IN THE UNITED STATES DISTRICT COURT 

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

UNITED STEELWORKERS OF AMERICA : CIVIL ACTION

AFL-CIO/CLC and LEWIS GRIFFIN, :

GEORGE HEMMERT, GEORGE KEDDIE :

and JANICE SCOTT : NO. 05-CV-0039

 :

 vs. :

 :

ROHM AND HAAS COMPANY and :

ROHM AND HAAS COMPANY HEALTH :

AND WELFARE PLAN :

MEMORANDUM AND ORDER

JOYNER, J. January 28, 2010

This matter has once again been brought before the Court for

disposition of the parties’ cross-motions for summary judgment on

the claims of Plaintiffs Lewis Griffin and George Hemmert. For

the reasons outlined in the pages that follow, both of the

parties’ motions shall be granted in part and denied in part. 

History of the Case

 According to the allegations contained in the First Amended

Complaint , Defendant Rohm and Haas Company provided various 1

 Prior to the filing of the First Amended Complaint in June, 2008,

1

the parties had filed cross-motions for summary judgment on the original

complaint, filed in January, 2005. The original complaint contained two

counts – the first seeking to compel Rohm and Haas to arbitrate the denial of

the individual plaintiffs’ claims for disability retirement or long term

disability benefits and the second seeking relief under Section 502 of the

Employee Retirement Income Security Act, (“ERISA”), 29 U.S.C. §1132(a)(1)(B)

and (a)(3). The parties agreed to litigate the two counts separately, with

discovery on Count I to proceed first. The Scheduling Order of September 15,

2005 further dictated that “[s]hould the Court enter judgment for Plaintiff

United Steelworkers of America AFL-CIO/CLC on Count I as a result of

dispositive motions or a trial, Plaintiffs will withdraw with prejudice Count
types of disability benefits to its employees pursuant to

bargained-for agreements negotiated by the plaintiff United

Steelworkers of America, AFL-CIO/CLC on behalf of its members. 

These disability benefits were provided by and through the

Defendant Rohm and Haas Company Health and Welfare Plan, as it

was amended from time to time. The individual plaintiffs are all

members of the plaintiff Union who were employed at various times

by Defendant Rohm and Haas Company, who became disabled from

working and who made claims for both short-term and long-term

disability benefits and/or for the Disability Retirement

Allowance (“DRA”) under the defendant plan. 

 In the cases of moving Plaintiffs Lewis Griffin and George

Hemmert, both applied for and received short and long term

disability benefits and social security disability income

benefits (“SSDI”), but were initially denied benefits under the

DRA. Although Mr. Griffin’s application for DRA was eventually

approved in July 2005, Rohm and Haas took his SSDI income as an

offset. After application of this offset, Mr. Griffin’s DRA

benefit did not exceed his current LTD monthly benefit and he

therefore did not receive the DRA. Mr. Griffin seeks DRA

II,” and “[s]hould the Court enter judgment for Defendant on Count I as a

result of dispositive motions or a trial, the Court will then enter a separate

Scheduling Order for discovery and dispositive motions for Count II.” See, ¶s

3 and 4, Scheduling Order of September 15, 2005; USW v. Rohm and Haas, 2006

U.S. Dist. LEXIS 66480, *4, n.1 (E.D. Pa. Sept. 14, 2006). Although we

initially granted the plaintiffs’ motion for summary judgment on Count I, that

decision was reversed by the Third Circuit and the case remanded. Thereafter,

the plaintiffs sought leave and we granted Plaintiffs permission to file the

First Amended Complaint on June 30, 2008.

2
benefits, retroactive to at least July 2004 without an offset for

SSDI income. Mr. Hemmert’s DRA application was never approved

and although he received LTD benefits through September 2007,

Rohm and Haas terminated those benefits at that time on the

grounds that Plaintiff had failed to provide evidence of ongoing

disability. Mr. Hemmert seeks reinstatement of his LTD benefits

with an opportunity to apply for the DRA or, alternatively,

payment of the DRA benefit retroactive to August 2003 without an

SSDI offset. All of the plaintiffs submit that, pursuant to 2

§502(a)(1)(B) of the Employee Retirement Income Security Act,

(“ERISA”), 29 U.S.C. §1132(a)(1)(B), they are entitled to recover

benefits due and to enforce their rights under the Rohm and Haas

Company Health and Welfare Plan and seek: (1) a declaration that

the defendants have violated their obligations and failed to

administer benefits due under the Plan and the labor agreements

pursuant to which the Plan was negotiated; (2) a Court Order

directing Rohm and Haas to perform its contractual and statutory

duties and (3) an award of counsel fees and costs to Plaintiffs

and their attorneys. 

 By way of the competing motions now before us, the parties

each contend that no genuine material issues of fact exist and

 Although the instant motion seeks entry of summary judgment only as

2

to the claims of Plaintiffs Griffin and Hemmert, the First Amended Complaint

avers that the remaining two plaintiffs, Janice Scott and George Keddie,

continue to receive LTD benefits although their requests for the DRA benefit

were denied. Those plaintiffs likewise claim entitlement to the DRA without

an SSDI offset.

3
that they are entitled to the entry of judgment in their favor as

a matter of law. 

Standards Applicable to Resolving Rule 56 Motions

 Summary judgment is merited “if the pleadings, the discovery

and disclosure materials on file, and any affidavits show that

there is no genuine issue as to any material fact and that the

movant is entitled to judgment as a matter of law.” Fed. R. Civ.

P. 56(c). As to materiality, the substantive law will identify

which facts are material. Anderson v. Liberty Lobby, Inc., 477

U.S. 242, 248, 106 S. Ct. 2505, 2510, 91 L. Ed. 2d 202 (1986). 

Summary judgment is precluded when there is a dispute over facts

which might affect the outcome of the suit under the governing

law. Id. Once the moving party has met its initial burden of

showing that no genuine issue of material fact exists, the

nonmoving party cannot rely on conclusory allegations in its

pleadings or in memoranda and briefs to establish a genuine issue

of material fact. Pastore v. Bell Telephone Co. of Pa., 24 F.3d

508, 511 (3d Cir. 1994). Instead, the nonmoving party “must make

a showing sufficient to establish the existence of every element

essential to his case, based on the affidavits or by the

depositions and admissions on file.” Harter v. GAF Corp., 967 F.

2d 846, 852 (3d Cir. 1992). 

Discussion

 Congress enacted ERISA to “protect ... the interests of

4
participants in employee benefit plans and their beneficiaries”

by setting out substantive regulatory requirements for employee

benefit plans and to “provide for appropriate remedies, 3

sanctions, and ready access to the Federal courts.” Aetna

Health, Inc. v. Davila, 542 U.S. 200, 208, 124 S. Ct. 2488, 2495,

159 L. Ed. 2d 312 (2004), quoting 29 U.S.C. §1001. The purpose

of ERISA is to provide a uniform regulatory regime over employee

benefit plans. Id. 

 Section 502(a)(1)(B) of ERISA authorizes the institution of

a civil action by an aggrieved plan participant by stating as

follows in relevant part:

(a) Persons empowered to bring a civil action

A civil action may be brought -

(1) by a participant or beneficiary -

....

(B) to recover benefits due to 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). 

 Under ERISA, a plan should determine benefits eligibility by

 An employee welfare benefit plan is defined as “any plan, fund, or

3

program which was ... established or maintained by an employer or by an

employee organization, or by both, to the extent that such plan, fund, or

program was established or is maintained for the purpose of providing for its

participants or their beneficiaries, through the purchase of insurance or

otherwise, (A) medical, surgical or hospital care or benefits or benefits in

the event of sickness, accident, disability, death or unemployment...” Ford

v. Unum Life Insurance Co. of America, 2009 U.S. App. LEXIS 24513 at *5, fn.1

(3d Cir. Nov. 9, 2009); 29 U.S.C. §1002(1).

5
providing a full and fair review of all evidence relating to an

alleged disability. Michaels v. The Equitable Life Assurance

Society of the U.S., Civ. A. No. 04-CV-3250, 2005 U.S. Dist.

LEXIS 12238 at *5 (E. D. Pa. June 20, 2005), citing Firestone

Tire and Rubber Co. v. Bruch, 489 U.S. 101, 102, 109 S. Ct. 948,

950, 103 L. Ed. 2d 80 (1989). Although the ERISA statute itself

does not set out the appropriate standard of review for actions

under §1132(a)(1)(B) challenging benefit eligibility

determinations, the Supreme Court has set forth four relevant

principles of review of benefit determinations by fiduciaries or

plan administrators: 

(1) In “determining the appropriate standard of review, a

court should be guided by principles of trust law;” in doing

so it should analogize a plan administrator to the trustee

of a common-law trust and it should consider a benefit

determination to be a fiduciary act in which the

administrator owes a special duty of loyalty to the plan

beneficiaries; 

(2) principles of trust law require courts to review a

denial of plan benefits under a de novo standard unless the

plan provides to the contrary;

(3) where the plan provides to the contrary by granting the

administrator or fiduciary discretionary authority to

determine eligibility for benefits, trust principles make a

deferential standard of review appropriate; and 

(4) if a benefit plan gives discretion to an administrator

or fiduciary who is operating under a conflict of interest,

that conflict must be weighed as a factor in determining

whether there is an abuse of discretion. 

Metropolitan Life Insurance Co. v. Glenn, U.S. , 128 S.

Ct. 2343, 171 L. Ed. 2d 299 (2008), citing Firestone, 489 U.S. at

6
111-113, 115; Serbanic v. Harleysville Life Insurance Co., Nos.

08-1059, 08-1157, 2009 U.S. App. LEXIS 9302, *5, 325 Fed. Appx.

86, 89 (3d Cir. April 30, 2009). 

 Hence, a denial of benefits challenged under §1132(a)(1)(B)

is to be reviewed under a de novo standard unless the benefit

plan gives the administrator or fiduciary discretionary authority

to determine eligibility for benefits or to construe the terms of

the plan. Young v. American International Life Assurance Co. of

N.Y., No. 08-4127, 2009 U.S. App. LEXIS 27788 at * (3d Cir. Dec.

18, 2009); Doroshow v. Hartford Life and Accident Insurance Co.,

574 F. 3d 230, 233 (3d Cir. 2009), both citing Firestone, supra. 

When the administrator has discretionary authority to determine

eligibility for benefits, the decision must be reviewed under an

arbitrary and capricious standard. Id., citing Id. And, as 4

the Supreme Court recently recognized in Glenn, “[o]ften the

entity that administers the plan, such as an employer or an

insurance company, both determines whether an employee is

eligible for benefits and pays benefits out of its own pocket,”

and this “creates the kind of conflict of interest” which “must

be weighed as a factor in determining whether there is an abuse

of discretion.” Glenn, 128 S. Ct. at 2346, 2348, quoting

 As observed in Estate of Schwing v. The Lilly Health Plan, 562 F.3d

4

522, 525, n.2 (3d Cir. 2009), “... at least in the ERISA context,” the

“arbitrary and capricious standard of review” and the “abuse of discretion”

standard are “practically identical,” citing Abnathya v. Hoffman-La Roche,

Inc., 2 F.3d 40, 45, n.4 (3d Cir. 1993).

7
Firestone, supra. Therefore when judges review the lawfulness of

benefit denials, it is appropriate to take account of several

different, often case-specific, considerations of which a

conflict of interest is one and thereby reach a result by

weighing all together. Glenn, 128 S. Ct. at 2351. 

 In this case, the plan documents clearly state that

Defendant Rohm and Haas Company is the “Sponsor” of the Defendant

Health and Welfare Plan and the “Plan Administrator” for the

disability benefits portion(s) of the plan within the meaning of

ERISA. (Joint Appx., D2-D6, D106; 29 U.S.C. §1002). Under

Article V of the Plan, the Administrator is charged with

establishing “administrative processes and safeguards designed to

ensure and to verify that benefit claim determinations are made

in accordance with the governing Plan documents and that, where

appropriate, the Plan provisions have been applied consistently

with respect to similarly situated Claimants.” Article 6.2, in

turn provides in pertinent part:

The Rohm and Haas Benefits Administrative Committee shall

have the exclusive power and authority in its sole and

absolute discretion to control and manage the operation and

administration of the Plan and shall have all powers

necessary to accomplish these purposes. The responsibility

and authority of the Rohm and Haas Benefits Administrative

Committee shall include, but shall not be limited to, the

following duties and powers: (a) to construe and interpret

the Plan and decide all questions of eligibility and

participation; ... 

(Joint Appx., D22). And, Article 6.3 further reads in relevant

part:

8
The Rohm and Haas Benefits Administrative Committee shall

have the sole discretion to interpret the Plan and decide

any matters arising hereunder and may adopt such rules and

procedures as it deemed necessary, desirable or appropriate

in the administration of the Plan, provided that such

determinations do not conflict with the Plan or applicable

law. ...

Any final determination by the Rohm and Haas Benefits

Administrative Committee shall be binding on all parties. 

If challenged in court, such determination shall not be

subject to de novo review and shall not be overturned unless

proven to be arbitrary and capricious upon the evidence

presented to the Rohm and Haas Benefits Administrative

Committee at the time of its determination. 

(Joint Appx., D22-D23). In addition, the summary plan

description states in pertinent part at page 44 that “[a]s the

Plan Administrator, Rohm and Haas is responsible for operating

the benefit plans and resolving any questions according to the

plan documents. ...” Thus, as the preceding language clearly

indicates, the plan administrator here has discretionary

authority to make benefits determinations and as the Company

itself is the plan administrator, it is in fact operating under a

conflict of interest. We shall therefore apply the arbitrary and

capricious/abuse of discretion standard of review , taking into 5

 Under the arbitrary and capricious standard, a plan administrator’s

5

decision will be overturned only if it is clearly not supported by the

evidence in the record or the administrator has failed to comply with the

procedures required by the plan. A court is not free to substitute its own

judgment for that of the defendants in determining eligibility for plan

benefits. Taylor v. Union Security Insurance Co., No. 08-3692, 332 Fed. Appx.

759, 762, 2009 U.S. App. LEXIS 11452 at *8 (3d Cir. May 28, 2009); Smathers v.

Multi-Tool, Inc., 298 F.3d 191, 199-200 (3d Cir. 2002). Furthermore, whether

a claim decision is arbitrary and capricious requires a determination whether

there was a reasonable basis for the administrator’s decision, based upon the

facts as known to the administrator at the time the decision was made.

Smathers, supra; Sweeney v. Standard Ins. Co., 276 F. Supp. 2d 388, 393 (E.D.

Pa. 2003).

9
consideration the afore-noted conflict of interest. 

 As noted, both of the moving plaintiffs in this case are

seeking to receive the DRA benefit without an offset for SSDI. 

Mr. Hemmert is also first seeking to have his LTD benefits

restored. Both argue that by applying the offset and, in Mr.

Hemmert’s case terminating his LTD, the defendants have violated

their obligations and failed to administer benefits due under the

Plan and the labor agreements pursuant to which the Plan was

negotiated. By their motion, Defendants make the contrary

argument: that they properly exercised their discretion in

construing the plan documents to provide for the application of

the “other income/SSDI” offset to the calculation of the DRA

benefit and in terminating Plaintiff Hemmert’s LTD benefit

because he failed to comply with the requirement to provide

evidence of continuing disability. 

A. Calculation of the DRA Benefit

 In reviewing the copies of the Plan and the Summary Plan

Description provided, we first observe that Rohm and Haas’

Disability Income Program is described as having three

components: (1) Accident and Sickness benefits, which cover up to

26 weeks of disability; (2) the Extended Disability Allowance,

which takes over for the next 26 weeks; and (3) the Long Term

Disability Allowance (“LTD”), which can continue paying benefits

should the disability last more than one year. The length of

10
time that a disabled employee can receive LTD varies, depending

upon his or her length of service to the company. (Jt. Appx.,

D64, D66-D68). Finally, while it is specifically “not part of

the Pension Plan,” an employee may receive the Disability

Retirement Allowance instead of LTD if his disability is both

total and permanent, he has five or more years of service and if

the DRA would be greater than LTD. (Jt. Appx., D69).

 There are a number of requirements that “apply to all three

parts of the Disability Income Program,” pursuant to which

disability income benefits may be received if an illness or

injury prevents an eligible employee from working at either his

regular job or any other job for which he is qualified. (D64). 

These requirements mandate that an eligible employee:

1) Be in active treatment with a doctor or dentist approved

by the Company.

2) Follow the treatment prescribed by the doctor or dentist.

3) Agree to be examined periodically, either by his own

doctor or one appointed by the Company so that his

disability can be verified. If the employee’s doctor and

the Company’s doctor disagree about the extent of

disability, a third doctor may be asked to render an

opinion.

4) Accept any alternate job assignment for which he may be

qualified.

5) Not work for another employer while receiving disability

benefits from Rohm and Haas. 

(Jt. Appx., D64-D65). If an employee refuses to provide proof of

ongoing disability, he may be disqualified from receiving

11
benefits. (Jt. Appx., D65). Beginning on page 3 of the 47-page

Summary Plan Description outlining the disability income,

survivor benefits, layoff allowance and pension benefits portion

of the Plan, appears the following language:

HOW BENEFITS ARE FIGURED

If you become disabled, you may qualify for disability

benefits from more than one source. The Disability Income

Program takes other sources of income into account when your

Company-provided benefit is calculated.

The Disability Income Program is designed to make up the

difference between any other disability benefits you may

receive and the percentage of pay assured by various parts

of the program. If you are also receiving benefits under

another Company program covering the time you are disabled,

those benefits will also be taken into account. If you

don’t qualify for income from any other source, your entire

benefit will come from the Company’s program. 

Other sources of Disability Income

Other potential sources of disability income may include:

* Social Security

* Workers’ Compensation

* Other government disability payments

* No-fault auto insurance

* Disability payments from a third party, including awards

from a lawsuit.

If you are eligible for payments from any of these sources,

you should apply for them. Your Company benefit will be

figured as though you are receiving any other income to

which you are entitled, even if you don’t apply. 

(Jt. Appx. D65). 

 This language appears in the pages that immediately precede

12
the more detailed discussions and descriptions of the Accident

and Sickness Benefits, The Extended Disability Allowance, the

Long Term Disability Allowance and the Disability Retirement

Allowance. Included in the descriptions of the Extended

Disability Allowance and the Long Term Disability Allowance is

the following sentence: “Keep in mind that this allowance

includes any other benefits you may be entitled to receive from

other sources, as explained on page 3.” (Jt. Appx., D68). That

sentence is absent from the description of the Accident and

Sickness Benefit and the Disability Retirement Allowance. (Jt. 6

Appx., D66-D67, D69). However, at page 9 of the Summary Plan

Description, which follows the discussion of the three types of

disability benefits and the DRA, appears this additional

admonition:

OTHER SOURCES OF DISABILITY INCOME

Remember that disability income from the following sources

may be taken into account when your benefits from the

Disability Income Program are calculated (See page 3 for

details.)

TRAVEL ACCIDENT PLAN ...

SOCIAL SECURITY ...

STATE DISABILITY BENEFITS ...

WORKERS’ COMPENSATION ...

(Jt. Appx., D71).

 This is not surprising given that the Accident and Sickness Benefit

6

is a short term, temporary benefit designed to provide income to employees who

are temporarily out of work for 26 weeks or less due to injury or illness.

13
 Thus, while the Plan documents are not entirely clear that

the other income offset is to be applied in calculating the DRA,

we find that they can be read either way. In as much as this

evinces an ambiguity, we must take the additional step and

analyze whether the plan administrator’s interpretation of the

document is reasonable. Donachy v. Motion Control Industries,

No. 08-3919, 332 Fed. Appx. 721, 724, 2009 U.S. App. LEXIS 12439

(3d Cir. June 4, 2009). In so doing, we may look to extrinsic

evidence and Plaintiffs submit that we should consider evidence

of the parties’ understanding of the terms, past practices and

whether there is a pattern of inconsistent benefit decisions by

the defendants. Bill Gray Enterprises, Inc. Employee Health &

Welfare Plan v. Gourley, 248 F.3d 206, 218 (3d Cir. 2001); Smirth

v. Hartford Insurance Group, 6 F.3d 131, 138-139 (3d Cir. 1993). 

 Applying the arbitrary and capricious standard and

considering the monetary conflict of interest noted above, we can

not find an abuse of discretion here with respect to the decision

to apply an offset in calculating the DRA. Indeed it appears

that the defendants based their decision to apply the Social

Security disability income offset in calculating Mr. Griffin’s

DRA on the Summary Plan Description sub-section (at page 3 of the

SPD) entitled “How Benefits Are Figured” which stated “The

Disability Income Program is designed to make up the difference

14
between any other disability benefits you may receive and the

percentage of pay assured by various parts of the program.” 

Defendants believed that this applied to all disability income

benefits. Although Plaintiffs have submitted numerous affidavits

reflecting that, in the case of several other, similarly-situated

employees, the SSI offset was not applied in calculating the DRA,

the defendants have provided an affidavit from Cynthia Mazer,

Rohm and Haas’ Manager of Health and Welfare Programs. Ms. 7

Mazer confirms that “[b]efore mid-2005, there were some mistakes

in calculating medically-approved DRA benefits without Social

Security Disability Income (“SSDI”) offsets,” and that the four

affiants whose affidavits have been produced by Plaintiffs

“received the DRA benefit without the SSDI offset by mistake.”

... Since detection of these calculation mistakes in mid-2005,

neither the Plan nor Rohm and Haas paid any newly-approved DRA

applicant a DRA benefit without a SSDI offset.” (Mazer Aff.,

¶7). There is no other evidence of record to refute Ms. Mazer’s

testimony and thus we find that there is no dispute but that the

miscalculation occurred in only these four cases. We note that

the Third Circuit has held that “arguments regarding similarly

situated employees ‘should be given minimal, if any, weight’ in

claims determinations, because the fact that administrators may

 Ms. Mazer was employed in this capacity by the Rohm and Haas Company

7

from September 18, 2000 until March 31, 2009, when Rohm and Haas was acquired

by the Dow Chemical Company. She continues to work in this same position for

Dow Chemical. (Affidavit of Cynthia Mazer, ¶1).

15
have, in the past, erroneously granted benefits under an ERISA

plan does not mean that they are bound ‘in a straightjacket

requiring them to do so forever.’” Delso v. Trustees of the

Retirement Plan For Hourly Employees of Merck & Co., No. 08-3474,

336 Fed. Appx. 214, 217, fn.2, 2009 U.S. App. LEXIS 15011 (3d

Cir. July 7, 2009), quoting Vitale v. Latrobe Area Hospital, 420

F.3d 278, 286 (3d Cir. 2005). Thus, the trustees’ interpretation

should be upheld even if the court disagrees with it, so long as

the interpretation is rationally related to a valid plan purpose

and is not contrary to the plain language of the plan. Pacconi

v. Trustees of the United Mine Workers of America, 264 Fed. Appx.

216, 218, 2008 U.S. App. LEXIS 3035 (3d Cir. Feb. 11, 2008). 

Alternatively, a plan administrator’s decision may be overturned

if it is clearly not supported by the evidence in the record or

the administrator has failed to comply with the procedures

required by the plan. See, Taylor, Smathers, and Sweeney, all

supra. 

 Here, we cannot find that the defendants’ interpretation is

either unreasonable or not rationally related to a valid purpose

of the plan. To the contrary, we find the administrator’s

reading of the above-quoted plan language eminently reasonable

given the numerous references and reminders throughout the plan

documents to beneficiaries that they should apply for any and all

other disability benefits that may be available to them as the

16
amount of their benefits under the plan will be determined as

though they were receiving such available alternative benefits. 

See Also, McElroy v. Smithkline Beecham Health & Welfare Benefits

Trust Plan, 340 F.3d 139, 142-143 (3d Cir. 2003)(holding that

“[b]ecause RRB [Railroad Retirement Board Disability benefits]

are paid by a ‘government’ agency, ... the plan administrator’s

reading [offsetting RRB benefits from insurer-paid disability

benefits] is not ‘without reason, unsupported by the evidence or

erroneous as a matter of law.’”). Therefore, despite the slight

ambiguity and the evidence that the offset was not applied in

absolutely all cases, we find that the language of the plan

documents amply supports the defendants’ reading of it. We thus

conclude that the decision to apply the offset in calculating

these plaintiffs’ DRA benefits is a reasonable one. Accordingly,

we shall grant the Defendants’ Motion for Summary Judgment in

part and deny in part the Plaintiffs’ Motion for Summary Judgment

with respect to Mr. Griffin’s claim and that part of Mr.

Hemmert’s claim which seeks to recover the DRA benefit sans the

offset for Social Security Disability Income.

B. Reinstatement of Plaintiff Hemmert’s LTD Benefits

 Turning next to that part of Mr. Hemmert’s claim seeking

reinstatement of his LTD benefit, we are again bound to consider

whether the plan administrator’s decision to terminate that

benefit is clearly supported by the evidence in the record or

17
whether the administrator has failed to comply with the

procedures required by the plan. Again, a court is not free to

substitute its own judgment for that of the defendants in

determining eligibility for plan benefits. Taylor v. Union

Security Insurance Co., No. 08-3692, 332 Fed. Appx. 759, 762,

2009 U.S. App. LEXIS 11452 at *8 (3d Cir. May 28, 2009); Smathers

v. Multi-Tool, Inc., 298 F.3d 191, 199-200 (3d Cir. 2002). 

 The procedures for filing claims for benefits and appealing

the denial of claims are set forth in Article V of the plan. 

Article 5.1.2(g) provides as follows in relevant part:

In the case of a claim for Disability Benefits, the Claims

Administrator shall notify the Claimant of the Claims

Administrator’s adverse Benefit Determination within a

reasonable period of time, but not later than 45 days after

receipt of the claim by the Plan. This period may be

extended for up to 30 days, provided that the Claims

Administrator both determines that such an extension is

necessary due to matters beyond the Plan’s control and

notifies the Claimant, prior to the expiration of the

initial 45-day period, of the circumstances requiring the

extension of time and the date by which the Claims

Administrator expects to render a decision. ... In the case

of any extension under this Section 5.1.2(g) the notice of

extension shall specifically explain the standards on which

entitlement to a benefit is based, the unresolved issues

that prevent a decision on the claim, and the additional

information needed to resolve those issues, and the Claimant

shall be afforded 45 days within which to provide the

specified information. 

(Jt. Appx., D16-D17). The processes for the handling of appeals

of Adverse Benefit Determinations is set forth in Article

5.1.5(a)(ii) and (b). Under those sections, the plan is required

to, inter alia, provide the claimant: (1) with “the opportunity

18
to submit written comments, documents, records and other

information relating to the claim for benefits”; (2) with

“reasonable access to and copies of all documents, records, and

other information relevant to [his/her] claim for benefits” “upon

request and free of charge”; (3) “a review that takes into

account all comments, documents, records and other information

submitted by the Claimant relating to the claim, without regard

to whether such information was submitted or considered in the

initial benefit determination.” Further, the claimant is also to

be provided: (1) “180 days following receipt of an Adverse

Benefit Determination within which to appeal the determination”;

(2) “a review that does not afford deference to the initial

Adverse Benefit Determination and that is conducted by the

individual who shall from time to time serve as the Appeals

Administrator who is neither the Claims Administrator nor the

subordinate of the Claims Administrator; and (3) the identity “of

medical or vocational experts whose advice was obtained on behalf

of the Plan in connection with [the Claimant’s] ... Adverse

Benefit Determination, without regard to whether the advice was

relied upon in making the benefit determination”. 

 Finally, “in deciding an appeal of any Adverse Benefit

Determination that is based in whole or in part on a medical

judgment, including determinations with regard to whether a

particular treatment, drug, or other item is experimental,

19
investigational, or not medically necessary or appropriate, the

Appeals Administrator shall consult with a Health Care

Professional who has appropriate training and experience in the

field of medicine involved in the medical judgment” and “who is

neither an individual who was consulted in connection with the

Adverse Benefit Determination that is the subject of the appeal,

nor the subordinate of ... such individual.” §5.1.5(b)(iii), (v).

(Jt. Appx. D19). 

 Mr. Hemmert was first adjudicated to be disabled from his

work at Rohm and Haas as a result of injuries suffered in an

automobile accident by the Social Security Administration on May

5, 2003. He was found to be totally disabled and entitled to

disability insurance benefits under Sections 216(i) and 223 of

the Social Security Act as of October 21, 2001, the date of his

accident. (Jt. Appx. D1491-1508). It appears that Mr. Hemmert

applied for DRA benefits within a month or so of this

determination and despite the opinion of Dr. Jeffrey Erinoff 8 9

 It should be noted that throughout the time periods relevant here,

8

Liberty Mutual Assurance Company of Boston was the claims administrator for

the Plan and was thus charged with making the initial determinations for

eligibility for STD and LTD benefits, obtaining proof from Plan participants

of ongoing disability and making the initial determinations of whether to

terminate disability benefits for failure to provide proof of ongoing

disability. Liberty Mutual is not paid by either of the defendants here on

the basis of how it decides disability claims nor paid any incentives or

bonuses for denying or terminating disability benefit claims. (Cynthia Mazer

Affidavit at ¶s2-3).

 Dr. Erinoff was the Rohm and Haas Medical Director for the Delaware

9

Valley Health Services Department until 2008 when he was terminated as part of

a company-wide reduction in force. (Defendant’s Memorandum of Law in Support

of Motion for Summary Judgment at pp. 4-5, fn. 5).

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that it was “highly unlikely he will ever be able to return to

work,” his claim for DRA was denied as premature, although his

LTD benefits were continued with the representation that the

matter would be followed-up and presumably re-reviewed in 6-12

months. (Jt. Appx. D1468-D1479). This decision was apparently

rendered by Dr. Eileen Bonner, the Rohm and Haas Corporate

Medical Director after consultation with Dr. Erinoff and

subsequently upheld by Dr. Bonner in or around May, 2004. (Jt.

Appx. D1397-1405). It should be noted that Rohm and Haas

continued to accept that Mr. Hemmert was totally disabled from

working at that time despite the opinions of Gladys S. Fenichel,

M.D., a board certified psychiatrist and Wilhelmina C. Korevaar,

M.D., a board certified Anesthesiologist and a pain management

specialist both of whom were working for IMX Medical Management

Services. These two doctors conducted independent medical

examinations of Mr. Hemmert on March 9, 2004 and both opined that

Mr. Hemmert was “fully capable of full-time gainful employment in

any capacity he was able to enjoy before the motor vehicle

accident of October 2001.” (Jt. Appx. D1418-1442). 

In contrast to the opinions of Drs. Fenichel and Korevaar,

the record is replete with reports from Mr. Hemmert’s treating

neuropsychiatrist, orthopedic surgeon, and primary care physician

which reflect ongoing treatment and support a finding of

permanent and total disability during this time period (2002-

21
2004). (Jt. Appx. D1401-1403, 1448-1487). There is, however, a

dearth of medical records between 2005 and 2006 and apparently,

on several occasions between 2005 and 2007, Rohm and Haas, acting

through its Claims Administrator Liberty Mutual, did terminate

the plaintiff’s LTD benefits only to subsequently reinstate them

upon receipt of appropriate medical documentation. (Jt. Appx.

D1268-1277; D1375-1395). However, it also appears that Mr.

Hemmert moved from Pennsylvania to Delaware sometime in this

period and that he also was having difficulty obtaining new

doctors, as several of his providers no longer accepted his

insurance and one of his mental health providers had died. (Jt.

Appx. 1381-1390, 1396). 

 This pattern continued through 2007, with Liberty Mutual

requesting that the plaintiff submit updated medical information

and when it wasn’t immediately forthcoming, terminating his LTD

benefits only to reinstate them upon receipt of the requested

documentation. (Jt. Appx. D1370-1389). Indeed, there is record

evidence that the plaintiff’s benefits were terminated on

December 19, 2006 (reinstated January 15, 2007) and on March 20,

2007. Subsequent to the March 20, 2007 suspension, the plaintiff

evidently failed to contact the defendants until October, 2007

and although his benefits were reinstated through July 9, 2007,

they were finally terminated as of July 10, 2007 on the grounds

that “Dr. Bonner and Dr. Erinoff did not find medical information

22
or documentation adequate to support the need for continued

benefits under the Disability Program beginning July 10, 2007.” 

(Jt. Appx. D1253). 

 Were there no additional records or documents in this

record, we would be constrained to agree with the defendants’

decision given that the plan clearly requires that the plan

participant be in active medical treatment and that he submit

evidence of ongoing disability upon request. Here, however,

there are additional records that evince that between July and

January, 2008, Mr. Hemmert was receiving both treatment for his

right shoulder disability and his apparently-ongoing depression

and related mental health issues. (Jt. Appx. D1217-1250). 

Although it does appear that the defendants referred this case to

an outside consulting orthopedic surgeon and neuropsychologist

who did a paper review of the existing records, it appears that

the orthopedic surgeon did not render an opinion on the

plaintiff’s current disability status and that the

neuropsychologist’s review was similarly inconclusive in that she

noted that “[u]pdated clinical information is necessary for

support of psychiatric impairments, restrictions and limitations

beyond 7/9/07. ...I will contact [plaintiff’s treating

psychiatrist] ... to obtain updated information regarding the

claimant’s clinical status. I will provide an updated review

upon completion of that consultation...” and “I would be happy to

23
review any additional medical records that become available

regarding this claimant’s psychiatric status.” (Jt. Appx.

D1255-1264). 

 Here there is no evidence that this contact ever took place. 

In light of this and given that the record contains a letter

dated January 23, 2008 from plaintiff’s then-treating

psychiatrist stating his opinion that Mr. Hemmert’s “previously

ascribed disability is appropriate,” we conclude that the refusal

to consider these subsequent records was an abuse of discretion

and that the decision to terminate this plaintiff’s LTD is not

supported by sufficient evidence. (Jt. Appx. D1217). See Also,

Wernicki-Stevens v. Reliance Standard Life Insurance Co., 641 F.

Supp. 2d 418, 427, n.13 (E.D. Pa. 2009), citing Lasser v.

Reliance Standard Life Ins. Co., 344 F.3d 381, 391 (3d Cir.

2003)(“while the burden of proving disability ultimately lies

with Plaintiff ‘once a claimant makes a prima facie showing of

disability through physicians’ reports, if the insurer wishes to

call into question the scientific basis of those reports..., then

the burden will lie with the insurer to support the basis of its

objection.’”) However, because we find the administrative record

inadequate to permit this Court to assess Plaintiff Hemmert’s

current disability status (i.e. subsequent to 2008) and/or his

possible current entitlement to the DRA benefit (with the SSDI

offset), we shall remand this matter to the claim administrator

24
so that it may consider these issues. Thus, we shall grant the

Plaintiff’s motion for summary judgment in this regard and deny

the defendants’ summary judgment motion insofar as it seeks to

enter judgment in its favor and against Mr. Hemmert on the LTD

claim. 

 An order follows. 

25