Update: Please be advised that the Court entered the Final Judgment and Order of Dismissal and Order of Injunction on March 26, 2012. Those documents are available by clicking on Case Documents above. At this time we do not anticipate the distribution of settlement funds until June 2012 at the earliest. If you have questions about whether you will receive payment and which of the two Subclasses you may fall into, please call 1-877-242-8427.

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

JOSEPHINE GIANZERO and JENNIFER JENSEN, individually Civil Action No. 09-cv-00656-REB-BNB and on behalf of all others similarly situated, Plaintiffs, v WAL-MART STORES, INC., a Delaware corporation, CLAIMS MANAGEMENT, INC., an Arkansas corporation, AMERICAN HOME ASSURANCE CO., a New York corporation, CONCENTRA HEALTH SERVICES, INC., a Nevada corporation, and JOHN DOES 1-10, whose true names are unknown, Defendants

Civil Action No. 09-cv-00656-REB-BNB

NOTICE OF PROPOSED CLASS ACTION SETTLEMENT

This Notice is being sent to you because you have been identified as a member of a class of current or former employees of Wal-Mart and Sam's Club stores who, from January 1, 2001 through November 1, 2011, had an open workers' compensation claim for benefits under the Colorado Workers’ Compensation Act and who may be eligible to recover money and benefit from other relief as part of a proposed class action settlement.

Para informatión en español, por favor visite
www.gilardi.com/walmart o hable al 1-877-242-8427

PLEASE READ THIS NOTICE CAREFULLY AND IN ITS ENTIRETY.
YOUR RIGHTS WILL BE AFFECTED BY THIS SETTLEMENT.

IF YOU HAVE ANY QUESTIONS ABOUT ANY PORTION OF THIS NOTICE, YOU MAY CALL THE CLAIMS ADMINISTRATOR AT 1-877-242-8427, OR YOU MAY VISIT THE SETTLEMENT WEBSITE AT www.gilardi.com/walmart FOR ADDITIONAL INFORMATION.

THE SETTLEMENT CLASS CONSISTS OF: All current and former employees of Wal-Mart and Sam’s Club (together, “Wal-Mart”) who have received, or are currently receiving, workers’ compensation benefits pursuant to the Colorado Workers’ Compensation Act for injuries sustained during the course and scope of their employment with Wal-Mart between January 1, 2001 and November 1, 2011.

This Notice is given pursuant to an Order of the United States District Court District of Colorado (the “Court”) to advise you that Defendants Wal-Mart Stores, Inc., Claims Management, Inc., Concentra Health Services, Inc., and American Home Assurance Co., have entered into a Settlement Agreement which has been preliminarily approved by the Court and which shall become effective, if at all, upon the Court issuing an Order finally approving the Settlement and, thereafter, the time for appealing that Order having ended.

YOUR LEGAL RIGHTS AND OPTIONS IN THIS SETTLEMENT

DO NOTHING	You may be entitled to receive a payment depending upon the sub-class you are in as set forth below.
OBJECT By January 23, 2012	Write to the Court about why you don’t like the Settlement.
OPT OUT By January 23, 2012	Submit a request for exclusion. You will be excluded from the plaintiff class.

There will be a final hearing on March 23, 2012 at 9:00 a.m. At that hearing, you may speak to the Court regarding any aspect of the Settlement yourself, or through a lawyer at your own expense. You must inform the Court of your intention to do so in writing by January 23, 2012.

I. WHAT IS THIS LAWSUIT ABOUT?

Plaintiffs claim that Wal-Mart and the other Defendants improperly dictate and control the medical treatment received by injured employees in violation of Colorado and federal law. These claims are more fully described in the Complaint, which may be downloaded from the Claims Administrator’s website at www.gilardi.com/walmart, and are collectively referred to as the “Class Claims.”

Wal-Mart and the other Defendants deny all Class Claims and all other allegations of wrongdoing.

If the Settlement with Wal-Mart and the other Defendants is approved, the Class Claims will be dismissed with prejudice. By giving this Notice, the Court is not expressing any opinion regarding the merits of the Class Claims or the defenses of Wal-Mart and the other Defendants to those claims. Nothing contained in this Notice should be construed as suggesting the Court’s view as to which side might prevail should this matter proceed to trial.

II. CLASS CERTIFICATION

On March 29, 2010, the Court determined that the lawsuit could proceed as a class action. The Court entered an Order certifying this action as a class action pursuant to Rules 23(b)2 and 23(b)(3) of the Federal Rules of Civil Procedure. The Court appointed Frances A. Koncilja of Koncilja & Associates, P.C., Solomon B. Cera of Gold Bennett Cera & Sidener LLP, and Steven U. Mullens of Steven U. Mullens, P.C. to serve as Class Counsel.

The Court has also appointed Josephine Gianzero and Jennifer Jensen to serve as the Class Representatives for the Settlement Class.

III. THE CLASS SETTLEMENT

Prior to entering into the Settlement described herein, Class Counsel conducted an extensive investigation of Class Claims and vigorously litigated the case through extensive fact and expert discovery. A settlement was reached with the assistance of a retired Federal District Court judge. The class period is from January 1, 2001 through November 1, 2011 (“Class Period”).

Through their investigation and discovery, Class Counsel have concluded that the injured workers who, during the Class Period, were subject to the conduct challenged in this lawsuit were those class members who received treatment at a Concentra facility. For injured workers who did not receive treatment at a Concentra facility during the Class Period, no information was obtained in discovery indicating the existence of similar conduct. However, Class Counsel have concluded that documents produced by Defendants do not establish unequivocally that CMI claims adjusters and other personnel employed by the Defendants were aware of and understood that dictation of care by an employer in Colorado is prohibited, and therefore those injured workers will be entitled to receive a portion of the Class Settlement Amount. The Defendants dispute that they engaged in any wrongful acts whatsoever including with regard to the matters discussed in this paragraph.

The Court has preliminarily approved the Settlement for the purpose of giving this Notice and scheduling a Final Approval Hearing, at which time the Court will decide whether to give final approval to the Settlement. The basic terms of the Settlement which the Court is being asked to approve are as follows:

  A.   Monetary Payments

1.       Settlement Amount. Wal-Mart, CMI, and Concentra shall pay an aggregate Class Settlement Amount of $8,000,000, which will cover payments, if approved by the Court, to Class Members in this Settlement, Attorneys’ Fees and Costs to Class Counsel, incentive payments to Class Representatives, and the costs of Notice and Administration.

2.       Payment Classes and Amounts. In order to receive a share of the Class Settlement Amount, you must have sustained a compensable, work-related injury from January 1, 2001 through November 1, 2011 as an employee of Wal-Mart. If the Settlement is approved, payments in the following amounts will be made:

Injured workers who were treated at a Concentra facility between January 1, 2001 and November 1, 2011	Up to $520
Injured workers who were treated at a facility other than Concentra between January 1, 2001 and November 1, 2011	Up to $50

The above payment allocation could change, and the amount you are eligible to recover could increase or decrease, depending on a variety of factors, including changes to the total number of eligible claims, the total amount of attorneys’ fees and costs awarded by the Court, the amount of incentive payments to Class Representatives approved by the Court, and the cost of Notice and Administration. The extent to which your payment may change cannot be predicted.

3.       Participation in Settlement. It is against the law and strictly prohibited for Wal-Mart to retaliate against you – that is, to fire you, reduce your salary or demote you – for choosing to participate or not participate in the Settlement.

4.       No Impact on Pending or Future Workers’ Compensation Claims. This Settlement does not limit, compromise or release any pending or future claims for benefits you may be entitled to under the Workers’ Compensation Act or any claim of professional medical negligence or medical malpractice claims unless the basis for such claim is the dictation of care provision of the Colorado Workers’ Compensation Act and such dictation of care occurred on or before November 1, 2011.

5.       The Deadline to request exclusion is January 23, 2012. If you are a member of one of the Payment Classes described above and wish to be excluded, you must send a letter to the Claims Administrator asking to be excluded. You must send a letter requesting to be excluded from the Settlement Class even if you previously sent a request for exclusion in response to a prior notice from the Court dated June 9, 2011.

  B.   Injunctive Relief – Wal-Mart Stores, Inc. and Claims Management, Inc.

The Settlement provides that Defendants Wal-Mart Stores, Inc. and Claims Management, Inc. will:

1. For a four year period be enjoined from implementing, imposing, circulating, enforcing, and/or using any written protocol or directives that are inconsistent with the dictation of care provisions of the Colorado Workers’ Compensation Act, Section 8-4-503(3) and/or the Medical Treatment Guidelines.
2. Issue a written and electronically delivered directive to CMI adjusters and other Wal-Mart or CMI personnel with responsibility for Colorado workers’ compensation claims and to Concentra, that the “Protocol Notes” that were the subject of Administrative Law Judge Bruce C. Friend’s August 20, 2007 order in Case Number WC 4-669-749 of the State of Colorado Office of Administrative Courts have been withdrawn and are no longer in effect and that this Court has entered the above Injunction.
3. During the period of time in which this Injunction is in effect, provide periodic training and education to CMI adjusters who adjust claims of work-injured employees of Wal-Mart that are brought pursuant to the Colorado Workers’ Compensation Act as to their responsibilities to comply with the terms of this Injunction.

  C.   Programmatic Relief – Concentra Health Services, Inc.

The Settlement provides that Defendant Concentra Health Services, Inc. will implement and/or do the following: Concentra shall provide periodic educational training for a period of four years from the date of the Settlement Effective Date to all Concentra Health Services marketing and sales staff operating in the State of Colorado, regarding the prohibition on dictation of care provisions of the Workers’ Compensation Act (C.R.S. 8-43-503) and the Medical Treatment Guidelines promulgated by the Director of the Division of Workers’ Compensation of the State of Colorado. The first educational training shall be completed no later than sixty (60) days following the Settlement Effective Date.

  D.   Releases

Unless you affirmatively submit a request to be excluded from the Settlement Class, you will be bound by the release of claims contained in the Settlement Agreement once the Court enters an Order granting final approval of the Settlement. The release of claims to which you will be bound is more fully described in the Settlement Agreement which is available for inspection at www.gilardi.com/walmart or by calling 1-877-242-8427.

IV. ATTORNEYS’ FEES AND EXPENSES AND PAYMENTS TO CLASS REPRESENTATIVES

Class Representatives shall request that the Court award Class Counsel a reasonable attorneys’ fee of $4,000,000 to compensate Class Counsel for the work they performed in prosecuting this Litigation since its inception on March 24, 2009, and reimburse Class Counsel up to $625,000 for Court-Approved costs and expenses incurred in bringing this Litigation, including the costs of providing the Court-ordered notice and administering the Settlement. Class Counsel have been litigating this case for almost three (3) years without payment of any kind. They have devoted thousands of hours of attorney and paraprofessional time to this highly complex and novel case, without any assurance of payment for their efforts. The fee requested is less than the number of hours devoted to the case by Class Counsel multiplied by their normal hourly billing rates. The Defendants have vigorously contested this litigation at every step, and the Court has been called upon to resolve numerous motions on various aspects of the case. Massive discovery was undertaken of both the Plaintiffs and Defendants, including production of voluminous electronic records, and the taking of 46 fact and expert depositions. The Settlement was reached shortly before trial was to commence.

Class Counsel shall also request that the Court award incentive fees for services to the Class in the amount of $10,000 each to the two named Class Representatives.

V. FINAL APPROVAL OF THE PROPOSED SETTLEMENT

The Court preliminarily approved the Settlement and certified the Settlement Classes on November 22, 2011. The Court will conduct a hearing on March 23, 2012 at 9:00 a.m. to determine whether to grant final approval of the Settlement (the “Final Approval Hearing”). The Final Approval Hearing will be held before the Honorable Robert E. Blackburn in Courtroom A-1001, 901 19th Street, Denver, Colorado 80294. Without further notice, the Court may adjourn and reconvene the Final Approval Hearing and set it for a different time.

You do not need to appear at the Final Approval Hearing. If you, or your personal attorney, wish to attend the hearing, you may do so at your own expense.

At the Final Approval Hearing, the Court will determine whether the Settlement should be given final approval as fair, reasonable, and adequate; determine the scope and manner of the injunction; determine whether judgment dismissing this Litigation with prejudice should be entered while maintaining jurisdiction to enforce the injunction; and determine what amounts to award Class Counsel and Class Representatives. If any objections have been filed, the Court will consider them at that time.

If the Court approves the Settlement, checks will be sent to the members of the Payment Classes as soon as practicable after any appeals of such Final Approval Order have been resolved without possibility of further review.

VI. WHAT ARE YOUR OPTIONS AS A CLASS MEMBER?

  A.   You May Remain A Member Of The Settlement Class And Be Eligible To Receive Benefits.

You may remain a Class Member, in which case you will be bound by the terms of the Settlement, including your release of Class Claims as described in the Settlement Agreement.

  B.   You May Remain A Member Of The Settlement Class, But Object To The Settlement

You have the right to remain a Class Member, eligible to receive benefits, but still object to the Settlement and/or the request for award of fees to Class Counsel and the Class Representatives, as described above. If you wish to object or comment, you must file a written statement of your objection to Clerk of the Court, United States District Court for the District of Colorado, 901 19th Street, Denver, Colorado 80294 – and provide a copy of same to Class Counsel, Frances Koncilja, Esq., Koncilja & Associates, 800 18th Street, Suite 300, Denver, Colorado 80202, and to counsel for Wal-Mart, Naomi Beer, Esq., Greenberg Traurig, 1200 17th Street, Suite 2400, Denver, Colorado 80202, and counsel for Concentra, Amy Cook-Olson, Esq., Murphy Decker Hensen & Cook-Olson, P.C., 1510 West Canal Court, Suite 1500, Littleton, Colorado 80120, on or before January 23, 2012. Your written objection must be signed and must contain the following required information:

1. That your objection refers to this Litigation;

2. Your name, address, telephone number, and the contact information for any attorney retained by you in connection with the objection or otherwise in connection with the Litigation;

3. A detailed statement of the specific factual and legal basis for each objection, including why you have chosen to object to the Settlement;

4. A statement as to whether you intend to appear at the Final Approval Hearing, either in person or through counsel, and if through counsel, identifying the counsel by name, address and telephone number;

5. A list of any witnesses you may call at the Final Approval Hearing, together with a brief summary of each witness’s expected testimony;

6. A list of and copies of any exhibits which you may seek to use at the Final Approval Hearing;

7. A list of any legal authority you may present at the Final Approval Hearing; and

8. Your signature.

Any Class Member who fails to timely file the required written information will not be permitted to present any objection at the Final Approval Hearing, shall be regarded as having waived any right to object to the Settlement, and shall be barred from subsequently raising any objection in any proceeding relating to the Settlement.

  C.   You May Request To Be Excluded From Settlement Class.

If you wish to be excluded from the Settlement Class, you must send a letter to the Claims Administrator requesting to be excluded and send it by prepaid first class mail postmarked on or before January 23, 2012. You must submit a request to be excluded from the Settlement Class even if you previously sent a request for exclusion in response to a prior notice from the Court dated June 9, 2011.

IF YOU EXCLUDE YOURSELF, YOU WILL NOT BE BOUND BY THE JUDGMENT BUT YOU WILL NOT BE ENTITLED TO ANY SHARE OF THE SETTLEMENT FUND.

VII. FURTHER INFORMATION

This Notice contains only a summary of the litigation of the Class Claims and the Settlement. For more detailed information regarding the litigation of the Class Claims, you are referred to the Claims Administrator or Class Counsel. You may obtain a copy of the Settlement Agreement at www.gilardi.com/walmart or toll-free at 1-877-242-8427. Class Counsel may be reached as follows:

Solomon B. Cera, Esq. Gwendolyn R. Giblin, Esq. Pamela A. Markert, Esq. GOLD BENNETT CERA & SIDENER LLP 595 Market Street, Suite 2300 San Francisco, CA 94105 Telephone: (415) 777-2230	Frances A. Koncilja, Esq. KONCILJA & ASSOCIATES, P.C. 800 18th Street, Suite 300 Denver, CO 80202 Telephone: (303) 675-0900
Steven U. Mullens, Esq. STEVEN U. MULLENS, P.C. 105 E. Moreno Avenue Colorado Springs, CO 80903 Telephone: (719) 632-5001

If you believe you are a Class Member, but did not receive a copy
of this Notice by mail, you should contact the Claims Administrator concerning your claim.

PLEASE DO NOT TELEPHONE THE COURT OR THE COURT CLERK’S
OFFICE FOR INFORMATION

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