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 developed (i) 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: which is caused
by his or her HCV; and
a. polyclonal increase in gamma globulins
on a serum protein electrophoresis with decreased
albumin;
b. significantly decreased platelet count
not attributable to any other cause such as
auto-immune causes; and
c. 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 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(2), 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 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 provided that evidence that a Primarily-Infected
Hemophiliac who is an Approved HCV Infected Person
has developed a condition referred to in Section
4.01(1)(c)(i), (d) or (e) or 4.01(2) may be established
on a balance of probabilities by the delivery
of the opinion of a medically qualified expert
based on non-invasive testing and diagnosis.
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.
- Notwithstanding any of the provisions of this
Plan (including Section 4.08(1)), a Primarily-Infected
Hemophiliac who is an Approved HCV Infected Person
who is also infected with HIV may elect to be
paid $50,000 in full satisfaction of all his or
her past, present or future Claims pursuant to
this Plan (including all potential Claims of his
or her Dependants or other Family Members pursuant
to Article Six) but such payment will not affect
the personal Claim of a Spouse or Child who is
also a HCV Infected Person. Evidence that an Approved
HCV Infected Person has received payments under
MPTAP or EAP or the Nova Scotia Compensation Plan
will be proof that he or she also has HIV.
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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