IN THE UNITED STATES DISTRICT COURT 

 FOR THE EASTERN DISTRICT OF PENNSYLVANIA

JEFFREY GOSNER :

 :

Plaintiff, : CIVIL ACTION

 :

vs. : NO. 04-CV-5562

 :

ROHM AND HAAS COMPANY and :

ROHM AND HAAS COMPANY HEALTH :

AND WELFARE PLAN :

 :

Defendants :

MEMORANDUM AND ORDER

JOYNER, J. August 1, 2005

 This disability benefits case is now before the Court for

resolution of Cross-Motions for Summary Judgment. For the

reasons which follow, Defendants’ Motion is granted and

Plaintiff’s Motion is denied. 

Factual Background

Plaintiff in this action worked for Defendant Rohm and Haas

Company (“Rohm and Haas”) for seventeen years as a full-time

hourly employee, serving as a reactor operator at Rohm and Haas’

Bristol, Pennsylvania plant. (Complaint, ¶ 19). As an employee,

Plaintiff is eligible for benefits under Defendant Rohm and Haas

Company Health and Welfare Plan (“Plan”). (Id. at ¶ 7). The

Plan includes (1) Short-Term Disability Benefits consisting of

Accident & Sickness Benefits during the first six months of

disability and an Extended Disability Allowance during the next

Case 2:04-cv-05562-JCJ Document 14 Filed 08/02/05 Page 1 of 13
2

six months of disability, (2) Long-Term Disability Benefits

(“LTD”), and (3) a Disability Retirement Allowance (“DRA”). 

(Id.). Rohm and Haas is the Plan Administrator, and Liberty Life

Assurance Company of Boston (“Liberty Life”) is the Claims

Administrator for the Plan. (Id. at ¶¶ 8-9). The Plan

explicitly gives Rohm and Haas “sole discretion” in determining

eligibility for benefits. (Id. at ¶ 14). Finally, Rohm and Haas

pays benefits exclusively out of its own funds. (Id. at ¶ 16). 

While actively employed with Rohm and Haas, Plaintiff awoke

on March 31, 2003 with severe back pain. (Id. at ¶ 21). Later

that day, Plaintiff was examined by his primary care physician

and found incapable of minimum activity. (Id. at ¶ 21). Due to

lumbar spine problems confirmed by treating physicians, Rohm and

Haas provided Plaintiff Short-Term Disability benefits for the

one year maximum period. (Id. at ¶¶ 23-25). When Plaintiff’s

Short-Term Disability benefits expired, he began receiving LTD. 

(Id. at ¶ 29). Rohm and Haas continues to provide LTD benefits

to Plaintiff. (Id.). 

 After the Social Security Administration (“SSA”) determined

that Plaintiff was eligible to receive Social Security Disability

benefits, Plaintiff applied for a DRA under the Plan. (Id. at ¶¶

31-33). On August 2, 2004 Rohm and Haas denied Plaintiff’s DRA

claim after finding that Plaintiff was not disabled from any job

and that his disability was not permanent. (Id. at ¶ 36). On

Case 2:04-cv-05562-JCJ Document 14 Filed 08/02/05 Page 2 of 13
3

September 20, 2004 Rohm and Haas denied Plaintiff’s appeal,

reaffirming its determination that Plaintiff did not qualify for

a DRA. (Id. at ¶ 38). As Plaintiff exhausted all administrative

appeals under the Plan, he filed a Complaint in this Court

alleging that Defendants wrongfully denied him a DRA in violation

of the Employee Retirement Income Security Act (“ERISA”). (Id.

at ¶ 51). 

Plaintiff now moves for summary judgment, contending that

Rohm and Haas’ denial of his DRA resulted from its failure to

consider the findings of Plaintiff’s treating physicians.

(Plaintiff’s Motion for Summary Judgment, p.14). Plaintiff

further argues that this Court should use a heightened form of

the arbitrary and capricious standard of review, as Rohm and

Haas’ dual role in determining eligibility for benefits and

paying benefits creates a conflict of interest. (Id. at p.11). 

Defendants also move for summary judgment, asserting that Rohm

and Haas denied Plaintiff’s DRA claim after thoroughly

considering the findings of Plaintiff’s physicians, two Rohm and

Haas physicians, and the SSA. (Defendants’ Motion for Summary

Judgment, p.11). Defendants further argue that this Court should

apply the usual, deferential arbitrary and capricious standard of

review, as the Plan explicitly gave Rohm and Haas discretionary

authority to determine benefits eligibility. (Id. at p.8). 

Case 2:04-cv-05562-JCJ Document 14 Filed 08/02/05 Page 3 of 13
4

Standards Governing Summary Judgment Motions

In deciding a motion for summary judgment under Fed.R.Civ.P.

56(c), a court must determine “whether there is a genuine issue

of material fact and, if not, whether the moving party is

entitled to judgment as a matter of law.” Medical Protective Co.

v. Watkins, 198 F.3d 100, 103 (3d Cir. 1999) (internal citation

omitted). Indeed, Rule 56(c) provides that summary judgment is

properly rendered: 

[I]f the pleadings, depositions, answers to interrogatories,

and admissions on file, together with the affidavits, if

any, show that there is no genuine issue as to any material

fact and that the moving party is entitled to a judgment as

a matter of law. 

 

Stated more succinctly, summary judgment is appropriate only when

it is demonstrated that there is no genuine issue as to any

material fact and that the moving party is entitled to judgment

as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 322-

32 (1986). An issue of material fact is said to be genuine “if

the evidence is such that a reasonable jury could return a

verdict for the nonmoving party.” Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 248 (1986).

Discussion

I. Standard of Review

Under ERISA, an employee may bring a lawsuit against his

plan administrator for wrongful denial of disability benefits. 

See 29 U.S.C. § 1132(a)(1)(B). ERISA Section 503 specifically

Case 2:04-cv-05562-JCJ Document 14 Filed 08/02/05 Page 4 of 13
5

provides:

A civil action may be brought by a participant or

beneficiary to recover benefits due him under the terms of

his plan, to enforce his rights under the terms of the plan,

or to clarify his rights to future benefits under the terms

of the plan.

29 U.S.C. § 1132(a)(1)(B). In an ERISA benefits denial claim, an

arbitrary and capricious standard of review generally applies

where the plan gives the administrator “discretionary authority

to determinate eligibility for benefits or to construe the terms

of the plan.” Firestone Tire & Rubber Co. v. Bruch, 489 U.S.

101, 115 (1989). Under that deferential standard of review, a

court “is not free to substitute its own judgment for that of

[the plan administrator] in determining eligibility for plan

benefits.” Orvosh v. Program of Group Ins. for Salaried

Employees of Volkswagen of Am., Inc., 222 F.3d 123, 129 (3d Cir.

2000). Accordingly, a court must defer to the plan administrator

unless the administrator’s decision was “without reason,

unsupported by substantial evidence, or erroneous as a matter of

law.” Pinto v. Reliance Standard Life Ins. Co., 214 F.3d 377,

393 (3d Cir. 2000). 

An exception to the deferential arbitrary and capricious

standard exists, however, where the plan administrator is

“operating under a conflict of interest.” Smathers v. Multi-Tool

Inc. / Multi-Plastics, Inc. Employee Health and Welfare Plan, 298

F.3d 191, 197 (3d Cir. 2002) (quoting Firestone, 489 U.S. at

Case 2:04-cv-05562-JCJ Document 14 Filed 08/02/05 Page 5 of 13
6

115). The Third Circuit Court of Appeals has found that a

potential conflict of interest arises where an employer both

funds and administers an employee benefits plan. Smathers, 298

F.3d at 197. In Pinto, for example, the Third Circuit found a

conflict of interest where an insurance company decided benefits

eligibility and paid benefits from its own funds. 214 F.3d at

387. The Third Circuit noted, however, that a conflict of

interest is less likely where an employer, rather than an

insurance company, fills the dual roles of funding the plan and

determining eligibility. Id. at 378. Specifically, the Third

Circuit found that “the structural incentives [for an employer]

to deny meritorious claims are generally outweighed by the

opposing incentives to grant them -- such as the ‘incentives to

avoid the loss of morale and higher wage demands that could

result from denials of benefits.’” Id. (quoting Nazay v. Miller,

949 F.2d 1323, 1335 (3d Cir. 1991)). 

When a conflict of interest exists, courts in the Third

Circuit adjust the arbitrary and capricious standard using a

“sliding scale method, intensifying the degree of scrutiny to

match the degree of conflict.” Pinto, 214 F.3d at 379. Even a

heightened arbitrary and capricious standard, however, neither

warrants de novo review nor shifts the burden to the plan

administrator to explain its decision. Id. at 379. Rather,

factors indicating a possible conflict of interest enable a court

Case 2:04-cv-05562-JCJ Document 14 Filed 08/02/05 Page 6 of 13
7

to apply a “deferential, but not absolutely deferential”

arbitrary and capricious standard of review. Id.

The parties in this action do not dispute that the Plan

explicitly gives Rohm and Haas sole discretion over interpreting

Plan terms and deciding whether employees qualify for various

categories of benefits. Thus, some level of the arbitrary and

capricious standard of review is appropriate. The parties also

agree that Rohm and Haas both administers and funds the Plan. 

Accordingly, preexisting law indicates that a heightened, less

deferential form of arbitrary and capricious review may be

applied. 

Although the inherent structure of the Plan’s administration

and funding presents a possible conflict of interest, Plaintiff

fails to put forth further fact-specific evidence of bad faith in

this particular case. See Goldstein v. Johnson & Johnson, 251

F.3d 433, 435 (3d Cir. 2001)(indicating that courts show less

deference to an employer’s decision where the plaintiff proves

both structural and fact-specific biases). In fact, Plaintiff

admits that Rohm and Haas not only provided Short-Term Disability

benefits for the maximum time period allowed by the Plan but also

steadily continues to pay Plaintiff LTD benefits. This Court

will analyze Rohm and Haas’ denial of Plaintiff’s DRA claim using

only a slightly heightened form of arbitrary and capricious

review, whereby we will give partial rather than absolute

Case 2:04-cv-05562-JCJ Document 14 Filed 08/02/05 Page 7 of 13
8

deference to Rohm and Haas’ decision. See Pinto, 214 F.3d at 379

(requiring that the level of scrutiny correlate with the number

and strength of factors indicative of a conflict of interest). 

II. Rohm and Haas’ Denial of Plaintiff’s DRA Claim

Under the Plan, an employee is not eligible to receive

benefits for Short-Term Disability, LTD, or DRA unless “illness

or injury prevents [the employee] from working at [his] regular

job, or any other job for which [he is] qualified.” (Plaintiff’s

Exhibit C, p.2; Defendants’ Exhibit B, p.2). In order to qualify

for DRA benefits, however, a Plaintiff must also (1) have five

years of service under the Pension Plan, (2) be totally and

permanently disabled so he cannot do any work for pay, and (3)

have received Social Security disability benefits for at least

seven months. (Id. at p.7). The parties in this action do not

dispute that Plaintiff satisfies elements (1) and (3) of the DRA

test, but they disagree as to whether Plaintiff is “permanently”

disabled and thereby meets the second element. 

Defendant Rohm and Haas supports its determination that

Plaintiff is not permanently disabled with substantial evidence

from the Administrative Record. Medical records from Plaintiff’s

doctors substantiate the conclusion that Plaintiff is not

permanently disabled. Indeed, medical records throughout the

first eight months of 2004 show that Plaintiff was under active

medical care by specialists who were exploring various

Case 2:04-cv-05562-JCJ Document 14 Filed 08/02/05 Page 8 of 13
9

alternatives to improve his condition. (Administrative Record,

marked as Defendants’ Exhibit A). For example, Dr. Robert

Salvage, M.D., administered spinal injections to Plaintiff

multiple times and reported that “Mr. Gosner does obtain

significant relief from these injections and this particular

injection actually helps him to increase his activities of daily

life.” (Id.) In a 2004 evaluation, Dr. Salvage also concluded

that Plaintiff “is doing better than he was on presentation,

which was 11/11/03.” (Id.) 

Plaintiff was also in consultation with several physicians

about gastric bypass surgery or other weight loss methods as a

means of relieving his back problems. (Id.) After meeting with

Plaintiff to discuss the benefits of gastric bypass, Dr. Salvage

explained that he has “several patients who have undergone

gastric bypass procedures with resultant decrease in their pain

syndrome and also resultant remediation of co-existing conditions

such as sleep apnea and hypertension. These patients are no

longer utilizing pain medication or medications to treat their

co-existent conditions.” (Id.) Following an office visit with

Plaintiff, spine surgeon Dr. Donald Sutton, M.D., wrote that

“[w]e anticipate that with his weight reduction with his upcoming

gastric bypass, that this should hopefully relieve some of the

stresses in the lumborsacral region, as well.” (Id.) Although

Plaintiff chose to pursue weight loss on his own rather than by

Case 2:04-cv-05562-JCJ Document 14 Filed 08/02/05 Page 9 of 13
10

gastric bypass, the medical opinions indicating potential

significant improvement for Plaintiff support the determination

that his disability is not irreparably permanent. In sum, the

utilization of various methods of active care aimed at recovery

is not consistent with a condition of permanent disability. 

Rather, exploring different medical treatments shows that

physicians viewed Plaintiff as capable of improvement.

The distinct possibility that Plaintiff’s disability is not

permanent was noted not only by Plaintiff’s treating physicians

but also by the SSA. The SSA determined that Plaintiff was not

permanently disabled and therefore kept his case open for future

medical review. (Id.) In fact, the SSA wrote the following in

regard to Plaintiff’s disability: “Because we expect your health

to improve, we will review your case in January 2007.” (Id.) 

This statement made by the SSA one month before Rohm and Haas

denied Plaintiff’s DRA claim supports the determination that

Plaintiff is not permanently disabled. 

After reviewing the Administrative Record, both Dr. Eileen

Bonner, Corporate Medical Director for Rohm and Haas, and Dr.

Jeffrey Erinoff, Medical Director of the Delaware Valley Health

Services Department for Rohm and Haas, independently concluded

that Plaintiff was not eligible to receive DRA benefits. In

explaining why Plaintiff did not qualify for a DRA, Dr. Bonner

noted that Plaintiff is not permanently disabled from performing

Case 2:04-cv-05562-JCJ Document 14 Filed 08/02/05 Page 10 of 13
11

any Rohm and Haas job. (Id.) Plaintiff contends that Rohm and

Haas’ decision was arbitrary and capricious because Plaintiff’s

D.O., Dr. Mark Radbill, submitted a letter on August 24, 2004

stating that Plaintiff is permanently unable to work. However, 

Dr. Radbill offered no explanation for this medical opinion, and

his conclusory statement is insufficient to show that the DRA

denial was arbitrary and capricious. 

Plaintiff further argues that his qualification for Social

Security benefits entitles him to a DRA. As previously noted,

however, obtaining Social Security benefits is only one of three

elements required to qualify for a DRA. Moreover, the standard

for receiving Social Security benefits is less strict than the

DRA standard. Indeed, permanent disability is not required to

receive Social Security benefits. Rather, the SSA only requires

an “inability to engage in any substantial gainful activity,”

with such disability expected to last one year. 42 U.S.C.

§426(d)(1)(A).

Finally, Plaintiff asserts that his history of back problems

and physicians’ continuing reports of lumbar spine difficulties

unquestionably indicate that he is totally and permanently

disabled. Although Plaintiff’s evidence indicates that he

experiences some back pain, this Court finds such evidence

insufficient to prove that Rohm and Haas acted arbitrarily and

capriciously in finding that Plaintiff is not permanently

Case 2:04-cv-05562-JCJ Document 14 Filed 08/02/05 Page 11 of 13
1 In Plaintiff’s response to Defendants’ Motion for Summary

Judgment, he additionally argues that the Summary Plan

Description (“SPD”) outlining DRA benefits has contradictory

terms which should be construed against Defendants. The SPD

states that an employee may not receive a DRA unless he is

“totally and permanently disabled.” (Exhibit C to Plaintiff’s

Motion for Summary Judgment). The SPD also states that an

employee continues to receive DRA benefits until the earliest of

“normal retirement age, recovery, or death.” (Id.) Plaintiff

argues that it is contradictory to grant DRA benefits only where

the disability is “permanent,” yet indicate that DRA benefits

will be taken away if the employee “recovers.” This Court,

however, is not persuaded to find the SPD’s terms contradictory. 

Rather, we find that the “recovery” language was intended to

alert employees that they would no longer receive DRA benefits if

a disability once thought to be permanent was later found to be

merely temporary. 

12

disabled and therefore ineligible to receive DRA benefits.1

The parties in this action further disagree as to whether

Plaintiff is totally disabled and therefore unable to perform any

Rohm and Haas job. Because Rohm and Haas’ denial of DRA benefits

is wholly justified upon finding that Plaintiff’s disability is

not permanent, this Court does not need to consider the merits of

the dispute regarding whether any jobs at Rohm and Haas or in the

national economy exist which Plaintiff would be capable of

performing. Finally, the parties disagree about whether

Plaintiff’s DRA benefits would be offset by his SSA benefits, if

in fact Plaintiff qualified for a DRA. Because this Court has

upheld Rohm and Haas’ denial of DRA benefits, we refrain from

addressing the subsidiary SSA offset issue. 

An order follows. 

Case 2:04-cv-05562-JCJ Document 14 Filed 08/02/05 Page 12 of 13
IN THE UNITED STATES DISTRICT COURT 

 FOR THE EASTERN DISTRICT OF PENNSYLVANIA

JEFFREY GOSNER :

 :

Plaintiff, : CIVIL ACTION

 :

vs. : NO. 04-CV-5562

 :

ROHM AND HAAS COMPANY and :

ROHM AND HAAS COMPANY HEALTH :

AND WELFARE PLAN :

 :

Defendants :

ORDER

AND NOW, this 1st day of August, 2005, upon consideration of

Plaintiff’s Motion for Summary Judgment (Doc. No. 10),

Defendants’ response thereto (Doc. No. 13), Defendants’ Motion

for Summary Judgment (Doc. No. 9), and Plaintiff’s response

thereto (Doc. No. 12), it is hereby ORDERED that Plaintiff’s

Motion is DENIED. It is FURTHER ORDERED that Defendants’ Motion

is GRANTED and Judgment as a matter of law is entered in favor of

Defendants and against Plaintiff. 

BY THE COURT:

 s/J. Curtis Joyner 

 J. CURTIS JOYNER, J.

Case 2:04-cv-05562-JCJ Document 14 Filed 08/02/05 Page 13 of 13