Case 7:13-cv-00150-O Document 22-2 Filed 08/04/14 Page 5 of 59 PageID 184 ... TYSON FOODS, INC. WORKPLACE INJURY SETTLEMENT PROGRAM TEXAS SUMMARY PLAN DESCRIPTION (Revised June 1. 2009) CONFIDENTIAL TYS 0253 Page 5 Case 7:13-cv-00150-O Document 22-2 Filed 08/04/14 Page 6 of 59 PageID 185 Table of Contents l.I. .................................................................................................. GENERAL INFORMATION ................................................................ """""''''' __ ''''' ......... , 1 II, IL ELIGIBiliTY ELIGIBILITY AND PARTICIPATION: TWO LEVELS OF BENEFITS ....................................... 1 III. Ill. HOW AN EMPLOYEE OBTAINS BENEFiTS BENEFITS ............................................................................ 2 A. What to Do If You Are Injured .................................................................................... "'" 2 A ......................................................................................... ................................... 3 B. What to Do If You Are Injured and Need Emergency Treatment """""'''''''''''''''''''''''''' C. Designated Physicians and Designated Health Care Providers ...................................... 3 IV. INJURIES: WHAT IS COVERED AND WHAT IS NOT ............................................................. 4 A. Covered Injuries .............................................................................................................. 4 B. Excluded Injuries ............................................................................................................. 5 V. BASIC BENEFITS FOR ALL EMPLOyEES EMPLOYEES ............................................................................... 6 A. Medical Payments ........................................................................................................... 6 B. Temporary Payments ..................................................................................................... ...................................................................................................... 9 VI. COMPREHENSIVE BENEFITS FOR PROGRAM PARTICIPANTS ........................................ 10 A. Medical Payments ....... " ................................................................................................ 10 ......................................................................................................... B. Temporary Payments .................................................................................................... 10 C. Impairment Payments ................................................................................................... 11 D. Supplemental Payments ............................................................................................... 12 ......................................................................................... E. Extended Income Payments .................................................................................... "'" 13 F. Death and Burial Payments .......................................................................................... 14 VII. LOSS OF BENEFITS ............................................................................................................... 14 VIII. DECISIONS ON CLAIMS FOR BENEFITS ............................................................................. 16 IX. HOW TO FILE APPEAL OF A DENIAL OF BENEFITS ........................................................... 18 A. Filing an Appeal ............................................................................................................ 18 B. Time Limits for Filing an Appeal .................................................................................... 18 C. Appeal Determinations .................................................................................................. 18 D. General Considerations for Contests and Appeals ....................................................... 19 X. AMENDMENT OR TERMINATION OF PROGRAM ................................................................ 20 A A. Coordination of Benefits ................................................................................................ 20 B. Acceleration Of Benefits and Final Compromise and Settlement.. ................................ 20 C. Recovery of Benefits ..................................................................................................... 21 XII. FEDERAL RIGHTS STATEMENT ......................................................................................... 22 XIII. AVISO PARA EMPLEADOS QUE NO HABLAN INGLES ....................................................... 23 XIV. DIRECTORY ...................................................................................................... 24 PROGRAM DIRECTORy '''« EXHIBIT A-Acceptance And Waiver EXHIBIT B-Notice To Employees Concerning Workers' Compensation In Texas CONFIDENTIAL TYS 0254 Page 6 Case 7:13-cv-00150-O Document 22-2 Filed 08/04/14 L Page 7 of 59 PageID 186 GENERAL INFORMATION The Tyson Foods, Inc. Workplace Injury Settlement Program - Texas (the "Program") is an employee Programgroup health and disability welfare benefit plan voluntarily established by Tyson Foods, Inc. under the federal Employee Retirement Income Security Act of 1974 ("ERISA"). The Program offers non-fringe, no-fault health, medical, surgical and hospital care benefits, temporary disability benefits, impairment benefits, supplemental benefits, extended income benefits, and death and burial benefits to eligible Texas Employees for work-related, on-the-job injuries and illnesses. Your Employer has adopted the Program for its Texas Employees. The Program is designed to offer Texas Employees benefits that are similar to those provided by the Texas Workers' Compensation Act, to which your Employer does not subscribe. The Program offers these benefits without regard to the participating Employee's fault or negligence and without the necessity of the participating Employee proving that the Employer was negligent. The Employer pays the entire cost to provide benefits under, and to operate, the Program. Employees participating in the Program make no payments or payroll deductions to be eligible for Program benefits and pay no deductibles or co-pay amounts. Beyond serving as a vOluntary voluntary alternative to Workers' Compensation for Texas Employees, the Program is part of an overall occupational health and safety program aimed at enhancing the quality of employment through improved employee health, increased productivity, red uced absenteeism and turnover, and improved employee relations. reduced This Summary is intended to briefly describe the principal provisions of the Program. Please read it carefully. A complete copy of the Program document is on file for any eligible Employee desiring more detailed information. If a question should come up about the Program, the Program document (and not this Summary) will govern and determine an Employee's or Participant's rights. Capitalized Document terms used in this Summary are defined in the Program Document. The Program described in this Summary applies to on-the-job injuries and illnesses sustained on or after June 1, 2009. For on-the-job injuries and illnesses sustained before June 1, 2009, an earlier version of the Program applies. Your Employer does not carry Texas Workers' Compensation Insurance, and the Program does not constitute workers' compensation insurance coverage. See "B" at the back of this Summary. Exhibit "8" II. ELIGIBILITY AND PARTICIPATION: TWO LEVELS OF BENEFITS The Program offers two levels of benefits: "Basic Benefits" and "Comprehensive Benefits." All Texas Employees who sustain a "Compensable Injury" and who comply with the reporting procedures Ill below are automatically eligible for the Program's Basic Benefits. of Article III A "Compensable Injury" is damage or harm to the Employee's body's physical structure (and those diseases or infections that result naturally from the damage or harm) that is determined, with reasonable medical certainty, to have occurred from an activity that (1) has to do with and begins in the Employer's work or business and (2) is performed by the Employee while furthering the Employer's affairs or business, including activities on the Employer's premises or at other locations (but excluding transportation to and from work unless the transportation is controlled by the Employer). CONFIDENTIAL TYS 0255 Page 7 Case 7:13-cv-00150-O Document 22-2 Filed 08/04/14 Page 8 of 59 PageID 187 Basic Benefits are limited to Medical Payments (for health care provided to an Employee) and to Temporary Payments (for wage-replacement for a Disabled Employee) for a limited amount of time. Both the Medical Payments and the Temporary Payments (i.e.; Basic Benefits) stop on the later of: (a) ten (10) business days after the initial report of injury, and (b) when the Employee receives a medical evaluation by a non-emergency care Designated Physician. No further Medical Payments, no further Temporary Payments, and no other Income Benefits, Death Benefits or Burial Benefits are payable regarding a Compensable Injury to an Employee eligible for ,' only Basic Benefits. When Basic Benefits stop, an Employee (or, if the Employee died, the Employee's Legal Beneficiaries) may be eligible to elect to become a "Participant" in the Program and to be eligible to receive Comprehensive Benefits, if any. To be eligible for any Comprehensive Benefits. Benefits, an Employee (or Legal Beneficiary) must agree to the terms of an Acceptance And Waiver. See Exhibit "An "A" attached at the back of this Summary. By agreeing to the Acceptance And Waiver, an Employee (or Legal Beneficiary) settles and releases any and all personal injury claims against the Employer and waives any cause of action at common law or under any statute to recover damages for personal injuries, occupational disease or death sustained in the Course and Scope of Employment, including claims based on negligent and grossly negligent acts or omissions. An Employee who completes, signs and delivers an Acceptance And Waiver becomes a Participant in the Program and eligible for any Comprehensive Benefits under the Program's terms and conditions. An Employee who rejects the terms of an Acceptance And Waiver is not eligible to agree to its terms later. Giving an Acceptance And Waiver to an Employee for signature does not mean that the Employee's injury or illness is a Compensable Injury under the Program. If an Employee becomes incapacitated from an injury and cannot complete, sign and deliver an Acceptance And Waiver (or similar document acceptable to the Employer), the Employee's Spouse, Acceptanoe child(ren), legal guardian and/or next of kin must do so in order for the incapacitated Employee to be eligible for any Comprehensive Benefits. An unmarried Employee under age 18, and his or her parents, legal guardian and/or next of kin, must complete, sign and deliver an Acceptance And Waiver (or similar document acceptable to the Employer) in order for the minor Employee to be eligible for any Comprehensive Benefits. The Program's Comprehensive Benefits are the exclusive, full and final payment, release and satisfaction for all of a Participant's injuries, claims and damages from a Compensable Injury regardless of the Employer's fault or negligence if: (1) The injury or illness is determined to be a Compensable Injury; and (2) The Participant (and/or his or her representative) agrees to the Acceptance And Waiver. Signing an Acceptance And Waiver is not a condition of employment. Ill. III. HOW AN EMPLOYEE OBTAINS BENEFITS A. What to Do If You Are Injured An Employee must notify his or her supervisor immediately if injured at work. even if the injurv appears minor. This notice must be provided as soon as practical and no later than the CONFIDENTIAL 2 TYS 0256 Page 8 Case 7:13-cv-00150-O Document 22-2 Filed 08/04/14 Page 9 of 59 PageID 188 30th day after the date of the on-the-job injury. No benefits will be payable under the Program if this notice is not provided timely. If the on-the-job injury is an Occupational Disease, the Employee must notify the Employer of the Injury no later than the 30th day after the Employee knew or should have known that the injury may be related to his or her employment. All notifications of on-the-job injuries must be in writing. If the Employee's supervisor is unavailable, an Employee must report the on-the-job injury to the company nurse, the Personnel Department, the Manager of Occupational Safety and Health, or a Medical Case Manager. If necessary, the supervisor (or other manager) will assist in arranging for medical treatment. • An Employee may have to submit to drug and alcohol testing. • An Employee will receive medical care only from a Designated Physician or Designated Health Care Provider. B. What to Do If You Are Injured and Need Emergency Treatment An unapproved doctor or medical facility may be used only for "Emergency Care," defined as a medical service or supply not provided by a Designated Physician or Designated Health Care Provider because one is not reasonably available and because the injured Employee has a medical condition that has suddenly, unexpectedly manifested itself in acute symptoms so severe that without immediate treatment: (1) could result in death, disfigurement or permanent disability, or (2) could result in substantial impairment of any bodily organ, part or function. If an on-the-job injury requires immediate emergency treatment that prevents the injured employee from providing notice of the injury, the Employee must have the Employer notified by telephone of the need for treatment and must then complete the required claim forms within two business days after receiving written notice that the Employee's claim is incomplete. • If circumstances are such that notice cannot be given by telephone to the Employer, the Employee must complete the required claim forms within two business days after receiving the emergency treatment and must provide the "Manager" (the Manager, Occupational Health and Safety, or other person chosen for those functions) a written explanation of what caused the Employee to be unable to provide notice of the injury by telephone. Whether an injured Employee's claim for Medical Payments is for "Emergency Care" is determined either by the Claims Administrator (or its designee), or by a physician with knowledge of the injured Employee's medical condition. C. Designated Physicians and Designated Health Care Providers As described above, except for "Emergency Care," all medical care must be provided by "Designated "Designated Health Care Providers" selected by the Employer. The capitalized terms Physicians" or "DeSignated "Designated Physician" and "Designated Health Care Provider" mean: CONFIDENTIAL 3 TYS 0257 Page 9 Case 7:13-cv-00150-O Document 22-2 Filed 08/04/14 " Page 10 of 59 PageID 189 Designated Physician -- a physician on the panel of approved physicians who is selected by the Employee (or Participant) Participant} or the Employer to render or prescribe treatment or medication under the Program. No Designated Physician (and no physician) is an agent of the Employer or the Program. Designated Health Care Provider -- a health care provider, such as a hospital, pharmacy or • therapist, on the panel of approved health care providers and is selected by the Employee (or Participant) or the Employer to render, provide or deliver treatment or medication under the Program. No Designated Health Care Provider (and no health care provider) is an agent of the Employer or the Program. Designated Physicians and Designated Health Care Providers are sometimes referred to as simply Designated Providers. An Employee (and a Participant) must receive all medical treatment from a Designated Provider selected from an approved panel established by the Employer. In a Union plant, the Designated Providers on the panel shall be jointly approved by the Employer and Union. Program Benefits will be suspended or terminated if unapproved healthcare providers are used. Of course, every Employee (and every Participant) remains entitled to freely seek any medical care he or she deems appropriate from any provider of his or her choice at his or her own expense. An Employee or Participant dissatisfied with the initial choice of Designated Provider may notify the Claims Administrator and request that the Claims Administrator select an alternate DeSignated Designated Provider. The notification must be in writing and state the reasons for the change, except notification may be by telephone when a medical necessity exists for immediate change. As a condition of the Program, an Employee waives any past, present or future physician/patient privilege regarding treatment paid for by the Program and agrees to provide the Employer, Claims Administrator and Program Administrator access to all medical records and to permit them to communicate with the Designated Providers regarding the Employee's condition, diagnoses, prognoses and treatment. An Employee agrees to execute any writing evidencing this waiver, but does not waive the physician/patient privilege as to others. IV. INJURIES: WHAT IS COVERED AND WHAT IS NOT The Program offers benefits to Employees with respect to a wide range of on-the-job injuries. Subject to the limitations and exclusions described briefly in this Summary (and described completely in the Program document), an injured Employee may be entitled to receive free medical treatment for an onthe-job injury, and an injured Employee who is "Disabled" (unable because of a Compensable Injury to obtain and retain employment at a wage equal to his or her pre-injury wage) may be entitled to receive Temporary Payments while Disabled. When these Basic Benefits end, the Employee may be eligible to elect to become a "Participant" in the Program and eligible for its Comprehensive Benefits by agreeing to an Acceptance And Waiver. A. Injuries Covered In;uries The Program pays Basic Benefits for any "Compensable Injury" (which includes Occupational Disease and Repetitive Trauma Injury) that occurs on or after June 1, 2009. The date of injury for an CONFIDENTIAL 4 TYS 0258 Page 10 Case 7:13-cv-00150-O Document 22-2 Filed 08/04/14 Page 11 of 59 PageID 190 occupational Occupational Disease or Repetitive Trauma Injury is the date when the Employee was last fast exposed to the condition causing it As further described in the Program document, "Occupational Disease" is a disease (but not including ordinary diseases of life to which the general public is exposed) arising out of an Employee's Course and Scope of Employment which causes damage or harm to the physical structure of the Employee's body. "Repetitive Trauma Injury" is damage or harm to the physical structure of the Employee's body that occurs as the result of repetitious, physically-traumatic activities that occur over time and arise in the Course and Scope of Employment. "Course and Scope of Employment" is an activity that (1) has to do with and begins in the Employer's work or business and (2) is performed by the Employee while furthering the Employer's affairs or business, including activities on the Employer's premises or at other locations (but excluding transportation to and from work unless the transportation is controlled by the Employer). "Course and Scope of Employment" does not include, under any circumstances, an Employee's commuting between his or her home and place of employment. B. Excluded Injuries The term "Compensable Injury" as used in this Summary and in the Program document, does not include, and no benefits will be payable for: • any harm to the eye or body resulting from use of a video display terminal or keyboard, poor or inappropriate posture, the natural results of aging, circumstances or factors to which the general public is exposed, or similar circumstances which do not directly and solely result from the Employee's Course and Scope of Employment; any mental injury, distress or trauma to an Employee's mental or emotional state (including any physical manifestations) and any mental or emotional damage or harm resulting from a personnel action (including a transfer, demotion, termination or other disciplinary action); irritations to an Employee's body's respiratory or neurological systems from airborne contaminants, mold, or job stress; hernia, (except a groin hernia that (1) appeared suddenly and immediately after an on-the-job injury, (2) did not exist at all before the on-the-job injury, and (3) was accompanied by pain); any injury that occurred while the Employee was "intoxicated" under the Texas Workers' Compensation Act; any injury that was caused by the Employee's willful intention and attempt to injure himself or to injure another person; any injury caused by the Employee's horseplay; any injury that arose out of an act of a third person intended to injure the Employee because of personal reasons and not directed at the Employee as an Employee or because of the Employee's employment with the Employer; CONFIDENTIAL 5 TYS 0259 Page 11 Case 7:13-cv-00150-O Document 22-2 Filed 08/04/14 Page 12 of 59 PageID 191 any injury that arose out of voluntary participation in an off-duty recreational, social. or athletic activity not constituting part of the Employee's work-related duties, except where these activities are expressly required by the Employee's employment with the Employer: any injury that arose out of an act of God, unless the Employee's employment with the Employer exposes the Employee to a greater risk of injury from an act of God than ordinarily applies to the general public; any injury incurred before employment began or while the Employee was on suspension, laid off, on leave of absence, or otherwise outside the Course and Scope of Employment; any injury that is feigned or an attempt to defraud the Employer, the Program, or any other employee benefit plan provided by the Employer; • any injury that arose out of the use of or was caused by an atomic explosion or other release of radioactive materials or nuclear energy; or any damage or harm arising out of the use of or caused by asbestos, asbestos fibers, asbestos products, the hazardous properties of nuclear material, or biological contaminants. A heart attack, stroke or aneurysm ("attack") is not a Compensable Injury under the Program unless: (1) it can be identified as occurring at a definite time and place and caused by a specific event occurring in the Course and Scope of Employment; (2) the preponderance of the medical evidence regarding the attack indicates that the Employee's work-rather than the natural progression of an existing heart condition or disease-was a substantial contributing factor of the attack; and (3) the attack was not triggered solely by emotional or mental stress factors, unless it was precipitated by a sudden work-related stimulus. An on-the-job injury that relates directly or indirectly to an already existing condition will be deemed not to have been incurred in the Course and Scope of Employment and will not be covered by the Physician clearly confirms (based Program, except to the limited extent (if any) that a Designated PhYSician upon objective permanent physical evidence) an identifiable and Significant significant aggravation of the existing condition was sustained in the Course and Scope of Employment. Coverage for such aggravation will be provided only if and to the extent that the Designated Provider (1) confirms that the extant condition has been previously repaired or rehabilitated; and (2) prescribes services or supplies that are medically necessary to treat such aggravation and likely to return the Employee to pre-injury status. No coverage will be provided by the Program if the existing condition was a major contributing cause of the on-the-job injury. V. BASIC BENEFITS FOR ALL EMPLOYEES A. Medical Payments An Employee who sustains a Compensable Injury and who complies with the requirements of the Ill above, is eligible for "Medical Payments" for a Program, including those explained in Section III limited time for health care that is reasonably required by the Compensable Injury's nature and that is Designated Provider. provided by a DeSignated CONFIDENTIAL 6 TYS 0260 Page 12 Case 7:13-cv-00150-O Document 22-2 Filed 08/04/14 Page 13 of 59 PageID 192 Unless they are terminated earlier under another Program provision, Medical Payments for health care provided to an Employee eligible only for Basic Benefits stop on the later of: (a) ten (10) (1 0) business days after the date of the initial report of injury, and (b) when the Employee receives a medical evaluation by a non-emergency care Designated Physician. Medical Payments also stop when the total of all Benefits paid for a Compensable Injury reaches $1,000,000. $1 ,000,000. An Employee who is eligible only for Basic Benefits is financially responsibility for any further health care after Basic Benefits stop-if he or she does not elect to be eligible for Comprehensive Benefits by agreeing to the terms of an Acceptance And Waiver. "Medical Payments" means payment for health care reasonably required by the Compensable Injury's nature, provided by a Designated Provider, and intended to (1) cure or relieve the effects naturally resulting from the Compensable Injury, (2) promote recovery, (3) enhance the ability of the Employee or Participant to return to employment, or (4) provide the Employee, before signing an Acceptance And Waiver, a medical evaluation from a non-emergency care Designated Provider. "Medical Payments" are limited to the extent the charge is listed on any fee schedule or contract approved by the Claims Administrator or, if not listed, to the extent the charge is the usual, customary and reasonable charge for similar services. "Medical Payments" does not include the cost of any of the following: • services or supplies payable by the government; • any opinions by physicians for a third opinion or any subsequent opinions; • services or supplies which are experimental, investigative, or for the purposes of research, as further described in the Plan document; • services or supplies performed or provided while the Employee is not covered by the Program; services or supplies the Employee is not legally obligated to pay for or that would not be charged to the Employee if the Program did not exist; services or supplies for personal comfort or convenience, such as a private room, television, telephone, radio, guest trays, and similar items; fraudulent claims or claims not filed in good faith as determined by the Program Administrator; canceled appointment charges; • self-administered services; services or supplies to which the Employee's condition is persistently nonresponsive: acupuncture, behavior modification, hypnosis or biofeedback, other forms of self-care or selfhelp training or any related diagnostic testing, or any service or supply ancillary to any of these; these: CONFIDENTIAL 7 TYS 0261 Page 13 Case 7:13-cv-00150-O Document 22-2 Filed 08/04/14 • Page 14 of 59 PageID 193 substance abuse services: custodia! custodial care: charges for the purchase, rental or repair of breathing, or environmental control devices, including, but not limited to, an air conditioner, humidifier, dehumidifier, or air purifier; charges for services performed by: (1) a person who normally lives with the Employee; (2) the Employee's spouse; or (3) the Employee's or the Employee's spouse's parent, child, brother or sister; or charges for services where the initial treatment occurred more than 30 days after the date of the on-the-job injury or charges for services where the Employee did not receive medical care from a Designated Provider for a period of more than 200 consecutive days. charges for health care procedures or services that have been determined by Utilization Review to not be reasonably required by the nature of the Compensable Injury. There are three categories of claims for Medical Payments: Emergency Care Claims, Pre-Service Claims, and Post-Service Claims. Emergency Care does not require prior approval and may be provided by an unapproved physician or facility if timely notice is given to the Employer of the on-thejob injury and of the Emergency Care treatment, as described above in Section III.B. III.B. Claims for Medical Payments for non-emergency surgical procedures, physical therapy or occupational therapy in excess of the initial 2 weeks of treatment, magnetic resonance imaging (MRI) and computerized axial tomography (CAT) scans, myelograms, nerve conduction studies, bone density scans, spinal surgery, pain management or other invasive procedures, durable medical equipment (i.e. muscle stimulators, bone growth stimulators, beds, continuous passive motion diagnostic devices, tens units etc.), work hardening/ work conditioning (at external facility), all repeat diagnostiC testing, organ and tissue transplants, chiropractic and spinal manipulation services, outpatient and ambulatory surgical services, skilled nursing and home health care, inpatient rehabilitation services and other medical procedures identified by the Claims Administrator are "Pre-Service Claims" and must be: (1) approved in advance by the Claims Administrator, and (2) provided by a Designated Provider. "Post-Service Claims" are any claims for Medical Payments that are not Pre-Service Claims and do not require prior approval from the Claims Administrator if provided by a Designated Provider. "Utilization Review" means a review by the Claims Administrator, under written guidelines used by the Program, including pre-certification guidelines for specified medical procedures and treatments, of medical treatment to determine if the medical treatment being recommended or provided by a Designated Provider is reasonably required by the nature of the Compensable Injury. A Utilization Review may be prospective (taking place before treatment is performed), concurrent (taking place while treatment is on-going) or retrospective (taking place after treatment has been performed). All Pre-Service Claims will be subject to Utilization Review. CONFIDENTIAL 8 TYS 0262 Page 14 Case 7:13-cv-00150-O Document 22-2 Filed 08/04/14 B. 8. Page 15 of 59 PageID 194 Temporary Payments An Employee who complies with the Program's requirements (including those explained in Section III Ill above) and who becomes "Disabled" as the result of a Compensable Injury (as determined by a Designated Physician) is eligible for 'Temporary Payments," Payments." Unless they are terminated earlier under another Program provision, Temporary Payments to an Employee eligible only for Basic Benefits stop on the later of: (a) ten (10) (1 0) business days after the date of the initial report of injury; (b) when the Employee receives a medical evaluation by a non-emergency care Designated Physician, Physician. Temporary Payments also stop when the Employee is no longer Disabled, when the Employee reaches Maximum Medical Improvement, and when the total of all Benefits paid for a Compensable Injury reaches $1,000,000. "Disability" or "Disabled" means the Employee is unable because of a Compensable Injury to take and keep a job at a wage equivalent to his or her pre-injury wage. An Employee's decision not to take or accept an available job or position prevents any determination that he or she is Disabled and makes him or her no longer eligible for Temporary Payments. If a Disabled Employee refuses to accept a bona fide offer of employment for a position that he or she is reasonably capable of performing (given his or her physical condition and the position's geographic accessibility), the Disabled Employee's weekly earnings after the on-the-job injury will be considered equal to the weekly wage for the position offered. A Disabled Participant or Disabled Employee is not entitled to Temporary Payments if their employment is terminated by the Employer pursuant to Company policy and the Employer would have had restricted duty available within the temporary restrictions assigned by the Designated Physician. In addition, a Disabled Participant or Disabled Employee is not entitled to Temporary Payments if they voluntarily leave their employment with the Employer and the Employer would have had restricted duty available within the temporary restrictions assigned by the Designated Physician. "Maximum Medical Improvement" means the earlier of: (1) when, based on reasonable medical probability, further material recovery from or lasting improvement to Compensable Injury can no Designated PhYSician; Physician; or (2) 104 weeks from longer reasonably be anticipated as determined by a DeSignated the date of injury (although this second date does not apply to Employee's eligible for only Basic Benefits, which generally stop after ten business days). Temporary Payments are paid to a Disabled Employee in an amount equal to 80% of the difference between: (A) the Disabled Employee's "Average Weekly Wage," and (B) the weekly wages he or she is earning or is capable of earning, if any. The maximum weekly Temporary Payment is $1,000. If an Employee has worked for the Employer for at least 13 consecutive weeks immediately before the on-the-job injury, his or her "Average Weekly Wage" is the total of the wages paid in the 13 consecutive weeks immediately before the date of the on-the-job injury divided by 13. If the Employee has worked for the Employer less than 13 weeks on the date of the on-the-job injury, his or her "Average Weekly Wage" is the total of the wages paid before the date of the on-the-job injury worked. If an Employee has worked for the Employer less than a divided by the number of full weeks worked, CONFIDENTIAL 9 TYS 0263 Page 15 Case 7:13-cv-00150-O Document 22-2 Filed 08/04/14 Page 16 of 59 PageID 195 fu II week, the "Average Weekly Wage" is the Employee's hourly rate of pay for the job he or she was performing when injured times 38. If the Employee was a part-time Employee working less than 38 hours per week, his or her "Average Weekly Wage" is calculated under the first or second sentence of this paragraph, depending on how many weeks he or she worked before the on-the-job injury, but if the part-time Employee has not worked a full week, the average weekly wage is the hourly rate of pay. for the job he or she was performing when injured times the number of hours that he or she had been expected to work that week. VI. COMPREHENSIVE BENEFITS FOR PROGRAM PARTICIPANTS An Employee who sustains a Compensable Injury, complies with the requirements of the Program (including those explained in Section III Ill above), and agrees to the terms of an Acceptance And Waiver, is eligible for Comprehensive Benefits when his or her Basic Benefits stop. An Employee who has agreed to the terms of an Acceptance And Waiver in a form acceptable to the Employer and within a timeframe acceptable to the Program Administrator, becomes a "Participant" in the Program and eligible for its Comprehensive Benefits. As described above in Section II, in some circumstances an Employee's parent, spouse, family member or Legal Beneficiary may have to agree to the terms of an Acceptance And Waiver (or similar document) in order for the Employee to be eligible for Comprehensive Benefits. A. Medical Payments A Participant who has elected to be eligible for the Program's Comprehensive Benefits is eligible for "Medical Payments" for health care that is reasonably required by the Compensable Injury's nature and that is provided by a Designated Provider. Unless they are terminated earlier under another Program provision, Medical Payments for health care rendered to a Participant eligible for Comprehensive Benefits stop when the total of all Benefits paid for a Compensable Injury reaches $1,000,000. The definition of Medical Payments, the services and supplies excluded, and the three categories of claims for Medical Payments-Emergency Care, Pre-Service Claims and Post-Service Claims-in V.A above also apply to a Participant eligible for Comprehensive Benefits. Section V.A. B. Temporary Payments A Participant who has elected to be eligible for the Program's Comprehensive Benefits and who is "Disabled" as the result of a Compensable Injury (as determined by a Designated Physician) is eligible for "Temporary Payments." prOVISion, Temporary Payments to a Unless they are terminated earlier under another Program prOVIsion, Participant eligible for Comprehensive Benefits stop when the Participant is no longer Disabled, when the Participant reaches Maximum Medical Improvement, and when the total of all Benefits paid for a Compensable Injury reaches $1,000,000. Temporary Payments also terminate on the death of the Participant, and no right to receive them survives after the Participant's death. The definitions of Temporary Payments, Disabled, Maximum Medical Improvement and Average Weekly Wage and the calculation of Temporary Payments in Section V.B. above also apply to 10 CONFIDENTIAL 10 TYS 0264 Page 16 Case 7:13-cv-00150-O Document 22-2 Filed 08/04/14 Page 17 of 59 PageID 196 Temporary Payments to a Participant eligible for Comprehensive Benefits. The maximum weekly Temporary Payment is $1,000. C. Impairment Payments After a Participant has been certified by a Designated Physician as having reached Maximum Medica! Medical Improvement, such Designated Physician shall evaluate the condition of the Participant and assign an Impairment Rating, or refer the Participant to an alternate Designated Physician to assign an Impairment Rating, only if there is Objective Clinical or Laboratory Findings of Impairment. Impairment means an anatomic or functional abnormality or loss existing after Maximum Medical Improvement that results from a Compensable Injury and is determined to be permanent by a Designated Physician. If the Participant has an Impairment resulting from a Compensable Injury, the Designated Physician will assign an Impairment Rating using the Guides to the Evaluation of Permanent Impairment, third edition, published by the American Medical Association (second printing, dated February, 1989), based on an "Objective Clinical or Laboratory Finding" of Impairment. An Objective Clinical or Laboratory Finding is one based on competent medical evidence, which has independently verifiable or confirmable results based on recognized laboratory or diagnostic tests or signs confirmable by physical examination, that is confirmable by a Designated Physician without reliance on the Participant's subjective symptoms. If there is an Objective Clinical or Laboratory Finding of Impairment, the Designated Physician will assign an "Impairment Rating"-the percentage of whole body permanent Impairment. If the Designated Physician does not issue an Impairment Rating or refer the Participant to another Designated Physician to assign an Impairment Rating within 30 days after the Participant reaches Maximum Medical Improvement, it is presumed there was no Impairment. The Claims Administrator may dispute an Impairment Rating within five (5) working days after receiving written notice of an assigned Impairment Rating. If the Claims Administrator disputes the Impairment Rating, the Employer will pay the Participant Impairment Payments for a period of time based on the Claims Administrator's reasonable assessment of the correct rating after the Participant is examined by a physician chosen by the Claims Administrator. This physician's report will control the determination of the Participant's entitlement to any Impairment Payments. "Impairment Payments" begin the day after the Participant reaches Maximum Medical Improvement and continue until the earlier of: (1) the expiration of a period computed at the rate of three weeks for each percentage point of the Impairment Rating; or (2) the death of the Participant. Impairment Payments are paid weekly at the rate of 70% of the Participant's Average Weekly Wage. The maximum weekly Impairment Payment is 70% of the average weekly wage of manufacturing production workers in Texas (rounded to the nearest whole dollar) as determined by the Texas Workforce Commission. The maximum weekly wage on the date of the Compensable Injury applies for the entire period that Impairment Payments are payable. The Participant and the Claims Administrator may agree to pay in a lump sum all or the remainder of the Participant's Impairment Payments. Impairment Payments will be reduced in a proportion equal CONFIDENTIAL 11 TYS 0265 Page 17 Case 7:13-cv-00150-O Document 22-2 Filed 08/04/14 Page 18 of 59 PageID 197 to the proportion of any impairment from earlier work-related injuries. Unless terminated earlier under another Program provision, Impairment Payments stop when the total of all Benefits paid for a Compensable Injury reaches $1,000,000. When Impairment Payments terminate on the Participant's death, no right to receive them survives after death. D. Supplemental Payments At the end of the Impairment Payments, a Participant is eligible for Supplemental Payments if: (1) (2) (3) (4) the Participant has an Impairment Rating from the Compensable Injury of 15% or more; the Participant has not returned to work as a direct result of the Participant's Impairment from the Compensable Injury or has returned to work earning less than 80% of the Participant's Average Weekly Wage as a direct result of the Participant's Impairment; the Participant has not elected to have any part of his or her Impairment Payment paid in a lump sum; and the Participant has in good faith attempted to obtain employment within his or ability to work. If a Participant is not entitled to Supplemental Payments at the end of Impairment Payments because he or she is earning at least 80% of his or her Average Weekly Wage, the Participant may become eligible for Supplemental Payments at any time within one year after the last Impairment Payment if: (1) (2) (3) the Participant earns wages that are less than 80% of his or her Average Weekly Wage for a period of at least 90 days; the Participant meets the other requirements in the preceding paragraph; and the Participant's decrease in earnings is a direct result of the Participant's Impairment from the Compensable Injury. The "Filing Period" is the 7 consecutive days starting 21 days before the start of the one-week period for which a Participant may qualify for Supplemental Payments (the "Qualifying Period"). After the first determination of eligibility for Supplemental Payments, the Participant must file a statement with the Claims Administrator stating that the Participant has earned less than 80% of his or her Average Weekly Wage as a direct result of the Participant's Impairment from the Compensable Injury, stating the amount of wages the Participant earned in the Filing Period and that the Participant has in good faith sought employment within his or her ability to work. The statement must be filed weekly, not later than 3 days after the end of the Filing Period. A Participant who fails to file a statement is not eligible for Supplemental Payments for that Qualifying Period. The Participant must authorize the Claims Administrator to obtain information to verify the Participant's statement. If a Participant earns wages that are at least 80% of his or her Average Weekly Wage for a period of at least 7 days during which the Participant is receiving those Supplemental Payments, the Participant is not eligible for Supplemental Payments for the Filing Period. Supplemental Payments will restart when the Participant satisfies the requirements for Supplemental Payments and files the statement required for them. However, if a Participant is not eligible for Supplemental Payments for 12 consecutive months, the Participant stops being eligible for any further Supplement Payments. CONFIDENTIAL 12 TYS 0266 Page 18 Case 7:13-cv-00150-O Document 22-2 Filed 08/04/14 Page 19 of 59 PageID 198 If the Claims Administrator determines that a Participant receiving Supplemental Payments could be materially assisted in returning to work (or returning to work more like his or her pre-injury job) by vocational rehabilitation or training, the Claims Administrator may refer the Participant to a specialist for appropriate services. A Participant who refuses these services or to cooperate is no longer eligible for Supplemental Payments. Supplemental Payments are calculated and paid on a weekly basis. To calculate the Supplemental Payments, 80% of the Participant's Average Weekly Wage and the Participant's wages actually earned during the filing period are compared each week. If the Participant is offered a bona fide job that the Participant is capable of performing-given his or her physical condition and the job's geographic accessibility-the Participant's weekly wages are deemed equal to the weekly wages for the job offered to the Participant. Supplemental Payments are paid at the rate of 80% of the difference between 80% of the Participant's Average Weekly Wage and the weekly wages he or she earned during the Filing Period. The maximum weekly Supplemental Payment is 70% of the average weekly wage of manufacturing production workers in Texas (rounded to the nearest whole dollar) as determined by the Texas Workforce Commission. The maximum weekly wage on the date of the Compensable Injury applies for the entire period that Supplemental Payments are payable. Supplemental Payments will be reduced in a proportion equal to the proportion of any impairment from earlier work-related injuries. Unless terminated earlier under another Program provision, Supplemental Payments stop when the total of all Benefits paid for a Compensable Injury reaches $1,000,000. A Participant's eligibility for Temporary Payments, Impairment Payments and Supplemental Payments ends 401 weeks after date of the Compensable Injury, unless they are terminated earlier under another provision of the Program document. E. Extended Income Payments A Participant is eligible for Extended Income Payments until his or her death for the following Compensable Injuries: (1) total and permanent loss of sight in both eyes; (2) loss of both feet at or above the ankle; (3) loss of both hands at or above the wrist; (4) loss of one foot at or above the ankle and the loss of one hand at or above the wrist; (5) a spine injury with permanent, complete paralysis of both arms or legs, or one arm and leg; or (6) a physically traumatic brain injury resulting in incurable insanity or imbecility. The total and permanent loss of use of a body part is considered equal to the loss of the body part. Extended Income Payments are paid at the rate of 80% of the Participant's Average Weekly Wage. The maximum weekly Extended Income Payment is 100% of the average weekly wage of manufacturing production workers in Texas (rounded to the nearest whole dollar) as determined by the Texas Workforce Commission. The maximum weekly wage on the date of the Compensable Injury applies for the entire period that Extended Income Payments are payable. Unless terminated earlier under another Program provision, Extended Income Payments stop when the total of all $1,000.000. Benefits paid for a Compensable Injury reaches $1,000,000. CONFIDENTIAL 13 TYS 0267 Page 19 Case 7:13-cv-00150-O Document 22-2 Filed 08/04/14 Page 20 of 59 PageID 199 A Participant and the Employer may agree at any time to a full and final discharge of all the Employer's obligations to the Participant by the payment to the Participant of an agreed-upon sum and the signing of settlement documents acceptable to the Employer. F. Death and Burial Payments If !f the Legal Beneficiary (or Legal Beneficiaries) of Participant who has died as the result of a Compensable Injury agrees (or agree) to the terms of an Acceptance And Waiver (or similar document acceptable to the Employer), the Program will pay Death Payments to that Legal Beneficiary (or those Legal Beneficiaries). The total Death Payments will be equal to the greater of: (a) ten times the deceased Participant's annual wages (calculated by multiplying the Participant's Average Weekly Wage by 52 weeks), and (b) $200,000. Death Payments are in two phases. First, $50,000 will be paid within 10 days after all Legal Beneficiaries sign the Acceptance And Waiver (or similar document acceptable to the Employer). Second, the rest of the Death Payments will be paid in 36 equal monthly payments (without interest). Death Payments wili will be paid to the deceased Participant's Legal Beneficiary (or Legal Beneficiaries) in accordance with the Program document and depending upon whether the Participant was survived by an Eligible Spouse, Child, Children, Eligible Grandchild or Eligible Grandchildren. If a Legal Beneficiary dies or otherwise becomes ineligible for Death Payments, the remaining Death Payments will be re-divided among the remaining Legal Beneficiaries. No Death Payments will be paid to any Legal Beneficiary unless that Legal Beneficiary agrees to an Acceptance And Waiver (or similar document acceptable to the Employer) accepts the terms and conditions of this Program by waiving and releasing all claims and causes of action against the Employer for damages. The amount of Death Payments to be paid to any single Legal Beneficiary under this section will be limited to the amount that would be paid to that Legal Beneficiary if all eligible Legal Beneficiaries had agreed to the Acceptance And Waiver and shared the Death Payments equally. If a Participant dies from a Compensable Injury, the Program will pay the person who paid for the Participant's burial a Burial Payment equal to the lesser of: (a) the actual costs incurred for reasonable burial expenses; and (b) $6,000.00. The Program will also pay the reasonable cost of transporting the Participant's body for burial if the Participant died away from the usual place of employment. This cost cannot exceed what the cost would be to transport the Participant's body to his or her usual place of employment. Death and Burial Payments are payable subject to the $1,000,000 limit on all Benefits for each Compensable Injury. VII. LOSS OF BENEFITS CONFIDENTIAL 14 TYS 0268 Page 20 Case 7:13-cv-00150-O Document 22-2 Filed 08/04/14 Page 21 of 59 PageID 200 Regardless of any other provision of this Summary, of the Program document or of an Acceptance And Waiver, all Basic Benefits (payable to an Employee) and all aH Comprehensive Benefits (payable to a Participant) will be denied, terminated or suspended if he or she: • has an alleged on-the-job injury that is not a Compensable Injury; ..• fails or refuses to comply with any of the Program's requirements; • Ill above; failed to report the on-the-job injury and provide the information required by Section III • refuses to submit to drug and alcohol testing at the time of the on-the-job injury or during treatment of it; • has an injury that is discovered to have been intentional, self-inflicted, feigned or an attempt to defraud the Employer or the Program; • fails to provide, upon request by the Claims Administrator, a complete statement, affidavit, or deposition concerning the incident that he or she believes resulted in a Compensable Injury; • is untruthful or otherwise fails to fully cooperate with the Claims Administrator in connection with the administration of the Program, including, but not limited to, subrogation or coordination of benefits procedures; • uses (other than for Emergency Care) a doctor or medical facility that is not a Designated Provider after receiving written notice from the Claims Administrator that using such a doctor or medical facility is prohibited by the Program; • fails to provide accurate information to-or fails to follow the advice or directions, or ceases to be under the care of-a Designated Physician after receiving written notice from the Claims Administrator that failing to do so is prohibited by the Program; • fails to keep, is late for, or does not cooperate during scheduled appointments with or directed by a Designated Physician or fails or refuses to allow an authorized representative of the Program to accompany him or her to an appointment after receiving written notice from the Claims Administrator that failing to do so is prohibited by the Program; • engages in conduct after an on-the-job injury that a Designated Physician determines is an injurious practice hindering his or her recovery from the on-the-job injury, after receiving written notice from the Claims Administrator that such conduct is prohibited by the Program; • fails or refuses to report to the Claims Administrator as directed (including notice of expected recovery time) after each appointment with a Designated Physician, after receiving written notice from the Claims Administrator that failing to do so is prohibited by the Program; • fails to report to the Claims Administrator or to return to work for his or her Employer after: a Designated Physician has released him or her to return to work for the Employer, whether full-time, part-time, restricted, light or regular duty; and he or she is scheduled to return to work for the Employer; CONFIDENTIAL 15 TYS 0269 Page 21 Case 7:13-cv-00150-O Document 22-2 Filed 08/04/14 .,• Page 22 of 59 PageID 201 fails to report to the Claims Administrator immediately after being told that he or she has reached Maximum Medical Improvement; or (or his or her Legal Beneficiary, Spouse, Child, heir, parent, sibling or legal !ega! representative) files a lawsuit about an on-the-job injury in breach of an Acceptance And Waiver (or similar document) signed for that injury . • VIII. DECISIONS ON CLAIMS FOR BENEFITS A claim for Medical Payments, Temporary Payments, Impairment Payments, Supplemental Payments, or Extended Income Payments is started by: (A) giving notice of the on-the-job injury as required by Section III Ill above, and (8) (B) submitting to medical treatment by Designated Providers under Section V and VI. A Legal Beneficiary must start a claim for Death Payments or Burial Payments within 90 days after the Participant's death by providing notice of the claim to the Claims Administrator. If a claim is not complete, the Claims Administrator will notify the Employee, Participant or Legal Beneficiary making the claim for Benefits (hereinafter "Claimant") in the manner described below, and the Claimant will have the responsibility for providing the missing information. A "Determination" is a decision of the Claims Administrator or Program Administrator on whether Benefits are payable on a claim for Program Benefits. An "Adverse Benefit Determination" is the denial, reduction or termination of (or a failure to provide or make payment, in whole or in part, for) a Program Benefit. For example, this includes denial, reduction or termination of benefits based upon (a) ineligibility for Benefits from the Program, (b) loss of Benefits from the Program, (c) application of any utilization review, (d) a medical service being experimental or investigational or not medically necessary or appropriate, or (e) the Participant no longer being Disabled. Notice of Initial Benefit Determination - The Claims Administrator will notify the Claimant of its initial Benefit Determination as follows: 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 will notify the Claimant of any reduction or termination of such course of treatment. Such reduction or termination shall be considered an Adverse Benefit Determination and the Claims Administrator shall notify the Claimant far enough before the reduction or termination to allow the Claimant to contest the Determination before the course of treatment is actually reduced or terminated. (b) Any request by a Claimant to extend the course of treatment beyond what was previously approved will be treated as a new claim and decided within the timeframe appropriate to the CONFIDENTIAL 16 TYS 0270 Page 22 Case 7:13-cv-00150-O Document 22-2 Filed 08/04/14 Page 23 of 59 PageID 202 type of claim (Le., (i.e., as a Pre-Service Claim or a Post-Service Claim). Notification of any Adverse Benefit Determination about a request to extend the course of treatment will be made as described in this Section. Pre-Service Claims for Medical Payments - In the case of a Pre-Service Claim for Medical Payments, the Claims Administrator will notify the Claimant of the 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 orally or in writing, but an Adverse Benefit Determination will be given in writing as described below. The Claims Administrator may extend this 15-day i5-day period up to an additional 15 days if it determines that, due to matters beyond its control, an initial Determination cannot be made within the first i5-day 15-day period, and it notifies the Claimant of the special circumstances requiring the extension and when it expects to make a decision. However, if the Claimant (i) fails to follow the Program's procedures for filing a Pre-Service Claim, or (ii) otherwise fails to provide enough information to determine whether, or to what extent, benefits are covered or payable under the Program on a Pre-Service Claim, then: (a) The Claims Administrator will notify the Claimant as soon as possible, but not later than 15 days after its receipt of the claim, of the procedure to follow or the specific information needed to complete the claim. Notification may be oral, unless the Claimant requests a written notice. This notice requirement will 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 that approval is requested for. (b) The Claimant will then have at least 45 days to correct such failure. (c) The Claims Administrator will then notify the Claimant of the Determination within the 15-day 30-day) time frame described above. (or, if extended, up to 3D-day) Claims for Post-Service Medical, Temporary, Impairment, Supplemental, Death, Burial and Extended Income Payments - The Claims Administrator will notify a Claimant making a claim for any of these Benefits 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 its control. Notice of 30-day period and such extension will be provided to the Claimant before the expiration of the first 3D-day state the special circumstances requiring the extension and when it expects to make a decision. If additional information is requested with the extension notice, the Claimant will have 45 days to provide the additional information. DeterminationsManner and Content of Adverse Benefit Determinations - If the first Determination is an Adverse Benefit Determination, the Claims Administrator will give written notice to the Claimant as follows: (1) The notice will give the specific reason or reasons for the Adverse Benefit Determination, and refer to the specific Program provisions on which the Adverse Benefit Determination is based; (2) If the Adverse Benefit Determination is based upon medical necessity, an experimental treatment or a similar exclusion or limit, the notice will explain the scientific or clinical judgment for the Adverse Benefit Determination, applying the Program's terms to the Claimant's medica! circumstances, or a statement that such an explanation is available free upon request; CONFIDENTIAL TYS 0271 Page 23 Case 7:13-cv-00150-O Document 22-2 Filed 08/04/14 Page 24 of 59 PageID 203 (3) The notice will state that (in the case of an Adverse Benefit Determination on review by the Program Administrator) the Program offers no further voluntary levels of appeal and that the Claimant can pursue his or her right to bring an action under ERISA section 502(a); (4) The notice will describe any additional materials or information needed for the Claimant to perfect the claim and explain why such material or information is needed; (5) The notice will describe the Program's Appeal procedures; and (6) If an internal rule, guideline or other similar criteria were relied on in making an Adverse Benefit Determination on a claim for Medical Payments, Temporary Payments or Supplemental Payments, the notice shall state that such rule, guideline or other similar criteria were relied on in making the Adverse Benefit Determination and that a copy of it is available free upon request. IX. HOW TO FILE AN APPEAL OF A DENIAL OF BENEFITS. A. Filing an Appeal A Claimant who is dissatisfied with a decision of the Claims Administrator may file a written appeal to the Program Administrator. All written appeals of Adverse Benefits Determinations of the Claims Administrator shall specifically state the nature of the disagreement and the desired change in the decision. Any appeal of an Adverse Benefit Determination of the Claims Administrator shall be sent to the following: Program Administrator 14902 Preston Road #404 Suite 812 Dallas, Texas 75254 In addition, the Claimant must also fax a copy of any appeal to the Claims Administrator at (605) 2352991 on the same date the appeal is mailed to the Program Administrator. B. Time Limits for Filing an Appeal The Claimant may file an appeal within the following number of days following his or her receipt of the Adverse Benefit Determination from the Claims Administrator: (A) 180 days for a Medical Payment, Temporary Payment, Impairment Payment, Supplemental Payment or Extended Income Payment claim; or (B) (8) 60 days for a Death Payment or Burial Payment claim. C. Determinations Appeal Determ inations After receiving the Claimant's written appeal request, the Program Administrator will conduct a ful! facts. determinations and conclusions and fair review of the Claimant's written appeal based upon all facts, developed or reached in the initial decision. CONFIDENTIAL 18 TYS 0272 Page 24 Case 7:13-cv-00150-O Document 22-2 Filed 08/04/14 Page 25 of 59 PageID 204 The Program Administrator has complete authority and discretion to resolve the Claimant's appeal of the Claims Administrator's decision, including: (1) construing and interpreting the Program's terms and any related documents; (2) construing and interpreting all laws and regulations applicable to the claim; (3) making any factual determinations and applying them to the Program's terms and the issues; and (4) otherwise deciding all questions regarding an individual's right to benefits and the manner and timing of any payments to be made under the Program. Whether on an appeal or otherwise, the Program Administrator has discretionary and final authority to interpret and implement the provisions of the Program. Every interpretation, choice, determination, or other exercise of authority by the Program Administrator is binding upon all affected parties, without restriction, however, on the right of the Program Administrator to reconsider such action. D. General Considerations for Contests and Appeals The Claimant and the Claims Administrator may submit written comments, documents, records, and other information about the claim, and the Program Administrator will take all that information into account when reviewing the claim, without regard to whether such information was submitted or considered in the initial benefit Determination. The Claimant may receive, free upon request, reasonable access to, and copies of, all documents, records, and other information that is "Relevant" (as defined in the Program and as determined by the Program Administrator) to the claim for benefits. judgment, the Program Administrator If the requested relief is based in whole or in part on a medical jUdgment, may consult with a Designated Physician who has appropriate training and experience in the field of Designated PhysiCian Physician will not be a Designated Physician who was consulted medicine involved. This DeSignated Designated Physician. about the initial Adverse Benefit Determination or a subordinate of that DeSignated Upon request from a Claimant, the Program Administrator will identify the names of any medical or vocational experts whose advice was obtained about an initial Adverse Benefit Determination, without regard to whether the advice of such experts was relied upon in making the benefit Determination. Timing of Notice of Benefit Determination on an Appeal - Within the time frames described below, the Program Administrator will notify the Claimant of the Program's benefit Determination after an appeal. (1) (2) On a Pre-Service Claim for Medical Payments, the Program Administrator will notify the Claimant of the appeal's Determination within a reasonable period of time appropriate to the medical circumstances, but not later than 15 days after receiving the Claimant's appeal request. On a Post-SeNice Claim for Medical Benefits. the Program Administrator will notify the Claimant of the appeal's Determination within a reasonable period of time appropriate to the CONFIDENTIAL 19 TYS 0273 Page 25 Case 7:13-cv-00150-O Document 22-2 Filed 08/04/14 (3) (4) Page 26 of 59 PageID 205 medical circumstances, but not later than 30 days after receiving the Claimant's appeal request. On a claim for Temporary, Supplemental, Impairment or Extended Income Payments, the Program Administrator will notify the Claimant of the appeal's Determination within a reasonable period of time appropriate to the medical circumstances, but not later than 45 days • after receiving the Claimant's appeal request. On a claim for Death Payments or Burial Payments, the Program Administrator will notify the Claimant of the appeal's Determination within 60 days after receiving the Claimant's appeal request. When the federal regulations allow additional time for decisions or actions, these time frames may be extended, but such extensions will only be taken when necessary to provide a full and fair review of a Claimant's right to Benefits. If the Claimant is dissatisfied with the Program Administrator's written decision, the Claimant has the right to file a civil lawsuit in the United States District Court or State Court under Section 502(a) of the Employee Retirement Income Security Act of 1974 1974 ("ERISA"). Otherwise, the Dispute Resolution process described in this Section VIII will be the sole and exclusive remedy and method for resolving all disputes, claims or other issues about the Program. X. AMENDMENT OR TERMINATION OF PROGRAM The Program Sponsor, Tyson Foods, Inc., presently intends to continue the Program indefinitely, but the Program Sponsor may amend, modify or terminate the Program at any time in compliance with ERISA. Any such amendment, modification or termination will be approved by formal written action by the Program Sponsor and would not reduce any Benefit then due an Employee, Participant or Legal Beneficiary for a Compensable Injury (or resulting death) that occurred before the amendment, modification or termination. XI. BENEFIT COORDINATION, ACCELERATION AND RECOVERY A. Coordination of Benefits Payments of Program Benefits will be reduced by amounts paid by Social Security, Medicare or Medicaid benefits or under any state or federal workers' compensation act or similar law or under any other benefit plan or insurance contract or policy covering the Employee or Participant. However, Program Benefits will only be reduced to the extent necessary to prevent the total amount of Program and these other benefits from exceeding 100% of the medical expenses incurred by the Employee or Participant and 100% of his or her pre-injury wages. Benefits under the Program are secondary to and excess of all other sources of benefits covering the Employee or Participant, such that all other sources of benefits pay in full before any benefits are paid under the Program. An Employee or Participant must, upon request, provide copies of and information about any other sources of benefits potentially providing coverage for an Employee's or Participant's injury, treatment or disability. B. Acceleration Of Benefits and Final Compromise and Settlement An Employee, Participant or Legal Beneficiary can apply to Program Administrator for the acceleration of the payment of benefits, and an Employee, Participant, Legal Beneficiary, the CONFIDENTIAL 20 TYS 0274 Page 26 Case 7:13-cv-00150-O Document 22-2 Filed 08/04/14 Page 27 of 59 PageID 206 Program and the Employer may enter into a final compromise and settlement of any remaining benefits payable as a result of a Compensable Injury (or resulting death). C. Recovery of Benefits If an Employee or Participant (or his or her Legal Beneficiaries, spouse, children, heirs, parents or legal representatives) seeks, becomes entitled to or receives benefits under the Program for any onthe-job injury caused by another person, entity or organization and becomes entitled to or collects any compensation for such on-the-job injury (whether by insurance, litigation, arbitration, settlement or other proceeding), the Employee, Participant, Legal Beneficiary, spouse, child, heir, parent and legal rep resentative must: (1) representative ( 1) reimburse the Program out of such other compensation to the full extent (Le., (i.e., 100%) 100%) of the Program Benefits paid to, on behalf of, or on account of the Compensable Injury, (2) hold out of such other compensation, and in constructive trust for the benefit of the Program, the full amount (Le., (i.e., 100%) 100%) of the Benefits paid by the Program, and (3) execute any documents requested by the Program Administrator to enable the Program to recover the full amount of such Program Benefits. The "common fund" and "make-whole" doctrines do not apply to any subrogation rights of the Program, meaning that the Program will recover the full amount (Le., (i.e., 100%) 100%) of the Benefits that it has paid or become obligated to pay as the result of a Compensable Injury (or resulting death), regardless of whether any remaining compensation from the third-party who caused the Compensable Injury (or resulting death) fully compensates the Employee, Participant, Legal Beneficiary, spouse, child, heir, parent or legal representative for his or her injuries, damages, attorneys' fees, costs and expenses. If an Employee, Participant, Legal Beneficiary, spouse, child, heir, parent or legal representative fails or refuses to reimburse the Program, then he or she must return all Program Benefits paid for the Compensable Injury, and the Program may withhold and offset further Benefits for that Compensable Injury until the Program Benefits are repaid in full. Before filing a lawsuit, arbitration or other proceeding or to entering into a settlement discussion or mediation to obtain from any person, entity or organization (other than the Employer or its affiliated entities) damages or compensation (in any form) for or on account of an injury to or the death of an Employee or Participant for which Program Benefits have been paid or may in the future be sought, the Employee or Participant (or his or her Legal Beneficiaries, spouse, children, heirs, parents and legal representatives) must provide the Claims Administrator prior written notice of the lawsuit or other type of proceeding. The Program may intervene in the lawsuit or other proceeding. If an Employee or Participant (or his or her Legal Beneficiaries, spouse, children, heirs, parents or legal representatives) fails or refuses to seek damages or compensation from someone for any injury or death caused by his, her or its negligent or wrongful act or omission (for which Program Benefits have been paid or may in the future be sought) the Program may file a lawsuit or other proceeding to pursue reimbursement of Program Benefits paid and to be paid in the future, plus any costs and expenses incurred by the Program in pursuing such reimbursement. Participant (or his or her Legal Upon the request of the Program Administrator, an Employee or PartiCipant Beneficiaries, spouse, children, heirs, parents or legal representatives) must assign to the Program the right to intervene in or start any lawsuit or other proceeding, and to do so in the Employee's or Participant's own name. The Program shall have complete control over the lawsuit or proceeding until finally resolved. The Employee or Participant (and his or her Legal Beneficiaries, spouse, children, heirs, parents or legal representatives) must fully cooperate with the Program and its CONFIDENTIAL 21 TYS 0275 Page 27 Case 7:13-cv-00150-O Document 22-2 Filed 08/04/14 Page 28 of 59 PageID 207 counsel in any such lawsuit or proceeding and must release the Program, the Employer, and their respective directors, officers, agents, attorneys, and employees from all claims, causes of action, damages and liabilities of whatever kind or character that may directly or indirectly arise out of the Program's pursuit or handling of any such lawsuit or proceeding. XII. FEDERAL RIGHTS STATEMENT An Employee or Participant has certain rights and protections under ERISA. ERISA provides that an Employee or Participant is entitled to: Receive Information About the Program and Its Benefits Examine, without charge, at the Program Administrator's office and at other specified locations, • such as work sites, all documents governing the Program, including insurance contracts and a copy of the latest annual report (Form 5500 series) filed by the Program with the U.S. Department of Labor and available at the Public Disclosure Room of the Employee Benefits Security Administration. Obtain, upon written request to the Program Administrator, copies of documents governing the • operation of the Program, including insurance contracts and a copy of the latest annual report (Form 5500 series) and any updated summary plan description. The Program Administrator may make a reasonable charge for the copies. Receive a summary of the Program's annual financial report. • Prudent Actions by Program Fiduciaries In addition to creating rights for Employees and Participants, ERISA imposes duties upon the people who are responsible for the operation of the Program. The people who operate the Program, called "fiduciaries" of the Program, have a duty to do so prudently and in the interest of the Employees, Participants and Legal Beneficiaries. No one, including the Employer or any other person, may fire or otherwise discriminate against an Employee or Participant in any way to prevent him or her from exercising these rights under ERISA. obtaining a benefit or exerCising Enforceable Rights If an Employee's or Participant's claim for a benefit is denied or ignored, in whole or in part, he or she has a right to know why this was done, to obtain copies of documents relating to the decisions without charge, and to appeal any denial, all within certain time schedules. Under ERISA, there are steps that an Employee or Participant can take to enforce the above rights. For instance, if a Participant requests a copy of Program documents or the latest annual report, if any, from the Program and does not receive them within 30 days, he or she may be entitled to not only receive the materials, but also up to $110 per day from the Program Administrator until the materials are received, unless the materials were not sent because of reasons beyond the control of the Program Administrator. If an Employee or Participant has a claim for benefits which is denied or ignored, in whole or in part, he or she may be entitled to file a lawsuit. If the Program fiduciaries misuse the Program's money (if any), or if an Employee or Participant is discriminated against for asserting his or her rights, he or she may seek assistance from the U.S. Department of Labor, or may be entitled to file suit. The court will decide who should pay court costs and legal fees. If the Employee or Participant is successful, the court or arbitrator may order the other person to pay these costs and fees. If the Employee or PartiCipant Participant loses, the court may order him or her to pay these costs and fees, for example, if it finds the claim is frivolous. CONFIDENTIAL 22 TYS 0276 Page 28 Case 7:13-cv-00150-O Document 22-2 Filed 08/04/14 Page 29 of 59 PageID 208 Assistance with Questions If an Employee or Participant has any questions about the Program, he or she should contact the Program Administrator. If an Employee or Participant has any questions about this statement or about his or her rights under ERISA, or if he or she needs assistance in obtaining documents from the Program Administrator, the Participant shouid contact the nearest office of the Employee Benefits Security Administration, U.S. Department of Labor, listed in the telephone directory or the Division of Technical Assistance and Inquiries, Employee Benefits Security Administration, U.S. Department of Labor, 200 Constitution Avenue N.W., Washington, D.C. 20210. An Employee or Participant may also obtain certain publications about his or her rights and responsibilities under ERISA by calling the publications hotline of the Employee Benefits Security Administration. XIII. AVISO PARA EMPLEADOS QUE NO HABLAN INGLES Este Resumen del Tyson Foods, Inc. Workplace Injury Settlement Program - Texas contiene un resumen en ingles de sus derechos y prestaciones bajo la Ia Programa. Si usted tiene dificultad en comprenderlo 0o si desea verificaci6n or c1arificaci6n clarificaci6n de cualquier parte de este Resumen, favor de comunicarse con el Administrador de Reclamaciones, localizado en 800 Stevens Point Drive, Suite 836, Dakota Dunes, South Dakota 57049. Si 10 lo desea puede usted Hamar al numero de telefono (605) 235-3347. Horas de oficina son de las 8:30 a.m. a las 4:30 p.m., de lunes a viernes. 8:30a.m. 4:30p.m., CONFIDENTIAL 23 TYS 0277 Page 29 Case 7:13-cv-00150-O Document 22-2 Filed 08/04/14 XIV. Page 30 of 59 PageID 209 PROGRAM DIRECTORY Program Sponsor: Tyson Foods, Inc., 2210 Oaklawn Drive, Springdale, Arkansas 72765; (479) ,.T 290-4000. Agent for Service of Legal Process: Service of legal process may be made upon the Program Sponsor at the above address. Program Administrator: Program Administrators, L. L C., 13410 Preston Road, Suite A-235, Dallas, Texas 75240. Federal Tax Identification Number: 43-0838666 Plan Fiscal Year: The Plan Fiscal Year is January 1 to December 31. Plan Number: 522 Additional Adopting Employers: FEIN Adopting Employer Tyson Breeders, Inc. Tyson Deli, Inc. Tyson Farms, Inc. (f/k/a IBP, Inc.) Tyson Fresh Meats, Inc. (f/kJa Tyson Poultry, Inc. Tyson Prepared Foods, Inc. Tyson Refrigerated Processed Meats, Inc Tyson Sales and Distribution, Inc. (f/k/a IBP Tyson Service Center Corp. (flkJa Service Center Corp.) Tyson Shared Services, Inc. CBFA Management Corp. KPR Holdings, L.P. PBX, Inc. Rural Energy Systems, Inc. Texas Transfer, Inc. CONFIDENTIAL 62-0852669 42-1233965 56-0754148 71-0857514 71-0815087 48-1175514 51-0392340 71-0815086 47-0610095 Address P.O. Box 2020 Springdale, AR 72765-2020 71-0815073 76-0567117 75-2513987 47-0557612 47-0681092 47-0706817 24 TYS 0278 Page 30 Case 7:13-cv-00150-O Document 22-2 Filed 08/04/14 Page 31 of 59 PageID 210 EXHIBIT A TYSON FOODS, INC. WORKPLACE INJURY SETTLEMENT PROGRAM --TEXAS TEXAS ACCEPTANCE AND WAIVER I have been injured at work, and I first reported the Injury mJury on _ _ _ _ __ _ __ __ ___, 20_ _, at least 10 business days before the date of my signature below. received a medical evaluation from a non-emergency care doctor, Dr. _____________ on _ - - - - - - - - - - - - - ' o,n __ _,20 , 20__ __.. BASIC BENEFITS HAVE ENDED: I understand that the Basic Benefits offered by my Employer (hereinafter "the Company") under its no-fault Workplace Injury Settlement Program - Texas (hereinafter "the Program") have ended. ELECTION FOR COMPREHENSIVE BENEFITS: I voluntarily elect to become a Participant in, and eligible for any Comprehensive Benefits offered by, the Program for my on-the-job injury. To qualify for any Comprehensive Benefits, I understand that I must accept the rules and conditions of the Program and waive my right to sue the Company, Tyson Foods, Inc. and their parent, subsidiary and affiliated companies and all of their officers, directors, owners, employees and agents for damages of any nature regarding my on-the-job injury. I have been provided with a copy of the Program's Summary Plan Description, and I understand that I may review the full Program document before signing this Acceptance And Waiver. With the understanding that my injuries and damages may be more severe than I now know, I choose to be eligible for any Comprehensive Benefits from the Program rather than take the risks of a lawsuit. I also understand that signing the Acceptance And Waiver is NOT a condition of my employment with the Company. I understand that the Company does not carry workers' UNDERSTANDING OF RIGHTS: compensation insurance in Texas. I understand that under the Texas Workers' Compensation Act: a. The Company, as a "nonsubscriber" to the Texas Workers' Compensation Act, is not required to provide any benefits to an employee injured in the course and scope of his or her employment; b. an employee of a nonsubscriber can sue an employer to recover damages for any job-related personal injury or death sustained in the course and scope of employment; c. in order to recover damages in a lawsuit, the employee must prove negligence of the nonsubscriber, and the nonsubscriber would not be able to use certain common law defenses defined in the Texas Labor Code, including contributory negligence, assumption of risk, and negligence of a fellow employee. WAIVER AND RELEASE: In exchange for eligibility for any Comprehensive Benefits under the Program, I HEREBY VOLUNTARILY RELEASE, WAIVE, AND FOREVER GIVE UP ALL MY RIGHTS, CLAIMS AND CAUSES OF ACTION, WHETHER NOW EXISTING OR ARISING IN THE FUTURE, THAT I MAY HAVE AGAINST THE COMPANY, TYSON FOODS, INC. AND THEIR PARENT, SUBSIDIARY AND AFFILIATED COMPANIES AND ALL OF THEIR OFFICERS, DIRECTORS, OWNERS, EMPLOYEES AND AGENTS THAT ARISE OUT OF CONFIDENTIAL 25 TYS 0279 Page 31 Case 7:13-cv-00150-O Document 22-2 Filed 08/04/14 Page 32 of 59 PageID 211 OR ARE IN ANY VVAY RELATED TO INJURIES (INCLUDING A SUBSEQUENT OR RESULTING DEATH) SUSTAINED IN lN THE COURSE AND SCOPE OF MY EMPLOYMENT Vv'iTH THE COMPANY. I EXPRESSLY UNDERSTAND THAT INCLUDED IN THE CLAIMS Vv'!TH THAT I AM RELEASING, WAIVING AND GIVING UP ARE CLAIMS BASED ON NEGLIGENT OR GROSSLY NEGLIGENT ACTS OR OMISSIONS. BY ELECTING TO BE ELIGIBLE FOR ANY COMPREHENSIVE BENEFITS UNDER THE PROGRAM. I FULLY UNDERSTAND AND AGREE THAT ANY COMPREHENSIVE BENEF!TS BENEFITS SHALL BE MY SOLE AND EXCLUSIVE REMEDY REGARDING MY INJURIES. ANY DISPUTES ABOUT PROGRAM BENEFITS WILL BE RESOLVED THROUGH THE PROGRAM'S DISPUTE RESOLUTION PROCEDURES. ACKNOWLEDGMENTS: I acknowledge and agree that I have carefully read and understand this Acceptance And Waiver. I further acknowledge that I understand and accept the terms and conditions of the Program. No one has forced me to sign this Acceptance And Waiver. No representations have been made to induce me to sign this Acceptance And Waiver other than those consistent with the terms of the Program. DATED: _ _ _:_ _ D AT E D - -_ --_ - -_ - ',20 20__ __ .. Employee's Signature Witness Signature Employee's Printed Name Printed Name of Witness Employee's Personnel or Soc. Sec. Number Title of Witness Signature and Printed Name of Interpreter (if any) for Employee Signature and Printed Name of the Person (if any) Who Read this Acceptance And Waiver to the Employee CONFIDENTIAL 26 TYS 0280 Page 32 ~