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IN THE MATTER OF an appeal filed pursuant to the Rules for

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IN THE MATTER OF an appeal filed pursuant to the Rules for Powered By Docstoc
					                               IN THE MATTER OF an appeal filed
                              pursuant to the Rules for Appeals under
                                the Pre-1986/Post-1990 Hepatitis C
                              Settlement Agreement and its Protocols


                                        CLAIM FILE: 07-01956


                                   REASONS FOR DECISION

[1]     The Claimant has appealed a decision of the Administrator dated September 18,

2009, in which the application for compensation under the Pre-1986/Post-1990

Hepatitis C Settlement Agreement (“Settlement Agreement”) was denied. The

Administrator concluded that the Claimant had used non-prescription intravenous drugs

and had failed to establish on a balance of probabilities his infection with Hepatitis C for

the first time by a blood transfusion in Canada during the Class Period.

[2]     On April 26, 1982, the Claimant was hospitalized for serious injuries sustained in

a motorcycle accident and required several surgical procedures to repair a compound

fracture.1 During the course of his hospitalization, he received transfusions of eight units

of blood.2 A Transfusion Summary of the Canadian Blood Services dated March 24,

2008 confirmed that four of the donors were HCV negative, one was deceased, one

refused to be tested and two could not be located.3

[3]     On April 19, 1994, the Claimant tested positive for the Hepatitis C antibody.4

[4]     In 2002, the Claimant was awarded compensation in the amount of $25,000.00

under the terms of a provincial plan.5 In the provincial plan Physician Form dated


1
  See, for example, pages 295 to 296.
2
  See pages 312 and 104.
3
  See page 104.
4
  See laboratory report at page 238.
                                            -2-


December 10, 1998, the family physician of the Claimant (“family physician”) indicated

intravenous drug use as a risk factor for Hepatitis C and wrote “IV drug use – age 15 only

(1970) once only.”6

[5]      On September 4, 2007, the Claimant delivered an application for compensation

under the Settlement Agreement and indicated in the General Information Form that he

had the following risk factors for Hepatitis C: non-prescription intravenous drug use –

“One time 1972 / methadone experimented one time only”; tattoos – “1 tattoo 1971”. He

was born in 1955.

[6]      The Treating Physician Form was completed by the family physician; he had

treated the Claimant for 22 years.7 In response to question 1 in the “Section F – HCV

Disease Verification” part of the form, he indicated non-prescription intravenous drug use

and tattoos as risk factors for the Hepatitis C virus. In response to question 3 concerning

whether there was anything in the Claimant’s medical history or clinical presentation to

indicate the use of non-prescription intravenous drugs at any time, he stated “on pt

[patient] history at age 16.”

[7]      In the Statutory Declaration Form, the Claimant admitted the use of

non-prescription intravenous drugs.8 On October 3, 2008, he filed a further copy of the

form with a handwritten notation that stated “I used it once and one time only in early

1970’s. It made me sick and I never tried it again!”9




5
  See page 97.
6
  See page 313.
7
  See pages 4 to 11.
8
  See page 14.
9
  See page 68.
                                                   -3-


[8]     In a letter dated May 30, 2008 to an employee of the Administrator, the Claimant

stated that he had used intravenous drugs once in 1971, using a new syringe from a sealed

package.10

[9]     In an affidavit sworn on August 21, 2008, the Claimant stated as follows:11

         1.    I have been diagnosed as infected with post-transfusion hepatitis C virus
               (HCV) and am an applicant for compensation.

         2.    I was born on September 22, 1955.

         3.    I was first diagnosed with HCV by Dr. [name deleted – family physician]
               on May 12, 1994. I believe that I contracted the disease from a blood
               transfusion that I received at the age of 27 during an operation resulting
               from a motor vehicle accident.

         4.    I have taken intravenous drugs on only one occasion in my lifetime in 1970
               when I was fifteen years of age. On that occasion, I used a new syringe
               which I removed from a box of new syringe which were marked as sterile
               on their packaging. I did not share the syringe with anyone at that time or
               at any time.

         5.    I do not recall donating my blood prior to the date that I received blood
               during the class period.

         6.    I have never been convicted of a criminal offence. … [Emphasis Added]

[10]    The patient chart records (“chart records”) of the family physician contained

information from appointments with the Claimant, including some evidence concerning

the use of non-prescription intravenous drugs. The chart records also revealed that, on

June 14, 1994, the family physician referred the Claimant to a specialist in

gastroenterology (“first specialist in gastroenterology”). The relevant parts of the chart

records stated as follows:



10
   See page 105. The Claimant wrote several other letters and submissions in which he made similar
statements concerning his non-prescription intravenous drug use. See, for example, the letters at pages 113
and 125, as well as his appeal submissions.
11
   See page 108. On page 109, in handwritten notes, the Claimant made the same general statements as in
the affidavit and added that he had never shared needles with other drug users.
                                                -4-


             •     May 10, 1994 – HIV neg but hep C pos no IV drugs – likely [illegible]
                   1982 transfusion12

             •     June 14, 1994 ... active hep C ... to [name deleted – specialist in
                   gastroenterology]13

             •     Oct 17, 1994 ... told Dr. [name deleted – first specialist in
                   gastroenterology] that he did use IV drugs was drinking GGT 336
                   SGOT – 83 →[illegible] missed Sept appt [with] [name deleted –first
                   specialist in gastroenterology] – will see him again Jan/9514

             •     Dec 14, 1998 hep C form completed – see sheet – pt [patient] agrees to
                   disclose IV use15

[11]    In a letter to the family physician dated June 22, 1994, the first specialist in

gastroenterology provided a report concerning his examination of the Claimant. He

noted, among other things, a statement made by the Claimant concerning his use of

intravenous speed at the age of 15 for a short period of time. The letter stated, in part, as

follows:16

        I saw [name deleted – the Claimant] today because of his raised liver enzymes.
        This 39 year old [occupation deleted] has known for about 3 years that his liver
        enzymes have been elevated. ...

        He admits to drinking heavily and will consume on average 4-5 beers per day and
        with at times a 26oz of vodka on the weekend. He also on occasion drinks
        homemade wine. He used some cannabis in the past and years ago cocaine when
        it was “in fashion”. For a short period of time when he was 15 he used
        intravenous speed. This was he states his only encounter with intravenous drugs.
        [Emphasis Added]

[12]    The family physician subsequently referred the Claimant to a second specialist in

gastroenterology (“second specialist in gastroenterology”).




12
   See page 176.
13
   Ibid.
14
   See page 177.
15
   See page 178.
16
   See page 308.
                                                    -5-


[13]       In a letter to the family physician dated September 15, 2003, the second specialist

in gastroenterology provided a report concerning her examination of the Claimant. She

stated, in part, as follows:17

           Thank you for asking me to see [the Claimant] with regards to his positive
           Hepatitis C status. His a 48 year old married man with 3 sons. He has been a
           [occupation deleted]. He is self-employed.

           Past surgical history includes significant trauma to his left leg following a
           motorcycle accident back in 1982. He was treated at [name of hospital deleted]
           and did receive transfusions at the time.
           …
           Back in 1994, the patient was undergoing some routine bloodwork and was
           found to be Hepatitis C positive. He himself gives no distinct history nor clinical
           hepatitis at any time in his life and in fact at that point was feeling relatively well.
           He was referred to Dr. [name deleted - first specialist in gastroenterology] and he
           saw Dr. [name deleted - first specialist in gastroenterology] on a number of visits,
           the initial one in June of 1994, trough to March of 1999. You were kind enough
           to send along Dr. [name deleted - first specialist in gastroenterology] notes,
           which were very helpful. In any case, when he initially saw the patient back in
           1994, the patient did have hepatosplenomegaly with some mild palmar erythema
           and spider nevi, indicating underlying chronic liver disease. Along with the
           Hepatitis C, he felt that there was a significant element of alcoholic liver disease.
           The patient was reported to be consuming about 5 beer per day, along with 26
           ounces of Vodka on weekends. Dr. [name deleted - first specialist in
           gastroenterology] indicated that he was unable to treat the patient unless he was
           willing to abstain from alcohol. Unfortunately, the patient did not stop, which
           was outlined in his notes from October 1994, 1995, as well as March 1999.
           …
           In terms of his liver risk factors, he did receive the transfusion back in 1982 as
           reported. He does also, however, have a tattoo which he received in 1975. He did
           use IV drugs sporadically at the age of 16. He was also involved in kickboxing
           for 2 years, hence there are numerous risk factors in his background for having
           attained the Hepatitis C. There is no specific test which will indicate exactly how
           long he has had it. Other risk factors, as mentioned above, include a significant
           alcohol history which began late in his teens and continued through until July of
           2002. In terms of his family history, he had 3 brothers, one of whom died of
           trauma, one brother has Hepatitis C and cirrhosis and this brother did use IV
           drugs in the 1970s, and his other brother is fine. He also had 2 sisters, one of
           whom died of complications relating to Hepatitis C and she was also an IV drug
           user, and his other sister is well. … [Emphasis Added]




17
     See pages 43 to 45.
                                                  -6-


[14]       The Administrator referred the file to a specialist in infectious diseases (“medical

specialist”) for an opinion. In a letter dated August 25, 2009, the medical specialist

provided the following opinion:18

           I have reviewed the file of the above named claimant as requested. Briefly, this is
           a 54-year old male who was found to be infected with hepatitis C in 1994. At that
           time he was found to have significant findings of liver disease including an
           enlarged firm liver, palmar erythema, several spider angiomata on his chest but
           the spleen was not palpable. This work-up was prompted because of persistent
           elevation of his liver function tests particularly AST and ALT and the GGT. In
           1994, Dr. [name deleted – first specialist in gastroenterology] recorded that the
           patient was a heavy drinker, consuming 4-5 beers per day and at times had
           26 ounces of vodka on weekends. As well, he recorded a short period of time at
           the age of 15 when the patient used intravenous speed and later on did use some
           cannabis and cocaine (presumably not intravenous).

           In 1982 he had a serious motor vehicle accident with a commuted fracture of his
           left tibia. He had several surgical procedures and between April 23rd and 27th
           received four units of packed red blood cells and four units of stored plasma.
           Four of those donors have been found and traced to be negative. Further donors
           have not been found. One was deceased and one declined testing. [The Claimant]
           relates in his submission that he used intravenous methadone on one occasion in
           1972. He relates that he felt quite ill after the experience and vowed to his mother
           never to use intravenous drugs again. He apparently as well had a tattoo in the
           early 90’s [sic]. In 2003 when he was assessed by Dr. [name deleted – second
           specialist in gastroenterology] the family history recorded indicated that this
           gentleman has three brothers, one brother had hepatitis C and cirrhosis and had
           used intravenous drugs in the 70s and a sister who was also an injection drug user
           and died of complications of hepatitis C. In Dr. [name deleted – second specialist
           in gastroenterology’s] note she refers to Dr. [name deleted – first specialist in
           gastroenterology’s] notes that [the Claimant] had hepatosplenomegaly. I do not
           have all of Dr. [name deleted – first specialist in gastroenterology’s] records to
           corroborate these findings.

           In 2003 he now had significant splenomegaly and this is confirmed on the
           abdominal scanning as well he had prominent abdominal veins and subsequent
           testing did show that he had varices and therefore clearly has cirrhosis. As well
           his platelet count was persistently low really going back to the mid-90s which is
           certainly in keeping with splenomegaly.

           He underwent a course of pegylated Interferon and Ribavirin. A half dose was
           given because of the low platelets. He did have genotype 1 and he slowly
           responded to therapy finally becoming undetectable at week 24 however six
           months post-therapy the virus did come back i.e., a relapse. Based on the chart
           and subsequent follow-up for a variety of aliments he appears to be cirrhotic but


18
     See page 487 to 488.
                                                     -7-

           well compensated with a very slight elevation of bilirubin and decreased
           platelets.

           The key issue is on the balance of probabilities where did he more likely get
           infected. It is well known that in a male drinker progression of hepatitis C viral
           infection is more rapid and it is usually felt that significant liver disease is seen
           approximately 15 years after initial infection. Based upon the findings of
           Dr. [name deleted – first specialist in gastroenterology] in 1994 he did have
           significant liver disease which would suggest the possibility that he was infected
           prior to 1982 when he has his blood transfusion. The fact that he had several
           siblings that have hepatitis C and were injection drug users could certainly
           suggest a possible infection source even if he were to use needles on only one
           occasion. As well, in the early 70s it was certainly not emphasized either in the
           medical or lay literature as to the importance of sharing needles as a vehicle of
           disease transmission and sharing of needles in recreational drug use was quite
           common. What is less well known is the risk factors related to tattoos and
           certainly in the 70s needles and ink were being reused. Finally there is a risk
           related to the inhalation of cocaine when paraphernalia, straws etc were shared.

           One can certainly not deny that there is a high risk of exposure related to four
           units of blood or blood product that were not tested during his treatment of
           trauma in 1982. There is some discrepancy as to whether he used injection drugs
           once or just on an intermittent basis in the early 70s and whether he used speed
           and methadone. Either one certainly could be risk factor. However, low platelets
           and if in fact he did have splenomegaly in 1994 this would suggest that on the
           balance of probabilities he likely was infected prior to 1982.

           I note that the patient has stated confusion of his being compensated through the
           Ontario plan. It may be worthwhile denoting that the plans although similar do
           have distinct differences in assessing other risk factors of hepatitis C infection.

           If you have any other questions please feel free to contact us. [Emphasis Added]

[15]       A Review Committee of the Administrator concluded that the Claimant had not

established on a balance of probabilities his first infection with Hepatitis C by a blood

transfusion.19

[16]       In a decision dated September 18, 2009, the Administrator concluded that the

evidence did not establish, on a balance of probabilities, the infection of the Claimant for

the first time with Hepatitis C from the blood transfusions in 1982.20



19
     See page 420.
20
     The decision of the Administrator was not paginated.
                                                  -8-


[17]    The Claimant did not deliver any supplementary evidence and made submissions

on appeal in a letter dated September 4, 2011 to the Fund Counsel.21 On January 12,

2012, he also had a telephone conversation with the Fund Counsel. In a letter of the same

date to the Claimant, the Fund Counsel summarized the submissions that he wished to

make on appeal. I have carefully read the written submissions of the Claimant and the

letter of the Fund Counsel.

[18]    The evidence in the file indicates that the Claimant admitted non-prescription

intravenous drug use on one occasion.22 The time period that he gave for the use varied

from 1970 to 1972.23 In the General Information Form, he stated that the drug injected

was methadone on one occasion.24 In his other statements in letters, submissions and

other documents, including his affidavit, he made no reference to the type of drug

injected.25 Following his diagnosis of Hepatitis C in the spring of 1994, he initially told

his family physician that he had never used non-prescription intravenous drugs.26

However, on June 22, 1994, he admitted to the first specialist in gastroenterology that he

had used intravenous speed for a short period of time when he was fifteen.27 In 1998, he

told the family physician that he would agree “to disclose IV drug use” on “hep C

form”.28 Approximately five years later, on September 15, 2003, the second specialist in

gastroenterology wrote a reporting letter to the family physician concerning her

examination of the Claimant. In the letter, she outlined various risk factors that the


21
   The submissions and other materials on appeal were not paginated.
22
   See, for example, the evidence in paragraphs 5, 7, 8 and 9.
23
   Ibid.
24
   See paragraph 5.
25
   See, for example, the affidavit in paragraph 9.
26
   See paragraph 10.
27
   See paragraph 12.
28
   See paragraph 10.
                                               -9-


Claimant had for Hepatitis C and stated that he “... did use IV drugs sporadically at the

age of 16.”29

[19]       I have concluded that the statement in the letter dated June 22, 1994 from the first

specialist in gastroenterology to the family physician concerning the use of intravenous

speed by the Claimant for a short period of time at the age of fifteen is reliable evidence

entitled to significant weight. In arriving at this conclusion, I have considered the fact that

that the letter was written by the first specialist on the same day of his examination of the

Claimant, indicating that the statement concerning the use of non-prescription

intravenous drugs was recorded contemporaneously with its making. Furthermore, the

family physician wrote in a chart record four months later that the Claimant had told the

first specialist about his intravenous drug use. However, there was nothing in the chart

record to indicate that the Claimant denied making the statement to the first specialist. To

the contrary, a note in the chart record in 1998 indicated that the “hep C form” was

completed and the Claimant “agrees to disclose IV drug use”. Finally, the statement was

made by the Claimant to the first specialist in 1994, at a point in time when it was not

known that compensation would potentially be available for persons infected with

Hepatitis C through the blood system.

[20]       Given my finding that the statement made by the Claimant in 1994 to the first

specialist in gastroenterology is entitled to significant evidentiary weight, I have

concluded that the statements made by him in support of the application for

compensation limiting his non-prescription intravenous drug use to one occasion with

methadone are lacking in credibility and can be given no weight. The Claimant also


29
     See paragraph 13.
                                              - 10 -


stated repeatedly that he had only used new, sterile needles and paraphernalia that were

not shared. However, the medical specialist stated in his opinion that sharing needles in

the 1970’s was “quite common”, as it was “... certainly not emphasized either in the

medical or lay literature as to the importance of sharing of needles as a vehicle of disease

transmission...”30 The evidence of the medical specialist was not contradicted or

undermined in any manner and is entitled to significant weight. As a result, the

statements of the Claimant concerning his use of new, sterile and unshared needles are

not credible.

[21]       Subsection 2.01(3) of the Settlement Agreement places the onus on the Claimant

by requiring him to deliver evidence to establish on a balance of probabilities that he was

infected for the first time with Hepatitis C by receiving blood. Section 4 of the

Non-Prescription Intravenous Drug Use Protocol directs the Administrator to weigh the

totality of the evidence and to determine, on a balance of probabilities, whether a

claimant has met the eligibility requirements in the Settlement Agreement. Section 4 also

clearly dictates that the burden of proving eligibility is on a claimant.

[22]       In order to meet the balance of probabilities burden of proof in subsection 2.01(3)

of the Settlement Agreement, the Claimant must establish that his Hepatitis C infection

was “more likely” caused by the blood transfusions in 1982 than from his use of

non-prescription intravenous drugs. I have determined that, on the totality of the

evidence, it was reasonable for the Administrator to conclude that the Claimant has not

met the required burden of proof. Indeed, I would have reached the same conclusion as

the Administrator in this matter on the basis of the totality of the evidence.


30
     See paragraph 14.
                                                  - 11 -


[23]    The Claimant has made reference to the fact that he has received compensation

under a provincial plan. Although I fully understand that it must be confusing and

upsetting when compensation is granted under the auspices of one program or agreement

and yet denied under another one, the terms of the Settlement Agreement govern the

present claim and must be applied. It is also important to recognize that the terms of the

Settlement Agreement are the result of an agreement between the Parties which was

approved by the Courts; neither the Administrator nor the Appeals Officer has any power

or discretion to alter those terms.31

[24]    The appeal is dismissed.




                                                                "D. McGillis"
                                                        The Honourable D. McGillis, Q.C.
                                                               Appeals Officer
DATED February 13, 2012

TO:     Claimant
        Fund Counsel
        Administrator




31
  See two recent decisions on further appeals to the Court concerning the binding nature of the provisions
of the Settlement Agreement: Claim Files 08-15662, 08-13831 and 07-10252 dated March 25, 2010 (Chief
Justice Winkler) and Claim File 07-01482 dated April 7, 2010 (Mr. Justice Pitfield).

				
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