Appeals : Arbitrator Decisions : #37 - December 28, 2001

D E C I S I O N

Pursuant to the1986-1990 Hepatitis C Class Actions Settlement Agreement ("Settlement Agreement"), the Claimant applied for compensation as a Primarily-Infected Person on June 1, 2000. On July 18, 2001, the Plans' Administrator ("the Administrator") denied this application on the basis that the only blood products received by the Claimant during the Class Period were expressly excluded from the "blood" definition.

On July 23, 2001, the Claimant submitted a Request for Review before an arbitrator and the undersigned subsequently reviewed the case. The hearing took place on December 3, 2001 during which the two parties present brought forward their respective arguments. During this hearing, there was no challenge of the facts pertaining to this arbitration case.

It is therefore agreed, in this case, that the Claimant is infected with the Hepatitis C virus, that he received transfusions during the Class Period, that such transfusions concern only the IVIG immunoglobuline (Intravenous immune globulin) and that there were transfusion incidents of a different nature which took place outside the Class Period however, specifically in July and August 1985.

On the basis of these facts, the undersigned is called upon to render a decision on the Claimant's eligibility to the compensation plan as set out in the Settlement Agreement.

At the hearing on December 3, 2001, the Claimant said he was well aware and understood the content and scope of the Settlement Agreement. He also stated that he had been extensively involved in all aspects of this file and, more particularly in the procedures when the Class Action was instituted. He described with conviction and emotion his very difficult personal, family and professional situation. He then concluded that he was the victim of an injustice, being condemned to live in what he perceives as an unacceptable situation.

Although one cannot remain insensitive to the Claimant's emotional arguments, the undersigned must nevertheless be bound by his mandate to interpret and to apply the terms and conditions as set out in the Settlement Agreement. However, the Claimant argued in favor of reopening the Settlement Agreement in order to broaden its eligibility criteria for people who could be covered under the compensation plan. Acting in such a way, the undersigned would flagrantly and non equivocally exceed his authority and all such decisions would be challenged in Court.

Without being "locked" under the terms and conditions of the Settlement Agreement, as the Claimant alleges, the undersigned has no less the obligation to remain within the powers confided in him to that effect, and he cannot replace the competent authorities who wrote or approved the Settlement Agreement that he is mandated to apply.

In those circumstances and based on the above arguments, and more specifically, the explicit exclusions in the definition of " blood " in the Settlement Agreement, I conclude that the Administrator's denial decision in this case was founded. I therefore deny the present Request for Review.

Martin Hébert, QC
Referee