Appeals: Confirmed Referee Decisions : #165 - November 2, 2004

D E C I S I O N

Claimant applied in May 2000 for compensation as a primarily infected person under the Hemophiliac HCV Plan (Schedule B of the Settlement Agreement).

As her claim was refused because she did not qualify as an hemophiliac, claimant subsequently applied for compensation under the terms of the Transfused HCV Plan (Schedule A), indicating that she had received well over four hundred blood transfusions during the class period, i.e. January 1, 1986 to July 1, 1990.

Again, her claim was refused, the Administrator denying the claim on the basis that the traceback investigation had confirmed that one of the donors of the blood received prior to January 1, 1986 had tested positive, several years later, for the HCV antibody. The October 16, 2003 denial letter sent to claimant by the Administrator also indicated that as a person who suffered from Hemolytic Anemia, she did not qualify under the Hemophiliac Plan (Schedule B) nor the expansion of such plan meant to cover persons with Thalassemia Major. This decision was arrived at even though claimant has an even more severe need for blood than most hemophiliacs or most sufferers of thalassemia major.

It is from this decision that claimant has filed a request for review by a referee, and the reasons given by claimant for such review are briefly explained, at item 4 of the Request for Review, as follows:

"I believe, and medical doctors agree, that I should be compensated under the Thalassemia group. I am under the same treatment regime, and life expectancy are the same as Thalassemia patients. I believe that the Administrator has denied my claim solely on the name of my disease and not on the specifics of the disease."

Claimant also filed, at the time of her request for review, a letter addressed to the Fund Administrator, part of which is as follows:

"… Please note that I have Congenital Dyserythropoietic Anemia and not Hemolytic Anemia. CDA and hemolytic anemia are vastly different. They are two different diagnosis. As stated in Dr. Warner's affidavit, Congenital Dyserythropoietic Anemia is like thalassemia in that it is rare and patients are dependent on blood transfusions to sustain life. CDA patients do not make normal red cells. There is not treatment other than chronic blood transfusions."

The request for review is presented under the HCV Transfused Plan but as claimant presented a claim both under the Transfused Plan and the Hemophiliac Plan, and as proof was adduced before me which could apply to either or to both plans, I intend to study her request for review as it applies to either plan.

This matter proceeded before me, in August 2004, for the equivalent of two full days of testimony and counsel submissions.

Claimant is a 36 years old lady who suffers from an extremely rare illness, Congenital Dyserythropoietic Anemia (CDA) which has rendered her totally and permanently dependent on frequent blood transfusions.

Claimant has a very severe form of CDA, thus a very severe form of anemia, which requires an extraordinary high number of blood transfusions. Claimant's attorney and Fund Counsel agreed before me that the best estimate that one can arrive at is that claimant has received, in her lifetime, approximately 1,300 units of blood.

This constant need for blood transfusions has, of course, severely impacted the life of the claimant and her health, as she must undergo for instance treatments five days a week, every week of the year, to control as best she can her level of iron. Claimant has nevertheless succeeded in building a remarkable professional career, as she works full time as a nurse in the neo-natal intensive care unit in one of Montreal's largest and most renowned hospitals. Recently married, she has learned to live with her illness and no one who had the opportunity of hearing her testimony before me can remain untouched by her situation. I certainly was impressed by her ability to move forward with her life and she is an extraordinary example of determination and courage. Unfortunately, it is not on that sole basis that I must study her claim and render my decision.

CDA is a rare illness and in its severe form, it is much rarer than hemophilia, and even much rarer than thalassemia. According to Dr. Margaret Nancy Warner, who testified before me, estimates are that there may be less than two hundred cases worldwide, and Dr. Warner knows of no other case similar to that of claimant in Canada.

Dr. Warner is a hematologist who specializes in immunohematology, in blood disorders and treatment of same, and in transfusion medicine. She testified at length before me, having been qualified as an expert and I am most grateful for her help in this case. She has been claimant’s treating physician for several years and she obviously knows claimant's condition and needs in great detail.

There are two different plans meant to compensate victims of Hepatitis C for the 1986-1990 period. The first plan (Schedule A) covers those who were transfused between January 1 st 1986 and July 1 st, 1990; normally, a detailed traceback is done of each and every donor identified for the 86-90 period, or for any pre-86 or post July 90 donor. Because the plan was judged to be too difficult to manage for hemophiliacs, a separate plan (Schedule B) was put in place for them, requiring a significantly different burden of proof.

When the class action settlement was approved by Mr. Justice Winkler in September 1999, he dealt at some length with the concerns raised by the Thalassemia Foundation of Canada, to the effect that the plan about to be approved contained a fundamental unfairness as it related to claim requirements for members of the class suffering from thalassemia.

"[65] The unfairness pointed to by the Thalassemia Foundation is that class members suffering from thalassemia are included in the Transfused Class, and therefore must follow the procedures for that class in establishing entitlement. It is contended that this is fundamentally unfair to thalassemia victims because of the number of potential donors from whom each would have received blood or blood products. It is said that by analogy to the hemophiliac class, and the lesser burden of proof placed on members of that class, a similar accommodation is justified. I agree."

(parag. 65, Decision of Mr. Justice Winkler,
Parsons and al. and The Canadian Red Cross Society and al.,
Court File No: 98-CV-141369
Proceedings under the Class Proceedings Act, 1992

Mr. Justice Winkler therefore deemed appropriate to consider the group of thalassemia major sufferers as being part of the hemophiliac group:

"The settlement should be amended to apply the entitlement provisions in the Hemophiliac Plan mutatis mutandis to the Thalassemia subclass."

(parag. 66 of the above decision)

A similar judgment was rendered in Quebec by Mrs. Justice Morneau and the thalassemia victims, in Quebec, can therefore claim under the Hemophilia Plan.

Thalassemia Major is said to affect some three hundred or four hundred patients in Canada. It is a genetic, inherited form of anemia, by which the patient is unable to make normal red blood cells. Patients normally require a great number of blood transfusions.

Thalassemia victims need not show that one specific donor, during the period covered by the agreement, was HCV positive. To satisfy the requirements of the Plan, a thalassemia victim need only show that he or she received blood transfusions during the period and that he or she is Hepatitis C positive.

The symptoms of the thalassemia sufferer and those of the CDA sufferer are basically the same, their needs are the same, i.e. constant blood transfusions and like thalassemia sufferers, claimant needs are lifelong. Indeed, Dr. Warner explained that because the present claimant was in a "group of one" as a severe CDA sufferer, she had no alternative but to attend the thalassemia clinic for follow-up visits and to receive her far too frequent blood transfusions. Dr. Warner did say that claimant will remain transfusion dependent for her entire life "barring extraordinary medical discoveries".

Can claimant benefit from the plan which covers thalassemia sufferers? Regretfully, I come to the conclusion that she can not.

Claimant is not an hemophiliac and she does not suffer from thalassemia major.

She may have the same symptoms, she may have the same needs, she may well go to the same clinic, but she does not suffer from the same illness.

Had her condition been discussed at the time that our Courts studied the plight of the thalassemia major sufferers, claimant and her illness may very well have been included in the plan. Unfortunately, neither claimant nor CDA was discussed before Mr. Justice Winkler or before Mrs. Justice Morneau and claimant is not a party to the present Hemophilia – Thalassemia plan.

Learned Counsel for claimant says that as a referee, I have the power to go beyond the actual wording of the agreement and that I must look at the purpose of the agreement. Counsel says that the purpose of the class action settlement is to compensate persons with Hepatitis C when such illness is the result of a blood transfusion. The plan is, according to claimant's counsel, "remedial in nature and was put in place to fix a wrong", and therefore must be applied to the present claim.

I respectfully disagree with her approach.

It would indeed be simpler to interpret the agreement loosely and find in favor of claimant, especially knowing that very few other potential claimants, if any, are "waiting in the wings". However, such is not my role.

The purpose of the agreement is to compensate those who are meant to be compensated, be it because they established that they acquired Hepatitis C from a 1986-1990 transfusion, or because they are HCV sufferers and fall within the Hemophiliac or Thalassemia classification. It is necessarily an incomplete document, perhaps unfair to some, and surely unfair to the present claimant. However, my role is to interpret the agreement as it is written, as it was adopted and as it was accepted by our Courts. Adding Thalassemia to the Hemophiliac Plan was not the result of an interpretation of the agreement. Mr. Justice Winkler and Mrs. Justice Morneau needed to amend the agreement to add Thalassemia. It is not my role nor do I have the power to amend the agreement and unfortunately I can not interpret the agreement concerning the Thalassemia victims, as it is stands today, as including CDA.

Does claimant qualify under the more honorous standard of schedule A meant to cover the transfused victims? Claimant received hundreds of transfusions during the class period. Unfortunately for her however, the Hema-Quebec traceback revealed that one of the pre-1986 donors had tested positive when he or she came back to give blood in 2002.

According to Dr. Warner, the fact that this donor tested positive in 2002 does not say anything about his or her situation several years before. He or she may have acquired the illness at anytime during those seventeen years, be it by I.V. drugs, a tattoo, perhaps by a blood transfusion or by sexual activities.

I agree with Dr. Warner and claimant's counsel that we will really never know how the 1985 donor acquired the HCV antibody, and indeed what was the exact medical status of this donor in 1985.

However, article 3.04 (1) is very clear and states that:

"Notwithstanding any other provision of this Agreement, if the results of a Traceback Procedure demonstrate that one of the donors or units of Blood received by a HCV – Infected Person or Opted-Out HCV Infected Person before 1 January 1986 is or was HCV antibody positive or that none of the donors or units of Blood received by a Primarily-Infected Person or Opted-Out Primarily Infected Person during the Class Period is or was HVC antibody positive, subject to the provisions of Section 3.04(2), the Administrator must reject the claim of such HCV Infected Person…"

A question quite similar to the present one was studied by Mr. Justice Pitfield concerning claim 1300143 and I wish to quote from his May 25, 2004 decision:

" [7] The Administrator justified the rejection of the claim by reference to Article 3.04(1) of the Transfused HCV Plan. That Article compels rejection if the traceback procedure endorsed by the court as part of the settlement process identifies a HCV antibody positive pre-class period donor.

[8] The Claimant relies on Article 3.04(2) of the Plan which permits a primarily-infected person to prove infection, for the first time, by a transfusion in the class period notwithstanding the result of the traceback procedure that identified a pre-class period donor as HCV antibody positive. The Claimant is concerned about the fact that the status of a blood donor in 1982 is being determined by reference to a test of that donor conducted some eighteen years later. The concern is understandable. Simply stated, it is impossible to know whether the 1982 donor who tested positive in 2000 was, in fact, HCV antibody positive in 1982, or became so at a later date. The blood of the donor in question was transfused as whole blood. No components of the blood were supplied to others. The lookback process cannot be used to track the history of other recipients of that donor's blood or blood products. Because of the mandatory requirement in Article 3.04(1) and the inability to prove an exception under Article 3.04(2), the Transfused HCV Plan may inappropriately operate to the Claimant's detriment.

[9] The settlement concluded with the defendants was designed and intended to operate for the benefit of persons infected in the class period for the first time. It was not intended to compensate those infected outside the class period. The settlement resulted from extensive negotiations o n behalf of the parties to the litigation. Those who were infected by the Hepatitis C virus were ably represented by counsel in that process. The parties settled upon the criteria by which claims were to be established. The court has no discretion to depart from the Settlement Agreement even in circumstances where the result flowing from the application of its terms may appear to be inequitable. The court is governed by the terms of the Settlement Agreement as is every member of the Class and every party to the Agreement.

[10] There is nothing to indicate that the traceback procedure followed by Canadian Blood Services in this case was improperly pursued. The 1982 donor was tested in the year 2000 and found to be positive in the manner contemplated by the traceback procedure protocol approved by the court in conjunction with the Settlement Agreement. The assumption that a person currently HCV antibody positive would be regarded as HCV antibody positive at the time of donating blood was agreed to by the parties at the time the Transfused HCV Plan was settled. The assumption may work to the detriment of some, as in this case, just as it may work of the advantage of others should they have received a transfusion of blood donated in the class period by an individual who was not infected at the time of donation but who became infected after the close of the period and before traceback.

[11] While the Referee concluded that Article 3.04(2) might have application in the circumstances, it is my opinion that it cannot. The exception in Article 3.04(2) is directed at permitting a Claimant to prove infection by means of a blood transfusion notwithstanding negative traceback results. It cannot be construed to provide an exception to the mandatory denial of a claim in the event of a positive traceback in respect of a pre-class period donor."

HCV Settlement Agreement claim No. 1300143
2004 BCSC 697,Mr. Justice Pitfield

I also studied the recent decision of arbitrator Vincent R.K. Orchard in claim number 1300521 (decision 159, August 27, 2004), who dealing with a similar question, agreed with the above paragraphs of Mr. Justice Pitfield's decision

There is no evidence to suggest that the traceback procedure followed by Hema‑Quebec in the present case was improper or incomplete. As in the cases studied by Mr. Justice Pitfield and by arbitrator Orchard, our 1985 donor was tested many years later and found to be positive in a manner contemplated by the traceback procedure protocol. I find that the Fund Administrator had no alternative but to reject the claim on the basis of article 3.04(1).

Like Mr. Justice Pitfield, I find that Article 3.04(2) "cannot be construed to provide an exception to the mandatory denial of a claim in the event of positive traceback in respect of a pre-class period donor. "

In any event, having heard claimant and other witnesses and having studied the documentation provided to me, I consider that nothing in the proof presented before me established that it was more likely that the infection resulted from a class-period transfusion as opposed to a pre-1986 transfusion.

It is with regret that I feel obligated to apply the settlement as it was adopted and as it is written and therefore uphold the Administrator's decision to deny this claim.

Regretfully, I must conclude that I do not have jurisdiction nor the power to change the agreement. Other people do however have such power and I do hope that the people who are in such position will take time to study the present claimant's situation and accept to compensate her, be it from a special Fund or through an amendment to the agreement. Claimant is the unfortunate member of a very limited group and she deserves to be helped, albeit outside the present agreement.

Montreal, November 2, 2004

JACQUES NOLS
Referee