ARTICLE
FOUR
COMPENSATION TO APPROVED HCV INFECTED PERSONS
4.01 Fixed Payments (top)
- Each Approved HCV Infected Person will be paid the amounts
set out below as compensation for damages:
- the amount of $10,000 as compensation for damages upon
his or her Claim being approved by the Administrator;
- the amount of $20,000, provided that payment of $5,000
will be postponed and will only be paid in accordance
with the provisions of Section 7.03(2), upon delivering
to the Administrator a PCR Test report;
- unless waived pursuant to the provisions of Section
4.01(3), the amount of $30,000 upon delivering to the
Administrator evidence demonstrating that he or she has
(i) developed fibrous tissue in the portal areas of the
liver with fibrous bands extending out from the portal
area but without any bridging to other portal tracts or
to central veins (i.e., non-bridging fibrous) or (ii)
received Compensable HCV Drug Therapy or (iii) has met
or meets a protocol for Compensable HCV Drug Therapy notwithstanding
that such treatment was not recommended or, if recommended,
has been declined;
- the amount of $65,000 upon delivering to the Administrator
evidence demonstrating that he or she has (i) developed
fibrous bands in the liver extending or bridging from
portal area to portal area with the development of nodules
and regeneration (i.e., cirrhosis), or (ii) in the absence
of a liver biopsy demonstrating the presence of cirrhosis,
a diagnosis of cirrhosis as follows:
- hepato-splenomegaly and peripheral manifestations
of liver disease such as gynecomastia in males, testicular
atrophy, spider angiomata, protein malnutrition, palm
or nail changes none of which are attributable to any
cause other than cirrhosis, and/or
- portal hypertension evidenced by splenomegaly, abnormal
abdominal and chest wall veins, or esophageal varices,
or ascites none of which are attributable to any cause
but cirrhosis;
and
- abnormal tests blood tests for a minimum of three
months demonstrating:
- polyclonal increase in gamma globulins on a serum
protein electrophoresis with decreased albumin;
- significantly decreased platelet count not attributable
to any other cause such as auto-immune causes; and
- prolonged INR or Prothrombin time not attributable
to any other cause.
or (iii) porphyria cutanea tarda which has failed to
respond to a trial of phlebotomy, drug therapy, or the
treatment of HCV and which is causing significant disfigurement
and disability or (iv) thrombocytopenia (low platelets)
unresponsive to therapy, and which is associated with
purpura or other spontaneous bleeding, or which results
in excessive bleeding following trauma or a platelet count
below 30 x 109 per ml or (v) glomerulonephritis not requiring
dialysis, which in any such case is caused by his or her
infection with HCV; and
- the amount of $100,000 upon delivering to the Administrator
evidence demonstrating that he or she has had a liver
transplant or has developed (i) decompensation of the
liver or (ii) hepatocellular cancer or (iii) B-cell lymphoma
or (iv) symptomatic mixed cryoglobulinemia or (v) glomerulonephritis
requiring dialysis or (vi) renal failure, which in any
such case is caused by his or her infection with HCV.
- Each Approved HCV Infected Person who delivers to the
Administrator evidence demonstrating that he or she has
developed fibrous tissue in the portal areas of the liver
with fibrous bands bridging to other portal areas or to
central veins but without nodular formation or nodular regeneration
(i.e., bridging fibrous) will be entitled to be paid (i)
the compensation pursuant to Sections 4.01(1)(a) and (b)
to the extent that he or she has not already received those
amounts and (ii), unless waived pursuant to the provisions
of Section 4.01(3), the compensation pursuant to Section
4.01(1)(c) to the extent that he or she has not already
received that amount.
- If an Approved HCV Infected Person described in Section
4.01(1)(c) delivers to the Administrator proof that his
or her infection with HCV has caused the Approved HCV Infected
Person to be regularly unable to perform:
- the substantial duties of his or her usual employment,
occupation or profession such that the Approved HCV Infected
Person works no more than 20% of his or her usual work
week; or
- the substantial household duties that he or she would
normally provide in his or her home such that the Approved
HCV Infected Person performs no more than 20% of the household
services that he or she would normally provide;
he or she may waive payment of the amount of $30,000 payable
pursuant to Section 4.01(1)(c) and elect to be paid instead
the compensation provided for under Section 4.02 or 4.03,
as the case may be. This election must be made by notice
in writing in the form prescribed by the Administrator delivered
to the Administrator at any time prior to receipt of the
said $30,000. A person who has elected to receive the compensation
payable under Section 4.02 or 4.03 is not entitled to be
paid the said amount of $30,000 pursuant to Section 4.01(1)(c)
at any time thereafter under any circumstances whatsoever.
- The amounts payable under Section 4.01(1) are cumulative.
For example, an Approved HCV Infected Person who proves
that he or she has a condition described in Section 4.01(1)(d)
will be entitled to be paid the $10,000 referred to in Section
4.01(1)(a), the $15,000 and the postponed amount up to $5,000
referred to in Section 4.01(1)(b) and, unless waived pursuant
to the provisions of Section 4.01(3), the $30,000 referred
to in Section 4.01(1)(c), as well as the $65,000 referred
to in Section 4.01(1)(d).
- The medical evidence to be delivered pursuant to this
Article Four is such medical evidence as is generally accepted
by the medical profession and approved by the Courts.
4.02 Compensation for Loss of Income
(top)
- Each Approved HCV Infected Person who normally had Earned
Income (as defined below, except as provided in Section
4.02(2)(f)) who:
- elects to be paid compensation for loss of income instead
of $30,000 pursuant to Section 4.01(3); or
- delivers to the Administrator:
- evidence demonstrating the he or she has developed
fibrous tissue in the portal areas of the liver with
fibrous bands bridging to other portal areas or to central
veins but without nodular formation or nodular regeneration
(i.e., bridging fibrous);
- the evidence referred to in Section 4.01(1)(d); or
- the evidence referred to in Section 4.01(1)(e); and
who delivers to the Administrator proof satisfactory to
the Administrator that his or her infection with HCV caused
loss of income will be paid compensation for past, present
and future loss of income.
- Each Approved HCV Infected
Person who is entitled to receive compensation for past,
present or future loss of income caused by his or her infection
with HCV will be paid, subject to the provisions of Section
7.03, an amount each calendar year equal to 70% of his or
her Annual Loss of Net Income for such year until he or
she attains the age of 65 years determined in accordance
with the following provisions:
- "Annual Loss of Net Income" for a year means
the excess of the Approved HCV Person's Pre-claim Net
Income for such year over his or her Post-claim Net Income
for such year.
- "Pre-claim Net Income" of an Approved HCV
Infected Person for a year means an amount determined
as follows:
- an amount equal to the average
of the person's three highest consecutive years of Earned
Income preceding the HCV Infected Person's entitlement
to compensation under this Section 4.02 multiplied by
the ratio that the Pension Index for the year bears
to the Pension Index for the middle year of the foregoing
three consecutive years, or, if the Approved HCV Infected
Person or the Administrator demonstrates on a balance
of probabilities that his or her Earned Income for such
year would have been higher or lower than such average
but for the HCV Infected Person's infection with HCV,
such higher or lower amount, (the applicable amount
being hereinafter referred to as the "Pre-claim
Gross Income"), provided that the amount determined
under this Section 4.02(2)(b)(i) will not exceed $75,000
multiplied by the ratio that the Pension Index for the
year bears to the Pension Index for 1999, minus
- the Ordinary Deductions that would be payable by the
Approved HCV Infected Person on the amount determined
under Section 4.02(2)(b)(i) on the assumption that such
amount was the Approved HCV Infected Person's only income
for such year.
- "Post-claim Net Income" of an Approved HCV
Infected Person for a year means an amount determined
as follows:
- the total of (A) the Approved
HCV Infected Person's Earned Income for the year or,
if the Administrator demonstrates on a balance of probabilities
that the Approved HCV Infected Person's Earned Income
for such year would have been higher than such amount
but for the person claiming a level of impairment greater
than the person's actual level of impairment, such Earned
Income as determined by the Administrator, (B) the amount
paid or payable to the person in respect of the Canada
Pension Plan or the Québec Pension Plan on account of
illness or disability for the year, (C) the amount paid
or payable to the person in respect of Unemployment
Insurance and/or Employment Insurance for the year,
(D) the amount paid or payable to the person for income
replacement under a sickness, accident or disability
insurance plan for the year, and (E) the amount paid
or payable to the person pursuant to the EAP, MPTAP
and/or the Nova Scotia Compensation Plan, (such total
being hereinafter referred to as the "Post-claim
Gross Income"), provided that the amount determined
under this Section 4.02(2)(c)(i) will not exceed the
proportion of the amount determined under Section 4.02(2)(b)(i)
for such year that the Approved HCV Infected Person's
Post-claim Gross Income for such year is of such person's
Pre-claim Gross Income for such year, minus
- the Ordinary Deductions that would be payable by the
Approved HCV Infected Person on the amount determined
under Section 4.02(2)(c)(i) on the assumption that such
amount were such person's only income for such year.
- "Earned Income" means
taxable income for the purposes of the Income Tax Act
(Canada) from an office or employment or from the carrying
on of an active business and any taxable income for purposes
of the Income Tax Act (Canada) of a corporation from the
carrying on of an active business to the extent that the
person establishes to the satisfaction of the Administrator
that the person has a significant shareholding in such
corporation and that such income is reasonably attributable
to the activities of such person.
- "Ordinary Deductions"
means income taxes, Unemployment Insurance and/or Employment
Insurance and Canada Pension Plan and/or Québec Pension
Plan deductions applicable in the Province or Territory
where the person is resident.
- Notwithstanding any of the foregoing, an Approved HCV
Infected Person who was not working prior to his or her
infection with HCV and who was infected either before
he or she attains 18 years of age or, if the person had
attained 18 years of age, while the person was in full-time
attendance at an accredited education institution in Canada
and at a time when the person was yet to enter the workforce
on a permanent and full-time basis, will be deemed to
have Pre-claim Gross Income for the year which includes
the date he or she attains 18 years of age and each subsequent
year or, if the person had already attained 18 years of
age, the year of completion of full-time attendance at
an accredited education institution and each subsequent
year, in an amount equal to the then most recently available
Average Industrial Wage in Canada (such amount will be
prorated for the year in which the person attains 18 years
of age or, completes full-time attendance at an accredited
education institution for the number of days in the year
in which the person has attained 18 years of age or, completes
full-time attendance at an accredited education institution),
or, if such person demonstrates on a balance of probabilities
that his or her Earned Income for such year would have
been higher than such amount, such higher amount.
- For the purposes of all income
tax calculations required under this Section 4.02(2),
the only deductions and tax credits that apply to the
Approved HCV Infected Person which will be taken into
account will be his or her alimony and maintenance payments
deduction, basic personal tax credit, married person's
or equivalent to married tax credit, disability tax credit,
Unemployment or Employment Insurance premium tax credit
and Canada Pension Plan or the Québec Pension Plan contribution
tax credit.
4.03 Compensation for Loss of Services
in the Home (top)
- Each Approved HCV Infected Person who normally performed
household duties in his or her home and who:
- elects to be paid compensation for the loss of such
services instead of $30,000 pursuant to Section 4.01(3);
or
- delivers to the Administrator:
- evidence demonstrating he or she has developed fibrous
tissue in the portal areas of the liver with fibrous
bands bridging to other portal areas or to central veins
but without nodular formation or nodular regeneration
(i.e., bridging fibrous);
- the evidence referred to in Section 4.01(1)(d); or
- the evidence referred to in Section 4.01(1)(e); and
who delivers to the Administrator proof satisfactory to
the Administrator that his or her infection with HCV caused
his or her inability to perform his or her household duties
will be paid compensation for the loss of such services.
- The amount of the compensation for the loss of services
in the home pursuant to Section 4.03(1) is $12 per hour
to a maximum of $240 per week.
- Notwithstanding any of the provisions hereof, an Approved
HCV Infected Person cannot claim compensation for loss of
income and compensation for the loss of services in the
home for the same period.
4.04 Compensation for Costs of Care
(top)
An Approved HCV Infected Person who establishes to the satisfaction
of the Administrator that on the balance of probabilities
he or she has any of the conditions referred to in Section
4.01(1)(e) and delivers to the Administrator evidence satisfactory
to the Administrator that he or she has incurred costs for
care due to such condition that are not recoverable by or
on behalf of the claimant under any public or private health
care plan is entitled to be reimbursed for all reasonable
costs so incurred provided:
- the amount of compensation payable for care costs in any
calendar year cannot exceed $50,000;
- the care was recommended by the claimant's treating physician;
- the amount of compensation will not include any costs
described in Sections 4.03 or 4.06; and
- if the costs are incurred outside of Canada, the amount
of compensation cannot exceed the lesser of the amount of
compensation payable if the costs had been incurred in the
Province or Territory where the claimant resides or is deemed
to reside and the actual costs.
4.05 Compensation for HCV Drug Therapy
(top)
An Approved HCV Infected Person who delivers evidence satisfactory
to the Administrator that he or she has received Compensable
HCV Drug Therapy is entitled to be paid $1,000 for each completed
month of therapy.
4.06 Compensation for Uninsured Treatment
and Medication (top)
An Approved HCV Infected Person who delivers to the Administrator
evidence satisfactory to the Administrator that he or she
has incurred or will incur costs for generally accepted treatment
and medication due to his or her HCV infection which are not
recoverable by or on behalf of the claimant under any public
or private health care plan is entitled to be reimbursed for
all reasonable past, present or future costs so incurred,
to the extent that such costs are not costs of care or compensation
for loss of services in the home, provided:
- the costs were incurred on the recommendation of the claimant's
treating physician; and
- if the costs are incurred outside of Canada, the amount
of compensation cannot exceed the lesser of the amount of
compensation payable if the costs had been incurred in the
Province or Territory where the claimant resides or is deemed
to reside and the actual costs.
4.07 Compensation for Out-of-Pocket Expenses
(top)
An Approved HCV Infected Person who delivers to the Administrator
evidence satisfactory to the Administrator that he or she
has incurred or will incur out-of-pocket expenses due to his
or her HCV infection that are not recoverable by or on behalf
of the claimant under any public or private health care plan
is entitled to be reimbursed for all reasonable costs so incurred
provided:
- out-of-pocket expenses will include (i) expenses for travel,
hotels, meals, telephone and other similar expenses attributable
to seeking medical advice or generally accepted medication
or treatment due to his or her HCV infection and (ii) medical
expenses incurred in establishing a Claim; and
- the amount of the expenses cannot exceed the amount therefor
in the guidelines in the Regulations issued under the Financial
Administration Act (Canada) from time to time.
4.08 Compensation for HIV Secondarily-Infected
Persons (top)
An Approved HCV Infected Person who is also a HIV Secondarily-Infected
Person may not receive any compensation under this Article
Four unless and until his or her entitlement to compensation
hereunder exceeds a total of $240,000 and then he or she will
be entitled to be compensated for all amounts payable under
this Article Four in excess of $240,000.
4.09 Compensation is Inclusive
(top)
For greater certainty, the amounts payable to Approved HCV
Infected Persons under this Article Four are inclusive of
any prejudgment interest or other amounts that may be claimed
by Approved HCV Infected Persons.
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