Appeals : Arbitrator Decisions : #166 - November 16, 2004

D E C I S I O N

1. On May 17, 2004, 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 that the final results of the Traceback confirmed the donors of the blood transfused to the Claimant, during the class period, tested negative for the HCV antibody.

2. The Claimant requested that the Administrator's denial of her claim be reviewed by an Arbitrator. In the Request for Review, dated May 27, 2004, the Claimant's husband stated as follows:

My wife has Hepatitis C. The only logical places she contracted this is either from blood transfusions in Vancouver General Hospital or St. Lukes Hospital Bellingham, Wash. U.S.A. How else could she have become infected.

3. Following a series of pre-hearing telephone conference calls and an exchange of correspondence, the Claimant requested a hearing to review the Administrator's denial of the claim. That hearing took place October 28, 2004 at Coquitlam, B.C. The Claimant appeared in person, together with family members, in support of her claim. The Administrator appeared, represented by counsel.

4. The relevant facts are not in dispute and can be summarized as follows:

(a) The Claimant is infected with Hepatitis C.

(b) As a consequence of a gastrointestinal ailment, the Claimant received a blood transfusion on March 5, 1989 at St. Luke's Hospital in Bellingham, Washington. In addition, the Claimant was transfused with five units of blood on March 7, 1989 and two units of blood on March 12, 1989, at Vancouver General Hospital.

(c) A Traceback was conducted in the usual manner by Canadian Blood Services. The Traceback results demonstrated that the HCV status of the donors of the seven units of blood transfused at Vancouver General Hospital tested negative.

(d) The Administrator, in response to the claim, requested further information from Canadian Blood Services concerning the Traceback procedure carried out with respect to the Claimant and the donor's associated with the seven units of blood transfused to the Claimant at Vancouver General Hospital. By letter dated June 22, 2004, the Canadian Blood Services advised that each of the donors associated with the units described above had made donations after 1989 and each of those donations were tested for a variety of transmissible disease markers, including HCV. None of the donations tested positive.

(e) The North West Regional Laboratory in Bellingham, Washington, by letter dated April 23, 2003, advised that the donor of the blood transfused to the Claimant in 1989 tested negative for the HCV antibody.

(f) The Administrator denied the claim as all the donors of the blood the Claimant received during the class period tested negative for the HCV antibody.

5. The principle concern of the Claimant is that she is convinced she must have contracted Hepatitis C through "tainted blood transfusions". In her request for a review, the Claimant advises that at no time did she "live a lifestyle that would put me in contact with this disease".

6. Several conference calls were held with the parties in an attempt to ascertain if there were other material facts available that would assist the Claimant. As noted, the Administrator requested further information from Canadian Blood Services concerning the Traceback procedure carried out with respect to the Claimant. The replies are dated June 15 and June 22, 2004. In the light of the information supplied, the Administrator was unable to find a basis to allow the claim to succeed.

7. At the hearing, the representative of the Claimant provided certain evidence of a hearsay nature, which was not disputed by the Counsel for the Administrator, that the Claimant's lifestyle and life history were such that there was no opportunity for her to become infected with Hepatitis C prior to the commencement of the Class Period. In addition, it appears there was no outward manifestation or indication of Hepatitis C symptoms prior to her being tested for the HCV antibody. In his submission, the representative of the Claimant urged me to find that there is no clear and compelling evidence that she had been infected before the Class Period commenced, and therefore, I should conclude that she was primarily infected during the Class Period.

8. While I have considerable sympathy for the position of the Claimant, I am obliged to find, for the reasons expressed below, that the Administrator's denial of the claim must be sustained.

9. The 1986-1990 Hepatitis C Settlement Agreement defines "Class Period" as the title implies, as the period "from and including one January 1986 to and including one July "90" ". Article 3.04(1) and (2) of that Agreement, the provisions that are determinative of the issue before me, read as follows:

(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 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 HCV antibody positive, subject to the provisions of Section 3.04(2), the Administrator must reject the Claim of such HCV Infected Person and all Claims pertaining to such HCV Infected Person or Opted-Out HCV Infected Person including Claims of Secondarily-Infected Persons, HCV Personal Representative, Dependants and Family Members. [emphasis added]

(2) 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 or that the relevant Secondarily0Infected Person or Secondarily-Infected Person who opted out of the Class Action in which he or she would otherwise be a Class Member was infected for the first time with HCV by his or her Spouse who is a Primarily-Infected Person or Opted-Out Primarily-Infected Person or Parent who is a HCV Infected Person or Opted-Out HCV Person, notwithstanding the results of the Traceback Procedure. For greater certainty, the costs of obtaining evidence to refute the results of a Traceback Procedure must be paid by the claimant unless otherwise ordered by a Referee, Arbitrator or Court. [emphasis added]

10. In this case, it is not disputed that the deceased received blood transfusions in the period before the commencement of the Class Period and during the Class Period. The real issue before me deals with the application of Article 3.04(2) in the circumstances of this particular claim. Put differently, the question is whether the facts justify a conclusion that the exception provided in Article 3.04(2) applies, not withstanding the Traceback result which in the ordinary course of events requires the Administrator — and an arbitrator — to reject the claim.

11. I have had the opportunity to consider the reasons for judgement of Mr. Justice Pitfield with respect to claim number 1300593. In that case, the issue was similar to the question before me, in that the Claimant was seeking to invoke the exception provided in Article 3.04(2). The most helpful paragraphs of the decision read as follows:

[9] Article 3.04(1) applies notwithstanding any other provision of the Settlement Agreement except Article 3.04(2). Article 3.04(1) provides that the Administrator must reject a claim for compensation if either of two conditions is satisfied: the Claimant received blood prior to January 1, 1986 and the traceback in respect of that transfusion indicates that the blood donor was infected with the Hepatitis C antibody, or the Claimant received a transfusion or transfusions in the class period and the traceback in respect of that or those transfusions indicates that neither the donor nor donors of the blood transfused in the class period tested Hepatitis C antibody positive.

[10] Article 3.04(2) provides an exception to Article 3.04(1). Notwithstanding traceback results, a Claimant may prove that he or she was infected with the Hepatitis C antibody for the first time by a blood transfusion received in the class period. The Settlement Agreement is silent with respect to the applicable burden of proof and the nature of the evidence that might refute the traceback result.

. . .

[15] The evidence the Claimant would be required to adduce on appeal would include, at the least, complete family and personal medical history and detailed evidence of all aspects of the Claimant's lifestyle including evidence of the absence of opportunity to be infected by needles or injections, however and for whatever purpose received. The kinds of evidence I have described are not intended to be exhaustive. Rather they are intended to point to the process that must be followed in the attempt to refute the traceback result.

[16] A simple denial by a Claimant of personal history or actions that have been identified as potential non-transfusion sources of HCV infection will not suffice. The reliability of the assertion which is subjective in nature would have to be tested by reference to all known objective evidence. One of the pieces of objective evidence is the negative traceback result following upon the application of, and adherence to, the approved traceback protocol. Contradictory objective evidence would have to be very persuasive if the traceback result is to be refuted.

12. I agree with this analysis. Whether the exception of Article 3.04(2) applies is essentially a factual issue to be decided by a consideration of the objective evidence and relevant information presented in the specific case. There is no generic or abstract principle to be applied in every case. The question the referee or arbitrator appointed under the Settlement Agreement must answer is whether there is sufficient persuasive evidence to overcome the Traceback result.

13. The Claimant has submitted that the Claimant's lifestyle is such that there was no opportunity for her to become infected outside the Class Period. It is not disputed that her life style is admirably healthy. At the same time, neither is there any dispute that she had medical procedures that were somewhat invasive prior to the commencement of the Class Period. The important point is that the evidence on which the Complainant relies is not persuasive of any particular result; at best, it may allow one to conclude that if the transfusions had not occurred, she might never have become infected. The objective facts are that the blood transfusions did occur and the donors of the blood involved did not test positive for HCV antibody.

14. On the basis of a consideration of this evidence, I am unable to find that the evidence approaches the level required "to overcome the Traceback result". (see paragraph 17 of Mr. Justice Pitfield's Reasons). As I read the language of Articles 3.04(1) and (2), there must be sufficient objective evidence to persuade me, on a balance of probabilities, that the Traceback result should not govern my decision. As I have said, the Claimant has presented all of the relevant information that is available, but I am unable to find it is of sufficient objective value so as to persuade me to find that subsection(2) of Article 3.04 applies, rather than subsection(1). In particular, it does not rise to the level of the evidence in the decision of Referee R.S. Montgomery, dated April, 2003, where six treating physicians testified that the "transfusion was the cause of the infection".

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, 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 an Arbitrator appointed under the Plan has the authority or discretion to grant her claim.

16. Accordingly, I am obliged to find the claim does not succeed and the Administrator's decision to reject the claim, given the result of the Traceback, must be upheld.

Dated this 16th day of November, 2004 at Vancouver, British Columbia.

John P. Sanderson, Q.C.

Arbitrator