Case 3:15-cv-00071-NJG Document 11-1 Filed 04/08/15 Page 2 of 59 ALBERTSON'S LLC TEXAS WORKPLACE INJURY BENEFIT PLAN (Effective August 1, 2010) OFFICIAL PLAN DOCUMENT ©Copyright 2010 PartnerSource Rev. 7/1/10 Case 3:15-cv-00071-NJG Document 11-1 Filed 04/08/15 Page 3 of 59 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  1.42  "Accident".......................................................................................................... 1  "Adverse Benefit Determination" ....................................................................... 1  "Appeals Committee" ........................................................................................ 1  "Approved Facility" ............................................................................................ 2  "Approved Physician" ........................................................................................ 2  "Associate" ........................................................................................................ 2  "Beneficiary"...................................................................................................... 2  "Claims Administrator" ...................................................................................... 3  "Company" ........................................................................................................ 3  "Course and Scope of Employment" ................................................................. 3  "Covered Charge" ............................................................................................. 4  "Covered ......................................................................................................... 10  "Cumulative Trauma" ...................................................................................... 10  "Custodial Care" .............................................................................................. 10  "Death Benefits" .............................................................................................. 10  "Determination" ............................................................................................... 10  "Disabled" or "Disability" ................................................................................. 10  "Dismemberment Benefits" ............................................................................. 10  "Emergency Care" .......................................................................................... 11  "Employer" ...................................................................................................... 11  "First Aid" ........................................................................................................ 11  "Gross Misconduct" ......................................................................................... 11  "Home Health Care" ........................................................................................ 11  "Home Health Care Agency" ........................................................................... 11  "Injury"............................................................................................................. 12  "Maximum Benefit Limit" ................................................................................. 16  “Maximum Rehabilitative Capacity” ................................................................. 16  "Medical Benefits" ........................................................................................... 16  "Medically Necessary"..................................................................................... 16  "Medical Rehabilitation Hospital" .................................................................... 17  "Medicare"....................................................................................................... 17  "Occupational Disease"................................................................................... 17  "Partial Disability” ............................................................................................ 17  "Participant" .................................................................................................... 18  "Plan" .............................................................................................................. 18  "Plan Administrator" ........................................................................................ 18  "Plan Year"...................................................................................................... 18  "Post-Service Claim" ....................................................................................... 18  “Preexisting Condition” .................................................................................... 18  "Pre-Injury Pay" ............................................................................................... 18  "Pre-Service Claim" ........................................................................................ 19  "Receipt, Safety Pledge and Arbitratrion Acknowledgement........................... 19  ©Copyright 2010 PartnerSource Rev. 7/1/10 i Case 3:15-cv-00071-NJG Document 11-1 Filed 04/08/15 Page 4 of 59 Page 1.43  1.44  1.45  1.46  1.47  1.48  1.49  1.50  1.51  1.52  "Relevant" ....................................................................................................... 19  "Representative" ............................................................................................. 19  "Skilled Nursing Care" ..................................................................................... 19  "Skilled Nursing Facility" ................................................................................. 20  "Temporary Restricted Work" .......................................................................... 20  "Totally Disabled" or "Total Disability" ............................................................. 20  "Traumatic Event" ........................................................................................... 20  "Urgent Care Claim" ........................................................................................ 20  "Usual and Customary" ................................................................................... 21  "Wage Replacement Benefits" ........................................................................ 21  ARTICLE II - ELIGIBILITY, NATURE OF PAYMENTS AND ARBITRATION OF INJURY-RELATED DISPUTES .................................................................................... 22  2.1  2.2  2.3  Eligibility. ......................................................................................................... 22  Nature of Payments. ....................................................................................... 22  Arbitration of Certain Injury-Related Disputes. ................................................ 22  ARTICLE III - BENEFITS .............................................................................................. 26  3.1  3.2  3.3  3.4  Wage Replacement Benefits........................................................................... 26  Death Benefits. ............................................................................................... 28  Dismemberment Benefits. ............................................................................... 28  Medical Benefits.............................................................................................. 30  ARTICLE IV - ADDITIONAL REQUIREMENTS AND LIMITATIONS ON BENEFITS .. 30  4.1  4.2  4.3  4.4  Reporting. ....................................................................................................... 30  Medical Management. ..................................................................................... 31  Suspension Or Termination of Benefits. ......................................................... 34  Final Compromise And Settlement. ................................................................ 36  ARTICLE V - ADMINISTRATION ................................................................................. 37  5.1  5.2  Plan Administrator. .......................................................................................... 37  Funding Policy And Method. ........................................................................... 38  ARTICLE VI - CLAIMS PROCEDURES ....................................................................... 38  6.1  6.2  Filing a Claim for Benefits. .............................................................................. 38  Claims Review. ............................................................................................... 40  ARTICLE VII - COORDINATION OF BENEFITS AND SUBROGATION ..................... 47  7.1  7.2  7.3  7.4  7.5  Reduction in Benefit Payments. ...................................................................... 47  Coordination Of Benefits. ................................................................................ 47  Subrogation and Reimbursement Rights. ....................................................... 48  Notice Of Legal Proceedings. ......................................................................... 50  Assignment Of Rights. .................................................................................... 50  ©Copyright 2010 PartnerSource Rev. 7/1/10 ii Case 3:15-cv-00071-NJG Document 11-1 Filed 04/08/15 Page 5 of 59 Page ARTICLE VIII - TERMINATION AND AMENDMENT ................................................... 50  ARTICLE IX - GENERAL PROVISIONS ...................................................................... 51  9.1  9.2  9.3  9.4  9.5  9.6  9.7  9.8  9.9  9.10  Inability to Make Payment. .............................................................................. 51  Claims Administrator and Appeals Committee Indemnity. .............................. 51  Spendthrift Provision. ...................................................................................... 51  Employment Noncontractual. .......................................................................... 51  Discharge for Benefit Payments...................................................................... 51  Participation By Affiliates................................................................................. 52  Plan Documents Control. ................................................................................ 52  Construction. ................................................................................................... 52  Separability. .................................................................................................... 52  Applicable Law. ............................................................................................... 52  APPENDIX A: RECEIPT, SAFETY PLEDGE AND ARBITRATION ACKNOWLEDGEMENT  ©Copyright 2010 PartnerSource Rev. 7/1/10 iii Case 3:15-cv-00071-NJG Document 11-1 Filed 04/08/15 Page 6 of 59 ALBERTSON'S LLC TEXAS WORKPLACE INJURY BENEFIT PLAN This Albertson's LLC Texas Workplace Injury Benefit Plan (the "Plan") is made and executed in Boise, Idaho by Albertson’s LLC, a Delaware limited liability company (the "Company"). WITNESSETH THAT: WHEREAS, the Company has rejected coverage for its Texas Associates under the Texas Workers' Compensation Act, effective as of August 1, 2010; and WHEREAS, the Company desires to establish an employee welfare benefit plan subject to the Employee Retirement Income Security Act of 1974, as amended ("ERISA"), effective as of August 1, 2010, to provide a means by which the Company and other adopting employers can protect themselves from certain liabilities as nonsubscribers to the Texas workers' compensation insurance system by providing non-fringe disability, death, dismemberment and medical benefits with respect to any covered injury sustained by Texas Associates in the course and scope of employment; 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 unforeseen, unplanned, and unexpected; (b) occurred at a specifically identifiable time and place; (c) occurred by chance or from unknown causes; and (d) resulted in physical injury to the Participant. 1.2 "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) a medical service being experimental or investigational or not Medically Necessary or appropriate, or (d) the Participant no longer being Disabled. 1.3 "Appeals Committee" means the individual or individuals appointed by the Company to make Determinations on appeal of benefit claims and otherwise administer the Plan on behalf of the Company and all other Employers. The Claims Administrator cannot serve as the Appeals Committee or as a member of the Appeals ©Copyright 2010 PartnerSource Rev. 7/1/10 1 Case 3:15-cv-00071-NJG Document 11-1 Filed 04/08/15 Page 7 of 59 Committee, and no individual who is a subordinate of the Claims Administrator can serve as the Appeals Committee or as a member of the Appeals Committee. 1.4 "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. 1.5 "Approved Physician" means a person duly licensed under applicable state law as a Medical Doctor or Doctor of Osteopathy 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. 1.6 "Associate" means any person who is employed in the regular business of, and receives his or her pay directly from, an Employer and for whom an Employer files a Form W-2 with the Internal Revenue Service. This term does not include an independent contractor or third-party agent. 1.7 priority: "Beneficiary" means the person or persons determined in the following (a) If there is an Eligible Spouse, all Death Benefits shall be paid to the Eligible Spouse. (b) If there is no Eligible Spouse, Death Benefits shall be paid in equal shares to the Eligible Children. If an Eligible Child has predeceased the Participant, Death Benefits that would have been paid to that child if he or she had survived the Participant shall be paid in equal shares per stirpes to the children of such deceased child. (c) If the Participant is not survived by an Eligible Spouse or Eligible Child, any Death Benefits shall be paid to a surviving dependent (as determined in accordance with the support criteria set forth in section 152 of the Internal Revenue Code and such other rules as the Claims Administrator may prescribe) of the Participant who is a parent, sibling, or grandparent of the deceased Participant. If more than one of those dependents survives the Participant, any Death Benefits shall be divided among them in equal shares. (d) If the Participant is not survived by an Eligible Spouse, Eligible Child, or dependent who is a parent, sibling, or grandparent, no Death Benefits shall be payable. (e) For purposes of this Section: (1) "Eligible Spouse" means the surviving spouse of the deceased Participant, recognized by a marriage certificate issued under ©Copyright 2010 PartnerSource Rev. 7/1/10 2 Case 3:15-cv-00071-NJG Document 11-1 Filed 04/08/15 Page 8 of 59 the laws of the State of Texas or similar government authority, or by a Texas court decree of common law marriage (obtained at such person's sole initiative and expense). (2) "Eligible Child" means a surviving child of the deceased Participant, whether by blood, marriage, or legal adoption, if the child is: (A) under 18 years of age; (B) enrolled as a full-time student in an accredited educational institution and is less than 25 years of age; or (C) because of a physical or mental handicap, a dependent (as determined in accordance with the support criteria set forth in section 152 of the Internal Revenue Code and such other rules as the Claims Administrator may prescribe) of the deceased Participant at the time of the Participant's death. 1.8 "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. 1.9 "Company" means Albertson’s LLC, a Delaware limited liability company whose principal place of business is located in Boise, Idaho, or any successor thereto. 1.10 "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 work performed by the Participant in the furtherance of the affairs or business of an Employer requires a commute of more than 50 miles one way; (3) the means of the transportation are under the control of an Employer; or (4) 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 ©Copyright 2010 PartnerSource Rev. 7/1/10 3 Case 3:15-cv-00071-NJG Document 11-1 Filed 04/08/15 Page 9 of 59 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, unless the injury occurs in a parking lot, common area or other area owned by the Employer (or for which an Employer is responsible for maintenance); (d) unless: any injury occurring while the Participant is on a work break, (1) the injury occurs while the Participant is on a work break inside an Employer's facility (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. 1.11 "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 incurred by a Participant with an Approved Physician or Approved Facility within 14 days following the date of the Injury (unless the Claims Administrator determines that good cause exists); and ©Copyright 2010 PartnerSource Rev. 7/1/10 4 Case 3:15-cv-00071-NJG Document 11-1 Filed 04/08/15 Page 10 of 59 (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 (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; ©Copyright 2010 PartnerSource Rev. 7/1/10 5 Case 3:15-cv-00071-NJG Document 11-1 Filed 04/08/15 Page 11 of 59 (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 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 $200, inclusive of professional office visit charges, but excluding routine eye examinations; and (5) External hearing aid - up to $600, 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) 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 ©Copyright 2010 PartnerSource Rev. 7/1/10 6 Case 3:15-cv-00071-NJG Document 11-1 Filed 04/08/15 Page 12 of 59 number of visits, the types, and amount of services provided during such visits; (4) 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; (5) Limited or temporary pain management services (for example, epidural steroid injections), but not including pain management programs; (6) Surgery that restores a reasonable, normal pre-Injury functioning; (7) 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; (8) 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; (9) Skilled Nursing Care, provided that an Approved Physician monitors the progress of the Participant at least once during each 30-day period of confinement; (10) Orthotics, arch supports, corrective shoes, special bras or girdles, corrective appliances, prostheses, or any similar item; (11) 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; (12) Charges for telephone consultations with the Participant, Participant's Representative, Approved Physicians or other health care providers; (13) Services rendered primarily for training, testing, evaluation, counseling, or educational purposes; and (14) Reasonable travel, meal and lodging expenses related to medical treatment that requires travel greater than 20 miles from the Participant's residence (one way), as interpreted by the Claims Administrator for application under this Plan and approved by the attending Approved Physician. ©Copyright 2010 PartnerSource Rev. 7/1/10 7 Case 3:15-cv-00071-NJG Document 11-1 Filed 04/08/15 Page 13 of 59 (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 participation in the Plan, or prior to the Participant's date of Injury; of (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; (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) ©Copyright 2010 PartnerSource Rev. 7/1/10 Canceled appointment charges; 8 Case 3:15-cv-00071-NJG Document 11-1 Filed 04/08/15 Page 14 of 59 (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 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) Acupuncture, 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; (18) Chiropractic or spinal manipulation services; (19) Substance abuse services; (20) Custodial Care; (21) 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; (22) Charges for services performed by: (A) a person who normally lives with the Participant; (B) the spouse of the Participant; (C) spouse; ©Copyright 2010 PartnerSource Rev. 7/1/10 a parent of the Participant or of the Participant's 9 Case 3:15-cv-00071-NJG Document 11-1 Filed 04/08/15 Page 15 of 59 (D) spouse; or a child of the Participant or of the Participant's (E) a brother or sister of the Participant or of the Participant's spouse; or (23) The cost of any other service or supply not specified in subsection (c) or (d) above. 1.12 "Covered Associate" means an Associate whose employment with the Employer is principally located within the State of Texas. 1.13 "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, 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. 1.14 "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. 1.15 "Death Benefits" means any benefit payable under Section 3.2. 1.16 "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. 1.17 "Disabled" or "Disability" means a Total Disability or a Partial Disability. 1.18 "Dismemberment Benefits" means any benefit payable under Section 3.3. ©Copyright 2010 PartnerSource Rev. 7/1/10 10 Case 3:15-cv-00071-NJG Document 11-1 Filed 04/08/15 Page 16 of 59 1.19 "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. 1.20 "Employer" means the Company and any other related trade or business that adopts the Plan pursuant to Section 9.6. 1.21 "First Aid" means on-site primary medical care rendered in accordance with Employer policy. 1.22 "Gross Misconduct" means the Associate's gross misconduct within the meaning of Section 4980B of the Internal Revenue Code, or any successor provision of law. 1.23 "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) (6) (7) Registered Nurse ("R.N."); Licensed Practical Nurse ("L.P.N."); Home Health Aide; Occupational Therapist; Physical Therapist or Licensed Physical Therapy Assistant; Licensed Vocational Nurse ("L.V.N."); or Licensed Speech Therapist; and (b) private duty nursing services of a 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. 1.24 "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 ©Copyright 2010 PartnerSource Rev. 7/1/10 11 Case 3:15-cv-00071-NJG Document 11-1 Filed 04/08/15 Page 17 of 59 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). 1.25 "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 August 1, 2010. 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) factors to which the general public is exposed; (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) 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 ©Copyright 2010 PartnerSource Rev. 7/1/10 12 Case 3:15-cv-00071-NJG Document 11-1 Filed 04/08/15 Page 18 of 59 (5) damage or harm resulting from airborne contaminants not commonly found in the Company's normal working environment, including, but not limited to, pollen, fungi, and mold; (6) damage or harm resulting from job stress; (7) any heart attack, stroke, or aneurysm (an "attack"), unless -(A) the attack can be identified as -(i) occurring at a definite time and place; and (ii) caused by a specific event related to and occurring in the Course and Scope of Employment; (B) the preponderance of the medical evidence regarding the attack indicates that the Participant's work rather than the natural progression of a preexisting heart condition or disease was a substantial contributing factor of the attack; and (C) the attack was not triggered solely by emotional or mental stress factors, unless it was precipitated by a sudden workrelated stimulus; (8) hernia, unless such hernia is an inguinal and/or umbilical hernia that -(A) appeared suddenly and immediately following the (B) did not exist in any degree prior to the Injury; and (C) was accompanied by pain; or Injury; (9) 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; and (B) no coverage will be provided if the Preexisting Condition was a major contributing cause of the Injury. ©Copyright 2010 PartnerSource Rev. 7/1/10 13 Case 3:15-cv-00071-NJG Document 11-1 Filed 04/08/15 Page 19 of 59 (c) Non-Covered Injury Circumstances. shall be payable under the Plan if: Furthermore, no benefits (1) the Participant is not an Associate of the Employer, or the person’s employment is not principally located in the State of Texas, at the time of the Injury; (2) the Injury occurred while the Participant was in a state of intoxication, or had otherwise lost the normal use of his or her mental or physical faculties as a result of the use of a drug or alcohol. Such intoxication or loss of faculties may be established on the basis of the facts and circumstances of the Injury, the testimony of witnesses, admissions or statements of the Participant, or on such other basis as the Claims Administrator may determine; (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; (4) the Injury was caused by the Participant's willful intention and attempt to injure himself or herself or to injure another person for any reason, whether the Participant was sane or insane; (5) the Injury occurred while the Participant was employed in violation of any law; (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 not working, "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 Associate of, or because of his or her employment by, an Employer; (10) the Injury arose out of a Participant’s participation in an offduty 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); ©Copyright 2010 PartnerSource Rev. 7/1/10 14 Case 3:15-cv-00071-NJG Document 11-1 Filed 04/08/15 Page 20 of 59 (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, misdemeanor or an assault, except an assault committed in defense of an Employer's business or property; (F) service in the military of any country or any civilian non-combatant unit serving with such forces; or (G) a work stoppage, strike or other protest; (16) 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; (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; ©Copyright 2010 PartnerSource Rev. 7/1/10 15 Case 3:15-cv-00071-NJG Document 11-1 Filed 04/08/15 Page 21 of 59 (D) riding as a passenger in any aircraft not intended or licensed for the transportation of passengers; (E) performing, learning to perform or instructing others to perform as a pilot or crew member of any aircraft; or (F) riding as a passenger in an aircraft owned, leased, or operated by the Company; (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. 1.26 "Maximum Benefit Limit" means the total amount of all benefits payable to, or with respect to, any Participant under the Plan with respect to an Injury. Payments made for each form of benefit shall be counted towards the Maximum Benefit Limit amount. The Maximum Benefit Limit for this Plan is $250,000; provided, however, that the aggregate amount of the Maximum Benefit Limits with respect to claims of all Participants arising out of a single Accident, or related series of Accidents, or Occupational Disease or Cumulative Trauma exposure, shall not exceed $500,000. Such aggregate amount may proportionally reduce the Maximum Benefit Limit applicable to each Participant involved in such Accident, related series of Accidents, or exposure, in such manner as the Claims Administrator or Appeals Committee may determine. 1.27 “Maximum Rehabilitative Capacity” 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. 1.28 1.29 which are: "Medical Benefits" means any benefit payable under Section 3.4. "Medically Necessary" means the services, procedures or supplies, (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. ©Copyright 2010 PartnerSource Rev. 7/1/10 16 Case 3:15-cv-00071-NJG Document 11-1 Filed 04/08/15 Page 22 of 59 1.30 "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. 1.31 "Medicare" means Title XVIII of the Social Security Act, as amended, and the regulations promulgated thereunder. 1.32 "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. 1.33 "Partial Disability” means a medically demonstrable anatomical or physiological abnormality caused by an Injury that results in the Participant being ©Copyright 2010 PartnerSource Rev. 7/1/10 17 Case 3:15-cv-00071-NJG Document 11-1 Filed 04/08/15 Page 23 of 59 (a) employed; (b) unable to fully perform the normal duties for which he or she was under the regular care of an Approved Physician; (c) working for the Employer in a Temporary Restricted Work assignment approved by the Employer. The existence of a Temporary Restricted Work position provided in conjunction with benefits under this Plan does not imply or create a permanent Temporary Restricted Work position for purposes of the American with Disabilities Act (“ADA”). 1.34 "Participant" means a Covered Associate who satisfies the eligibility requirements of Article II. 1.35 "Plan" means the Albertson's LLC Texas Workplace Injury Benefit Plan as herein set forth and as it may from time to time be amended. 1.36 "Plan Administrator" means the Company. 1.37 "Plan Year" means a 12 calendar month period beginning each August 1 and ending the following July 31. 1.38 "Post-Service Claim" means any claim for a Medical Benefit that is not a Pre-Service Claim. 1.39 “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. 1.40 "Pre-Injury Pay" means -- (a) for salaried Participants, regular bi-weekly salary from an Employer at the time of the Injury; (b) for hourly Participants, the average earnings from an Employer for the 13 consecutive weeks immediately preceding the date of Injury; provided, however, that if such a Participant has worked for an 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 13week average will be based upon the earnings received over such period by a similar Associate of the Employer. "Pre-Injury Pay" shall include pay for overtime and Participant contributions (through salary reduction or otherwise) to a 401(k) arrangement, cafeteria plan, or other pre-tax salary deferral employee benefit plan. "Pre-Injury Pay" shall not include any bonuses, benefits (including, but not limited to, Employer contributions to any employee benefit plans or matching contributions to a retirement plan) or other extraordinary remuneration. ©Copyright 2010 PartnerSource Rev. 7/1/10 18 Case 3:15-cv-00071-NJG Document 11-1 Filed 04/08/15 Page 24 of 59 1.41 "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. 1.42 "Receipt, Safety Pledge and Arbitration Acknowledgement" means the acknowledgement form attached hereto. 1.43 "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. 1.44 "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 act 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. 1.45 "Skilled Nursing Care" means service provided in a Skilled Nursing Facility by a 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. ©Copyright 2010 PartnerSource Rev. 7/1/10 19 Case 3:15-cv-00071-NJG Document 11-1 Filed 04/08/15 Page 25 of 59 1.46 "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. 1.47 "Temporary Restricted Work" means a temporary assignment that allows a Participant to return to work consistent with such Participant’s work restrictions and the Employer’s needs. 1.48 "Totally Disabled" or "Total Disability" means a medically demonstrable anatomical or physiological abnormality caused by an Injury, and commencing within six months from the date of Injury, that (a) causes the Participant to be unable to perform the normal duties for which he or she was employed; (b) causes the Participant to be under the regular care of an Approved Physician; and (c) causes the Participant to be unable to engage in Temporary Restricted Work or any other occupation for wage or profit. 1.49 "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. 1.50 "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): ©Copyright 2010 PartnerSource Rev. 7/1/10 20 Case 3:15-cv-00071-NJG Document 11-1 Filed 04/08/15 Page 26 of 59 (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, preauthorization, 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 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. 1.51 "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. 1.52 "Wage Replacement Benefits" means any benefit payable under Section 3.1. ©Copyright 2010 PartnerSource Rev. 7/1/10 21 Case 3:15-cv-00071-NJG Document 11-1 Filed 04/08/15 Page 27 of 59 ARTICLE II ELIGIBILITY, NATURE OF PAYMENTS AND ARBITRATION OF INJURY-RELATED DISPUTES 2.1 Eligibility. Each Covered Associate shall become a Participant in this Plan as of the later of (A) 12:01 a.m., August 1, 2010, or (B) the time and date of his or her employment as a Covered Associate. Except to the limited extent provided under Article III regarding the continuation of certain benefit payments, if a Participant ceases to be a Covered Associate, he or she shall thereupon cease to participate in this Plan; provided, however, that if such Participant is thereafter reemployed as a Covered Associate, he or she shall resume participating in the Plan as of the time and date of such reemployment. 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 as nonsubscribers to the Texas workers' compensation insurance system. 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. 2.3 Arbitration of Certain Injury-Related Disputes. The Employer hereby adopts a mandatory company policy requiring that the following claims or disputes must be submitted to final and binding arbitration under this Section 2.3. A Participant’s employment or continued employment after receiving notice of this arbitration requirement constitutes acceptance of this arbitration requirement. (A) any legal or equitable claim or dispute relating to enforcement or interpretation of the Plan’s arbitration provisions or regarding a Receipt, Safety Pledge and Arbitration Acknowledgement form or this Section 2.3; and (B) any legal or equitable claim by or with respect to an Associate for any form of physical or psychological damage, harm or death which relates to an accident, occupational disease, or cumulative trauma (including, but not limited to, claims of negligence or gross negligence or discrimination; claims for intentional acts, assault, battery, negligent hiring/training/supervision/retention, false imprisonment, emotional distress, retaliatory discharge, or violation of any other noncriminal federal, state or other governmental common law, statute, regulation or ordinance in connection with a job-related injury, regardless of whether the common law doctrine was recognized or whether the statute, regulation or ordinance was enacted before or after the effective date of this Section 2.3). Claims related to employment discrimination and harassment are excluded from this requirement; provided, however, such claims shall be subject to the Employer’s ©Copyright 2010 PartnerSource Rev. 7/1/10 22 Case 3:15-cv-00071-NJG Document 11-1 Filed 04/08/15 Page 28 of 59 employment practices and procedures. This includes all claims listed above that an Associate has now or in the future related in any way to a work-related Injury against an Employer, its officers, directors, owners, Associates, representatives, agents, subsidiaries, affiliates, successors, or assigns. The determination of whether a claim is covered by this Section shall also be subject to arbitration under this Section. Neither an Associate nor an Employer shall be entitled to a bench or jury trial on any claim covered by this Section. This Section applies to all Associates without regard to whether they have completed and signed a Receipt, Safety Pledge and Arbitration Acknowledgement form or similar written receipt. These provisions also apply to any claims that may be brought by an Associate’s spouse, children, parents, beneficiaries, Representatives, executors, administrators, guardians, heirs or assigns (including, but not limited to, any survival or wrongful-death claims). This binding arbitration will be the sole and exclusive remedy for resolving any such claim or dispute for any arbitral claims. This does not, however, include any legal or equitable claim under ERISA for benefits, fiduciary breach, or other problem or relief solely relating to benefits payable under this Plan. If an Associate wishes to appeal a denial of benefits under the Plan, such Associate must follow the process described in ARTICLE VI of the Plan. After exhausting the appeal process outlined in ARTICLE VI of the Plan, any action challenging a Plan decision, or any other ERISA right of action, must be brought in the United States District Court for the Northern District of Texas, Dallas Division. Likewise, this requirement does not apply to claims of employment discrimination or harassment. (a) Required Notice of All Claims: If a Participant seeks arbitration, such Participant must give written notice of any claim to the Director of Claims, Albertson’s LLC, 2301 International Parkway, Suite 100, Lake Mary, Florida 32746 within the applicable statute of limitations. Upon notice to the Director of Claims, a proper Notice of Arbitration form for the approved independent arbitration firm will be provided to the Participant. The Notice of Arbitration form must be completed and sent in triplicate to the independent arbitration firm at the address set forth on the form. The day the act complained of occurred will be counted for purposes of determining the applicable period within which the claim must be made. If such notice is not given, the claim shall be void and deemed waived. If the Employer wishes to invoke arbitration, the Employer must give written notice to the Associate at the last address recorded in the Associate's personnel file. The party requesting arbitration must specifically identify and describe in the written notice all claims asserted and the facts upon which the claims are based. This written notice shall be sent certified or registered mail, return receipt requested. The responding party shall have the ability to file special exceptions with the arbitrator on the basis that the written notice does not satisfy the requirements of this arbitration requirement. If after expiration of the applicable statute of limitation (1) a court has ordered the parties to arbitrate, and (2) such court or arbitrator for whatever reason has determined that the claim is not void and deemed waived, then the ©Copyright 2010 PartnerSource Rev. 7/1/10 23 Case 3:15-cv-00071-NJG Document 11-1 Filed 04/08/15 Page 29 of 59 party that is compelled to arbitrate must initiate a claim for arbitration regarding such claim and serve the other party within 30 days of such order or the party’s claim shall be void and deemed waived. Such notice must be given in the manner described above. (b) Arbitration Procedures: Any arbitration under this Section will be administered by a regionally recognized arbitration firm approved by the Employer. (1) Unless otherwise agreed to in writing by the parties, the arbitrator selected by the parties in accordance with those rules (1) shall be an attorney licensed to practice in the State of Texas with experience in personal injury litigation, and (2) shall be selected from a panel of arbitrators located in Dallas and Tarrant Counties, Texas. The arbitrator will be selected from a panel of not less than 7 arbitrators provided by the arbitration firm, Selection of the arbitrator shall be made in accordance with the arbitration firm’s standard selection process, or if otherwise agreed, by using alternating strikes with the claimant striking first, until one arbitrator remains on the list. If the arbitrator so selected becomes unable to serve for any reason, the parties shall repeat the selection process. (2) The arbitrator will apply the substantive law of Texas (other than the Texas General Arbitration Act), or federal law, or both, depending upon the claims asserted. The arbitrator will provide brief findings of fact and conclusions of law. The arbitrator will have the authority to consider and grant motions consistent with the Texas Rules of Civil Procedure (or Federal Rules of Civil Procedure, if applicable), including, but not limited to, motions for summary judgment. The arbitrator is authorized only to rule on the claims set forth in the original written notice, any counterclaim(s), and the answer(s) made to such claims and counterclaims. The arbitrator is not authorized to modify the powers granted to him or her under this arbitration requirement or to make any award merely on the basis of what he or she determined to be just or fair. The arbitrator shall also not commingle the standards for state law determinations and remedies (for example negligence claims and special damage awards) with the standards for federal law determinations and remedies that may or may not be subject to this arbitration requirement (for example, ERISA benefit eligibility and ERISA damage awards are not subject to arbitration). (3) The final decision and the arbitration award, if any, shall be made consistent with the remedies and defenses available under the state or federal statute, common law, code or regulation that is the subject of the claim. All decisions rendered by an arbitrator under this Section will be kept confidential by all parties, and shall not serve as binding, legal precedent with respect to subsequent claims or disputes under this Section. An arbitrator’s decision can be challenged in a state or federal court of law only on such basis as are available under the Federal Arbitration Act. ©Copyright 2010 PartnerSource Rev. 7/1/10 24 Case 3:15-cv-00071-NJG Document 11-1 Filed 04/08/15 Page 30 of 59 (c) Payment of Fees and Expenses: (1) The Associate shall pay a nonrefundable arbitration filing fee equal to the standard Associate filing fee specified under then-current arbitration firm’s arbitration rules and procedures. .The Associate’s filing fee must be paid when he or she submits a request for arbitration (or, if this process is challenged by an Associate, when arbitration is compelled by court order). The Employer shall pay a nonrefundable arbitration filing fee equal to the standard employer filing fee specified under then-current arbitration firm’s arbitration rules and procedures. The Employer will also pay the arbitrator's entire fee and any other AAA administrative expenses required by the arbitration firm. (2) If the arbitrator finds completely in favor of the Associate on all claims, the Employer will reimburse the Associate for his or her share of the filing fee. (3) If the Employer initiates the arbitration (by means other than a motion in court to compel arbitration), the Associate will pay no portion of the administrative or arbitrator fees. (4) Either party may arrange for, and pay the cost of, a court reporter to provide a stenographic record of the proceedings. (5) Each party shall also be responsible for their own attorney's fees, if any. However, if any party prevails on a statutory claim which allows the prevailing party to be awarded attorney's fees, or if there is a written agreement providing for such fees, the arbitrator may award reasonable attorney's fees and costs to the prevailing party. (6) Notwithstanding the above provisions, the arbitrator shall assess the arbitration firm’s administrative filing fee, arbitrator fees and expenses, and attorney's fees against a party upon a showing by the other party that the first party's claim is frivolous, or unreasonable, or factually or legally groundless. (7) If either party pursues a claim covered by this Section by any means other than arbitration, the responding party shall be entitled to dismissal with prejudice of such action, and the recovery of all costs and attorney's fees and expenses related to such action. (d) Interstate Commerce and Venue: The Employer is engaged in transactions involving interstate commerce (for example, purchasing goods and services from outside Texas which are shipped to Texas, and traveling on interstate roadways) and the Associate's employment involves such commerce. The Federal Arbitration Act shall govern the interpretation, enforcement, and proceedings under the arbitration provisions of this Plan. Unless contrary to applicable law, any lawsuits seeking to enforce or vacate an arbitration award shall be brought in the United States District Court for the Northern District of Texas, Dallas Division. ©Copyright 2010 PartnerSource Rev. 7/1/10 25 Case 3:15-cv-00071-NJG Document 11-1 Filed 04/08/15 Page 31 of 59 (e) Binding Effect: This provision for resolving claims by arbitration is equally binding upon, and applies to any such claims that may be brought by, or which are derivative of, an Employer and each Associate and his/her spouse, children, parents, beneficiaries, Representatives, executors, administrators, guardians, heirs or assigns (including, but not limited to, any survival or wrongfuldeath claim). This binding arbitration will be the sole and exclusive remedy for resolving any such claim or dispute. (1) This Section applies to all Associates without regard to whether they have completed and signed a Receipt, Safety Pledge and Arbitration Acknowledgement form or similar written receipt. Adequate consideration for this arbitration provision is represented by, among other things, eligibility for (and not necessarily any receipt of) benefits under this Plan and the fact that it is mutually binding on both the Employers and Associates. Any actual payment of benefits under this Plan to or with respect to an Associate shall serve as further consideration for and represent the further agreement of such Associate to the provisions of this Section. This arbitration provision shall remain in effect with respect to the Employers and all Associates, without regard to any Associate refusal of benefits under this Plan, return of benefit payments under this Plan to an Employer, ineligibility for or cessation of benefits under this Plan in accordance with its terms, or any voluntary or involuntary termination of an Associate's employment with an Employer. (2) This arbitration provision is not subject to ERISA requirements or otherwise dependent upon the benefit provisions of this Plan in any way, and is included herein strictly as a matter of convenience in documentation. This Plan and arbitration requirement also in no way changes the "at will" employment status of any Associate, unless the Associate is employed under other terms as provided in a collective bargaining agreement or other written employment contract. 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 Wage Replacement Benefits. (a) Total Disability: From the first full day of an injured Participant’s Total Disability, the Plan shall pay Wage Replacement Benefits equal to 90% of the injured Participant's Pre-Injury Pay. (b) Partial Disability: From the first full day of an injured Participant’s Partial Disability, the Plan shall pay Wage Replacement Benefits equal to 90% of the portion of the injured Participant's Pre-Injury Pay that the Participant is unable to ©Copyright 2010 PartnerSource Rev. 7/1/10 26 Case 3:15-cv-00071-NJG Document 11-1 Filed 04/08/15 Page 32 of 59 earn (due to the Approved Physician’s restrictions) while working Temporary Restricted Work. (1) If a Participant with a Partial Disability is released to Temporary Restricted Work, but (i) the Employer has no Temporary Restricted Work 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 Totally Disabled and Wage Replacement Benefits shall be payable in the manner specified above under subsection (a) above. (2) If a Participant with a 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 Temporary Restricted Work position, but is either: (A) again determined by an Approved Physician to be Totally Disabled, or (B) the Temporary Restricted Work 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 Totally Disabled and Wage Replacement Benefits shall be payable in the manner specified above under subsection (a) above. (c) Payment Terms and Other Limitations: An Approved Physician must make the determination regarding whether a Participant is Totally Disabled or Partially Disabled, except to the extent that such determination is made in conjunction with Emergency Care as determined by the Claims Administrator. Wage Replacement Benefits are calculated on a weekly basis, and paid on regular paydays. Payments for portions of a week shall be prorated. Only the Participant's normal, scheduled workdays shall be considered in calculating benefits (based upon his or her employment status as of the date of Injury). Wage Replacement Benefits shall be reduced as described in Article VII. (d) When Wage Replacement Benefits Cease: Benefits shall continue until the earliest of: Wage Replacement (1) the expiration of 120 weeks from the date of the Injury. This 120-week maximum period for Wage Replacement Benefits is calculated continuously from the date of the Injury, regardless of whether or not the Participant qualifies as Disabled at all times during such period or receives Wage Replacement Benefits continuously throughout such period; (2) the date the Participant is certified by the treating Approved Physician to no longer be Disabled, without regard to whether the Participant returns to regular or Temporary Restricted Work on that date; ©Copyright 2010 PartnerSource Rev. 7/1/10 27 Case 3:15-cv-00071-NJG Document 11-1 Filed 04/08/15 Page 33 of 59 (3) the date that the Maximum Benefit Limit is met; (4) termination of both the Participant’s status as a Covered Associate and all other employment of the Participant with an Employer; provided, however, that this paragraph (4) shall not apply if termination of employment is solely due to (A) application of a duration limit in the Employer’s leave of absence policy, or (B) elimination of the Participant’s employment position if the Employer is unable to offer such Participant another position within 80% of the Participant’s base pay and 50 miles of the Participant’s primary work location; (5) the date the Participant is placed in jail, is deported or detained by or at the request of any government agency or foreign government, has left the local area for an extended period of time, or is similarly unavailable for work; provided, however, that this paragraph (5) shall operate to cease Wage Replacement Benefits only for such period of time that such Participant is unavailable for work; or (6) as otherwise provided under Section 4.3. 3.2 Death Benefits. In the event that a Participant dies as the direct and sole result of, and within 365 days of, a covered Injury, then the Plan shall pay such Participant's Beneficiary a Death Benefit equal to $250,000; provided, however that this benefit amount shall be reduced to the extent necessary to avoid exceeding the Maximum Benefit Limit. The Death Benefit shall be paid to the Participant's Beneficiary as follows: (i) 20% of the Death Benefit shall be paid in a lump sum cash payment as soon as administratively possible following the death of the Participant and the determination of the proper Beneficiary; and (ii) the remainder of the Death Benefit shall be paid in 35 equal monthly installments (without interest), commencing on the first day of the month following the initial lump sum payment. Death Benefits payable under this Plan shall be in addition to Medical Benefits, Wage Replacement Benefits, and Dismemberment Benefits payable to, or with respect to, the Participant; provided, however, that no interest in future Dismemberment Benefits survives after a Participant's death which results in the payment of benefits under this Section 3.2. In addition to the Death Benefits set forth above, the Plan shall reimburse reasonable burial expenses to any person who incurs liability therefore, up to $10,000. 3.3 Dismemberment Benefits. In the event a Participant suffers a loss described in the Schedule of Losses below as the direct and sole result of, and within 365 days of, an Injury, then the Plan shall pay the Participant an amount equal to the applicable percentage from the schedule below times $250,000; provided, however, that this benefit amount shall be reduced to the extent necessary to avoid exceeding the Maximum Benefit Limit. The Dismemberment Benefit shall be paid as follows: (i) 20% of the Dismemberment Benefit shall be paid in a lump sum cash payment as soon as administratively possible following the date of loss; and (ii) the remainder of the Dismemberment Benefit shall be paid in 35 equal monthly installments (without ©Copyright 2010 PartnerSource Rev. 7/1/10 28 Case 3:15-cv-00071-NJG Document 11-1 Filed 04/08/15 Page 34 of 59 interest), commencing on the first day of the month following the initial lump sum payment. SCHEDULE OF LOSSES Loss of: Benefit Amount: Both Hands Both Feet Sight of Both Eyes One Hand and One Foot One Hand and Sight of One Eye One Foot and Sight of One Eye Speech and Hearing One Hand One Foot Sight of One Eye Speech Hearing Finger or Toe (two joints) Finger or Toe (one joint) 100% 100% 100% 100% 100% 100% 100% 50% 50% 50% 50% 50% 10% 5% (a) If the Participant suffers more than one Injury described above from any one Accident, related series of Accidents, or Occupational Disease exposure or Cumulative Trauma exposure only one of the applicable Dismemberment Benefits listed above, the largest single amount, will be payable with respect to such Accident or exposure. (b) Total and permanent loss of use of a member of the body is the same as loss of such member. Prior to payment of the benefit, loss of use must be certified following the care of an Approved Physician for 12 straight 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. (c) Loss of Hand or Foot means the complete and permanent severance through or above the wrist or ankle joint. Loss of Sight means legally blind. Such loss correctable by surgery or lenses will not result in payment of a Dismemberment Benefit. Loss of Speech means the total and permanent loss of speech. Loss of Hearing means the total and permanent loss of hearing in both ears. (d) The above-described loss of "Finger or Toe (two joints)" must be at or above the joint at the proximal end of the middle phalanx of the finger or toe; except that for the thumb or great toe, such loss must be at or above the metacarpophalangeal joint. The above-described loss of "Finger or Toe (one joint)" must be at or above the joint at the distal end of the middle phalanx of the finger or toe; except that for the thumb or great toe, such loss must be at or above the joint at the distal end of the proximal phalanx. ©Copyright 2010 PartnerSource Rev. 7/1/10 29 Case 3:15-cv-00071-NJG Document 11-1 Filed 04/08/15 Page 35 of 59 (e) Dismemberment Benefits shall be in addition to Wage Replacement Benefits and Medical Benefits; provided, however, that payment of Dismemberment Benefits will cease in the event of the death of the Participant which results in the payment of Death Benefits. 3.4 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; provided, however, that Medical Benefits shall cease upon the earliest of: (a) the expiration of 120 weeks from the date of an Injury; (b) reaching the Maximum Benefit Limit; (c) involuntary termination of employment of the Participant with an Employer for Gross Misconduct; (d) the Participant not receiving 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; (e) as otherwise provided under Section 4.3; or (f) the date the Approved Physician or Approved Facility determines that a Participant has reached Maximum Rehabilitative Capacity. 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 his or her Store Director or Location Manager then on duty, 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 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. (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 ©Copyright 2010 PartnerSource Rev. 7/1/10 30 Case 3:15-cv-00071-NJG Document 11-1 Filed 04/08/15 Page 36 of 59 Trauma must in all events be provided no later than the end of an applicable insurance policy year for reimbursement for certain benefits paid. (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. In addition to the foregoing, the Participant must also notify his or her Store Director or Location Manager (verbally or in writing) of expected recovery time (i) immediately after receiving primary medical treatment, (ii) after each succeeding appointment with the treating Approved Physician, and (iii) immediately after being released to return to work which requires that the Participant to obtain a Fitness for Duty Certificate completed by the Approved Physician or Approved Facility prior to return to work. (b) Providing Required Information: An injured Participant (or the Participant’s Representative) and such Participant's Store Director or Location Manager then on duty (or such other person as the Claims Administrator may specify) must complete such Injury report, investigation, and authorization forms, file such written statements, provide such recorded statements (whether sworn or unsworn), 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. The Associate Incident Report and Release of Medical Records Authorization must be provided to the Store Director or Location Manager by the end of the workshift for the date of the Injury. 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 ©Copyright 2010 PartnerSource Rev. 7/1/10 31 Case 3:15-cv-00071-NJG Document 11-1 Filed 04/08/15 Page 37 of 59 of primary medical treatment. The Claims Administrator shall have the right to require 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) Initial Treatment and Subsequent Claim 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 Wage Replacement Benefits or pay for a medical evaluation or treatment of a Participant, without the Plan waiving its right to make a subsequent determination that the Participant has not suffered a covered Injury and can 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, or 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 ©Copyright 2010 PartnerSource Rev. 7/1/10 32 Case 3:15-cv-00071-NJG Document 11-1 Filed 04/08/15 Page 38 of 59 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, 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 ©Copyright 2010 PartnerSource Rev. 7/1/10 33 Case 3:15-cv-00071-NJG Document 11-1 Filed 04/08/15 Page 39 of 59 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 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, Wage Replacement 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. 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 does not receive prior approval for all medical care other than Emergency Care; ©Copyright 2010 PartnerSource Rev. 7/1/10 34 Case 3:15-cv-00071-NJG Document 11-1 Filed 04/08/15 Page 40 of 59 (b) the Participant utilizes a non-approved physician or facility other than for Emergency Care; (c) 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; (d) the Participant reaches Maximum Rehabilitative Capacity or is otherwise persistently nonresponsive to treatment, including, but not limited to, nonresponsiveness due to the treating Approved Physician’s or Approved Facility’s recommended behavioral modification; (e) the Participant engages in activity which is inconsistent with his or her Injury and work restrictions; (f) the Participant fails to provide truthful and 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; (g) 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; (h) 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; (i) 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 fails or refuses to report in to the Participant's Store Director or Location Manager periodically, as directed, until able to return to work, including notice of expected recovery time after each appointment with the treating Approved Physician; (l) the Participant fails to immediately inform the Participant's Store Director or Location Manager that he or she has been released by an Approved Physician to return to full or Temporary Restricted Work, or fails to timely report to work in accordance with the completed Fitness for Duty Certificate; (m) the Participant receives benefits with respect to the Injury from, or the incident creates any liability for an Employer under, any workers' ©Copyright 2010 PartnerSource Rev. 7/1/10 35 Case 3:15-cv-00071-NJG Document 11-1 Filed 04/08/15 Page 41 of 59 compensation law (whether or not any coverage for benefits is actually in force under such law); (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 Final Compromise And Settlement. At the Claims Administrator's option within 120 weeks after the date of Injury, and at any time thereafter if the Claims Administrator elects to extend such 120-week period after 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. To receive this settlement, the Participant must cooperate and provide all information, sign such forms and release 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. ©Copyright 2010 PartnerSource Rev. 7/1/10 36 Case 3:15-cv-00071-NJG Document 11-1 Filed 04/08/15 Page 42 of 59 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. 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 his or her 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 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. ©Copyright 2010 PartnerSource Rev. 7/1/10 37 Case 3:15-cv-00071-NJG Document 11-1 Filed 04/08/15 Page 43 of 59 (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 Associates 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 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 Employers shall have no obligation to establish any fund or trust for the payment of benefits under this Plan. An Employer has elected, to obtain insurance contracts with one or more insurers to provide funds to the Employer that can be used, if the Employer so desires in its sole discretion, to pay all or any portion of a benefit payable under this Plan but no benefits under the Plan are guaranteed under any contract or policy of insurance and the Employer of the Participant shall be solely responsible for the payment of claims hereunder. Any such funds shall not be considered "plan assets" for purposes of ERISA and are exclusively part of the general assets of the Employer. Any such insurance contract shall be owned by, and (unless contrary to legal requirements adhered to by the insurer) all amounts shall be payable thereunder to, the Employer that applied for the contract, and no Participant shall have any interest in, or right to, any amounts payable under the 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, notwithstanding the provisions of this Section 5.2, 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 an Employer or shall otherwise be subject to the coordination of benefits provisions of Section 7.2, as determined by the Claims Administrator. ARTICLE VI CLAIMS PROCEDURES 6.1 Filing a Claim for Benefits. A claim for Medical Benefits, Wage Replacement Benefits, or Dismemberment Benefits under the Plan shall be initiated by a Participant (or his or her Representative) by (i) complying with the notice requirements ©Copyright 2010 PartnerSource Rev. 7/1/10 38 Case 3:15-cv-00071-NJG Document 11-1 Filed 04/08/15 Page 44 of 59 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 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) Wage Replacement Benefit for a particular payroll period, or (iii) claim for Death Benefits or Dismemberment 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 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— 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. 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. 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 ©Copyright 2010 PartnerSource Rev. 7/1/10 39 Case 3:15-cv-00071-NJG Document 11-1 Filed 04/08/15 Page 45 of 59 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 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. (f) Duty to Update Address/Contact Information Changes - To ensure that the Claims Administrator and the Employer are both able to communicate with the Participant either in writing or by telephone, it is the Participant’s responsibility to notify both the Employer and the Claims Administrator of any changes to the Participant’s mailing address and phone number(s). 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 ©Copyright 2010 PartnerSource Rev. 7/1/10 40 Case 3:15-cv-00071-NJG Document 11-1 Filed 04/08/15 Page 46 of 59 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: (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 ©Copyright 2010 PartnerSource Rev. 7/1/10 41 Case 3:15-cv-00071-NJG Document 11-1 Filed 04/08/15 Page 47 of 59 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 PreService 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 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 Claims Administrator, 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, Wage Replacement Benefit, Death Benefit, and Dismemberment Benefit Claims - In the case of a Post-Service Claim for Medical Benefits or a claim for Wage Replacement Benefits, Death Benefits or Dismemberment Benefits, the ©Copyright 2010 PartnerSource Rev. 7/1/10 42 Case 3:15-cv-00071-NJG Document 11-1 Filed 04/08/15 Page 48 of 59 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 Wage Replacement 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; (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 Wage Replacement 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 Wage Replacement 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 ©Copyright 2010 PartnerSource Rev. 7/1/10 43 Case 3:15-cv-00071-NJG Document 11-1 Filed 04/08/15 Page 49 of 59 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 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) 180 days for a Medical Benefits or Wage Replacement Benefits claim; or (2) 60 days for a Death Benefit or Dismemberment 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 ©Copyright 2010 PartnerSource Rev. 7/1/10 44 Case 3:15-cv-00071-NJG Document 11-1 Filed 04/08/15 Page 50 of 59 information that is Relevant to the claimant's claim for benefits (as determined by the Appeals Committee); (3) The Appeals Committee shall not give any deference to the claimant’s initial Adverse Benefit Determination in its review of an Adverse Benefit Determination on a claim for Medical Benefits or Wage Replacement Benefits. (4) If the appeal request on a Medical Benefits or Wage Replacement 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. (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: (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, Wage Replacement Benefit, Death Benefit, and Dismemberment Benefit Claims - In the ©Copyright 2010 PartnerSource Rev. 7/1/10 45 Case 3:15-cv-00071-NJG Document 11-1 Filed 04/08/15 Page 51 of 59 case of a Post-Service Claim for Medical Benefits or a claim for Wage Replacement Benefits, Death Benefits or Dismemberment Benefits, 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 Wage Replacement Benefits, Death Benefits, or Dismemberment 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 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). Unless contrary to applicable law, any ERISA right of action or other legal action challenging a Plan decision shall be brought in the United States District Court for the Northern District of Texas, Dallas Division. ©Copyright 2010 PartnerSource Rev. 7/1/10 46 Case 3:15-cv-00071-NJG Document 11-1 Filed 04/08/15 Page 52 of 59 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, duly authorized deduction including dues, and Participant premium contributions and loan repayments (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 Wage Replacement 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 Plan limits 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 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. ©Copyright 2010 PartnerSource Rev. 7/1/10 47 Case 3:15-cv-00071-NJG Document 11-1 Filed 04/08/15 Page 53 of 59 (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 Associate, former Associate, inactive Associate, 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 Associate will be the primary plan over a plan which covers the person as former Associate, inactive Associate, 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 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 ©Copyright 2010 PartnerSource Rev. 7/1/10 48 Case 3:15-cv-00071-NJG Document 11-1 Filed 04/08/15 Page 54 of 59 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 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 ©Copyright 2010 PartnerSource Rev. 7/1/10 49 Case 3:15-cv-00071-NJG Document 11-1 Filed 04/08/15 Page 55 of 59 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 Associates 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. ARTICLE VIII TERMINATION AND AMENDMENT The Company shall have the right and power at any time and from time to time to amend 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 no such amendment or termination shall alter the arbitration provisions incorporated into ©Copyright 2010 PartnerSource Rev. 7/1/10 50 Case 3:15-cv-00071-NJG Document 11-1 Filed 04/08/15 Page 56 of 59 the Plan with respect to, or reduce the amount of any benefit payable to or with respect to a Participant under the Plan in connection with, an Injury occurring prior to the effective date of such amendment or termination. In addition, any such amendment or termination of the arbitration provisions incorporated into the Plan shall not be effective until at least 14 days after written notice has been provided to Plan Participants. Any such amendment or termination shall be pursuant to formal written action of a representative authorized to act on behalf of the Company. 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 Associate designated as the Claims Administrator or the Appeals Committee, and any other Associate 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 Associate's "at will" employment by an Employer, and an Employer may terminate the employment of any Associate at any time and/or modify the Associate'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 ©Copyright 2010 PartnerSource Rev. 7/1/10 51 Case 3:15-cv-00071-NJG Document 11-1 Filed 04/08/15 Page 57 of 59 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. 9.6 Participation By Affiliates. With the consent of the Company, any incorporated or unincorporated trade or business which 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 may adopt and become a participating Employer under this Plan. 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 Texas. 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). 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 requirements of the Patient Protection and Affordable Care Act. ©Copyright 2010 PartnerSource Rev. 7/1/10 52 Case 3:15-cv-00071-NJG Document 11-1 Filed 04/08/15 Page 58 of 59 IN WITNESS WHEREOF, this Plan has been executed by the Company this ________ day of__________, 2010, to be effective as of August 1, 2010. ALBERTSON’S LLC By:________________________ (Signature and Title) ©Copyright 2010 PartnerSource Rev. 7/1/10 53 Case 3:15-cv-00071-NJG Document 11-1 Filed 04/08/15 Page 59 of 59 Este folleto y forma contiene información importante sobre sus derechos. Si quiere el folleto y forma español, por favor comuníquese con el Director of Claims a (407) 562-2238. APPENDIX A RECEIPT, SAFETY PLEDGE AND ARBITRATION 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 Albertson’s LLC Texas Workplace Injury Benefit Plan, effective August 1, 2010. INJURY NOTICE AND MEDICAL PROVIDERS. I understand and agree that if I am injured on the job, I must notify my Store Director or Location Manager by the end of the workshift for the date of the Injury and receive any medical care from a Plan-approved physician within 14 days of my injury in order to receive benefits under the Plan. SAFETY PLEDGE. I agree to familiarize myself with the safety program for the Company and to perform my job according to the general and departmental safety rules of Albertson’s. I will also use any personal protective equipment that is provided to me. I also agree to immediately report to my Store Director or Location Manager any accident that involves another associate, 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 Albertson’s safety training programs. ARBITRATION. I also acknowledge that (except for claims against the Plan under ERISA) this SPD includes a mandatory company policy requiring that claims or disputes relating to an on-the-job injury (that cannot otherwise be resolved between Albertson’s and me) must be submitted to an arbitrator, rather than a judge and jury in court. I understand that by receiving this SPD and becoming employed (or continuing my employment) with Albertson’s at any time on or after August 1, 2010, I am accepting and agreeing to comply with these arbitration requirements. I understand that Albertson’s is also accepting and agreeing to comply with these arbitration requirements. All covered claims brought by my spouse, children, parents, beneficiaries, Representatives, executors, administrators, guardians, heirs or assigns are also subject to the Company's arbitration policy, and any decision of an arbitrator will be final and binding on such persons and Albertson’s. X ____________________________________ Associate's Signature _____________________________________ Date ______________________________________ Print Associate's Name _____________________________________ Associate's Identification Number ______________________________________ Parent or Legal Guardian Signature (if Associate under age 18) _____________________________________ Date ______________________________________ Print Parent or Legal Guardian Name _____________________________________ Associate’s Work Location or Department X ____________________________________ For Albertson’s _____________________________________ Date © Copyright 2010 PartnerSource Rev. 7/1/10