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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