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Appeals: Unconfirmed Referee Decisions : #174 - December 21, 2004

D E C I S I O N

Introduction

1. The Claimant was advised by letter dated September 22, 2000 that his application under the 1986-1990 Hepatitis C Settlement Agreement (“Settlement Agreement”) was approved at Disease Level 1. Payment of benefits at that level was subject to his signing a form of Release which would not have affected his right to seek additional compensation at any of the five higher Disease Levels recognized by the Transfused HCV Plan. The Claimant nevertheless refused to sign any Release, maintaining that he was entitled to benefits at Disease Level 5.

2. By letter dated May 19, 2004, the Administrator informed the Claimant that he did not meet the criteria for Disease Level 5 as set out in section 4.01(1)(d) of the Settlement Agreement. In particular, the Administrator’s decision stated: “Your immune thrombocytopenia medical condition existed before you had the blood transfusions [in which one of the Claimant’s donors tested positive for HCV] and was, therefore, not caused by Hepatitis C”.

3. In accordance with the Claimant’s Request for Review, this decision reviews the Administrator’s decision. It deals only with the Claimant’s entitlement to benefits at Disease Level 5, not his entitlement to benefits at any other Disease Level, and it does so only on the basis of the evidence described below.

The Settlement Agreement

4. Thrombocytopenia is specifically referred to in section 4.01(1)(d)(iv) of the Settlement Agreement. The relevant portions of the section read as follows:

4.01 (1) Each Approved HCV Infected Person will be paid the amounts set out below as compensation for damages:

...
(d) the amount of $65,000 upon delivering to the Administrator evidence demonstrating that he or she has

...
(iv) thrombocytopenia (low platelets) unresponsive to therapy ... which is associated with purpura or spontaneous bleeding, or which results in excessive bleeding following trauma or a platelet count below 30 x 10 to the ninth per ml [and] which ... is caused by his or her infection with HCV

Evidence and Analysis

5. There is no dispute that the Claimant has suffered acute episodes of thrombocytopenia in the past, in 1989 and again in 1995. He may well suffer further such episodes in the future. Nevertheless, these facts and possibilities are not sufficient to establish his entitlement under section 4.01(1)(d)(iv) of the Settlement Agreement. In order to establish his entitlement under that section, the Claimant was required to lead evidence demonstrating two facts: first, that his thrombocytopenia was caused by his HCV infection and second, that his thrombocytopenia was unresponsive to therapy.

Causation

6. The Administrator’s decision focussed on the issue of causation, ie, whether or not the Claimant’s thrombocytopenia was caused by his HCV. In determining that it was not, the Administrator relied upon the opinion of Dr. Gary E. Garber, Professor and Head, Division of Infectious Diseases, University of Ottawa/The Ottawa Hospital. Dr. Garber’s report, dated January 15, 2004, stated: “I am not aware of immune thrombocytopenia purpura [ITP] being caused by Hepatitis C infection and furthermore his ITP predated the transfusion (in fact it was the cause of his transfusion)”.

7. As I noted at the hearing, the first part of Dr. Garber’s opinion is difficult to reconcile with the Settlement Agreement. If thrombocytopenia is not caused by Hepatitis C, then why does the Settlement Agreement require the Claimant to show that his thrombocytopenia was caused by Hepatitis C?

8. Still, the second part of Dr. Garber’s opinion retains its full force: the Claimant’s thrombocytopenia could not have been caused by Hepatitis C infection if his thrombocytopenia predated the transfusions in which one of the Claimant’s donors tested positive for HCV. The Claimant did not lead any evidence to suggest that this was not the actual sequence of events.

9. Instead, the Claimant relied on the opinion Dr. N. G. Sutherland, a doctor whose precise qualifications were not identified at the hearing, though he was referred to as a “specialist” in the notes of one of the file-handlers or “processors” employed at the Hepatitis C Claims Centre. In November 2001, Dr. Sutherland completed a “Tran2 Treating Physician Form” at the request of the Hepatitis C Claims Centre. This form requested Dr. Sutherland to check the “yes” box or the “no” box in response to the following statement: “It is my opinion that the HCV Infected Person’s infection with HCV materially contributed to his or her Disease Level 5 condition”. (underlining in the original). Dr. Sutherland checked the “yes” box.

10. Upon receiving this form, a processor at the Hepatitis C Claims Centre entered the following note, dated November 12, 2001, in the Claimant’s file: “This is sufficient to support level 5. To Mngt for further action”. The Claimant testified that around the same time, an employee at the Hepatitis C Claims Centre informed him that “Dr. Sutherland’s signature would be sufficient” to establish his entitlement at Disease Level 5. It may well be that the Claimant was initially told this; indeed, the note quoted above confirms that this was the initial opinion of the processor who received the completed form from Dr. Sutherland. However, additional processors’ notes completed later in November and December 2001 clearly indicate that the Hepatitis C Claims Centre also informed the Claimant that Dr. Sutherland’s opinion was subject to confirmation through additional blood tests, tests which the Claimant refused to undergo. The processors’ notes further indicate that after an additional two years of “management review”, the Claimant’s file was eventually sent to Dr. Garber at the end of 2003.

11. In challenging Dr. Garber’s opinion on the issue of causation, the Claimant questioned his use of the term immune thrombocytopenia. The Claimant argued that his condition was more accurately described as idiopathic thrombocytopenia. However, I was unable find any reference to idiopathic thrombocytopenia in the medical reports submitted into evidence. In any event, since the term idiopathic means of unknown cause, idiopathic thrombocytopenia, if it exists, would not be capable of satisfying the causation requirement imposed by section 4.01(1)(d)(iv) of the Settlement Agreement.

12. In my view, any medical opinion on the issue of causation was obliged to address the undisputed fact that the Claimant’s thrombocytopenia predated the transfusions in which one of the Claimant’s donors tested positive for HCV. Since only Dr. Garber’s opinion addressed this fact, I conclude that the issue of causation must be decided in accordance with his opinion, not in accordance with Dr. Sutherland’s opinion.

Unresponsive to therapy

13. Even if I had found that the Claimant’s thrombocytopenia was caused by his HCV infection, the Claimant was still required to present evidence demonstrating that this condition was unresponsive to treatment. This requirement was not the reason given by the Administrator for denying the Claimant’s entitlement at Disease Level 5 but it was referred to in the Administrator’s decision.

14. To meet this requirement, the Claimant again relied on the form completed by Dr. Sutherland in November 2001. Reflecting the requirements of section 4.01(1)(d)(iv) of the Settlement Agreement, that form also afforded Dr. Sutherland the convenience of checking off (or not checking off) boxes indicating that, in his opinion, “The HCV Infected Person has thrombocytopenia unresponsive to therapy based on ... a platelet count below 30 x 10 to the ninth (attach the laboratory report)”. By checking off the boxes, Dr. Sutherland confirmed that this was his opinion but he did not provide a laboratory report. The processors’ notes kept by the Hepatitis C Claims Centre confirm that it was the absence of a laboratory report which created the need for additional blood tests, tests which would have shown whether or not the Claimant had low platelets counts. Tests showing low platelets counts would have been evidence that the Claimant’s thrombocytopenia remained unresponsive to therapy received; tests showing normal platelets counts would have been evidence that the Claimant’s thrombocytopenia was responsive to therapy received.

15. The Claimant admitted at the hearing that, to the best of his knowledge, he did not currently have low platelet counts. Though specifically invited to do so, he offered no evidence that his thrombocytopenia was currently associated with purpura, other spontaneous bleeding or excessive bleeding following trauma, these being the other symptoms of thrombocytopenia recognized by section 4.01(1)(d)(iv) of the Settlement Agreement. Instead, the Claimant insisted that his thrombocytopenia was merely in remission and that a normal platelet count would not mean that he was cured of this condition.

16. Nevertheless, the Claimant was unable to deny that his thrombocytopenia did, in fact, respond to treatment following his acute episodes in 1989 and 1995. This was confirmed by Dr. Jeanne Drouin at the University of Ottawa in the following portions of her “Haematology Observation Record” written on March 7, 1995:

This 51 year old man was splenectomized in 1989 for severe thrombocytopenic purpura, associated with hemolytic anemia and with platelet agglutinins. After a stormy hospital course, his platelet count went up and he was well for several years. However, he was readmitted to hospital at the end of January [1995] with recurrence of severe thrombocytopenia of sudden onset. He was given a trial of steroids which did not help and then received IV gammaglobulin, Vincristine, Danazo and numerous plasma exchanges in succession. With the 9th or 10th plasma exchange, his platelet count fortunately returned to normal, towards the end of February.
...
This patient with megakaryocytic thrombocytopenia of an atypical nature has finally responded to treatment aimed at normalizing his platelet count. It is hard to tell which agent did it, since he received several treatments in succession. The normalization of the platelet count coincided with plasma exchange but there was considerable delay in observing a response. (my emphasis)

Shortly thereafter, the Claimant suffered a further relapse. A second “Haematology Observation Record” was written at the same hospital on May 7, 1995, probably also by Dr. Drouin. It contained the following relevant comments:

This patient was hospitalized from the 5th to the 29th of April for recurrent severe immune thrombocytopenia. Again, on this occasion, he required multiple types of interventions starting with plasmapheresis and including gammaglobulin, vincristine, high dose Dexamethasone and ongoing Prednisone therapy ... He received multiple platelet transfusions to try to minimize extension of [a] hemorrhage and this was somewhat helpful. He also received therapy with CVP on April 13th. With the measures taken, his platelet count gradually improved and it had normalized at the time of discharge. Again on this occasion, platelet clumping is noted. However, his platelets are estimated to be normal on blood film examination. (my emphasis)

Based on this undisputed medical evidence, I am unable to accept Dr. Sutherland’s apparent opinion that the Claimant’s thrombocytopenia was unresponsive to therapy. I use the expression “Dr. Sutherland’s apparent opinion” because I am mindful of the fact that his opinion was only expressed through check marks in the boxes on a printed form, not through a medical report. I further note that Dr. Sutherland may not have had access to the hospital records I have referred to before expressing his opinion. These records clearly establish that the Claimant’s thrombocytopenia did respond to therapy or treatment on at least three occasions.

Conclusion

Based on the above evidence and analysis, I conclude that the Claimant is not entitled to benefits at Disease Level 5. I, therefore, recommend that the Administrator’s decision be upheld.

Dated December 21, 2004


David Garth Leitch, Referee

 

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