Appeals : Confirmed Referee Decisions : #28 - December 4th, 2001

D E C I S I O N

Background:

1. The Claimant submitted an application for compensation as a primarily infected person under the HCV Transfused Plan, as set out under the terms of the Hepatitis C 1986-1990 Class Action Settlement. (the "Settlement Agreement")

2. By letter dated March 19, 2001, the Administrator denied his claim on the basis that the Claimant did not provide sufficient evidence to support his claim that he received blood during the Class Period.

3. The Claimant requested that a Referee review the decision of the Administrator in an in-person hearing.

4. At the hearing on May 18, 2001, the Claimant indicated his surgeon had made statements which led him to believe he received a blood transfusion during a kidney operation in 1997.

5. The hearing was adjourned for six months, on consent, to give the Claimant an opportunity to contact his surgeon to determine if additional information regarding his claim was available.

6. By letter dated October 31, 2001, Counsel for the fund wrote to the Claimant requesting an update regarding his efforts to obtain additional information regarding his claim.

7. On November 22, 2001, I attempted to contact the Claimant by telephone, but his number had been disconnected. Inquiries to directory assistance were not successful in finding a new listing for the Claimant.

8. On November 22, 2001, I wrote to the parties, setting out both Fund Counsel's and my efforts to contact the Claimant. I also indicated that any addition information or submissions should be brought forward no later than Monday, December 3, 2001, and that if none was received by that date, I would render my decision based on the evidence already before me.

9. No further information or submissions were received from either party by December 3, 2001.

Evidence:

10. The following was not in dispute:

- The Claimant was diagnosed with Hepatitis C in 1997.

- The Claimant had a kidney operation at Mount Sinai Hospital in 1988.

- Hospital records contain a reference to six units of blood being cross-matched by a blood bank prior to the operation.

- There were no hospital records which state that the Claimant received a blood transfusion.

- On two separate occasions, resulting from separate traceback requests by both the Claimant and the Administrator, Mount Sinai Hospital advised the Canadian Blood Services that there were no transfusion records for the Claimant.

- The treating physician completed a Tran 2 form which indicated the Claimant had received a blood transfusion in the period of January 1, 1986 to July 1, 1990.

- On further inquiry on behalf of the Administrator, the treating physician indicated that in making that assertion, he relied only on a crossmatch record in the Claimant's file, and had no documents confirming the Claimant had a blood transfusion during the class period.

Analysis:

11. In order to qualify for compensation under the terms of the Transfused HCV Plan the Claimant must satisfy the criteria set out in that Plan.

12. Article 3.01 of the Transfused HCV Plan provides that a person claiming to be a Primarily-Infected Person must provide the Administrator with, amongst other things, "records demonstrating that the Claimant received a blood transfusion in Canada during the Class Period." The Settlement Agreement establishes the "Class Period" to be "the period from and including 1 January 1986 to and including 1 July 1990."

13. No records demonstrating that the Claimant received a blood transfusion in Canada during the Class Period were produced. Rather, the preponderance of evidence suggests the Claimant has never had a blood transfusion.

14. Neither the Administrator, nor I, as a Referee, have discretion to grant compensation to individuals infected with Hepatitis C who cannot show they received a transfusion within the time lines of the Class Period.

15. Accordingly, I find the Administrator correctly determined that the Claimant is not entitled to compensation pursuant to the Hepatitis C 1986-1990 Class Action Settlement, as he has not demonstrated that he received a blood transfusion during the Class Period.

Determination:

16.. The decision of the Administrator to deny the Claimant compensation pursuant to the Hepatitis C 1986-1990 Class Action Settlement is upheld.

DATED at Toronto, this 4th Day of December, 2001.

Tanja Wacyk, Referee