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ARTICLE FOUR
COMPENSATION TO APPROVED HCV INFECTED PERSONS

4.01 Fixed Payments (top)

  1. Each Approved HCV Infected Person will be paid the amounts set out below as compensation for damages:
  1. the amount of $10,000 as compensation for damages upon his or her Claim being approved by the Administrator;
  2. 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;
  3. 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;
  4. 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:
  1. 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
  2. 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

  3. 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

  1. 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.
  1. 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.
  2. 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:
  1. 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
  2. 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.

  1. 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).
  2. 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)

  1. Each Approved HCV Infected Person who normally had Earned Income (as defined below, except as provided in Section 4.02(2)(f)) who:
  1. elects to be paid compensation for loss of income instead of $30,000 pursuant to Section 4.01(3); or
  2. delivers to the Administrator:
  1. 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);
  2. the evidence referred to in Section 4.01(1)(d); or
  3. 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.

  1. 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:
  1. "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.
  2. "Pre-claim Net Income" of an Approved HCV Infected Person for a year means an amount determined as follows:
  1. 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
  2. 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.
  1. "Post-claim Net Income" of an Approved HCV Infected Person for a year means an amount determined as follows:
  1. 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
  2. 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.
  1. "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.
  2. "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.
  3. 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.
  4. 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)

  1. Each Approved HCV Infected Person who normally performed household duties in his or her home and who:
  1. elects to be paid compensation for the loss of such services instead of $30,000 pursuant to Section 4.01(3); or
  2. delivers to the Administrator:
  1. 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);
  2. the evidence referred to in Section 4.01(1)(d); or
  3. 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.

  1. 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.
  2. 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:

  1. the amount of compensation payable for care costs in any calendar year cannot exceed $50,000;
  2. the care was recommended by the claimant's treating physician;
  3. the amount of compensation will not include any costs described in Sections 4.03 or 4.06; and
  4. 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:

  1. the costs were incurred on the recommendation of the claimant's treating physician; and
  2. 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:

  1. 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
  2. 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)

  1. 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.
  2. 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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