Appeals : Arbitrator Decisions : #24 - November 27th, 2001

D E C I S I O N

1. On September 26, 2001, the Administrator denied the claim for compensation as a Primarily-Infected Person under the Transfused HCV Plan. The claim was denied on the basis that the Claimant did not receive transfused blood within the Class Period from a donor who is determined to be HCV antibody positive.

2. The Claimant requested that the Administrator's denial of his claim be reviewed by an arbitrator.

3. Neither of the parties sought a hearing to review the Administrator's denial of the claim.

4. The Claimant provided written submissions and documentation in support of her claim. These submissions have been carefully considered but, unfortunately for the Claimant, they are of no assistance to her for the reasons set out below.

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

(a) The Claimant is infected with Hepatitis C.

(b) The Claimant received three blood transfusions on September 7, 1988. She also received Albumin 5%, a substance excluded from the definition of Blood in Article 1.01 of the Plan.

(c) The Claimant initiated a Traceback.

(d) When the claim was made, the Administrator also directed the required Traceback Procedure to be carried out by Canadian Blood Services.

(e) By letter dated May 30, 2001, the Administrator was advised that all class period donors were cleared as not testing positive for HCV antibodies.

(f) The Administrator denied the claim on the basis that the Claimant did not receive a blood transfusion from a primarily infected person during the Class Period.

(g) Following the filing of the claim, Fund Counsel requested further information from Canadian Blood Services concerning the Traceback process carried out with respect to the Claimant, which confirmed and supported the facts noted above.

6. Based on these facts, it is clear that the Administrator's decision must be sustained.

7. The 1986-1990 Hepatitis C Settlement Agreement defines "Class Period", as the title implies, as the period "from and including 1 January 1986 to and including 1 July 1990." The Transfused HCV Plan provides the identical definition. The Plan defines a "Primarily-Infected Person", a status a successful Claimant must achieve, as a "person who received a Blood transfusion in Canada during the Class Period…".

8. Pursuant to Article 3.01 of the Plan, a person claiming to be a Primarily-Infected Person is required to produce to the Administrator medical records "demonstrating that the Claimant received a Blood transfusion in Canada during the Class Period."

9. In this case, it is not disputed that the Claimant did receive a blood transfusion in the Class Period, namely in September 7, 1988.

10. Article 3.04(1) of the Plan provides as follows:

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 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 Representatives, Dependants and Family Members.

11. A Traceback Procedure is defined in Article 1.01 of the Plan as follows:

"Traceback Procedure" means a targeted search for and investigation of the donor and/or the units of Blood received by a HCV Infected Person.

12. As has been noted, the evidence is that a Traceback Procedure was conducted. As a consequence, it was established there was three units of blood transfused, all on September 7, 1988. Each of the donors was identified by using the computerized information system that tracks blood donor information. In each case, the donors were tested to detect HCV antibodies and, in each case, the result of the test was negative. Unfortunately, the Claimant did not receive a blood transfusion during the Class Period from a donor who is determined to be HCV antibody positive.

13. The Claimant does not dispute these facts. However, she submits that what has been done in refusing her claim is unfair and unjust to her.

14. On the basis of the facts of this case, the Administrator had no alternative but to deny the Claim. The words of Article 3.04(1) of the Plan are clear and unambiguous that the Administrator "…must reject the Claim…" in circumstances such as these. The Administrator must administer the Plan in accordance with its terms. The Administrator does not have the authority to alter or ignore any of the provisions of the Plan and neither does an arbitrator when called upon to review a decision of the Administrator.

15. Accordingly, I am obliged to find that the Administrator's denial of the claim must be upheld.

Dated at Vancouver, British Columbia, the 27th day of November, 2001.

___________________________
John A. Sanderson, Q.C.,
Arbitrator