Appeals : Confirmed Referee Decisions : #29 - December 20th, 2001

D E C I S I O N

1. On May 10, 2001, the Administrator denied the claim for compensation as a Primarily-Infected Person pursuant to the Transfused HCV Plan on the basis that the Claimant had not provided sufficient evidence that she was first infected with HCV by a blood transfusion received in Canada during the Class Period.

2. The Claimant waived the right to an oral hearing and requested the Referee review the decision of the Administrator.

3. The Claimant now resides in Alberta, but received two units of transfused blood at Victoria General Hospital in Victoria, B.C. in November, 1988.

4. The Claimant contended that a letter from the Red Cross was delivered to her, but when she could not locate the same, she requested I proceed without it.

5. Fund Counsel suggested that the letter in question was likely one issued by the Red Cross to her advising that she may have been the recipient of tainted blood and that she should undergo testing for Hepatitis C.

6. The Claimant's doctor's letter states that she was diagnosed with Hepatitis C in 1995.

7. The Claim Centre sent the transfusion records to Canadian Blood Services to perform a Traceback.

8. By letter of October 23, 2000 the Canadian Blood Service advised that the donors of the units in question were tested and were found negative for Hepatitis C.

9. Based on the Traceback Protocol Section 8(a) the Administrator rejected the claim.

10. The Claimant appealed on the ground that notwithstanding the negative testing of the donors, there is a possibility that either of the donors may have cleared the disease in the past 12 years, and she believes there is no other explanation for how she contracted Hepatitis C.

11. She contended that the medical knowledge of the condition holds that:

(a) Once HCV is contracted, the body's defences can cure a small portion of patients.

(b) About one fourth of patients with acute hepatitis recover completely with treatment.

(c) Most persons who contract Hepatitis C carry the virus for the rest of their lives, but some may not do so.

(d) About 2-3 of every 10 patients who are treated, get rid of the virus.

12. Fund Counsel tendered written submissions that included letters from Dr. Frank Anderson dated August 8, 2001; Canadian Blood Services dated August 16, 2001 and September 19, 2001, and Intercounty Laboratories Ltd regarding testing by Clinical Investigative Laboratories dated September 20, 2001.

13. Fund Counsel contended that none of the donors or units of blood received during the Class Period by the Claimant tested positive for the HCV antibody.

14. Fund Counsel contended that the Traceback Procedure is based on testing for the HCV antibody and the Claimant has tendered no medical evidence that the HCV antibody can be cleared from the blood system of an infected person.

15. Fund Counsel contended that there is no real possibility that the donors who tested negative had cleared the disease.

16. Fund Counsel pointed out that the recent medical literature on Hepatitis C reports that the source of infection cannot be identified in 10% of cases of Hepatitis C.

17. The letter from Dr. Frank Anderson dated August 8, 2001 opined on the questions of whether a person can spontaneously clear the virus or the antibody. Excerpts of his report are set out below:

"The testing for the virus( HCV RNA) is presently done by a method called PCR ( polymerase chain reaction)…Following infection with the hepatitis C virus, the infected individual will demonstrate a positive PCR within one to two weeks. Once infected, about 20% of persons may clear the virus but usually do so within 6 months of infection. The other 80% of persons develop chronic hepatitis C but the degree of activity will vary. Some patients, about 25% will have progressive disease and develop cirrhosis, normally after 20 years, the other 75% will not progress to any degree. ..It is possible that some persons may clear the virus spontaneously with the resultant negative PCR but the number is very small and there are only isolated case reports. In those persons who have lost the antibody, it has been twenty years after the initial infection.

Following infection with the hepatitis C, antibodies will develop but are not usually detectable for 2 or 3 months…Antibodies usually remain life-long. There have been a few reports of clearance … but only after many years, on average 20 years…the likelihood of a person initially testing positive for PCR and positive ANIT-HCV and subsequently spontaneously clearing the HCV RNA and then losing antibodies is extremely rare. To do so in less than twenty years would not seem possible…The time period of the class action suit, 1986-1990 would make spontaneous loss of antibody unlikely since it is not yet 20 years after the earliest possible time of infection, 1986."

18. The blood in this case was donated on September 15, 1988.

19. Fund Counsel advised that blood is transfused within three months of donation if the blood product is frozen and within one month if it is not.

20. From all of the foregoing, it appears unlikely that the donors of the transfused blood in this case were positive for the virus at the time of donation and have since cleared both the disease and the antibody. It appears unlikely that the cause of this Claimant's infection will ever be known. On the evidence presented to me, I conclude that her case must be one of the 10 percent of cases of Hepatitis C, the source of which infection cannot be identified.

21. In the result, I find that on the evidence presented that the Claimant did not receive a blood transfusion during the Class Period from a donor who was determined to be HCV antibody positive.

22. Accordingly, I uphold the Administrator's denial of the Claimant's request for compensation.

DATED at Edmonton, Alberta, this 20 day of December, 2001.

Shelley L. Miller, Q.C.
Referee