Case 5:14-cv-01377-M Document 1-1 Filed 12/12/14 Page 1 of 62

DILLARD'S
INJURY BENEFIT PLAN FOR
OKLAHOMA EMPLOYEES
(Effective September 1, 2014)

OFFICIAL PLAN DOCUMENT
©Copyright 2014 PartnerSource
Rev. 7/14/2014

Exhibit
A

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TABLE OF CONTENTS
Page
ARTICLE I - DEFINITIONS ............................................................................................. 1
1.1
1.2
1.3
1.4
1.5
1.6
1.7
1.8
1.9
1.10
1.11
1.12
1.13
1.14
1.15
1.16
1.17
1.18
1.19
1.20
1.21
1.22
1.23
1.24
1.25
1.26
1.27
1.28
1.29
1.30
1.31
1.32
1.33
1.34
1.35
1.36
1.37
1.38
1.39
1.40
1.41

"Accident".......................................................................................................... 1
"Act" .................................................................................................................. 1
"Adverse Benefit Determination" ....................................................................... 1
"Appeals Committee" ........................................................................................ 2
"Approved Facility" ............................................................................................ 2
"Approved Physician" ........................................................................................ 2
"Beneficiary"...................................................................................................... 2
"Child” or “Children” .......................................................................................... 2
"Claims Administrator" ...................................................................................... 2
"Company" ........................................................................................................ 3
"Continuing Medical Maintenance" ................................................................... 3
"Course and Scope of Employment" ................................................................. 3
"Covered Charge" ............................................................................................. 4
"Covered ........................................................................................................... 9
"Cumulative Trauma" ........................................................................................ 9
"Custodial Care" .............................................................................................. 10
"Determination" ............................................................................................... 10
"Disabled" or "Disability" ................................................................................. 10
"Disability Benefits” ......................................................................................... 10
"Disfigurement Benefits" ................................................................................. 10
"Emergency Care" .......................................................................................... 10
"Employee" ..................................................................................................... 11
"Employer" ...................................................................................................... 11
"First Aid" ........................................................................................................ 11
"Formulary" ..................................................................................................... 11
"Gross Misconduct" ......................................................................................... 11
"Home Health Care" ........................................................................................ 11
"Home Health Care Agency" ........................................................................... 12
"Injury"............................................................................................................. 12
“Maximum Medical Improvement” ................................................................... 16
"Medical Benefits" ........................................................................................... 16
"Medically Necessary"..................................................................................... 16
"Medical Rehabilitation Hospital" .................................................................... 17
"Medicare"....................................................................................................... 17
“Misconduct” ................................................................................................... 17
"Modified Duty" ............................................................................................... 18
"Non-Occupational Death Benefits" ................................................................ 18
"Non-Occupational Injury" ............................................................................... 18
"Objective Findings” ........................................................................................ 18
"Occupational Death Benefits" ........................................................................ 18
"Occupational Disease"................................................................................... 19

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Page
1.42
1.43
1.44
1.45
1.46
1.47
1.48
1.49
1.50
1.51
1.52
1.53
1.54
1.55
1.56
1.57
1.58
1.59
1.60
1.61
1.62
1.63
1.64
1.65
1.66

"Occurrence" ................................................................................................... 19
"Official Disability Guidelines" ......................................................................... 19
"Participant" .................................................................................................... 19
"Permanent Disability”..................................................................................... 19
"Permanent Partial Disability” ......................................................................... 19
"Permanent Total Disability” ............................................................................ 19
"Plan" .............................................................................................................. 19
"Plan Administrator" ........................................................................................ 19
"Plan Year"...................................................................................................... 19
"Post-Service Claim" ....................................................................................... 20
“Preexisting Condition” .................................................................................... 20
"Pre-Injury Pay" ............................................................................................... 20
"Pre-Service Claim" ........................................................................................ 20
"Prosthetic" ..................................................................................................... 20
"Relevant" ....................................................................................................... 20
"Representative" ............................................................................................. 21
"Skilled Nursing Care" ..................................................................................... 21
"Skilled Nursing Facility" ................................................................................. 21
"State Average Weekly Wage"........................................................................ 22
"Surviving Spouse" ......................................................................................... 22
"Temporary Partial Disability” .......................................................................... 22
"Temporary Total Disability" or "Temporarily Totally Disabled" ....................... 22
"Traumatic Event" ........................................................................................... 22
"Urgent Care Claim" ........................................................................................ 22
"Usual and Customary" ................................................................................... 23

ARTICLE II - ELIGIBILITY AND NATURE OF PAYMENTS ........................................ 23
2.1
2.2

Eligibility. ......................................................................................................... 23
Nature of Payments. ....................................................................................... 23

ARTICLE III - BENEFITS .............................................................................................. 24
3.1
3.2
3.3
3.4
3.5

Disability Benefits............................................................................................ 24
Disfigurement Benefits. ................................................................................... 31
Occupational Death Benefits........................................................................... 31
Non-Occupational Death Benefit..................................................................... 33
Medical Benefits.............................................................................................. 34

ARTICLE IV - ADDITIONAL REQUIREMENTS AND LIMITATIONS ON BENEFITS .. 34
4.1
4.2
4.3
4.4

Reporting. ....................................................................................................... 34
Medical Management. ..................................................................................... 35
Suspension Or Termination of Benefits. ......................................................... 38
Mandatory Final Compromise And Settlement................................................ 40

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Page
ARTICLE V - ADMINISTRATION ................................................................................. 40
5.1
5.2

Plan Administrator........................................................................................... 40
Funding Policy And Method. ........................................................................... 42

ARTICLE VI - CLAIMS PROCEDURES ....................................................................... 42
6.1
6.2

Filing a Claim for Benefits. .............................................................................. 42
Claims Review. ............................................................................................... 44

ARTICLE VII - COORDINATION OF BENEFITS AND SUBROGATION ..................... 50
7.1
7.2
7.3
7.4
7.5

Reduction in Benefit Payments. ...................................................................... 50
Coordination Of Benefits. ................................................................................ 50
Subrogation and Reimbursement Rights. ....................................................... 52
Notice Of Legal Proceedings. ......................................................................... 53
Assignment Of Rights. .................................................................................... 53

ARTICLE VIII - TERMINATION AND AMENDMENT ................................................... 54
ARTICLE IX - GENERAL PROVISIONS ...................................................................... 55
9.1
9.2
9.3
9.4
9.5
9.6
9.7
9.8
9.9
9.10
9.11
9.12
9.13

Inability to Make Payment. .............................................................................. 55
Claims Administrator and Appeals Committee Indemnity. .............................. 55
Spendthrift Provision. ...................................................................................... 55
Employment Noncontractual. .......................................................................... 55
Discharge for Benefit Payments...................................................................... 55
Participation By Affiliates................................................................................. 56
Plan Documents Control. ................................................................................ 56
Construction. ................................................................................................... 56
Separability. .................................................................................................... 56
Applicable Law. ............................................................................................... 56
Application of Health Insurance Portability and Accountability Act.................. 56
Application of Patient Protection and Affordable Care Act. ............................. 56
Application of Other Group Health Plan Requirements ................................... 56

APPENDIX A: RECEIPT, SAFETY AND PLEDGE ACKNOWLEDGEMENT

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DILLARD'S
INJURY BENEFIT PLAN FOR OKLAHOMA EMPLOYEES
This Dillard's Injury Benefit Plan For Oklahoma Employees (the "Plan") is made and
executed in Little Rock, Arkansas by Dillard’s, Inc. (the "Company").

WITNESSETH THAT:
WHEREAS, the Company has elected to be exempt from coverage under the
Oklahoma Administrative Workers’ Compensation Act, and establishes a separate
employee injury benefit plan in accordance with the Oklahoma Employee Injury Benefit
Act; and
WHEREAS, the Plan shall provide non-fringe temporary total disability, temporary
partial disability, permanent partial disability, permanent total disability, vocational
rehabilitation, disfigurement, occupational death, non-occupational death and medical
benefits to its Oklahoma employees, effective as of September 1, 2014; and
WHEREAS, this Plan is intended to conform to the requirements for an employee
welfare benefit plan under the Employee Retirement Income Security Act of 1974, as
amended (“ERISA”).
NOW, THEREFORE, in consideration of the premises, the Company hereby
establishes this Plan to provide benefits and be administered in accordance with the
following:
ARTICLE I
DEFINITIONS
1.1

"Accident" means an event involving factors external to the Participant

which:
(a)
was
unexpected;

unintended,

unanticipated,

unforeseen,

(b)

occurred at a specifically identifiable time and place;

(c)

occurred by chance or from unknown causes; and

unplanned,

and

(d)
was independent of sickness, mental incapacity, bodily infirmity or any
other cause.
1.2

"Act" means the Oklahoma Employee Injury Benefit Act.

1.3
"Adverse Benefit Determination" means a denial, reduction or termination
of, or a failure to provide or make payment (in whole or in part) for, a Plan benefit. For
example, this includes denial, reduction or termination of benefits based upon (a) a
claimant's ineligibility to participate in the Plan, (b) application of any utilization review, (c)
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a medical service being experimental or investigational or not Medically Necessary or
appropriate, or (d) the Participant no longer being Disabled.
1.4
"Appeals Committee" means the designated decision maker appointed by
the Plan Administrator to make Determinations on appeal of benefit claims and otherwise
administer the Plan on behalf of the Plan Administrator and all other Employers. The
Appeals Committee’s fiduciary responsibility is limited to discretionary authority and
ultimate decision-making authority with respect to any final appeals of denied claims. The
Appeals Committee shall otherwise hold no further authority, responsibility or liability as
related to the administration of the Plan.
1.5
"Approved Facility" means a hospital, other medical care facility or medical
service or supply provider either expressly approved by the Claims Administrator, included
on an approved list of facilities adopted by the Claims Administrator, or otherwise
approved in writing by the Claims Administrator upon the request of a Participant. The
Claims Administrator reserves the right to add to, delete from, or otherwise amend any list
of Approved Facilities at any time.
1.6
"Approved Physician" means a person duly licensed under applicable state
law and either expressly approved by the Claims Administrator, included on an approved
list of physicians adopted by the Claims Administrator, or otherwise approved in writing by
the Claims Administrator upon the request of a Participant. The Claims Administrator
reserves the right to add to, delete from, or otherwise amend any list of Approved
Physicians at any time.
1.7
"Beneficiary" means a Surviving Spouse and/or dependent Child or
Children, or legal guardian.
1.8

"Child” or “Children” means either:

(a)
of age;

a natural or adopted son or daughter of the Participant under 18 years

(b)
a natural or adopted son or daughter of a Participant 18 years of age
or over who is physically or mentally incapable of self-support;
(c)
any natural or adopted son or daughter of a Participant 18 years of
age or over who is actually dependent; or
(d)
any natural or adopted son or daughter of a Participant between 18
and 23 years of age who is enrolled as a full-time student in any accredited
educational institution.
The term Child or Children includes a posthumous child, a child legally
adopted or one for whom adoption proceedings are pending at the time of death, an
actually dependent stepchild or an actually dependent acknowledged child born out
of wedlock.
1.9
"Claims Administrator" means the individual, individuals or entity appointed
by the Company to make initial Determinations of benefit claims under this Plan on behalf
of the Company and all other Employers.
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1.10 "Company" means Dillard’s, Inc., whose principal place of business is
located in Little Rock, Arkansas, or any successor thereto.
1.11 "Continuing Medical Maintenance" means medical treatment that is
reasonable and necessary to maintain the Participant’s condition resulting from the
compensable Injury after reaching Maximum Medical Improvement. Continuing medical
maintenance shall not include diagnostic tests, surgery, injections, counseling, physical
therapy, or pain management devices or equipment.
1.12 "Course and Scope of Employment" means an activity of any kind or
character for which the Participant was hired and that has to do with, and originates in, the
work, business, trade or profession of an Employer, and that is performed by a Participant
in the furtherance of the affairs or business of an Employer. The term includes activities
conducted on the premises of an Employer or at other locations designated by an
Employer. This term does not include:
(a)
a Participant's transportation to and from his or her place of
employment, unless:
(1)
the transportation is furnished as part of the Participant’s
employment arrangement or is paid for by an Employer; provided, however,
that this exception does not include commuting to or from the Participant’s
usual place of employment;
(2)
the means of the transportation are under the control of an
Employer; or
(3)
the Participant is directed in his or her employment to proceed
from one place to another place. Commuting to the place where the
Participant begins Employer business and commuting away from the place
where the Participant ceases Employer business shall not be covered if such
transportation is not paid by the Employer or otherwise under Employer
control.
(b)
travel by the Participant in furtherance of the affairs or business of an
Employer if such travel is also in furtherance of personal or private affairs of the
Participant, unless:
(1)
the travel to the place where the Injury occurred would have
been made even had there been no personal or private affairs of the
Participant to be furthered by the travel; and
(2)
the travel would not have been made had there been no affairs
or business of the Employer to be furthered by the travel.
(c)
any Injury occurring before the Participant clocks in or otherwise begins
work for an Employer or after the Participant clocks out or otherwise ceases work for
an Employer. However, this rule shall not apply if the Injury occurs in an Employer’s
building and is specifically related to proceeding directly to clock in or otherwise begin
work or proceeding directly away from clocking out or otherwise ceasing work.
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(d)

any Injury occurring while the Participant is on a work break, unless:

(1)
the Injury occurs while the Participant is on a work break inside
an Employer's building (for purposes other than eating or smoking);
(2)
such work break was authorized by his or her supervisor (or
was otherwise permitted consistent with the Participant’s job description);
(3)
the Participant is scheduled to return to work that same day
following such work break; and
(4)
the Participant has not clocked out or otherwise ceased work
for an Employer.
1.13 "Covered Charge" means the cost to a Participant of a service or supply
described in this Plan below, which service or supply is Medically Necessary, based on the
nature of the Injury, as and when provided, and (1) cures or relieves the effects naturally
resulting from the Injury; (2) promotes recovery; or (3) otherwise enhances the ability of the
Participant to return to or retain employment. Such services and supplies are also subject
to the medical management provisions of Section 4.2. For purposes of this Plan, the words
"service" or "supply" include, but are not limited to, any related treatment, medication,
technique or method.
(a)

First and Continuing Treatment.

(1)
The first Covered Charge must be received from an Approved
Physician and incurred within 14 days following the date of the Injury (unless
the Claims Administrator determines that good cause exists); and
(2)
No further amount shall be considered a Covered Charge if the
Participant does not receive medical treatment from an Approved Physician
or Approved Facility (or scheduled treatment with an Approved Physician or
Approved Facility has not been approved by the Claims Administrator) for a
period of more than 60 days. This subsection (2), however, shall not apply to
any Covered Charge for testing and any follow up vaccination with respect to
an Injury that involves a potential occupational exposure to a bloodborne
pathogen.
(b)
Approved Provider and Pre-Authorization Requirements. The cost
of a service or supply shall be a Covered Charge only if:
(1)
treatment is furnished by or under the direction of an Approved
Physician or Approved Facility, acting within the scope of the Approved
Physician's or Approved Facility's license, and pre-approved by the Claims
Administrator (except when the Claims Administrator determines that prior
approval was impossible under the circumstances). Such pre-approval may
include authorization for multiple visits to an Approved Physician or Approved
Facility, and must be in writing, or by electronic notice (except as otherwise
specified below or in Article VI herein); or
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(2)

treatment is provided as Emergency Care; and

(i)
the Claims Administrator receives notification of such
Emergency Care within the later of 24 hours of the Participant's
receipt of such care or the next business day; and
(ii)
after receiving primary Emergency Care, subsequent
treatments are provided by, or at the direction of, an Approved
Physician or Approved Facility in accordance with paragraph (1)
above.
(c)
Covered Medical That Can Be Verbally Authorized. Subject to the
restrictions and limitations set out elsewhere in this Plan, Covered Charges that can
be verbally authorized shall include the cost of the following:
(1)
Approved Physician visits - at an Approved Facility (including
charges for an emergency room), Approved Physician's office, or in the case
of Home Health Care, at the Participant's home, including second opinion
services requested by the Claims Administrator (in accordance with Section
4.2), and charges for a registered nurse;
(2)
Medical supplies approved by the treating Approved Physician,
including the following:
(A)
Prescription drugs (generic, unless trade name drugs
are requested by an Approved Physician) and over-the-counter drugs
such as analgesics prescribed by an Approved Physician;
(B)
Blood and other fluids (other than allergy, insulin, and
similar drugs) injected into the circulatory system (but only to the
extent not available through any refund or allowance by a blood bank
or similar organization);
(C)

Oxygen and its administration;

(D)
Upon the written advice or prescription of an Approved
Physician and only if obtained from an Approved Facility, rental or
purchase of a wheelchair, assisted breathing apparatus, or other
mechanical equipment necessary for the treatment of respiratory
paralysis, and similar internal or external durable medical equipment
designed primarily for therapeutic purposes;
(E)
Surgical dressings, bandages, splints, casts, crutches,
syringes, needles, trusses, and braces dispensed by an Approved
Physician or Approved Facility; and
(F)

Other items approved by the Claims Administrator.

(3)
Ambulance services - professional ground ambulance service,
or if no other means of transportation can reasonably suffice to deliver the
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individual to the closest appropriate Approved Facility, air ambulance,
regularly scheduled railroad, or airlines;
(4)
Eyeglasses or contact lenses - one pair per Injury up to $400,
inclusive of professional office visit charges, but excluding routine eye
examinations; and
(5)
External hearing aid - up to $600 per ear, inclusive of
professional office visit charges.
(d)
Medical Requiring Specific Approval in Writing or by Electronic
Notice. Subject to the restrictions and limitations set out elsewhere in this Plan,
Covered Charges shall also include the cost of the following so long as the Claims
Administrator specifically approves such charges in advance and in writing or by
electronic notice:
(1)
Admission to an Approved Facility on an inpatient or outpatient
basis, including semi-private room and board, ambulatory day surgery,
anesthesia and its administration, and similar services;
(2)
Diagnostic testing, including x-ray examinations, laboratory
tests, MRI, CAT Scan, nuclear medicine, radiology and pathology (including
interpretive services) and similar testing;
(3)
Prescription drugs not identified in any Formulary adopted by
the Claims Administrator;
(4)
Speech, occupational and physical therapy provided by an
Approved Physician or a licensed speech therapist, licensed occupational
therapist or licensed physical therapist; provided, however, that such
services shall be subject to case management approval regarding the
number of visits, the types, and amount of services provided during such
visits;
(5)
Inpatient rehabilitation services provided in a Medical
Rehabilitation Hospital; provided, however, that such services shall be
subject to continued stay review by the Claims Administrator and case
management approval regarding the types and amount of services provided;
(6)
Limited or temporary pain management services (for example,
epidural steroid injections), but not including pain management programs;
(7)
Acupuncture, chiropractic or spinal manipulation services,
behavior modification, pain management programs, hypnosis, biofeedback,
other forms of self-care or self-help training or any related diagnostic testing,
or any service or supply ancillary to any of these treatments, if referred by an
Approved Physician;
(8)
Surgery
functioning;
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that

restores

6

a

reasonable,

normal

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(9)
Services of a dentist or licensed oral surgeon - services for
treatment and repair of broken teeth, fractures and dislocations of the jaw, or
the replacement of teeth (excluding temporomandibular junction dysfunction
services) when the injured Participant seeks treatment as soon as possible
after the Injury;
(10) Home Health Care (with respect to physical needs only) up to
75 visits per Plan Year and up to eight hours per visit for the first two weeks
of Home Health Care and up to four hours per visit thereafter;
(11) Skilled Nursing Care, provided that an Approved Physician
monitors the progress of the Participant at least once during each 30-day
period of confinement;
(12) Orthotics, arch supports, corrective shoes, special bras or
girdles, corrective appliances, prostheses, or any similar item;
(13) Organ and tissue transplant services not otherwise covered by
some form of expense payment program, excluding the donor's
transportation costs, organ procurement costs and the donor's surgical
expenses;
(14) Charges for telephone consultations with the Participant,
Participant's Representative, Approved Physicians or other health care
providers;
(15) Mental health services, but only to the extent that the mental
injury or illness is caused by a physical injury arising out of the Course and
Scope of Employment as determined by a preponderance of the evidence.
This physical injury limitation does not apply if the Participant is the victim or
witness to a Traumatic Event. Any mental injury or illness must be
diagnosed by an approved licensed psychiatrist or psychologist and the
diagnosis of the condition must meet the criteria established in the most
current issue of the Diagnostic and Statistical Manual of Mental Disorders;
(16) Services rendered primarily for training, testing, evaluation,
counseling, or educational purposes; and
(17) Reasonable travel, meal and lodging expenses related to
medical treatment that requires travel greater than 20 miles from the
Participant's residence (round trip), as interpreted by the Claims
Administrator for application under this Plan and approved by the attending
Approved Physician. Mileage will be reimbursed at the rate established by
the State Travel Reimbursement Act.
(e)
Non-Covered Medical. Any provision of this Plan to the contrary
notwithstanding, Covered Charges shall not include the cost of the following:
(1)
Charges incurred prior to the Participant's date of participation
in the Plan, or prior to the Participant's date of Injury;
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(2)
Charges rendered after the Participant's Medical Benefits under
the Plan terminate;
(3)
Expenses which are not Medically Necessary, as determined
by the Claims Administrator;
(4)
Charges incurred more than 60 days after the date of the
Participant's last Covered Charge (except as otherwise specified herein);
(5)
Expenses that exceed any fee schedule adopted by the Claims
Administrator or the Usual and Customary charge for the same or similar
treatment, services or supplies in the Employer’s geographic area;
(6)
Services or supplies payable by any government or subdivision
or agency thereof, or any other applicable third-party payor;
(7)
Services or supplies which are experimental, investigative, or
for the purposes of research, including, but not limited to, services and
supplies that have not been approved by the American Medical Association,
the Food and Drug Administration, the appropriate medical specialty society,
or the appropriate governmental agency, all phases of clinical trials, all
treatment protocols based upon or similar to those used in clinical trials, or
any treatment not generally accepted by the physician's profession in the
United States as safe and effective for diagnosis and treatment;
(8)
Services or supplies performed or provided while the
Participant is not covered by the Plan;
(9)
Services or supplies for which the Participant is not legally
obligated to pay, or for which no charge would be made in the absence of the
Plan;
(10) Services for the evaluation or treatment of mental or
psychological damage or harm, except to the extent provided above under
subsection (d);
(11) Services or supplies for personal comfort or convenience, such
as a private room, television, telephone, radio, guest trays, and similar items;
(12) Fraudulent claims or claims not filed in good faith as
determined by the Claims Administrator;
(13)

Canceled appointment charges;

(14)

Self-administered services;

(15) Services or supplies to which the Participant's condition is
persistently nonresponsive;
(16) Services or supplies relating to Preexisting Conditions, except
to the limited extent (if any) that an Approved Physician clearly confirms an
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identifiable and significant aggravation (incurred in the Course and Scope of
Employment) of a Preexisting Condition; provided, however, that:
(A)
coverage for such aggravation will be provided only if
and to the extent that the Approved Physician:
(i)
confirms that the Preexisting Condition has been
previously repaired or rehabilitated, and
(ii)
prescribes services or supplies that are Medically
Necessary to treat such aggravation and likely to return the
Participant to pre-Injury status; and
(B)
no coverage will be provided if the Preexisting Condition
was a major contributing cause of the Injury.
(17)

Substance abuse services;

(18)

Custodial Care;

(19) Charges for the purchase, rental or repair of bedding, or
environmental control devices, including, but not limited to, an air conditioner,
humidifier, dehumidifier, or air purifier; and charges for jacuzzis, saunas,
vans, or structural changes to the Participant's residence or moving
expenses;
(20)

Charges for services performed by:
(A)

a person who normally lives with the Participant;

(B)

the spouse of the Participant;

(C)

a parent of the Participant or of the Participant's spouse;

(D)

a child of the Participant or of the Participant's spouse;

or
(E)
a brother or sister of the Participant or of the
Participant's spouse.
(21) The cost of any other service or supply not specified in
subsection (c) or (d) above.
1.14 "Covered Employee" means an Employee who is principally employed at
one of an Employer’s covered locations in the State of Oklahoma, or at a location outside
of Oklahoma for a period of less than 90 consecutive days.
1.15 "Cumulative Trauma" means damage to the physical structure of the
Participant's body occurring as a result of rapid, repetitious, physically traumatic activities
that occur in the Course and Scope of Employment. The term “Cumulative Trauma” does
not mean fatigue, soreness or general aches and pain that may have been caused,
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aggravated, exacerbated or accelerated by the Participant’s Course and Scope of
Employment.
(a)
Any provision of this Plan to the contrary notwithstanding, if an
Employer has purchased an insurance policy described in Section 5.2, the purpose
of which (in whole or in part) is to pay Plan benefits to Participants or indemnify the
Employer for Plan benefits, then the Participant's last day of last exposure to the
condition causing or aggravating such Cumulative Trauma must have taken place
during the policy period.
(b)
Any provision of this Plan to the contrary notwithstanding, no benefits
will be payable with respect to Cumulative Trauma unless the Participant has
completed at least 180 days of continuous, active employment with an Employer
and has been regularly engaged in a Course and Scope of Employment with the
Employer involving rapid, repetitious, physically traumatic activities.
1.16 "Custodial Care" means care consisting of services and supplies provided
to an individual in or out of an institution primarily to assist him in daily living activities,
whether or not he or she is disabled, and no matter by whom recommended or furnished.
Room and board and Skilled Nursing Care are not, however, considered Custodial Care if
provided during confinement in an Approved Facility, and if combined with other necessary
therapeutic services, under accepted medical standards, which can reasonably be
expected to substantially improve the individual's medical condition which resulted from an
Injury.
1.17 "Determination" means a decision of the Claims Administrator or Appeals
Committee on whether benefits are payable to, or with respect to, a claimant under the
Plan.
1.18 "Disabled" or "Disability" means a Temporary Total Disability, Temporary
Partial Disability, Permanent Partial Disability or Permanent Total Disability.
1.19

"Disability Benefits” means any benefit payable under Section 3.1.

1.20

"Disfigurement Benefits" means any benefit payable under Section 3.2.

1.21 "Emergency Care" means a service or supply provided with respect to a
medical condition manifesting itself by a sudden and unexpected onset of acute symptoms
of sufficient severity that in the absence of immediate medical attention could reasonably
be expected to (i) result in death, disfigurement, or permanent disability, or (ii) result in
substantial impairment of any bodily organ, part, or function. This Emergency Care
determination solely relates to satisfaction of the Plan's approved medical provider
requirements, and the consideration of an exception for Emergency Care. Urgent
Care Claims may not arise to the level of involving Emergency Care. A Participant's
decision to seek treatment from an urgent care clinic or hospital emergency room
does not necessarily result in an Urgent Care Claim or involve Emergency Care.
That determination shall be made within the sole administrative discretion of the
Claims Administrator or Appeals Committee, with such advice and consultation
from an Approved Physician as the Claims Administrator or Appeals Committee
deems appropriate.
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1.22 "Employee" means any person, including a minor, in an Employer’s service
under any contract of hire or apprenticeship, written or oral, expressed or implied, but
excluding one whose employment is casual and not in the course of an Employer’s trade,
business, profession, or occupation. Such person must be under an Employer’s direction
and control, and receiving pay by means of a salary, wage, or commission directly from an
Employer and for whom an Employer files a Form W-2 with the Internal Revenue Service.
A Covered Employee must be acting within his or her Course and Scope of Employment at
the time and place of the Occurrence causing the Injury.
The term Employee specifically excludes sole proprietors, partners, members of an
LLC and executive officers (as defined under Section 16 of the Securities Exchange Act of
1934). Under no circumstances shall the term Covered Employee include a leased
employee, a temporary employee hired through a temporary services company, an
independent contractor, or a third-party agent.
1.23 "Employer" means the Company and any incorporated or unincorporated
trade or business that (1) is a member of a control group (with the meaning of Section
3(40) of ERISA) with respect to which the Company is also a member, and (2) maintains
Employees whose employment with the Employer is principally located within the State of
Oklahoma.
1.24 "First Aid" means on-site primary medical care rendered in accordance with
Employer policy.
1.25 "Formulary" means a listing of approved drugs adopted by the Plan
Administrator. In the event a formulary is adopted and a Participant is prescribed a drug
outside the formulary, the Participant may request written consent of the Plan
Administrator for use of the non-formulary drug. A denial by the Plan Administrator of a
request for use of a non-formulary drug shall be subject to appeal as set forth in Section
6.2(c).
1.26 "Gross Misconduct" means an act or course of conduct evidencing such
willful or wanton disregard of an Employer's interest as is found in deliberate violation or
disregard of the standard of behavior which the Employer has the right to expect of his
Employee, or in carelessness or negligence of such a degree or reoccurrence to manifest
equal culpability, wrongful intent or evil design, or to show an intentional or substantial
disregard of the Employer's interest or of the Employee's duties and obligations to his
Employer.
1.27 "Home Health Care" means the following care provided to the Participant on
the recommendation of an Approved Physician at the Participant's home or a Home Health
Care Agency:
(a)

intermittent nursing care by a(n):
(1)
(2)
(3)
(4)
(5)

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Registered Nurse ("R.N.");
Licensed Practical Nurse ("L.P.N.");
Home Health Aide;
Occupational Therapist;
Physical Therapist or Licensed Physical Therapy Assistant;
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(6) Licensed Vocational Nurse ("L.V.N."); or
(7) Licensed Speech Therapist.
(b)
private duty nursing services of an R.N., L.V.N., L.P.N., or Certified
Home Health Aid:
provided, however, that Home Health Care services shall not include services provided by
persons who ordinarily live in the same household as the Participant or who are related by
blood, marriage, or legal adoption to the Participant or the Participant's spouse.
1.28 "Home Health Care Agency" means any of the following: (i) a home health
care agency licensed by the State in which it is located, (ii) a home health agency as
defined by the Social Security Administration, or (iii) an organization which is certified by
the Participant's Approved Physician as an appropriate provider of Home Health Care and
which: has a full-time administrator, keeps written medical records, and has at least one
R.N. on staff (or the services of an R.N. available).
1.29 "Injury" means damage or harm to the physical structure of the body caused
solely as the result of either (i) an Accident, (ii) Cumulative Trauma, or (iii) an Occupational
Disease. Such damage or harm must be incurred in, and directly and solely result from,
the Course and Scope of Employment.
(a)
Date of Injury.
Any provision of this Plan to the contrary
notwithstanding, in order to be subject to this plan document, the date of such Injury
must be on or after September 1, 2014. For all purposes of this Plan, the date of
Injury shall be either (i) the date of the Accident resulting in the Injury, (ii) the date
that the damage or harm, or symptoms thereof, were first known to (or should have
been known to) the Participant or diagnosed by an Approved Physician as
Cumulative Trauma, or (iii) the date that the damage or harm, or symptoms thereof,
were first known to (or should have been known to) the Participant or diagnosed by
an Approved Physician as an Occupational Disease. All Injuries sustained by a
Participant that relate to (i) an Accident, or related series of Accidents, (ii) exposure
to an environmental or physical hazard that causes an Occupational Disease, or (iii)
rapid, repetitious, physically traumatic activities that result in Cumulative Trauma
shall be considered a single Injury for purposes of the Plan.
(b)
Types of Non-Covered Injuries. Any provision of this Plan to the
contrary notwithstanding, the term Injury shall not include:
(1)
any strain, degeneration, damage or harm to, or disease or
condition of, the eye or musculoskeletal structure or other body part resulting
from use of a video display terminal or keyboard, poor or inappropriate
posture, the natural results of aging, osteoarthritis, arthritis, or degenerative
process (including, but not limited to, degenerative joint disease,
degenerative disc disease, degenerative spondylosis/spondylolisthesis and
spinal stenosis), or other circumstances prescribed by the Claims
Administrator which do not directly and solely result from the Participant's
Course and Scope of Employment;
(2)
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factors to which the general public is exposed;
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(3)
diagnostic labels which imply generalized musculoskeletal
aches and pains in the absence of any demonstrable primary
pathophysiology, such as Fibrositis, Fibromyalgia, Myofascial Pain
Syndrome, Myositis, or Chronic Fatigue Syndrome;
(4)
except to the limited extent provided under the definition of
"Covered Charges," any mental injury, emotional distress, mental trauma or
similar injury to the mental or emotional state of a Participant, including
without limitation, any physical manifestations resulting from such mental or
emotional state, and any mental or emotional damage or harm that arises
primarily from a personnel action, including, but not limited to, a transfer,
promotion, demotion or termination of employment or other disciplinary
action;
(5)
ptomaine or bacterial infection, except pyogenic infection which
occurs with and as a result of an accidental cut or wound;
(6)
damage or harm resulting from airborne contaminants not
commonly found in the Employer's normal working environment, including,
but not limited to, pollen, fungi, microbes, and mold;
(7)

damage or harm resulting from job stress;

(8)
a cardiovascular, coronary, pulmonary, respiratory, or
cerebrovascular accident or myocardial infarction, unless it caused a covered
Injury and, in relation to other factors contributing to the physical harm, the
Course and Scope of Employment was the major cause. For this purpose, it
must be shown that the exertion of the work necessary to precipitate the
Disability or death was extraordinary and unusual in comparison to the
Participant’s usual work in the Course and Scope of Employment. Physical
or mental stress shall not be considered;
(9)

hernia, unless:

(A)
the occurrence of the hernia followed as the result of
sudden effort, severe strain, or the application of force directly to the
abdominal wall;
(B)
(C)
affected;

there was severe pain in the hernial region;
the pain caused the Participant’s work to be substantially

(D)
notice of the occurrence was given to the Employer
within five (5) days thereafter;
(E)
the physical distress following the occurrence of the
hernia was such as to require the attendance of an Approved
Physician; and

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(F)
the hernia was caused solely as the result of an Accident
in the Course and Scope of Employment.
(10) any Preexisting Condition, except to the limited extent (if any)
that an Approved Physician clearly confirms an identifiable and significant
aggravation (incurred in the Course and Scope of Employment) of a
Preexisting Condition; provided, however, that:
(A)
coverage for such aggravation will be provided only if
and to the extent that the Approved Physician (i)
confirms that the Preexisting Condition has been
previously repaired or rehabilitated, and
(ii)
prescribes services or supplies that are Medically
Necessary to treat such aggravation and likely to return the
Participant to pre-Injury status.
(B)
no coverage will be provided if the Preexisting Condition
was a major contributing cause of the Injury.
(c)
Non-Covered Injury Circumstances. Furthermore, no benefits shall
be payable under the Plan if:
(1)
the Injury was incurred while the Participant was not an
employee of the Employer, or the person’s employment was not principally
located in the State of Oklahoma;
(2)
the Injury was caused by the use of alcohol, illegal drugs, or
prescription drugs used in contravention of physician's orders.
If a
Participant tests positive for intoxication, an illegal controlled substance, or a
legal controlled substance used in contravention to an Approved Physician's
orders, or refuses to undergo the drug and alcohol testing, there shall be a
rebuttable presumption that the Injury was caused by the use of alcohol,
illegal drugs, or prescription drugs that are used by the Participant in
contravention of an Approved Physician's orders. This presumption may
only be overcome if the Participant proves by a preponderance of the
evidence that his or her state of intoxication was not the major cause of the
Injury;
(3)
the Injury is treatable by medical care that is reasonable and of
a form that an ordinary prudent person in the same or similar circumstances
would undergo and the Participant has not availed himself or herself of such
treatment, unless otherwise specified in Section 3.2;
(4)
the Injury was caused by the Participant's willful intention and
attempt to injure him or herself or to injure another person, whether the
Participant was sane or insane;
(5)
the Injury occurred while the Participant was employed in
violation of any law;
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(6)
the Participant's horseplay, scuffling, fighting, or similar
inappropriate behavior was a proximate cause of the Injury;
(7)
the Participant's long-term cell phone use, or second-hand
smoke was a proximate cause of the Injury;
(8)
the Injury was incurred while the Participant was "on
suspension," "laid off" by his or her Employer, on leave of absence for any
other reason, or otherwise outside of the Course and Scope of Employment;
(9)
the Injury arose out of an act of a third person intended to injure
the Participant because of personal reasons and not directed at the
Participant as an Employee of, or because of his or her employment by, an
Employer;
(10) the Injury arose out of a Participant’s participation in an off-duty
recreational, social or athletic activity not constituting part of the Participant's
work-related duties, except where these activities are expressly required in
writing by an Employer (more than an invitation or request to participate or
attend);
(11) the Injury arose out of an act of God, unless the Participant's
employment by an Employer exposes such Participant to a greater risk of
Injury from an act of God than ordinarily applies to the general public;
(12)
Employer;
(13)

the alleged Injury is feigned or an attempt to defraud the
the Injury arose out of the Participant's participation in:
(A)

a riot or act of civil disturbance;

(B)

a war, declared or undeclared;

(C)

any act of war or terrorism;

(D)

any illegal act;

(E)
a felony or an assault, except an assault committed in
defense of an Employer's business or property; or
(F)
service in the military of any country or any civilian noncombatant unit serving with such forces.
(14)

any damage or harm arising out of the use of or caused by:
(A)

asbestos, asbestos fibers or asbestos products; or

(B)
the hazardous properties of nuclear material or biological
contaminants.

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(15) the Injury arose out of the injured Participant's participation in
the commission, or attempted commission, of any crime;
(16) the Injury occurred while the Participant was traveling or flying
in or on (including getting in or out of, or on or off of) any vehicle used for
aerial navigation if the Participant is:
(A)

flying in any aircraft that is rocket propelled;

(B)
flying in any aircraft that is used for aerobatics, racing or
an endurance test, crop dusting, seeding, fertilizing or spraying,
fighting a fire, any exploration or pipe or power line patrol, the pursuit
of animals or birds, aerial photography, banner towing or skywriting or
any test or experimental usage;
(C)
flying when a special permit or waiver from the proper
authority has to be issued; or
(D)
riding as a passenger in any aircraft not intended or
licensed for the transportation of passengers;
(17) the Injury did not occur during the Participant's Course and
Scope of Employment; or
(18) the Injury was not timely reported (or requested information
was not timely provided) in accordance with the timeframes specified under
Article IV herein.
1.30 “Maximum Medical Improvement” means the earliest date after which,
based upon reasonable medical probability, further material recovery from or lasting
improvement to an injury can no longer reasonably be anticipated.
1.31

"Medical Benefits" means any benefit payable under Section 3.5.

1.32

"Medically Necessary" means the services, procedures or supplies, which

are:
(a)
required, recognized, and professionally accepted nationally by
physicians as the usual, customary and effective means of diagnosing or treating
the condition;
(b)
the most economical supplies or levels of service that are appropriate
and available for the safe and effective treatment of the Participant; and
(c)
not primarily for the convenience of a Participant, the Participant's
family, a physician, or a facility.
Even though a physician may have prescribed a particular treatment, such treatment may
not be considered Medically Necessary within this definition or may otherwise be excluded
from coverage under the terms of this Plan.
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1.33

"Medical Rehabilitation Hospital" means an Approved Facility that:
(a)

is licensed;

(b)
provides facilities for the diagnosis and inpatient rehabilitative
treatment of disease or injury with the objective of restoring physical function to the
fullest extent possible. Examples of conditions treated in a rehabilitation hospital
are: amputations, spinal cord injuries, head injuries, paraplegia and quadriplegia,
cerebrovascular accident, paralysis;
(c)
has facilities or a contractual agreement with another hospital in the
area for emergency treatment, surgery, and any other diagnostic or therapeutic
services that might be required during a confinement;
(d)
provides all normal infirmary level medical services required for the
treatment of any disease or injury occurring during confinement;
(e)
has a staff of physicians specializing in physical medicine and
rehabilitation directly involved in the treatment program, one of whom is present at
all times during the treatment day;
(f)
is accredited as a medical inpatient rehabilitation hospital by the Joint
Commission on Accreditation of Rehabilitation Facilities;
(g)
is not a place for rest, the aged, drug addicts or alcoholics, a chronic
disease facility, a nursing home or sheltered workshop; and
(h)
does not provide as its primary purpose custodial care, treatment of
mental disorders, special education, vocational counseling, job training, or social
adjustment services. Any identifiable charges for educational, vocational or social
adjustment services are not covered under the Plan, unless otherwise provided as a
Covered Charge.
1.34 "Medicare" means Title XVIII of the Social Security Act, as amended, and
the regulations promulgated thereunder.
1.35

“Misconduct” shall include the following:
(a)

unexplained absenteeism or tardiness;

(b)

willful or wanton indifference to or neglect of the duties required;

(c)

willful or wanton breach of any duty required by the Employer;

(d)

the mismanagement of a position of employment by action or inaction;

(e)
actions or omissions that place in jeopardy the health, life, or property
of self or others;
(f)

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dishonesty;

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(g)

wrongdoing;

(h)

violation of a law; and

(i)
a violation of a policy or rule adopted to ensure orderly work or the
safety of self or others.
1.36

"Modified Duty" means work which is either:

(a)
a temporary accommodation that allows an Employee to perform his
or her regular job; or
(b)
an alternate, temporary job that complies with the Employee's work
restrictions and Employer needs.
1.37 "Non-Occupational Death Benefits" means any benefit payable under
Section 3.4.
1.38 "Non-Occupational Injury" means Injury caused by a non-occupational
accident occurring while this Plan is in force as to the Covered Employee whose injury is
the basis of the claim and resulting directly and independent of all other causes in a
covered loss.
1.39 "Objective Findings” means those findings which cannot come under the
voluntary control of the patient.
(a)
(1)
When determining Permanent Disability, an Approved
Physician, any other medical provider, the Appeals Committee, or the courts shall
not consider complaints of pain.
(2)
For the purpose of making Permanent Disability ratings to the
spine, the Approved Physician shall use criteria established by the most
current edition of the American Medical Association "Guides to the
Evaluation of Permanent Impairment".
(b)
(1)
Objective evidence necessary to prove Permanent Disability in
occupational hearing loss cases may be established by medically recognized and
accepted clinical diagnostic methodologies, including, but not limited to, audiological
tests that measure air and bone conduction thresholds and speech discrimination
ability.
(2)
Any difference in the baseline hearing levels shall be confirmed
by subsequent testing; provided, however, such test shall be given within
four (4) weeks of the initial baseline hearing level test but not before five (5)
days after being adjusted for presbycusis.
(c)
Medical opinions addressing compensability and Permanent Disability
shall be stated within a reasonable degree of medical certainty.
1.40

"Occupational Death Benefits" means any benefit payable under Section

3.3.
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1.41 "Occupational Disease" means a condition marked by a pronounced
deviation from the normal healthy state of a Participant arising out of such Participant's
assigned duties in his or her Course and Scope of Employment. Occupational Disease
includes other diseases or infections that naturally result from the work-related disease.
Occupational Disease does not include ordinary diseases of life to which the general public
is exposed outside of a Participant's assigned duties in his or her Course and Scope of
Employment. Any provision of this Plan to the contrary notwithstanding, if an Employer has
purchased an insurance policy described in Section 5.2, the purpose of which (in whole or
in part) is to pay Plan benefits to Participants or indemnify the Employer for Plan benefits,
then the Participant's last day of last exposure to the condition causing or aggravating
such Occupational Disease must have taken place during the policy period.
1.42 "Occurrence" means an Accident, or related series of Accidents, resulting in
Injury to a Participant that arises out of the Participant’s Course and Scope of
Employment.
With respect to an Occupational Disease or Cumulative Trauma,
“Occurrence” means the Participant’s last day of last exposure to the conditions causing or
aggravating such Occupational Disease or Cumulative Trauma.
1.43 "Official Disability Guidelines" means the current edition of the Official
Disability Guidelines and the ODG Treatment in Workers' Comp as published by the Work
Loss Data Institute.
1.44 "Participant" means a Covered Employee who satisfies the eligibility
requirements of Article II.
1.45 "Permanent Disability” means the loss of a portion of total physiological
capabilities of the human body, expressed as a percentage and established by Objective
Findings.
1.46 "Permanent Partial Disability” means an amputation or permanent loss of
use of a scheduled member identified in Section 3.1; or Permanent Disability or loss of use
after Maximum Medical Improvement has been reached which prevents the Participant
from returning to his or her pre-Injury or equivalent job. For this purpose, “pre-Injury or
equivalent job” means the job the Participant was working at the time of the Injury or other
employment offered by the Employer that pays at least 100% of the Participant’s Pre-Injury
Pay.
1.47 "Permanent Total Disability” means incapacity to earn wages in any
employment for which the Participant may become physically suited and reasonably fitted
by education, training, experience and vocational rehabilitation. Loss of both hands, both
feet, both legs or both eyes, or any two thereof, shall be deemed to constitute permanent
total disability.
1.48 "Plan" means the Dillard's Injury Benefit Plan For Oklahoma Employees as
herein set forth and as it may from time to time be amended.
1.49

"Plan Administrator" means the Company.

1.50 "Plan Year" means a 12 calendar month period beginning each September
1 and ending the following August 31.
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1.51 "Post-Service Claim" means any claim for a Medical Benefit that is not a
Pre-Service Claim.
1.52 “Preexisting Condition” means any Participant illness, injury, disease,
impairment, or other physical or mental condition, whether or not work-related, which
originated or existed prior to the day of Injury.
1.53

"Pre-Injury Pay" means:

(a)
for salaried Participants, regular bi-weekly salary from the Employer at
the time of the Injury;
(b)
for hourly Participants, the average earnings from the Employer for the
13 consecutive weeks immediately preceding the date of Injury; provided, however,
that if such a Participant has worked for the Employer for less than 13 consecutive
weeks, or if his or her earnings as of such date cannot be reasonably determined (in
the judgment of the Claims Administrator), such 13-week average will be based
upon the earnings received over such period by a similar employee of the
Employer.
"Pre-Injury Pay" shall include amounts determined by the Dillard’s PPBS system.
1.54 "Pre-Service Claim" means any claim for Medical Benefits with respect to
which this Plan requires Claims Administrator approval in advance of obtaining medical
care.
1.55 "Prosthetic" means an artificial device used to replace a part or joint of the
body that is lost or injured in an Accident or illness.
1.56 "Relevant" shall mean, with respect to the relation of a document, record or
other information to a claimant's claim, that such document, record or other information:
(a)

was relied upon in making a benefit determination on the claimant's

claim;
(b)
was submitted, considered, or generated in the course of making the
benefit determination, without regard to whether such document, record or other
information was relied upon in making the actual benefit determination;
(c)
demonstrates compliance with the Plan's administrative processes
and safeguards required for making the benefit determination; or
(d)
constitutes a statement of policy or guidance with respect to the Plan
concerning the denied treatment option or benefit for the claimant's diagnosis,
without regard to whether such advice or statement was relied upon in making the
benefit determination.
The individual records or information specific to the resolution of one claimant's claim shall
not be considered relevant to another claimant's claim.

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1.57 "Representative" means a person that a Participant authorizes in writing to
act on his/her behalf. The Plan will also recognize a legally valid power of attorney or a court
or administrative agency order giving a person authority to take an action on a Participant’s
behalf. In the case of an Urgent Care Claim, a physician with knowledge of the Participant’s
condition may act as the Participant’s Representative.
1.58 "Skilled Nursing Care" means service provided in a Skilled Nursing Facility
by an R.N., L.P.N., or licensed vocational nurse (L.V.N.), provided that the care is
Medically Necessary and that the treating Approved Physician has prescribed such care.
However, no benefit will be payable under the Plan for the following expenses:
(a)

charges for food, housing, or homemaker's services;

(b)
charges for the services of a person licensed or unlicensed who
ordinarily resides in the Participant's home or is a member of the family of either the
Participant or the Participant's spouse;
(c)
charges for an illness or injury unrelated to the original hospital
confinement; or
(d)
charges that do not follow a hospital stay or are incurred when the
Participant could otherwise receive services from private duty nursing at home.
1.59 "Skilled Nursing Facility" means a section, ward, or wing of a hospital, or a
free-standing health care facility, which:
(a)

provides room and board;

(b)

provides nursing care by or under the supervision of a nurse;

(c)
provides physical, occupational, and speech therapy furnished by the
facility or by others under arrangements made by the facility;
(d)

provides medical social services;

(e)
provides drugs, biologicals, supplies, appliances and equipment
ordinarily furnished for use in such a facility;
(f)

provides medical services by staff Approved Physicians;

(g)
has an agreement with a hospital for diagnostic and therapeutic
services, the transfer of patients, and exchange of clinical records;
(h)
provides other services necessary to the health and care of patients
that are generally provided by such facilities; and
(i)
is licensed or registered in accordance with local and state laws and
regulations.

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1.60 "State Average Weekly Wage" means the state average weekly wage
determined by the Oklahoma Employment Security Commission in the preceding calendar
year. If such determination is not available, the Workers’ Compensation Commission shall
determine the wage annually after reasonable investigation.
1.61 "Surviving Spouse" means a spouse by reason of legal marriage
recognized by the State of Oklahoma or under the requirements of a common law
marriage in Oklahoma.
1.62 "Temporary Partial Disability” means temporary inability to perform the
Participant’s normal job, but the Participant may perform alternative work offered by the
Employer. The Participant must be under the continuous care of an Approved Physician
during the period of temporary partial disability.
1.63 "Temporary Total Disability" or "Temporarily Totally Disabled" means
incapacity to earn, in the same or any other employment, substantially the same amount of
wages the Participant was receiving at the time of the compensable Injury. The Participant
must be under the continuous care of an Approved Physician during the period of
temporary total disability
1.64 "Traumatic Event" means any act involving, or of the nature of, a violent
crime or any other incident that would result in severe shock to a reasonable person.
1.65 "Urgent Care Claim" shall mean any claim for medical care or treatment
with respect to which application of the time periods for making non-urgent Pre-Service
Claim Determinations (i.e., generally, 15 days after the Claims Administrator's receipt of
the claim):
(a)
could seriously jeopardize the life or health of the claimant or the
ability of the claimant to regain maximum function; or
(b)
in the opinion of a physician with knowledge of the claimant's medical
condition, would subject the claimant to severe pain that cannot be adequately
managed without the care or treatment that is the subject of the claim.
The determination of whether a claim is an Urgent Care Claim within the meaning of
subsection (a) above shall be made by the Claims Administrator applying the judgment of
a prudent layperson that possesses an average knowledge of health and medicine.
However, if a physician with knowledge of the claimant's medical condition determines that
a claim is an Urgent Care Claim and clearly communicates such determination to the
Claims Administrator, such claim shall be treated as an Urgent Care Claim for purposes of
this Plan. The characterization of a claim as an Urgent Care Claim solely impacts the
timeframes and other procedures for claims processing under ARTICLE VI, and in
no way changes this Plan's approved medical provider, pre-authorization, or other
medical management requirements. These requirements generally provide that (1)
except in the case of Emergency Care, no amount shall be considered a Covered
Charge unless treatment is pre-approved by the Claims Administrator and furnished
by or under the direction of an Approved Physician or Approved Facility, and (2) all
determinations relating to the physical condition of a Participant, upon which the
payment of benefits is based, must be made by an Approved Physician. Urgent
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Care Claims may not arise to the level of involving Emergency Care. A Participant's
decision to seek treatment from an urgent care clinic or hospital emergency room
does not necessarily result in an Urgent Care Claim or involve Emergency Care.
The determination of whether a claim involves Emergency Care shall be made within
the sole administrative discretion of the Claims Administrator or Appeals
Committee, with such advice and consultation from an Approved Physician as the
Claims Administrator or Appeals Committee deems appropriate.
1.66 "Usual and Customary" means a charge that is not more than the amount
charged when there is no insurance, and is not more than the prevailing charge in the
locality for a like service or supply. A like service is one of the same in nature and
duration, requiring the same skill and performed by one of similar training and experience.
A like supply is one which is the same or substantially equivalent. Locality is the city or
town where the service or supply is obtained, if it is large enough so that a representative
cross-section of like services or supplies can be obtained. In large cities, it may be a
section or sections of the city, if the above criteria can be met. In smaller urban or rural
areas, locality may have to be expanded to include surrounding areas to arrive at a
representative cross-section. The Plan Administrator shall not be bound by any fee
schedule adopted by the Oklahoma Workers’ Compensation Act or any amendment or
successor thereto when determining Usual and Customary.
ARTICLE II
ELIGIBILITY AND NATURE OF PAYMENTS
2.1
Eligibility. Each Covered Employee shall become a Participant in this
Plan, as of the later of (A) 12:01 a.m., September 1, 2014, or (B) the time and date of his
or her employment as a Covered Employee. Except to the limited extent provided under
Article III regarding the continuation of certain benefit payments, if a Participant ceases to
be a Covered Employee, he or she shall thereupon cease to participate in this Plan;
provided, however, that if such Participant is thereafter reemployed as a Covered
Employee, he or she shall resume participating in the Plan as of the time and date of such
reemployment. Compensation under this Plan to alien nonresidents of the United States
or Canada shall be the same in amount as provided for residents.
2.2

Nature of Payments.

(a)
No Admission of Liability: The Plan has been established and is
maintained by the Employers to protect themselves from certain liabilities.
Payments made under this Plan by an Employer shall not in any way constitute an
admission of liability or responsibility by an Employer for an Injury and any such
liability or responsibility is specifically denied.
(b)
No Collateral Source: Benefit payments under the Plan shall be
considered to be made by the Employer of a Participant and shall not be considered
payment from a "collateral source" as that term has been defined under any
applicable rule, statute, judicial decision, or directive. All benefits paid under this
Plan shall be offset against any alleged liability of the Employer, its officers,
directors, or agents to a Participant or Participant's Beneficiaries, heirs, or assigns
due to an Injury.
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ARTICLE III
BENEFITS
Participants shall be entitled to receive under this Plan the benefits described in this Article
III with respect to any Injury incurred (i) in the Course and Scope of Employment by an
Employer, and (ii) during his or her participation in this Plan.
3.1
Disability Benefits. The Claims Administrator may require a Participant to
submit proof of continued Disability and of continuous care of a Participant. This may be
done as often as the Claims Administrator considers necessary and reasonable. Failure to
submit the requested proof will cause the Claims Administrator to suspend payment of
Disability Benefits until such proof is received. Payment of Temporary Total Disability,
Permanent Total Disability, Temporary Partial Disability and Permanent Partial Disability
benefits under the Plan shall be equal to, or greater than, the level of disability benefits
required under the Act.
(a)
Temporary Total Disability. From the first full day of an injured
Participant’s Temporary Total Disability, the Plan shall pay Temporary Total Disability
Benefits equal to 85% of the injured Participant's Pre-Injury Pay; provided, however,
that such benefit payments shall be payable for 104 weeks unless otherwise
provided by operation of law or the Plan.
(1)
If the Plan Administrator finds that a consequential Injury has
occurred and that additional time is needed to reach Maximum Medical
Improvement, Temporary Disability Benefits may continue for a period of not
more than an additional 52 weeks. Such finding shall be based upon a
showing of medical necessity by clear and convincing evidence.
(2)
Subject to (a) above, if the Participant suffers a non-surgical
soft tissue Injury, Temporary Total Disability will not exceed eight weeks,
regardless of the number of body parts injured.
(3)
earliest of:

Temporary Total Disability benefits shall cease upon the

(A)
Physician;

release from active medical treatment by the Approved

(B)
the date the Participant is certified by the treating
Approved Physician to no longer be Temporarily Totally Disabled,
without regard to whether the Participant returns to regular or Modified
Duty work on that date;
(C)
voluntary termination of the Participant’s status as a
Covered Employee;
(D)
involuntary termination of the Participant’s status as a
Covered Employee for Misconduct;

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(E)
the date the Participant is placed in jail, is deported or
detained by or at the request of any government agency or foreign
government; provided, however, that this paragraph (E) shall operate to
cease Temporary Partial Disability benefits only for such period of time
that such Participant is unavailable for work; or
(F)

as otherwise provided for under Section 4.3.

(4)
Temporary Total Disability benefits for an Injury resulting in
hernia, soft tissue Injury or mental Injury are subject to the following
restrictions:
(A)
Hernia. Benefits shall not exceed six weeks, unless the
Participant refuses to permit an Approved Physician-recommended
hernia operation, in which case he or she will be entitled to receive
seven additional weeks of Temporary Total Disability benefits.
(B)
Soft Tissue Injury (Non-Surgical). Benefits shall not
exceed eight weeks, unless the Participant is treated with an
injection(s), in which case he or she shall be entitled to receive an
additional eight weeks of Temporary Total Disability benefits.
(C)
Soft Tissue Injury (Surgical). Benefits shall not exceed
24 weeks, unless the surgery is not performed within 30 days of Plan
approval due to the Participant acting in bad faith. In this case
Temporary Total Disability benefits will only be available for a total of
eight weeks and any such benefits already provided beyond the eight
weeks must be reimbursed by the Participant. Surgery does not
include the performance of an epidural steroid injection or any similar
procedure.
(D)
Mental Injury or Illness. Benefits shall not exceed 26
weeks, unless it is determined by a competent medical doctor’s review
(supported by Objective Findings and shown by clear and convincing
evidence) that benefits should continue for a set period of time for the
Participant to reach Maximum Medical Improvement. In this case, the
Participant shall be entitled to receive up to an additional 26 weeks of
Temporary Total Disability benefits.
(b)
Temporary Partial Disability: From the first full day of an injured
Participant’s Temporary Partial Disability, the Plan shall pay Temporary Partial
Disability Benefits equal to the difference between 85% of the Participant’s Pre-Injury
Pay and the Participant’s weekly wage while performing Modified Duty. Such benefit
payments shall be payable for up to 52 weeks.
(1)
If a Participant with a Temporary Partial Disability is released to
Modified Duty, but (i) the Employer has no Modified Duty position available,
and (ii) an Approved Physician has not assigned permanent restrictions and
released the Participant to any other gainful employment, then the Participant
shall be considered to be Temporarily Totally Disabled and Temporary Total
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Disability benefits shall be payable in the manner specified under subsection
(a) above.
(2)
If a Participant with a Temporary Partial Disability has made a
good faith effort to comply with the treating Approved Physician’s instructions
and carry out the Participant’s responsibilities in the Modified Duty position, but
is either:
(A)
again determined by an Approved Physician to be
Temporarily Totally Disabled, or
(B)
the Modified Duty position ceases to be available (for
example, the position reaches its maximum duration) and an Approved
Physician has not assigned permanent restrictions and released the
Participant to any other gainful employment;
then the Participant will be considered to be Temporarily Totally Disabled and
Temporary Total Disability benefits shall be payable in the manner specified
under subsection (a) above.
(3)
If the Participant refuses to perform the Modified Duty work in
accordance with the terms of the Modified Duty position offered by the
Employer, he or she shall not be entitled to Temporary Partial Disability
benefits or Temporary Total Disability benefits.
(4)

Temporary Partial Disability shall cease upon the earliest of:

(A)
the date the Participant is certified by the treating
Approved Physician to no longer be Temporarily Partially Disabled,
without regard to whether the Participant returns to regular or Modified
Duty Work on that date;
(B)
voluntary termination of the Participant’s status as a
Covered Employee;
(C)
involuntary termination of the Participant’s status as a
Covered Employee for Misconduct;
(D)
the date the Participant is placed in jail, is deported or
detained by or at the request of any government agency or foreign
government; provided, however, that this paragraph (D) shall operate to
cease Temporary Partial Disability benefits only for such period of time
that such Participant is unavailable for work; or
(E)
(c)

as otherwise provided under Section 4.3.

Permanent Partial Disability.

(1)
Unscheduled Benefits.
Any claim by a Participant for
compensation for Permanent Partial Disability must be supported by
competent medical testimony of an Approved Physician, and shall be
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supported by Objective Findings. The opinion of the Approved Physician
shall include the Participant's percentage of Permanent Partial Disability and
whether or not the Disability is job-related and caused by the Injury. An
Approved Physician's opinion of the nature and extent of Permanent Partial
Disability to parts of the body other than scheduled members (as described
in Subsection (2) below) must be based solely on criteria established by the
current edition of the American Medical Association's "Guides to the
Evaluation of Permanent Impairment" in effect at the time of the impairment
rating. A Permanent Partial Disability award or combination of awards
granted to a Participant shall not exceed a Permanent Partial Disability rating
of 100% to any body part or to the body as a whole. A copy of any written
evaluation shall be sent to the Employer and Participant within 7 days of
issuance.
(A)
Percentage and Duration. In cases of Permanent
Partial Disability, the compensation shall be 70% of the Participant’s
Pre-Injury Pay up to 350 weeks; provided, however, that such benefit
payments shall not exceed $323 per week for the number of weeks
identified by the Approved Physician in accordance with American
Medical Association Guidelines.
(B)
Deferral and Reduction. Except pursuant to settlement
agreements entered into by the Employer and Participant, payment of
a Permanent Partial Disability award shall be deferred and held in
reserve by the Employer if the Participant has reached Maximum
Medical Improvement, has been released to return to work by his or
her treating Approved Physician, and then returns to his pre-Injury or
equivalent job for a term of weeks determined by dividing the total
dollar value of the award by 70% of the Participant’s Pre-Injury Pay.
(i)
The amount of the Permanent Partial Disability
award shall be reduced by 70% of the Participant’s Pre-Injury
Pay for each week he or she works in his or her pre-Injury or
equivalent job.
(ii)
If, for any reason other than Misconduct, the
Employer terminates the Participant, or the position offered is
not the pre-Injury or equivalent job, the remaining Permanent
Partial Disability award shall be paid in a lump sum. If the
Participant is discharged for Misconduct, the Employer shall
have the burden to prove that the Participant is engaged in
Misconduct.
(iii)
If the Participant refuses an offer to return to his
pre-Injury or equivalent job, the Permanent Partial Disability
award shall continue to be deferred and shall be reduced by
70% of the Participant’s Pre-Injury Pay for each week he
refuses to return to his pre-Injury or equivalent job.

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(C)
Previous Disability. The fact that a Participant has
suffered previous Disability or received compensation therefore shall
not preclude the Participant from compensation for a later Injury. In
the event there exists a previous Permanent Partial Disability
(including a previous non-work-related injury or condition which
produced Permanent Partial Disability), and the same is aggravated or
accelerated by an Injury, compensation for Permanent Partial
Disability shall be only for such amount as was caused by such Injury
and no additional compensation shall be allowed for the preexisting
Disability or impairment.
(i)
If workers' compensation benefits have previously
been awarded through settlement or judicial or administrative
determination in Oklahoma, the percentage basis of the prior
settlement or award shall conclusively establish the amount of
Permanent Partial Disability determined to be a Preexisting
Condition.
If workers' compensation benefits have not
previously been awarded through settlement or judicial or
administrative determination in Oklahoma, the amount of
preexisting Permanent Partial Disability shall be established by
competent evidence.
(ii)
In all cases, the applicable reduction shall be
calculated as follows: (a) if the preexisting Disability is the
result of an Injury sustained while working for the Employer
against whom Plan benefits are currently being sought, any
award of compensation shall be reduced by the current dollar
value attributable to the percentage of Permanent Partial
Disability determined to be a Preexisting Condition. The
current dollar value shall be calculated by multiplying the
percentage of preexisting Permanent Partial Disability by the
compensation rate in effect on the date of the Injury against
which the reduction will be applied, and (b) in all other cases,
the Employer against whom benefits are currently being sought
shall be entitled to a credit for the percentage of preexisting
Permanent Partial Disability.
(D)
Payment Completion. No payments on any Permanent
Partial Disability order shall begin until payments on any preexisting
Permanent Partial Disability orders have been completed.
(E)
Whole Body. The whole body shall represent a
maximum of 350 weeks.
(2)
Scheduled Benefits. The Permanent Partial Disability rate of
compensation for amputation or permanent total loss of use of a scheduled
member specified in the Schedule of Losses below shall be 70% of the
Participant’s Pre-Injury Pay, multiplied by the number of weeks set forth for
the member in the Schedule of Losses below, regardless of whether the
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injured Participant is able to return to his or her pre-Injury or equivalent job.
Such Permanent Partial Disability payments shall not exceed $323 per week.

SCHEDULE OF LOSSES
Loss of:

Benefit Amount:

Arm amputated at elbow or between elbow and shoulder
Arm amputated between elbow and wrist
Leg amputated at knee or between knee and hip
Leg amputated between knee and ankle
Hand amputated
Thumb amputated
First finger amputated
Second finger amputated
Third finger amputated
Fourth finger amputated
Foot amputated
Great toe amputated
Toe other than great toe amputated
Eye enucleated, in which there is useful vision
Loss of hearing in one ear
Loss of hearing in both ears
Loss of one testicle
Loss of both testicles

275 weeks
220 weeks
275 weeks
220 weeks
220 weeks
66 weeks
39 weeks
33 weeks
22 weeks
17 weeks
220 weeks
33 weeks
11 weeks
275 weeks
110 weeks
330 weeks
53 weeks
158 weeks

(A)
Compensation for amputation of the first phalange of a digit
shall be one-half of the compensation for the amputation of the entire digit.
(B)
Compensation for amputation of more than one phalange of a
digit shall be the same as for amputation of the entire digit.
(C)
Compensation for the permanent loss of 80% or more of the
vision of an eye shall be the same as for the loss of an eye.
(D)
In all cases of permanent loss of vision, the use of corrective
lenses may be taken into consideration in evaluating the extent of loss of
vision.
(E)
Compensation for amputation or loss of use of two or more
digits or one or more phalanges of two or more digits of a hand or a foot may
be proportioned to the total loss of use of the hand or the foot occasioned
thereby, but shall not exceed the compensation for total loss of a hand or a
foot.
(F)
Compensation for permanent total loss of use of a member
shall be the same as for amputation of the member. Prior to payment of the
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benefit, loss of use must be certified, following the care of an Approved
Physician, for 12 consecutive months from the date the loss of use began.
At the end of this time it must be medically determined by an Approved
Physician that the loss of use is total and not reversible.
(G)
The sum of all Permanent Partial Disability awards shall not
exceed 350 weeks.
(d)

Permanent Total Disability.

(1)
If a Participant is determined to be Permanently Totally
Disabled, the Plan shall pay the Participant 70% of his or her Pre-Injury Pay,
not to exceed the State Average Weekly Wage per week.
(2)

The Plan shall pay Permanent Total Disability to the Participant

until:
(A)
the time the Participant reaches the age of maximum
Social Security retirement benefits; or a period of 15 years, whichever
is longer; or
(B)
the date of the Participant’s death of causes unrelated to
the Injury or illness;
(3)
If the Participant has been determined to be Permanently
Totally Disabled prior to death, and death results from causes other than the
Participant’s covered Injury that caused such Permanent Total Disability,
then the award of Permanent Total Disability Benefits may be revived by the
Surviving Spouse, Child or Children. Such Surviving Spouse, Child or
Children shall receive a one-time lump-sum payment equal to 26 weeks of
weekly benefits for Permanent Total Disability awarded the Participant. If
more than one person is entitled to revive the claim, the lump-sum payment
shall be evenly divided between or among such persons. In the event the
Plan awards both Permanent Partial Disability and Permanent Total Disability
benefits, the Permanent Total Disability award shall not be due until the
Permanent Partial Disability award is paid in full. If otherwise qualified
according to the provisions of this Plan, Permanent Total Disability benefits
may be awarded to a Participant who has exhausted the 104-week maximum
period of Temporary Total Disability even though the Participant has not
reached Maximum Medical Improvement.
(4)
Permanent Total Disability payments shall be subject to
affidavit requirements related to gainful employment.
(e)
Vocational Rehabilitation. A Participant who is eligible for Permanent
Partial Disability or is otherwise unable to return to his or her pre-Injury or equivalent
position due to permanent restrictions can request vocational rehabilitation services
within 60 days from the date of receiving such permanent restrictions. The Claims
Administrator may order vocational rehabilitation before the Participant reaches
Maximum Medical Improvement, if the treating Approved Physician believes that it
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is likely that the Participant’s Injury will prevent the Participant from returning to his
or her former employment. In granting early benefits for vocational rehabilitation,
the Claims Administrator shall consider temporary restrictions and the likelihood that
such rehabilitation will return the Participant to gainful employment earlier than if
such benefits are granted after an award of Permanent Partial Disability benefits.
Vocational rehabilitation services may be provided by a technology center or public
secondary school offering vocational-technical education courses, or a member
institution of The Oklahoma State System of Higher Education. Such services shall
include retraining and job placement to restore the Participant to gainful
employment. Vocational rehabilitation services or training shall not extend for a
period of more than 52 weeks. If rehabilitation requires residence at or near the
facility or institution which is away from the Participant’s customary residence,
reasonable cost of the Participant’s board, lodging, travel, tuition, books and
necessary equipment in training shall be paid in addition to weekly compensation
benefits to which the Participant is otherwise entitled.
(1)
If the injured Participant is unable to return to his or her preInjury or equivalent position due to permanent restrictions as determined by
the treating Approved Physician, upon the request of either party, the
Approved Physician shall determine if it is appropriate for a Participant to
receive vocational rehabilitation training or services, and will oversee such
training. A vocational rehabilitation evaluation must be ordered for any
injured Participant unable to work for at least 90 days. A Participant may be
assigned to vocational rehabilitation counselors for coordination of
recommended services. The cost of the services shall be paid by the Plan;
provided, however, that the cost for an evaluation of rehabilitation services
may be deducted from Disability Benefits payable to the Participant if he or
she refuses the services or training offered.
(2)
During the period when a Participant is actively and in good faith being
evaluated or participating in a retraining or job placement program for
purposes of evaluating Permanent Total Disability status, the Participant
shall be entitled to receive Temporary Total Disability Benefits for up to an
additional 52 weeks.
3.2
Disfigurement Benefits. If a Participant incurs serious and permanent
disfigurement to any part of the body, the Plan shall pay compensation to the Participant in
an amount not to exceed $50,000. For this purpose, the Claims Administrator may
consider specific guidelines and measures for an award for disfigurement, such as a
percentage of the body affected and part of the body affected. No benefits shall be paid
for disfigurement until 12 months after the Injury. A Participant shall not be entitled to
compensation due to Disfigurement Benefits if he or she receives an award for Permanent
Partial Disability to the same part of the body, or if payment for cosmetic or reconstructive
surgery has been approved by the Plan and the Participant refuses such surgery.
3.3
Occupational Death Benefits. In the event that a Participant dies as the
direct and sole result of an Injury, then the Plan shall pay Occupational Death Benefits.
(a)
The Participant’s death must occur within one year from the date of
the Injury, or within the first three (3) years of the period for compensation payments
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fixed by the Claims Administrator. If death does not occur within these time frames,
then a rebuttable presumption shall arise that the death did not result from the
Injury. Death directly or indirectly related to mental injury or illness occurring one
year or more from the date of the accident resulting in the mental injury or illness
shall not be a compensable Injury.
(b)

Occupational Death Benefits shall be paid to Beneficiaries as follows:

(1)
If there is a Surviving Spouse, a lump-sum payment of
$100,000 shall be paid to such Surviving Spouse as well as a weekly income
benefit equal to 70% of the deceased Participant’s Pre-Injury Pay (not to
exceed the State Average Weekly Wage per week). In no event shall this
spousal weekly income benefit be diminished by the award to other
Beneficiaries. In the event that a Surviving Spouse remarries, the spousal
weekly income benefit limit shall terminate (in accordance with subsection
3.3(c) below) and the Surviving Spouse shall be entitled to a one-time lump
sum payment equal to two years’ worth of his or her weekly income benefits;
(2)
If there is a Surviving Spouse and a Child or Children, a lumpsum payment of $25,000 and 15% of the deceased Participant’s Pre-Injury
Pay (not to exceed the State Average Weekly Wage per week) shall be paid
to each Child; provided, however, that if there are more than two Children,
each Child shall receive a pro-rata share of $50,000 and 30% of the
deceased Participant’s Pre-Injury Pay (not to exceed the State Average
Weekly Wage per week);
(3)
If there is a Child or Children and no Surviving Spouse, a lumpsum payment of $25,000 and 50% of the deceased Participant's Pre-Injury
Pay (not to exceed the State Average Weekly Wage per week) shall be paid
to each Child; provided, however, that if there are more than two Children,
each Child shall receive a pro-rata share of 100% of the deceased
Participant's Pre-Injury Pay (not to exceed the State Average Weekly Wage
per week). With respect to the lump-sum payment, if there are more than six
Children, each child shall receive a pro-rata share of $150,000;
(4)
If there is no Surviving Spouse or Children, each legal
guardian, if financially dependent on the Participant at the time of death, shall
receive 25% of the deceased Participant's Pre-Injury Pay (not to exceed the
State Average Weekly Wage per week) until the earlier of:
(A)

death;

(B)

becoming eligible for Social Security;

(C)

obtaining full-time employment; or

(D)

Five years from the date Occupational Death Benefits

begin.

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(5)
If any member of the class of Beneficiaries who receive a prorata share of weekly income benefits becomes ineligible to continue to
receive benefits the remaining members of the class shall receive adjusted
weekly income benefits equal to the new class size;
(6)
If there is no Surviving Spouse, Child, or legal guardian that is
financially dependent on the Participant at the time of death, then no
Occupational Death Benefit shall be payable.
(c)

Weekly income benefits shall terminate:
(1)

Upon remarriage of the Surviving Spouse; or

(2)
Upon the earlier of death, marriage, or reaching the age of 18
of any Child. However, if the Child turns 18 and is:
(A)
Enrolled as a full-time student in high school or is being
schooled by other means pursuant to the Oklahoma Constitution;
(B)
Enrolled as a full-time student in any accredited
institution of higher education or vocational or technology education;
or
(C)

Physically or mentally incapable of self-support;

then he or she may continue to receive weekly income benefits under
this section until the earlier of reaching the age of 23 or, with respect to (A)
and (B) above, no longer being enrolled as a student, and with respect to (C)
above, becoming capable of self-support.
(d)
Payments of Occupational Death Benefits shall be paid within 15 days
of benefit claim approval and the determination of the proper Beneficiaries.
(e)
In addition to the Occupational Death Benefits set forth above, the
Plan shall reimburse reasonable funeral expenses to any person who incurs liability
therefore, up to combined maximum amount of $10,000.
3.4
Non-Occupational Death Benefit. In the event that a Participant suffers an
accidental death as the direct and sole result of a Non-Occupational Injury, then the Plan
shall pay a death benefit equal to $1,000.
(a)
The Participant’s death must occur within one year from the date of
the Accident. If death does not occur within one year from the date of the Accident,
then a rebuttable presumption shall arise that the death did not result from the NonOccupational Injury.
(b)

Non-Occupational Death Benefits shall be paid as follows:

(1)
If there is a Surviving Spouse, a single, lump sum payment
shall be made to such Surviving Spouse.
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(2)
If there is a Child or Children and no Surviving Spouse,
payment shall be made to such Child or Children in equal shares.
(3)
If there is a legal guardian that is financially dependent on the
Participant at the time of death and no Surviving Spouse or Child, a single,
lump sum payment shall be made to such legal guardian.
(4)
If there is no Surviving Spouse, Child, or legal guardian that is
financially dependent on the Participant at the time of death, then no NonOccupational Death Benefit shall be payable.
3.5
Medical Benefits. Subject to the medical management and other provisions
of this Plan, the Plan shall pay Medical Benefits to, or with respect to, a Participant for an
Injury in an amount equal to all Covered Charges.
(a)

Medical Benefits shall cease as a result of:

(1)
involuntary termination of employment of the Participant with an
Employer for Gross Misconduct; and
(2)

as otherwise provided under Section 4.3.

(b)
Unless recommended by an Approved Physician at the time the
Participant reaches Maximum Medical Improvement, Continuing Medical
Maintenance and pain management outside the parameters of the Official Disability
Guidelines shall not be provided by the Plan.
(c)
The Claims Administrator may terminate, modify or reduce a
previously approved treatment plan prior to the Participant’s completion of the
approved treatment.
ARTICLE IV
ADDITIONAL REQUIREMENTS AND LIMITATIONS ON BENEFITS
4.1
Reporting. The Participant must report every incident or fact that the
Participant believes results, or might reasonably be expected to result, in an Injury in
accordance with the following requirements:
(a)
Notice of Injury: The Participant (or the Participant’s Representative)
must provide verbal notice immediately after being injured at work to the ManagerOn-Duty or Dillard's Injury Benefit Plan Claims Department at 1-800-235-9660, no
matter how minor the Injury appears to be. For Injury due to an Accident, or for a
known exposure to an Occupational Disease, verbal notice must be provided by the
end of the workshift for the date of the Injury. For an actual Injury due to
Occupational Disease or Cumulative Trauma, verbal notice must be provided within
24 hours after being medically diagnosed with a work-related Injury, or within 30
days after the Participant should have known of the work-related Injury, whichever
is earlier.

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(1)
With respect to reporting an Injury due to Occupational Disease
or Cumulative Trauma, if an Employer has purchased an insurance policy
described in Section 5.2, the purpose of which (in whole or in part) is to
indemnify Participants or the Employer for Plan benefits, then the notice of
Injury due to Occupational Disease or Cumulative Trauma must in all events
be provided not later than 35 months after the end of the policy period.
(2)
No benefits will be payable under the Plan if notice is not
provided as required above, unless the Claims Administrator determines that
good cause exists for failure to give notice in a timely manner. The
Participant must also notify the Manager-On-Duty or (verbally or in writing) of
expected recovery time immediately after receiving primary medical
treatment, and after each succeeding appointment with the treating Approved
Physician.
(b)
Providing Required Information: An injured Participant (or the
Participant’s Representative) must complete the incident report form by the end of
the workshift for the date of the Injury. These forms must be submitted to the
Manager-On-Duty (or such other person as the Claims Administrator may specify).
The Participant must provide verbal, written, or recorded statements, and provide
such proof and demonstrations (relating to the Injury or any prior or subsequent
damage or harm suffered by the Participant, in or out of the Course and Scope of
Employment), in such manner and within such periods, as the Claims Administrator
may from time-to-time direct. No benefits will be payable under the Plan if all
information is not provided as required above, unless the Claims Administrator
determines that good cause exists for failure to provide such information in a
complete and timely manner.
4.2

Medical Management.

(a)
Use of Approved Providers: Requirements for the use of Approved
Physicians and Approved Facilities are found in the "Covered Charge" definition of
this Plan. If necessary, the Claims Administrator will assist a Participant in
arranging for appropriate medical treatment from an Approved Physician or
Approved Facility. A Participant does not have the right to select and have the Plan
pay for his or her choice of a primary care provider or provider of specialty medical
care, even if such a provider is an Approved Physician or Approved Facility.
(b)
Medical Determinations and Treatment: All determinations relating
to the physical condition of a Participant, upon which the continued payment of
benefits is based (for example, inability to return to work or results of a prior injury),
must be made by an Approved Physician. The Participant must follow fully and
completely the advice of, and the course of medical treatment prescribed by, the
treating Approved Physician, and must keep all scheduled appointments to fulfill the
prescribed medical treatment plan. The Claims Administrator may require that the
Participant present an authorization and report form to the treating Approved
Physician or Emergency Care provider at the time of primary medical treatment.
The Employer may also require that the Participant submit to any form of drug
and/or alcohol testing in accordance with the Employer's Post-Accident Drug &
Alcohol Testing Program. The Claims Administrator shall have the right to require
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the Participant to be examined or reexamined by an Approved Physician (including,
but not limited to an autopsy, where not prohibited by law) as often as the Claims
Administrator determines to be reasonably necessary or appropriate during the
pendency of a claim for benefits under the Plan.
(c)
Treatment Prior to Denial: Any provision of this Plan to the contrary
notwithstanding, an Employer may render First Aid, or the Plan may pay for
Emergency Care, pay Disability Benefits or pay for a medical evaluation or
treatment of a Participant, and the Plan can still make a subsequent determination
that the Participant has not suffered a covered Injury or otherwise deny any or all
further benefits under the provisions of this Plan.
(d)
Medical Provider Referrals: If the treating Approved Physician finds
it necessary to refer a Participant to another health care provider, the treating
Approved Physician must notify such Participant and the Claims Administrator of his
or her desire to make the referral and the objectives of such referral. The Claims
Administrator will provide advance approval or disapproval of all referrals (and may
rescind any such approval at any time) based upon such criteria as the Claims
Administrator may determine for the effective administration of the Plan. It is the
Participant's responsibility to determine the status of any such approval or
disapproval, and the expense of services or supplies relating to any disapproved
referral shall be solely the responsibility of the Participant.
(e)
No Interference with Patient-Provider Relationship: Although
benefits under this Plan are conditioned on a Participant's use of only Approved
Physicians and Approved Facilities, a Participant remains entitled to seek any
medical care he or she deems appropriate from any provider of his or her choice at
his or her expense. However, expenses for such medical care shall not be payable
under the Plan and the Participant's use of a non-approved physician or facility may
result in a complete denial or termination of Plan benefits. The Employers, Claims
Administrator, and Appeals Committee, and their agents and delegates, shall not
have any responsibility for the actual medical or other health care services provided
by any Approved Physician, Approved Facility or other designated health care
service provider. Health care providers are not agents of the Plan, Employer,
Claims Administrator, or Appeals Committee.
The Plan, Employer, Claims
Administrator, and Appeals Committee are not liable or responsible for the acts or
omissions of any health care provider.
The actual medical treatment or
rehabilitation of any Injury remains the sole prerogative and responsibility of the
attending Approved Physician and other health care providers based on their
independent judgment for the provision of health care.
(f)
Professional Medical Review and Quality/Efficiency Features:
The Claims Administrator shall have the discretion to assign Approved Physicians
and other health care providers or firms to a Participant's case in order to (i)
coordinate and expedite medical treatment of the Participant, in consultation with
the treating Approved Physician, (ii) facilitate such case management, quality, and
efficiency measures and procedures as the Claims Administrator deems
appropriate, based upon particular facts and circumstances, and (iii) review the
propriety of any and all treatment, services, and supplies, including charges for such
treatment, services, and supplies. Without limiting the generality of the foregoing,
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the following case management, efficiency, quality control and cost containment
features may be utilized under the Plan, at the direction of the Claims Administrator,
to help ensure that health care services are being effectively and efficiently
provided:
(1)
Fee Schedules: No cost shall be a Covered Charge to the
extent that it exceeds the charge specified in any fee schedule approved or
adopted by the Claims Administrator. In the event such charge is not listed
in such a fee schedule, the charge shall not be considered a Covered
Charge to the extent it exceeds the Usual and Customary charge.
(2)
Alternative Health Care Facilities: Use of Approved Facilities
other than hospitals, including surgicenters, Skilled Nursing Facilities, and
Home Health Care Agencies;
(3)
Concurrent Review: A review by designated health care
personnel that utilizes Approved Physician-developed criteria and standards
for determining the appropriateness of reimbursement for initial or continued
treatment or hospital confinement;
(4)
Cost-Saving Techniques:
Such techniques include not
admitting to hospitals on weekends whenever possible and obtaining second
opinions before surgery if deemed advisable by the Approved Physician or
the Claims Administrator;
(5)
Pre-Admission Evaluation: A review made by health care
personnel to (i) determine whether each Approved Facility admission is
Medically Necessary, and (ii) evaluate the number of days for an inpatient
Approved Facility confinement that would be considered reasonably
necessary for the care and treatment of the diagnosed Injury;
(6)
Pre-Admission Testing:
Routine diagnostic, x-ray and
laboratory examinations performed within three days of a scheduled
Approved Facility confinement (these tests must be performed at the same
Approved Facility where such confinement is to occur);
(7)
Utilization Review: A review made by designated health care
personnel to consider, in accordance with established medical criteria,
requests from Approved Physicians for medical procedures, tests or other
services prior to the provision of such requested services to determine
whether they are Medically Necessary, the specific benefit of the services for
the Participant, and any alternative means to provide such services;
(8)
Nurse Case Managers: The Claims Administrator may assign
a nurse case manager or other health care professional to monitor services
provided or requested on behalf of a Participant, and to otherwise assist the
Claims Administrator or the Participant with his or her return to work; and
(9)
Referral to Specialty Providers: The Claims Administrator
may direct any Participant to an Approved Physician or other health care
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provider who is recognized to be a specialist with the type of condition for
which the Participant may need assistance.
(g)
Second Medical Opinions. The Plan reserves the right to require a
second medical opinion from an Approved Physician selected by the Claims
Administrator for purposes of obtaining an Independent Medical Evaluation (IME) or
for any other reason relating to the payment of Medical Benefits, Disability Benefits,
or any other benefits under this Plan. If a Participant refuses to be examined by an
Approved Physician selected by the Claims Administrator for the second opinion, all
benefits under the Plan shall be suspended.
(1)
The Claims Administrator will weigh the findings of the treating
Approved Physician and the Approved Physician providing the second
opinion and make a benefit determination under the Plan. However, if the
Participant is in disagreement with the diagnosis or treatment recommended
by the Approved Physician whose opinion is accepted by the Claims
Administrator ("Physician A"), then the Participant may request a second
medical opinion. The Participant must notify the Claims Administrator in
advance of receiving any second medical opinion in order for this opinion to
be considered by the Plan. If the Participant provides advance notice to the
Claims Administrator, then the Participant shall have the right to a one-time
examination at his or her own expense by another physician ("Physician B").
This examination by Physician B shall be solely for the purpose of evaluating
the Participant's condition and making a treatment recommendation.
(2)
If the diagnosis and treatment recommended by Physician B is
contrary to that of Physician A, then the Claims Administrator shall designate
a peer review physician who will evaluate the medical records and advise the
Claims Administrator, and who may designate another Approved Physician
for a further medical examination. If the Participant refuses to be so
examined, all benefits under the Plan may be suspended. The diagnosis
and/or recommended treatment of the peer review physician or this last
Approved Physician will be controlling. The fees and related expenses of the
peer review physician and this last Approved Physician will be paid by the
Plan (although the Participant shall have the option of paying up to one-half
of such fees and expenses).
4.3
Suspension Or Termination of Benefits. The Claims Administrator may
deny a claim for, or suspend or terminate the payment of, Plan benefits otherwise due a
Participant if:
(a)
the Participant refuses to submit to drug and/or alcohol testing in
accordance with the Employer's Post-Accident Drug & Alcohol Testing Program or
refuses to provide the Employer and its designated representatives with (or access
to) drug and/or alcohol testing information related to an Injury;
(b)
the Participant does not receive prior approval for all medical care
other than Emergency Care;

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(c)
the Participant utilizes a non-approved physician or facility other than
for Emergency Care;
(d)
the Participant refuses to submit to examination by an Approved
Physician selected by the Claims Administrator (other than the treating Approved
Physician) as required by the Claims Administrator with respect to any surgical
procedure or other diagnosis or treatment opinion rendered by the treating
Approved Physician for which the Claims Administrator considers a second medical
opinion advisable;
(e)
the Participant is persistently nonresponsive to treatment, including,
but not limited to, nonresponsiveness due to the need for Participant behavioral
modification recommended by the treating Approved Physician;
(f)
a non-work related condition or intervening event subsequent to an
occupational Injury prevents continuous care of, prolongs treatment of, or prohibits
recovery from the occupational injury;
(g)
the Participant fails to provide accurate information to, or fails to follow
the directions of, a treating Approved Physician. Following the directions of a
treating Approved Physician includes, but is not limited to, any recommended
treatment, therapy, course of action, abstinence, or rehabilitation program;
(h)
the Participant fails or refuses to allow an authorized representative of
the Plan to accompany the Participant to an appointment with a health care
provider;
(i)
the Participant fails to keep, or is late for, a scheduled appointment
with a health care provider. Except in extraordinary circumstances as determined
by the Claims Administrator, a first missed appointment shall result in a warning
and/or suspension of benefits and a second missed appointment shall result in a
termination of benefits;
(j)
the Participant engages in conduct following an Injury which is
determined by the treating Approved Physician to be an injurious practice that is
hindering the Participant's recovery from the Injury;
(k)
the Participant does not actively participate in activities that increase
the likelihood of the Participant’s return to work or pre-injury status as directed by an
Approved Physician, including, but not limited to, reporting the Participant’s work
status or expected recovery time after each appointment;
(l)
the Participant fails to immediately inform the Manager-On-Duty or
Dilllard's Injury Benefit Plan Claims Department at 1-800-235-9660 that he or she
has been released by an Approved Physician to return to full or Modified Duty, or
fails to timely report to work in accordance with such work release;
(m) the Participant receives benefits with respect to the Injury from any
workers' compensation law (whether or not any coverage for benefits is actually in
force under such law);
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(n)
the Participant has been untruthful or demonstrates bad faith in
connection with administration of the Plan, including, but not limited to, any aspect
of the required information supplied as part of the injury reporting or employment
process;
(o)
the Participant fails to fully cooperate with the Claims Administrator
(including, but not limited to, failure to comply with the provisions of Section 4.1(b))
in connection with the administration of the Plan, including, but not limited to,
subrogation or coordination of benefits procedures; or
(p)
the Participant fails or refuses to comply with any of the provisions of
the Plan or the rules and procedures adopted by the Claims Administrator for the
administration of the Plan.
4.4
Mandatory Final Compromise And Settlement. At any time following the
date of Injury, the Claims Administrator may notify the Participant of the Plan's intention to
be released from any further known and unknown benefit and all other injury-related claims
by such Participant and pay a final claim settlement to, or with respect to, such Participant
in exchange for the Participant's agreement to a release of liability in favor of the Plan,
Employers, Claims Administrator, Appeals Committee, and other interested parties with
respect to such claims. In that event, the Claims Administrator may appoint an actuary,
appraiser, and/or Approved Physician to investigate, determine, and capitalize such
claims, or use such other valuation method as the Claims Administrator may specify. The
payment by the Plan and/or Employer of the value of such claims (as finally determined by
the Claims Administrator) shall be made in such manner as the Claims Administrator may
determine. No additional claims will be subsequently accepted with respect to such Injury.
Any actuary or appraiser shall apply such rules, standards, and assumptions (present
value discount, inflation, and mortality rates, etc.) as the Claims Administrator may
determine. The Participant must cooperate and provide all information, sign such forms
and agreements, and submit to all medical examinations as may be requested by the
Claims Administrator to arrive at a valuation and settlement of the Participant's claims. No
further benefits will be payable to, or with respect to, a Participant who fails or refuses to
accept the Claims Administrator's claim valuation, sign the release agreement presented
by the Claims Administrator, or otherwise comply with the requirements of this Section or
other provisions of the Plan. Prior or subsequent to the Claims Administrator's evaluation
and determination of the value of a Participant's claims, the Claims Administrator may
determine to not capitalize and satisfy any such claim as described above and to instead
continue eligibility for benefit payments and defer the above valuation and settlement.
ARTICLE V
ADMINISTRATION
5.1

Plan Administrator.

(a)
Administrator: The Company shall be the Plan Administrator and
named fiduciary of the Plan. The Plan shall be administered on behalf of the
Company and all other Employers by the Claims Administrator and Appeals
Committee. The Claims Administrator or Appeals Committee so appointed shall
serve in such office until his or her death, resignation, or removal by the Company.
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The Company may change the Claims Administrator or Appeals Committee with or
without cause at any time, and may modify the membership of the Claims
Administrator or Appeals Committee positions at any time and from time to time.
The Claims Administrator and Appeals Committee shall keep such records of their
proceedings and acts as they deem to be necessary or appropriate for the purposes
of the Plan. The Claims Administrator and Appeals Committee shall cause such
information, documents or reports to be prepared, provided and/or filed as may be
necessary to comply with the provisions of ERISA, or any other applicable law. The
Appeals Committee shall receive no remuneration from the Plan for its services as
the Appeals Committee. The Plan shall operate and keep its records on the basis
of the Plan Year.
(b)
Administrative Authority: Subject to the Plan claims procedures,
the Claims Administrator and Appeals Committee shall have discretionary and final
authority to interpret and implement the provisions of the Plan, including, but not
limited to, making all factual and legal determinations, correcting any defect,
reconciling any inconsistency and supplying any omission, and making any and all
determinations that may impact a claim for benefits hereunder. The Claims
Administrator and Appeals Committee shall perform all of the duties and may
exercise all of the powers and discretion that the Claims Administrator and Appeals
Committee deem necessary or appropriate for the proper administration of the Plan,
and shall do so in a uniform, nondiscriminatory manner. Any failure by the Claims
Administrator or Appeals Committee to apply any provisions of this Plan to any
particular situation shall not represent a waiver of the Claims Administrator's or
Appeals Committee's authority to apply such provisions thereafter.
Every
interpretation, choice, determination or other exercise by the Claims Administrator
or Appeals Committee of any power or discretion given either expressly or by
implication to it shall be given the maximum deference provided by law and shall be
conclusive and binding upon all parties having or claiming to have an interest under
the Plan (or otherwise directly or indirectly affected by such action) without
restriction, however, on the right of the Claims Administrator or Appeals Committee
to reconsider and redetermine such action. There shall be no de novo review by any
arbitrator or court of any decision rendered by the Appeals Committee and any
review of such decision shall be limited to determining whether the decision was so
arbitrary and capricious as to be an abuse of discretion. The Claims Administrator
and/or Appeals Committee may adopt such rules and procedures for the
administration of the Plan as are consistent with the terms hereof.
(c)
Delegation of Responsibilities: The Claims Administrator's and
Appeals Committee's authority shall include, but not be limited to, the power to
allocate or delegate fiduciary and non-fiduciary responsibilities or duties to
Employees or third persons, including any insurer or contract administrator, and,
except as is otherwise provided by applicable law, those persons to whom such
responsibilities and duties have not been allocated or delegated shall not be liable
for any act or omission of those persons to whom such responsibilities and duties
have been allocated or delegated. Except as otherwise provided under ERISA,
neither an Employer, the directors, officers, partners, managers, or supervisors of
an Employer, the Plan Administrator, the Claims Administrator or the Appeals
Committee nor any person designated to carry out fiduciary responsibilities
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pursuant to this Plan shall be liable for any act, or failure to act, which is made in
good faith pursuant to the provisions of the Plan.
5.2
Funding Policy And Method. All benefits payable to or with respect to a
Participant under this Plan shall be paid or provided for by the Employer who was the
Employer of such Participant at the time of his or her Injury. Unless provided by a trust
established pursuant to the Plan, said benefits shall be paid by such Employer at the
direction of the Claims Administrator or Appeals Committee or its designated
representative solely out of the general assets of such Employer. The Employer shall
have no obligation to establish any fund or trust for the payment of benefits under this
Plan. The Employers may obtain an insurance contract that may (depending upon the terms
of such policy) provide funds to reimburse or pay on behalf of an Employer for a benefit
payable under this Plan. Benefits under this Plan shall not be payable or shall immediately
cease in the event that such insurance coverage is not available (for reasons other than the
need to satisfy a self-insured retention) or ceases under such policy for any reason. Any
such insurance policy proceeds or other amounts payable by an employer shall not be
considered "plan assets" for purposes of ERISA. Payments by an Employer shall be from
its general assets. The Employer that applied for the insurance contract shall own such
contract. As a condition to the receipt of benefits under this Plan, and unless otherwise
prohibited by law, the Claims Administrator may require a Participant to sign a form
prescribed by the Claims Administrator which will serve to assign all or a portion of any
benefits payable under such an insurance contract to the Employer that applied for the
contract. If any insurance benefits are paid directly by an insurance company to a
Participant or Beneficiary with respect to an Injury covered under this Plan, such payments
shall be deemed to be made under this Plan by the Employer or shall otherwise be subject
to the coordination of benefits provisions of Article VII, as determined by the Claims
Administrator.
ARTICLE VI
CLAIMS PROCEDURES
6.1
Filing a Claim for Benefits. A claim for Medical Benefits, Disability Benefits
or Disfigurement Benefits shall be initiated by a Participant (or his or her Representative)
by (i) complying with the notice requirements of Section 4.1, and (ii) submitting to medical
treatment in accordance with Section 4.2. A claim for Medical Benefits can also be directly
submitted on the behalf of a Participant to the Claims Administrator by a health care
professional. A claim for Occupational Death Benefits or Non-Occupational Death Benefits
under the Plan shall be initiated by a Beneficiary providing notice of entitlement thereto to
the Claims Administrator within 90 days after the date of the Participant's death.
(a)
What is a Claim. Each (i) medical service or supply for which
payment is requested, (ii) Disability Benefit for a particular payroll period, or (iii)
claim for Disfigurement Benefits, Occupational Death Benefits or Non-Occupational
Death Benefits shall be deemed a separate "claim" for benefits that is subject to a
Determination under the Plan. The Plan's payment of a particular claim (for
example, payment for an initial medical evaluation, even on a claim that may have
been reported late) does not waive or otherwise prejudice the Claims
Administrator's or Appeals Committee's right to deny another particular claim or all
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future claims for benefits under the Plan. As stated above, any failure by the Claims
Administrator or Appeals Committee to apply any provisions of this Plan to any
particular situation shall not represent a waiver of the Claims Administrator's or
Appeals Committee's authority to apply such provisions thereafter.
(b)
Who is a Claimant. A claimant or a claimant's Representative may
file a claim for benefits under the Plan, as well as an appeal of an Adverse Benefit
Determination.
References in this ARTICLE to "claimant" shall include a
Participant, a medical provider seeking payment for a service or supply, a
Beneficiary, or a claimant's Representative, as applicable. The Plan shall have the
right to establish reasonable procedures for determining whether and to what extent
an individual has been authorized to act on behalf of a claimant. However, with
respect to an Urgent Care Claim, a physician or other health care provider licensed,
accredited and certified to perform specified health services consistent with state
law and with knowledge of a claimant's medical condition shall be permitted to act
as the authorized Representative of the claimant.
(c)
Information to Submit. Claims must include the information required
by Section 4.1(b) and such other reasonable information requested by the Claims
Administrator, such as medical records or a written statement from an independent
service provider evidencing the date, type of services rendered, and the total cost of
such services. In addition, the Claims Administrator may require the claimant to
provide a written and signed statement which provides that the Covered Charge has
not been reimbursed, or is not reimbursable under any other plan or program.
Further, the Claims Administrator may also request that the claimant file all
appropriate claims and requests for payment from any other plan or program
maintained by the claimant prior to making any payments under this Plan. See
ARTICLE VII on "Coordination of Benefits and Subrogation".
The Claims
Administrator may rely upon all such information furnished by the claimant,
including the claimant's current mailing address, and shall have no obligation or
duty to locate a claimant.
(d)
Submission of Medical Bills for Payment. Approved Physicians
and Approved Facilities will be requested to invoice all health care-related charges
directly to the Claims Administrator (or an Employer, which shall immediately
transmit such invoice to the Claims Administrator). However, in the event that a
Participant receives such an invoice or pays such a charge, all requests for
payment or reimbursement of Covered Charges must be filed with the Claims
Administrator within 30 days from the date such expenses are incurred or, if later,
the date such Participant receives an invoice from an Approved Physician,
Approved Facility, or other health care provider (in the case of Emergency Care) for
such expenses.
(e)
Incomplete Claim Submissions. In the event that a claim, as
originally submitted, is not complete, the Claims Administrator shall notify the
claimant in the manner described below, and the claimant shall have the
responsibility for providing the missing information. Notwithstanding the foregoing,
the period of time within which a benefit Determination must be made shall begin at
the time that a claim is filed in accordance with this Plan, without regard to whether
all the information necessary to make a benefit Determination accompanies the
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claimant's filing. Subject to the applicable provisions of this Article VI, in the event
that the period of time for a particular claim is extended due to a claimant's failure to
submit information necessary to decide a claim, the period for making the benefit
determination shall be suspended from the date on which the notification of the
extension is sent to the claimant until the date on which the Claims Administrator
receives the claimant's response to the request for additional information.
6.2

Claims Review.

(a)
Notice of Initial Benefit Determination - The Claims Administrator
shall provide notice to the claimant of its initial benefit Determination as follows:
(1)
Urgent Care, Pre-Service Medical Claims - In the case of a
Pre-Service Claim for Medical Benefits that is an Urgent Care Claim, the
Claims Administrator shall notify the claimant of the Plan's initial benefit
Determination (whether adverse or not) as soon as possible, taking into
account the medical exigencies of the particular claim, but not later than 72
hours after receipt of the claim. A Determination that such claim will be
covered can be communicated to the claimant verbally, in writing, or by
electronic notice; but an Adverse Benefit Determination must be provided in
writing or by electronic notice as described further below. If the claimant (i)
fails to follow the Plan's procedures for filing an Urgent Care Claim, or (ii)
otherwise fails to provide sufficient information to determine whether, or to
what extent, benefits are covered or payable under the Plan on an Urgent
Care Claim, then:
(A)
The Claims Administrator shall notify the claimant as
soon as possible, but not later than 24 hours after its receipt of the
claim, of the procedure to follow or the specific information necessary
to complete the claim. Notification may be oral, unless the claimant
requests a written notice. This notice requirement shall only apply to
the extent that such failure is a communication by a claimant that is
received by the Claims Administrator, and the communication names
a specific claimant, a specific medical condition or symptom, and a
specific treatment, service or product for which approval is requested.
(B)
The claimant shall then be given a reasonable amount of
time, taking into account the circumstances, but not less than 48
hours, to correct such failure.
(C)
The Claims Administrator shall then notify the claimant
of the Plan's initial benefit Determination as soon as possible, but not
later than 48 hours after the earlier of (i) the Claims Administrator's
receipt of the specified information necessary to complete the claim,
or (ii) the end of the time period given the claimant to provide such
information.
(2)
Concurrent Medical Care Decisions - If the Claims
Administrator has approved an ongoing course of medical treatment to be
provided over a period of time or number of treatments:
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(A)
The Claims Administrator shall notify the claimant of any
reduction or termination by the Plan of such course of treatment.
Such reduction or termination shall be considered an Adverse Benefit
Determination and the Claims Administrator shall notify the claimant
sufficiently in advance of the reduction or termination to allow the
claimant to appeal and obtain a benefit Determination on review
before the course of treatment is actually reduced or terminated.
(B)
Any request by a claimant to extend the course of
treatment beyond the prescribed period of time or number of
treatments previously approved by the Plan that is an Urgent Care
Claim shall be decided as soon as possible, taking into account the
medical exigencies of the claim. The Claims Administrator shall make
an initial benefit Determination, whether adverse or not, within 24
hours after its receipt of the claim, provided that any such claim is
made to the Plan at least 24 hours prior to the expiration of the
prescribed period of time or number of treatments. If such claim is not
made to the Plan within such 24-hour period, the request shall be
treated as an Urgent Care Claim and be decided within the normal
Urgent Care Claim timeframes (i.e., as soon as possible, taking into
account the medical exigencies of the claim, but not later than 72
hours after receipt).
(C)
Any request by a claimant to extend the course of
treatment beyond the prescribed period of time or number of
treatments previously approved by the Plan that is not an Urgent Care
Claim shall be treated as a new benefit claim and decided within the
timeframe appropriate to the type of claim (i.e., as a Pre-Service Claim
or a Post-Service Claim).
Notification of any Adverse Benefit Determination concerning a request to
extend the course of treatment, whether involving an Urgent Care Claim or
not, shall be made in accordance with the provisions of this Section.
(3)
Non-Urgent Care, Pre-Service Medical Claims - In the case
of a Pre-Service Claim for Medical Benefits that is not an Urgent Care Claim,
the Claims Administrator shall notify the claimant of the Plan's initial benefit
Determination (whether adverse or not) within a reasonable period of time
appropriate to the medical circumstances, but not later than 15 days after its
receipt of the claim. A Determination that such claim will be covered can be
communicated to the claimant verbally, in writing, or by electronic notice; but
an Adverse Benefit Determination must be provided in writing or by electronic
notice as described further below.
(A)
If the claimant fails to follow the Plan's procedures for
filing a non-urgent care, Pre-Service Claim, then the Claims
Administrator shall notify the claimant as soon as possible, but not
later than 5 days after its receipt of the claim, of the procedures to
follow. Notification may be oral, unless the claimant requests a written
notice. This notice requirement shall only apply to the extent that such
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failure is a communication by a claimant that is received by the Claims
Administrator, and the communication names a specific claimant, a
specific medical condition or symptom, and a specific treatment,
service or product for which approval is requested.
(B)
The Claims Administrator may extend the 15-day benefit
Determination period up to an additional 15 days if it determines that,
due to matters beyond the control of the Plan, an initial benefit
Determination cannot be made within the first 15-day period, and
notifies the claimant of the special circumstances requiring the
extension and the date by which the Plan expects to render a
decision. If the extension is necessary due to a failure of the claimant
to submit the information necessary to decide the claim, the extension
notice shall specifically describe the required information and the
claimant shall then be given at least 45 days to provide the specified
information. However, the Claims Administrator's timeframe for
making a benefit Determination shall be suspended until the date
upon which the claimant responds to the request for additional
information.
(4)
Post-Service
Medical
Benefit,
Disability
Benefit,
Disfigurement Benefit, Occupational Death Benefit and NonOccupational Death Benefit Claims - In the case of a Post-Service Claim
for Medical Benefits or a claim for Disability Benefits, Occupational Death
Benefits or Disfigurement Benefits, the Claims Administrator shall notify the
claimant of an Adverse Benefit Determination within 30 days after its receipt
of the claim. The Claims Administrator may extend this period up to an
additional 15 days if the Claims Administrator determines that an extension is
necessary due to matters beyond the control of the Plan. Notice of such
extension must be provided to the claimant prior to the expiration of the initial
30-day period and state (i) the special circumstances requiring the extension,
and (ii) the date by which the Plan expects to render a decision. If the
extension relates to a claim for Disability Benefits, such notice shall also
state (i) the standards on which entitlement to benefits is based, and (ii)
unresolved issues that prevent a benefit determination on the claim and what
additional information is needed to resolve those issues. If additional
information is requested with the extension notice, the claimant shall have 45
days from the date of the notice of extension in order to provide the specified
information. However, the Claims Administrator's timeframe for making a
benefit Determination shall be suspended until the date upon which the
claimant responds to the request for additional information.
(b)
Manner and Content of Adverse Benefit Determinations - If the
initial benefit Determination is an Adverse Benefit Determination, the Claims
Administrator shall provide a written or electronic notice to the claimant that satisfies
the following requirements:
(1)
Any electronic notice shall satisfy ERISA regulations that
specify the standards for electronic disclosure of benefit plan information;
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(2)
The notice shall be written in a manner calculated to be
understood by the claimant;
(3)
The notice shall set forth the specific reason or reasons for the
Adverse Benefit Determination, making reference to the specific Plan
provisions on which the Adverse Benefit Determination is based;
(4)
If an internal rule, guideline, protocol or other similar criterion
was relied upon in making an Adverse Benefit Determination on a claim for
Medical Benefits or Disability Benefits, the notice shall state that such rule,
guideline, protocol or other similar criterion was relied upon in making the
Adverse Benefit Determination and that a copy thereof shall be provided free
of charge to the claimant upon request;
(5)
If the Adverse Benefit Determination of a Medical or Disability
Benefits claim is based upon medical necessity, an experimental treatment
or similar exclusion or limit, the notice shall provide either an explanation of
the scientific or clinical judgment for the Adverse Benefit Determination,
applying the terms of the Plan to the claimant's medical circumstances, or a
statement that such explanation will be provided free of charge upon request;
(6)
The notice shall include a statement that in the case of an
Adverse Benefit Determination on review by the Appeals Committee, the
Plan offers no further voluntary levels of appeal and that the claimant can
pursue his or her right to bring a legal action under ERISA section 502(a);
(7)
If the initial Adverse Benefit Determination involves an Urgent
Care Claim, the notice shall provide a description of the expedited review
process applicable to such claims. Notification of an Adverse Benefit
Determination that involves an Urgent Care Claim may be provided to the
claimant orally within the time frames specified above, provided that the oral
notification satisfies the requirements of this subsection and that a written or
electronic notice satisfying the requirements of this subsection is furnished to
the claimant not later than three (3) days after the oral notification;
(8)
The notice shall describe any additional materials or
information necessary for the claimant to perfect the claim and explain why
such material or information is necessary; and
(9)
The notice shall provide a description of the Plan's review
procedures (including the time limits applicable to these review procedures).
(c)
Appeal of Adverse Benefit Determinations. The claimant may
appeal in writing an initial Adverse Benefit Determination to the Appeals Committee
within the following number of days following his or her receipt of the Adverse
Benefit Determination from the Claims Administrator:
(1)

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(2)
60 days for a Disfigurement Benefit, Occupational Death
Benefit or Non-Occupational Death Benefit claim.
If the Adverse Benefit Determination involves an Urgent Care Claim for Medical
Benefits, the claimant may request orally or in writing an expedited review of the
Adverse Benefit Determination and all necessary information, including the Plan's
benefit Determination on review, shall be transmitted between the Plan and the
claimant by telephone, facsimile or other available expeditious method.
(d)
Appeals Committee Consideration. When reviewing the appeal of
an Adverse Benefit Determination, the Appeals Committee shall comply with the
following requirements:
(1)
The claimant may submit written comments, documents,
records, and other information relating to the claim for benefits, and the
Appeals Committee shall take all of such information into account when
reviewing such claim, without regard to whether such information was
submitted or considered in the initial benefit Determination;
(2)
The claimant may receive, upon request and free of charge,
reasonable access to, and copies of, all documents, records, and other
information that is Relevant to the claimant's claim for benefits (as
determined by the Appeals Committee);
(3)
The Appeals Committee review of an Adverse Benefit
Determination on a claim for Medical Benefits or Disability Benefits shall not
give any deference to the initial Adverse Benefit Determination;
(4)
If the appeal request on a Medical Benefits or Disability
Benefits claim is based in whole or in part on a medical judgment, including
Determinations with regard to whether a particular treatment, drug or other
item is experimental, investigational or not medically necessary or
appropriate, the Appeals Committee shall consult with an Approved
Physician who has appropriate training and experience in the field of
medicine involved in the medical judgment. This Approved Physician shall
not be an individual who was consulted in connection with the initial Adverse
Benefit Determination or a subordinate of such individual; or
(5)
Upon request of a claimant, the Appeals Committee shall
identify the individual names of any medical or vocational experts whose
advice was obtained in connection with an initial Adverse Benefit
Determination, without regard to whether the advice of such experts was
relied upon in making the benefit Determination.
(e)
Timing of Notice of Benefit Determination on Review - The
Appeals Committee shall provide notice to the claimant, as described in subsection
(f) below, of the Plan's benefit Determination on review in accordance with the
following timeframes:

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(1)
Urgent Care, Pre-Service Medical Claims - In the case of a
Pre-Service Claim for Medical Benefits that is an Urgent Care Claim, the
Appeals Committee shall notify the claimant of the Plan's benefit
Determination on review as soon as possible, taking into account the medical
exigencies of the claim, but not later than 72 hours after its receipt of the
claimant's appeal request. No extension of time is available for Appeals
Committee Determinations on the review of claims for Medical Benefits.
(2)
Non-Urgent Care, Pre-Service Medical Claims - In the case
of a Pre-Service Claim for Medical Benefits that is not an Urgent Care Claim,
the Appeals Committee shall notify the claimant of the Plan's benefit
Determination on review within a reasonable period of time appropriate to the
medical circumstances, but not later than 30 days after its receipt of the
appeal request. No extension of time is available for Appeals Committee
Determinations on the review of claims for Medical Benefits.
(3)
Post-Service
Medical
Benefit,
Disability
Benefit,
Disfigurement Benefit, Occupational Death Benefit and NonOccupational Death Benefit Claims - In the case of a Post-Service Claim
for Medical Benefits or a claim for Disability Benefits, Disfigurement Benefits,
Occupational Death Benefits or Non-Occupational Death Benefit, the
Appeals Committee shall notify the claimant of the Plan's benefit
Determination on review within 45 days after its receipt of the appeal request.
The Appeals Committee may extend this period up to an additional 45 days
on a claim for Disability Benefits, Disfigurement Benefits, Occupational Death
Benefits, or Non-Occupational Death Benefits if the Appeals Committee
determines that an extension is necessary due to matters beyond the control
of the Plan. Written or electronic notification of an extension must be
provided to the claimant prior to the expiration of the initial 45-day period and
indicate the special circumstances requiring the extension and the date by
which the Plan expects to render a decision.
(f)
Manner and Content of Benefit Determination on Review - The
Appeals Committee shall provide a claimant with written or electronic notification of
the Plan's benefit Determination on review. If the decision on review is an Adverse
Benefit Determination, the notice must satisfy all the requirements set forth in
subsection (b)(1) through (6) above, and also state that the claimant is entitled to
receive, upon request and free of charge, reasonable access to, and copies of, all
documents, records, and other information Relevant to the claimant's claim for Plan
benefits.
(g)
Extension of Time Frames Allowed by Law or Agreement - In the
event that ERISA rules and regulations permit additional time for decisions or
actions by the Claims Administrator or Appeals Committee, the Claims
Administrator or Appeals Committee may exercise their discretion to utilize (but not
exceed) those extended time frames; provided, however, that this discretion shall
only be exercised when necessary to provide a full and fair review of a claimant's
right to benefits in accordance with the terms of this Plan (e.g., additional time
needed to obtain an appointment and results of a medical examination). Upon
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request by the Plan, a claimant may also voluntarily agree to an extension or further
extension of any time period within which the Plan must decide a claim.
(h)
Exhaustion of Administrative Remedies: No legal action can be
brought by or with respect to a Participant to recover benefits under the Plan before
the foregoing claim procedures have been exhausted. Every ERISA right of action
by any Participant, former Participant, a Participant’s Representative, Beneficiary, or
the Participant’s estate against the Plan, or any Plan fiduciary, must be brought no
later than one (1) year from the date that the foregoing claim procedures have been
exhausted (due to claimant inaction, claimant receipt of a final Adverse Benefit
Determination on appeal, or otherwise).
ARTICLE VII
COORDINATION OF BENEFITS AND SUBROGATION
7.1
Reduction in Benefit Payments. Benefit payments under this Plan shall be
reduced by:
(a)
the amount of any applicable federal or state income, employment, or
other taxes that are required by law to be withheld;
(b)
the Participant's earnings from any employer after disability begins,
amounts legally garnished, and Participant contributions (through salary reduction
or otherwise) to a 401(k) or a 403(b) plan, cafeteria plan, or other pre-tax salary
deferral employee benefit plan; and
(c)
except as otherwise specified under Section 7.2(c), any amount paid
or available with respect to the Participant's Injury under the following: Social
Security Act, the Railroad Retirement Act, workers’ compensation law,
unemployment compensation law, occupational disease law or any other
government program or similar law. The Plan shall deduct from Plan benefits the
estimated benefit amounts for which the Participant is likely to be eligible under
such other deductible sources of income, regardless of whether the Participant
actually applies for such other deductible source of income.
7.2
Coordination Of Benefits. If a Participant is covered under this Plan and
one or more other benefit plans, then (unless otherwise subject to Section 7.3) any
Medical Benefits and Disability Benefits payable under this Plan will be either regular
benefits or reduced benefits that, when added to the benefits of the other plan(s), will not
exceed 100% of the amount described herein. The purpose of this provision is to prevent
duplicate payments under plans that would exceed 100% of the benefits described in this
Plan. In the coordination of benefits, one of the plans will be designated as the primary
plan and the other plans will be designated as secondary. The primary plan will pay its full
benefits first, then the secondary plan(s) will pay, but payments will be coordinated so that
the total from all plans will not be more than the benefits described in this Plan.
(a)
For purposes of this Section 7.2, “other benefit plans” shall mean any
health or disability-type benefits provided under (1) any individual, group, blanket or
franchise plan, (2) other prepaid coverage under service plan contracts, or under
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group or individual plans, policies or a practice, (3) uninsured arrangements of
group or group-type coverage, (4) labor-management trusteed plans, labor
organization plans, employer organization plans, or employee benefit organization
plans, (5) benefits coverage in a group, group-type and individual policy or policies
of automobile coverage (including, but not limited to medical payment coverage,
personal injury protection coverage, uninsured motorists coverage and
underinsured motorists coverage, and (6) any other group-type contracts – that is,
those contracts which are not available to the general public and can be obtained
and maintained only because of membership in or connection with a particular
organization or group.
(b)
Except as specified under Section 7.2(c), if a person is covered by
more than one plan to which this coordination of benefits provision applies, then the
following rules will determine which plan will be primary:
(1)
With respect to health benefits only, when only one of the plans
has a coordination of benefits provision, then the plan without such a
provision will be the primary plan;
(2)
The plan under which the person is covered other than as a
dependent (for example, active employee, former employee, inactive
employee, COBRA participant or retiree) will be the primary plan over a plan
which covers the person as a dependent;
(3)
The plan under which the person is covered as an active
employee will be the primary plan over a plan which covers the person as
former employee, inactive employee, COBRA participant or retiree;
(4)
If none of these rules establish an order of benefit
determination, then the plan that has covered the person for the longer
period of time will be the primary plan.
(c)
Any provision herein to the contrary notwithstanding, Medical Benefits
payable under this Plan to or with respect to any Participant who is in "current
employment status" as defined for purposes of Medicare, and who is eligible for
benefits under Medicare, shall be primary and shall not be reduced by the amount
of benefits payable to or with respect to such Participant under Medicare, which will
be considered the secondary plan. However, Medical Benefits payable under this
Plan to or with respect to any Participant who is not in "current employment status,"
as defined for purposes of Medicare, and who is eligible for benefits under
Medicare, shall be secondary and reduced by the amount of all benefits payable to
or with respect to such Participant under Medicare, which will be the primary plan.
In addition, the fact that a Participant is eligible for or provided medical assistance
under a state plan will not be taken into account in making payments under the
Plan.
(d)
The Participant must notify the Claims Administrator of such other
benefit plans and cooperate with the Claims Administrator in (1) furnishing copies of
other policies, coverages or plans which may be applicable to the Injury, and in (2)
completing and returning to such Claims Administrator any questionnaire or forms
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inquiring about, or assigning rights to recover under, other policies, coverages or
plans which may cover or be applicable to such Participant.
7.3
Subrogation and Reimbursement Rights. For purposes of Section 7.3,
7.4, and 7.5 of this Plan, the term “Payee” means a Participant or Beneficiary or their
family members, heirs, estate, or other Representative (in their individual or representative
capacity), singularly or collectively as the context may require to give the Plan the broadest
possible rights of recovery.
(a)
Right of Subrogation: If a Payee becomes entitled to or directly or
indirectly receives Plan benefits for any Injury caused by the negligence or other act
or omission of any person or organization (including, but not limited to, an
Employer), and is (or later becomes) entitled to or otherwise collects any damages
or other compensation in connection with such Injury (including, but not limited to,
damages for negligence, survival, wrongful death or other legal or equitable action),
whether by insurance, litigation, settlement or other proceeding, the Payee shall
automatically be required to (i) subrogate his, her or its right to and reimburse the
Plan out of said damages or other compensation to the extent of the Plan benefits
paid to, or with respect to, the Payee and (ii) subrogate his, her or its right to and
reimburse the Plan out of said damages or other compensation for all medical
management, investigation, attorneys’ fees, costs of recovery, and other expenses
related to the claim for benefits (including any subrogation proceeding). The
subrogation rights of this Plan even apply with respect to a Payee who is (or later
becomes) entitled to or otherwise collects any damages or other compensation in
connection with such Injury but has not and will not receive any Plan benefits if such
person’s claim for damages or other compensation is dependent on whether the
Participant had or has a valid claim against a third party.
(b)
Written Confirmation: Upon request of the Plan, the Payee shall
provide the Plan written confirmation of this subrogation right, including execution of
any assignment, lien form or other document requested by the Claims Administrator
to enable the Plan to recover such Plan benefits and related expenses. Any failure
of a Payee to give written confirmation of the Plan’s subrogation rights does not
adversely affect its rights of subrogation because the Plan’s right of subrogation
arises automatically once payment under this Plan is made to or on behalf of the
Payee.
(c)
Right to Reimbursement: If (i) a Payee fails, refuses or neglects to
reimburse the Plan or otherwise comply with the provisions of this Section, or (ii)
payments are made under the Plan based on fraudulent information or otherwise in
excess of the amount necessary to satisfy the provisions of the Plan, then the Plan
shall still have all remedies and rights of recovery specified herein. The Plan shall
also have the right to terminate or suspend benefit payments and/or recover the
reimbursement of all amounts above due to the Plan by withholding, offsetting and
recovering such amounts out of any future Plan benefits or amounts otherwise due
from the Plan to or with respect to such Payee.
(d)
Right of Recovery: The Plan shall have the first lien recovery
against any benefits paid or to be paid by the Plan. The Plan shall also have the
right to bring a lawsuit and assert a constructive trust or other interest against any
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and all persons that have assets to which the Plan can claim rights. The Plan has
the right of first recovery from any judgment, settlement or other payment,
regardless of whether the Payee has been "made whole."
(e)
Attorney’s Fees and Expenses: The Plan's subrogation rights and
first lien will not be reduced by attorneys' fees or expenses incurred by any party in
pursuing recovery against a third party and the "common fund" doctrine shall not
apply. Any attorneys' fees and/or expenses incurred by or at the request of the
Payee or his, her or its attorneys in a third party or other action shall be the sole
responsibility of such party.
7.4
Notice Of Legal Proceedings. A Payee (whether or not such person has
received or may in the future directly or indirectly receive Plan benefits) shall provide the
Claims Administrator with prior written notice of the involvement of such party in any
lawsuit, settlement discussion or other proceeding (for negligence, wrongful death, survival
or other cause of action), one of the principal purposes of which is recovering, from any
person or organization, damages or other compensation in any way related to any Injury
for which Plan benefits have been or may in the future be paid. The Plan shall have the
right to intervene for itself and on behalf of a Payee in any such lawsuit, settlement
discussion or other proceeding. If a Payee neglects, fails or refuses to seek a recovery
from any person or organization for any Injury caused by the negligence or other act or
omission of such person or organization, the Plan shall have the right to institute a lawsuit
or other proceeding or do any other act that in the opinion of the Claims Administrator may
be necessary or desirable to recover the Plan benefits paid (and to be paid in the future),
plus all medical management, investigation, attorneys’ fees, costs of recovery, and other
expenses incurred by the Plan.
7.5
Assignment Of Rights. By participating in this Plan, a Participant obligates
himself or herself, as well as all other Payees (in both their individual and representative
capacities), to the provisions of this Plan, including, without limitation, Sections 7.3, 7.4,
and 7.5 hereof. Upon the request of the Claims Administrator, a Payee shall assign to the
Plan the right to intervene in or institute any lawsuit, settlement discussion, or other
proceeding described in Sections 7.3 and/or 7.4, and to use the name of such party for
such purpose. The Plan shall have the right to select legal counsel of its own choice and
such counsel shall have complete control over the conduct of any such lawsuit, settlement
discussion, or other proceeding without the consent or participation of any such Payee.
Whenever the Plan shall intervene in or institute any lawsuit or other proceeding as
permitted by the provisions of this Section, the Plan may pursue same to a final
determination and the Plan expressly reserves the right to appeal from any adverse
judgment or decision. The Payee shall give the Plan all reasonable aid in any such
lawsuit, settlement discussion, or other proceeding in effecting settlement, in securing
evidence, in obtaining witnesses, or as may otherwise be requested by the Claims
Administrator. The Payee shall release the Plan, the Employers, the Plan Administrator,
the Claims Administrator, the Appeals Committee, and their respective directors, officers,
agents, consultants, attorneys, and employees from all claims, causes of action, damages
and liabilities of whatever kind or character that may directly or indirectly arise out of the
pursuit or handling by the Plan of any such lawsuit, settlement discussion or other
proceeding.

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ARTICLE VIII
TERMINATION AND AMENDMENT
The Company shall have the right and power at any time and from time to time to amend
or modify this Plan, in whole or in part, on behalf of all Employers, and at any time to
terminate this Plan or any Employer's participation hereunder; provided, however, that:
(1)
the Plan will not be amended, modified or terminated with respect to a
material modification of the Plan unless and until at least thirty (30) calendar days
have elapsed after the Company has done one of the following:
(A)
Posted the full text of any amendment, modification or notice of
termination, as the case may be, on the bulletin board(s) at the affected work
location where notices to Employees are posted in the usual and customary
course of business;
(B)
E-mailed the full text of any amendment, modification or notice
of termination, as the case may be, to each affected Employee’s intracompany e-mail address;
(C)
Deposited the full text of any amendment, modification or notice
of termination, as the case may be, in the United States Postal Service, first
class mail, postage prepaid, addressed to each affected Employee at his or
her last known home address as maintained in the usual and customary
course of business on the Company’s personnel records; or
(D)
Provided notice to the affected Employees in such other
manner that demonstrates good faith compliance with applicable ERISA
disclosure requirements for summary plan descriptions.
(2)
Any such amendment or termination will be adopted pursuant to
formal written action of a representative authorized to act on behalf of the Company.
(3)
No amendment, modification or termination of the Plan will reduce the
amount of any benefit then due and payable under the Plan to or with respect to you
in connection with an Injury occurring prior to the date of such amendment,
modification or termination of the Plan.
In the event that the Oklahoma Employee Injury Benefit Act is found to be unconstitutional
and/or for such other reasons the Plan is deemed to no longer have legal force or binding
effect, the Plan shall terminate and any payments made to, or on behalf of, a Participant shall
fully offset any award of benefits under the Oklahoma Administrative Workers’ Compensation
Act.

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ARTICLE IX
GENERAL PROVISIONS
9.1
Inability to Make Payment. In the event an individual becomes entitled to a
payment under this Plan and such payment cannot be made (i) because the address
provided by the individual is incorrect, (ii) because the individual fails to respond to a notice
sent to the address provided by the individual, (iii) because of conflicting claims to such
payment, or (iv) because of any other reason, the amount of such payment, if and when
made, shall be the amount determined under the provisions of ARTICLE III without interest
thereon. If, within two years after any amount becomes payable hereunder to an individual,
the same shall not have been claimed, provided the Claims Administrator has exercised
reasonable diligence in attempting to make such payment, the amount thereof shall be
forfeited and shall cease to be a liability of this Plan.
9.2
Claims Administrator and Appeals Committee Indemnity.
The
Employers shall indemnify and hold harmless any employee designated as the Claims
Administrator or the Appeals Committee, and any other employee of an Employer to whom
the Claims Administrator or Appeals Committee has delegated administrative authority
with respect to the Plan, against any claim, cost, expense (including reasonable attorneys'
fees), judgment or liability (including any sum paid in settlement of a claim with the
approval of the Company) arising out of any act or omission to act of the Claims
Administrator or Appeals Committee under this Plan, except in the case of willful
misconduct. The Employers shall be jointly and severally liable for any amounts owed
pursuant to this Section.
9.3
Spendthrift Provision. Except as expressly provided for in this Plan, no
right or interest of any Participant or Beneficiary under this Plan may be assigned,
transferred or alienated, in whole or in part, either directly or by operation of law, and no
such right or interest shall be liable for or subject to any debt, obligation or liability of such
Participant or Beneficiary.
9.4
Employment Noncontractual. The establishment of this Plan shall not
enlarge or otherwise affect an Employee's "at will" employment by an Employer, and an
Employer may terminate the employment of any Employee at any time and/or modify the
Employee's working relationship as desired, at-will for any or no reason (with or without
cause), as freely and with the same effect as if this Plan had not been established.
9.5
Discharge for Benefit Payments. If the Claims Administrator determines
that a Participant is unable to apply a benefit payment under this Plan in furtherance of his
or her own interest and advantage, the Claims Administrator may direct all or any portion
of such payment to be made (i) to the guardian of the person, managing conservator or
guardian of the estate of the Participant, (ii) to a relative or friend of the Participant, to be
expended for the Participant's benefit, (iii) to a custodian for the Participant under any
Uniform Gifts to Minors Act, or (iv) to a trust established for the Participant. The Claims
Administrator shall not be obligated to see to the proper application or expenditure of any
payment so made. Any payment made pursuant to the power herein conferred upon the
Claims Administrator or Appeals Committee shall operate as a complete discharge of all
obligations of the Plan and the Claims Administrator and Appeals Committee, to the extent
of the payments so made.
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9.6
Participation By Affiliates. Any incorporated or unincorporated trade or
business who is a member of a control group (within the meaning of Section 3(40) of
ERISA), with respect to which the Company is also a member, shall automatically be
considered an Employer under this Plan as of the date that such Employer maintains
Employees whose employment with the Employer is principally located within the State of
Oklahoma. Such entity shall automatically cease to be considered an Employer under this
Plan as of the date that such Employer no longer maintains Employees whose
employment with the Employer is principally located within the State of Oklahoma.
9.7
Plan Documents Control. This written Plan document constitutes the entire
Plan, and no oral or written representation or promise concerning the Plan which is
inconsistent with the provisions of this Plan document shall have any effect. The
provisions of this Plan document shall be the sole source of all legally enforceable rights
with respect to the benefits herein provided.
9.8
Construction. The titles to the Articles and the headings of the Sections in
this Plan are placed herein for convenience of reference only and in case of any conflict
the text of this instrument, rather than such titles or headings, shall control. Whenever a
noun or pronoun is used in this Plan in plural form and there be only one person or entity
within the scope of the word so used, or in singular form and there be more than one
person or entity within the scope of the word so used, such word or pronoun shall have a
plural or singular meaning as appropriate under the circumstance.
9.9
Separability. If for any reason any provision of this Plan is determined to be
invalid or contrary to applicable law, such invalidity shall not impair the operation of or
otherwise affect the remaining provisions of this Plan.
9.10 Applicable Law. This Plan shall be governed and construed in accordance
with the provisions of ERISA and, except where superseded by federal law, the laws of the
State of Oklahoma.
9.11 Application of Health Insurance Portability and Accountability Act. This
Plan is exempt from the group health plan requirements of Part 7 of ERISA by operation of
one or a combination of the excepted benefits listed in ERISA Section 733(c)(1) and is
therefore exempt from the standards, rules, regulations and other requirements of the
Health Insurance Portability and Accountability Act.
9.12 Application of Patient Protection and Affordable Care Act. This Plan is
exempt from the group health plan requirements of the Public Health Service Act by
operation of one or a combination of the excepted benefits listed in Title 42 of the United
States Code Section 300gg-91(c)(1) and is therefore exempt from the standards, rules,
regulations and other requirements of the Patient Protection and Affordable Care Act.
9.13 Application of Other Group Health Plan Requirements. This Plan is
exempt from the group health plan requirements of any other standards, rules, regulations
or other requirements that utilize or reference the excepted benefits definition listed in
ERISA Section 733(c)(1).

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IN WITNESS WHEREOF, this Plan has been executed by the Company this
________ day of__________, 2014, to be effective as of September 1, 2014.

DILLARD’S, INC.

By:________________________
(Signature and Title)

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Este folleto y forma contiene información importante sobre sus derechos. Si tiene dificultad
entendiendo esté folleto ó forma, por favor comuníquese con el Dillard's Injury Benefit Plan
Claims Department a 1-800-235-9660.
APPENDIX A
RECEIPT, SAFETY AND PLEDGE ACKNOWLEDGEMENT
RECEIPT OF MATERIALS. By my signature below, I acknowledge that I have received and read (or had the
opportunity to read) the Summary Plan Description (the "SPD") for the Dillard's Injury Benefit Plan For Oklahoma
Employees, effective September 1, 2014.
INJURY NOTICE AND MEDICAL PROVIDERS. I understand and agree that if I am injured on the job, I must
notify the Manager-On-Duty or Dilllard's Injury Benefit Plan Claims Department at 1-800-235-9660 by the end of
the workshift for the date of the Injury and receive any medical care from a Plan-approved physician or approved
facility. I further understand that I must receive my first medical treatment from an Approved Physician within 14
days after the date of my injury.
SAFETY PLEDGE. I agree to familiarize myself with the safety program for the Employer and to perform my
job according to the general and departmental safety rules of the Employer. I will also use any personal
protective equipment that is provided to me. I also agree to immediately report to my Store Manager or
supervisor any accident that involves another employee, a customer, a vendor, or me. I will also immediately
report any unsafe act, condition or equipment. I will also cooperate with any accident investigations, and actively
participate in any Employer safety training programs.

X ____________________________________
Employee's Signature

_____________________________________
Date

______________________________________
Print Employee's Name

_____________________________________
Employee's Identification Number

______________________________________
Parent or Legal Guardian Signature
(if Employee under age 18)

_____________________________________
Date

______________________________________
Print Parent or Legal Guardian Name

_____________________________________
Employee’s Work Location or Department

©Copyright 2014 PartnerSource
Rev. 7/14/2014