. (infectious disease specialist). In his letter of April 2, 1998, Dr. W. states, in reference to (Claimant) "…apparently he was excluded form working in northern camps because there was something wrong with his liver in 1992." As I understand that (Claimant) did not see Dr. W. until 1998, I assume that you were (Claimant's) physician in 1992. If you have any records of any liver problems that (Claimant) may have suffered from in 1992 or at any other time apart from what has been reported by Dr. W., or further records that may shed light on Dr. W's comments in that regard, I would very much appreciate receiving them.

Finally, I understand that (Claimant) underwent kidney surgery at the Salvation Army Grace Hospital in Winnipeg in 1988. In the event that you happen to have copies of any of the health records pertaining to that surgery or hospitalization, I would appreciate receiving copies of these as well….

[19] Dr. R. responded by way of letter dated August 26, 2002, as follows:

… Through history, (Claimant) apparently informed Dr. W that "he was excluded from working in northern camps because there was something wrong with his liver in 1992." I found a clinical note from the emergency department at St. Paul's Hospital dated September 12, 1992. The diagnosis at that time was alcohol intoxication and a copy of that emergency department report is enclosed. I note that he had liver function tests undertaken (Alkaline Phosphates, ALT, etc.). The results were not available in his chart … His liver function tests in October 1990, appeared normal and a copy of the blood results are enclosed.

In regard to the history of kidney surgery at the Salvation Army Grace Hospital in Winnipeg in 1988, I have no health records in his chart pertaining to that admission.

[20] By way of letter dated September 23, 2002, Marie-Josee Dumouchel, Litigation Notification Program Co-ordinator for the CBS, wrote to Ms. Sarah Gallant, Traceback Co-ordinator, Claims Centre, stating:

This is in response to your correspondence dated August 13, 2002, in which you requested CBS to verify with the Grace General Hospital if the above claimant received any blood transfusion in 1988.

CBS has requested and reviewed the Hospital Record Confirmation ("HRC") from the Grace General Hospital. The HRC document indicates that the patient record is available and the patient was not transfused while admitted in 1988. No other indication of transfusions were documented by hospital staff…

[21] The Arbitrator wrote to the parties on October 8, 2002, inviting the parties to provide any additional submissions they may wish to make, arising out of Dr. R's supplementary materials or the materials recently provided by the CBS with respect to the Claimant's attendance at Grace General Hospital in 1988. The Claimant notified the Arbitrator by telephone on October 10, 2002, advising that he did not wish to provide any further submissions with respect to his claim. Mr. Callaghan did not file any further materials.

C. Analysis

[22] The following are the material findings of fact in this case:

(a) The Claimant is infected with Hepatitis C.
(b) The probable source of such infection was not established in evidence.
(c) Although the Claimant was transfused with two units of packed Red Blood Cells at Saskatoon City Hospital in December, 1989, the Traceback showed that the in each case, the donor had tested negative for the HCV, using the most advanced testing available at the applicable time, namely HCV EIA 2.0 and 3.0 respectively.
(d) The Claimant did not receive any blood products while hospitalized in August 1988 at Grace General Hospital in Winnipeg, although two units of red cells had been cross-matched for him in the event that they might have been required.
(e) Accordingly, while the Claimant has established that he received a transfusion of blood products in Saskatoon during the Class Period, he was unable to establish that either donor of such products was infected with the virus.

[23] There is no evidence to suggest that the Administrator did not follow the the Court Approved Protocol containing the Criteria for Traceback Procedures for Primarily Infected Persons. Having done so, it was then obligated to apply the provisions of the Plan text, which provide:

3.04 Traceback Procedure

(1) Notwithstanding any other provision of this Agreement, if the results of a Traceback Procedure demonstrate that … none of the donors or units of Blood received by a Primarily-Infected Person … during the Class Period is or was HCV Antibody positive, subject to the provisions of Section 3.04(2), the Administrator must reject the Claim …

(2) A Claimant may prove that the relevant Primarily-Infected Person … was infected, for the first time, with HCV by a Blood transfusion received in Canada during the Class Period … notwithstanding the results of the Traceback Procedure. For greater certainty, the costs of obtaining evidence to refute the Traceback Procedure must be paid by the claimant unless otherwise ordered by a Referee, Arbitrator or Court.
[emphasis added]

[24] In this regard, the Arbitrator is mindful of other decisions which bear on this issue, including:

Confirmed Referee Decision # 29 - February 6, 2002, John P. Sanderson, Q.C. , Referee, as upheld on June 14, 2002 by a decision of the court having jurisdiction in the Class Action (The Honourable Mr. Justice Pitfield.)

Arbitrator Decision # 54 - August 15, 2002, Vincent R.K. Orchard, Arbitrator

[25] Fund Counsel candidly acknowledged that there have been no Arbitrator/Referee or Court cases to date that have allowed a Claimant to "prove that he was infected with HCV by a Blood transfusion received in Canada during the Class period, notwithstanding the results of the Traceback Procedure." From an Arbitrator's perspective, what is troubling is the issue of how a Claimant could successfully meet the reverse onus imposed by Section 3.04(2) of the Plan text, given the Claimant's lack of access to the donor's private records. That will have to remain an issue for another day, as there was simply no evidence adduced in this case that could allow an Arbitrator to conclude that the Claimant had "refuted the results of the Traceback Procedure." It must be doubly frustrating for the Claimant in that, not only did he establish that he received blood products during the Class Period while hospitalized at Saskatoon City Hospital in December 1989, but he was in fact also able to establish that blood products had been cross-matched and set aside for him while hospitalized at Grace General Hospital in Winnipeg, in August 1988, also within the Class Period. However, regrettably for the Claimant, he was unable to establish either that the packed blood cells received at Saskatoon City Hospital were infected with the HCV or that he did receive blood products in Winnipeg.

[26] The Claimant's evidence was provided in a most candid and straightforward manner. There is no question as to the sincerity of his belief that he contracted HCV as a result of the Saskatoon City Hospital transfusions. His honesty and integrity throughout this process can only be respected and admired. While there is a considerable temptation to wish to assist the Claimant, if the evidence allowed one to do so, in this case, there was simply no evidence adduced that would allow the findings from this process to be disturbed. Further, the Arbitrator was most appreciative of the efforts of the Centre to locate the Claimant's records from Winnipeg, notwithstanding that these were not initially raised by the Claimant in support of his claim and only became a potential issue after hearing the Claimant's evidence at the in-person hearing. The Arbitrator is satisfied that the Centre was not looking for ways to deny the Claimant's claim, but was to the contrary co-operating fully in ensuring that all avenues of compensation available to the Claimant pursuant to the Plan would be fully explored.

[27] The appeal must fail. The Claimant is not entitled to receive compensation. The Administrator has an obligation to assess each claim and determine whether or not the required proof for compensation exists. The Administrator has no discretion to allow compensation where the required proof does not exist. The financial sufficiency of the Fund depends upon the Administrator properly scrutinizing each claim and determining whether the Claimant qualifies. An Arbitrator similarly has no jurisdiction to alter, enlarge or disregard the terms of the Settlement Agreement or Plan, or to extend or modify coverage, including the reverse onus contained in Section 3.04(2) of the Plan text.

D. Decision

[28] Upon careful consideration of the Settlement Agreement, Plan, Court orders and the viva voce and documentary evidence tendered, the Administrator's denial of the Claimant's application for compensation is hereby upheld.

Dated at Saskatoon, Saskatchewan, this 1st day of November 2002.


________________________________
DANIEL SHAPIRO, Q.C.
Arbitrator


 

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