Appeals: Confirmed Referee Decisions : #170 - December 29, 2004

D E C I S I O N

The Claimant submitted a claim as an HCV Infected Person within the context of the 1986-1990 Hepatitis C Fund.

The Administrator wrote to the Claimant on June 30 2003, to inform her that he was rejecting her claim, since she had not provided sufficient proof that she had been infected for the first time during the Class Action Period.

The Claimant has therefore submitted a Request for Review, which I now have to deal with as a Referee.

The Claimant having requested an oral hearing, a hearing date was set for June 10, 2004, but the Request for Review did not proceed, due to the ill health of the Claimant's mother and to the fact that she had retained the services of a Legal Counsel to assist her, but he was not ready to proceed. I informed the Parties by registered mail dated June 3, 2004, that the Request for Review would therefore be heard on September 21, 2004. But I had to postpone the hearing to a latter date, again at the request of the Claimant. The case was finally heard on November 22, 2004. There was no legal Counsel to represent the Claimant during the hearing.

The Claimant explained that she had received two blood transfusions on August 25, 1989 and two others on September 4, 1989 at the Centre Hospitalier Régional de l'Outaouais. She also received one unit of Albumin 25% on August 25, 1989.

On the Claimant's file, it is noted that these blood or blood product transfusions are the only ones that the Claimant had received during her lifetime.

In September 2003, Héma-Québec completed an investigation on the transfused blood products and all test results proved to be negative for all four donors involved. Two of the donors gave blood several times between 1990 and 2002 or 2003 and always tested negative. The two other donors are, in all evidence, much less regular donors, but a sampling of the blood stored in the Serum Bank was verified in each of the two cases, firstly, at the beginning of the 90's, using the Ortho 1.0 test, then in 1999 or 2000, using the Ortho 3.0 test. Again, those donors tested negative.

Section 3.04 (1) of the 1986-1990 Transfused HCV Plan stipulates that the Administrator must reject an HCV Infected Person's claim, when the Traceback Procedure results show that the donors of blood received during the Agreement Period is or was not anti-HCV positive. Since the Héma-Québec investigation had revealed that none of the donors are or were anti-HCV positive, the Administrator had no other choice but to reject the claim related to these four transfusions.

The Claimant argues the fact that, over and above these four blood transfusions, she had one unit of Albumin 25% (Exhibit R-2 provided by the CHRO and page 38 of the file as produced by the Administrator).

Such being the case, the definition of blood contained in Section 1.01 of the Transfused HCV Plan reads as follows:

" Blood" means whole blood and the following blood products: packed red cells, platelets, plasma (fresh frozen and banked) and white blood cells. Blood does not include Albumin 5%, Albumin 25%, Factor VIII, Porcine Factor VIII, Factor IX, Factor VII, Cytomegalovirus Immune Globulin, Hepatitis B Immune Globulin, Rh Immune Globulin, Varicella Zoster Immune Globulin, Immune Serum Globulin, (FEIBA) FEVIII Inhibitor Bypassing Activity, Autoplex (Activate Prothrombin Complex), Tetanus Immune Globulin, Intravenous Immune Globulin (IVIG) and Antithrombin III (ATIII). (emphasis added)

Therefore, the Transfused HCV Plan stipulates clearly that blood does not include Albumin 25%. Like Referee Daniel Shapiro, Q.C., in his decision number 56 rendered on September 5 2002, I consider: that in awarding compensation to a Claimant, the Referee's authority is subject to the definition of the term "blood", further to paragraph 1.01 of the Transfused Plan.

The Administrator must apply the terms and conditions of the Plan and must not act without jurisdiction further to the Agreement. The same rules apply to me as Referee. As such, I cannot change the terms and conditions of the Agreement.

Therefore, I consider that the Claimant's Request for Review must be rejected. My decision applies to the four blood transfusions received during the Agreement Period, as well as to the Albumin 25% transfusion received in 1989.

The Fund's financial sufficiency depends on a meticulous review of every claim by the Administrator, and eventually by the Referee, who must determine if the Claimant is eligible. Like Referee Shapiro in the above-mentioned case, I don't have the jurisdiction to change, extend or ignore the terms of the Settlement Agreement or the Transfused Plan or to either extend or modify its coverage, either regarding the definition of the term "blood" as it relates to the Albumin 25% question or regarding the inversion of the burden of proof, further to Section 3.04 (2) of the Plan's wording (Decision 56, tab 7 of the Fund's Legal Counsel submission, paragraph 24).

After having heard the Claimant and the Fund's Legal Counsel and after having carefully examined the Settlement Agreement, the Claimant's documents submitted to me, during the hearing and all the documentary proof, I consider that the Administrator's decision is well founded and I reject the Request for Review.

Montreal, December 29, 2004

Jacques Nols
Referee