Appeals : Confirmed Referee Decisions : #69 - November 12, 2002

D E C I S I O N

1.On October 3, 2002, the Plan Administrator denied an application for compensation under the Transfused HCV Plan by claimant #8312.

2. In a letter dated October 7, 2002, the claimant requested that the Administrator's decision be reviewed by a Referee.

3. Both the claimant and Fund Counsel agreed that there would be no hearing and the review would be conducted based on written submissions only.

4. The Referee reviewed the material submitted by the claimant in a letter dated October 7, 2002, and the submission of Fund Counsel, dated October 3, 2002. In addition, the Referee reviewed material in the claimant's file delivered by the 1986-1990 Hepatitis C Claims Centre.

5. The relevant facts can be summarized as follows:

(a) The claimant is infected with Hepatitis C.
(b) The claimant received 2 units of blood on May 9, 1989 while a patient in the Health Sciences Centre in Winnipeg.
(c) The donors of the transfused blood were tested on April 9 and June 12, 2002 as part of the prescribed trace-back procedure. The results of Traceback 40-2001-160HC showed that neither donor of Unit B 199226-6 nor B 195367-0 tested positive for the Hepatitis C antibody.
(d) The Plan Administrator denied the claim on October 3, 2002 citing the provisions of Article 3.04 (1) of the Transfused HCV Plan.
(e) The claimant asked for a review of the decision taken by the Plan Administrator.

6. Article 3.04 of the Transfused HCV Plan, which is attached to and forms part of the 1986-1990 Hepatitis C Settlement Agreement, states that "notwithstanding any other provision of this Agreement, if the results of a traceback procedure demonstrate . . . that none of the donors of units of blood received by a primarily-infected person or opted-out 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 of such HCV infected person." Section (2) of Article 3.04 provides that "a claimant may prove that the relevant primarily- infected person or opted-out 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."

7. The Plan Administrator followed the provisions of the Transfused HCV Plan in processing this claim and conducting the traceback procedure. When the results of the traceback procedure showed that both donors of the transfused blood tested negative for the HCV antibody, the Administrator properly applied the provisions of Section 3.04 that state that the "Administrator must reject the claim" in those circumstances.

8. Under the provisions of Article 3.04(2), this claimant was invited to submit additional information to substantiate that, notwithstanding the results of the traceback procedure, there was evidence to support the claim that the first infection was caused by blood transfused during the Class Period. In a letter, dated October 7, 2002, the claimant argues that "mistakes of the Blood Service who handled and performed the mix-ups back then are the obvious reason myself and many more people like myself are here." In addition to raising issues of mistakes made by the Blood Service during the time the transfusions occurred, the claimant also questions the validity of the traceback procedures. The claimant concludes that the procedures "don't . . . question the reality that mistakes were made and the possibility you made one concerning me."

9. The wording of Article 3.04(1) of the Plan is clear. It states that the Administrator "must reject the claim" in circumstances where the results of the traceback procedure show that the donors of the transfused blood tested negative for the HCV antibody. The Plan Administrator was correct in relying on Article 3.04 in rejecting this claim.

10. One can readily understand the frustration on the part of the claimant with the rules and procedures set out in the Plan. However, Article 3.04(2) places the onus for proving that the infection occurred as a result of the blood transfusion received during the Class Period on the claimant. The claimant's submission of October 7 does not contain sufficient evidence to lead me to conclude that, on a balance of probabilities, he was infected with HCV by the blood transfusions received on May 9, 1989.

11. In my view, the claimant has not met the burden of proof called for under Section 3.04(2) and, therefore, the provisions of 3.04(1) must apply.

12. Under the terms of the Transfused HCV Plan, the Plan Administrator was correct in denying this claim. The decision to deny Claim #8312 is upheld.

Dated at Winnipeg, Manitoba, this 12th day of November, 2002.

Harvey L. Secter,
Referee