The opinion of the court was delivered by: MENCER
The plaintiff commenced this suit in the Court of Common Pleas of Westmoreland County, Pennsylvania, on August 1, 1984, and upon the defendants' Motion, it was removed to this court. This action concerns claims by the plaintiff, Robert A. Gray, a former employee of the Dowell Division of the Dow Chemical Company ("Dow") for benefits under various employee benefit plans established and maintained by Dow, which he claims are due and owing as a result of injuries he sustained in an automobile accident on May 12, 1979. The plaintiff's claims include claims under the Dow Chemical Company Long Term Disability Income Protection Plan ("LTD Plan"), the Dow Chemical Company Medical Care Program ("Medical Care Program"), and the Dow Chemical Company Voluntary Group Accident Plan ("VGA Plan"). The LTD Plan, Medical Care Program and VGA Plan are employee welfare benefit plans subject to the provisions of the Employee Retirement Insurance Security Act ("ERISA"), 29 U.S.C. § 1002(1).
Dow, the Metropolitan Life Insurance Company, the Dow Chemical Company in its capacity as the Plan Administrator of the Plans and the Plans themselves are requesting partial summary judgment on all of Gray's claims related to the LTD Plan and the Medical Care Program as set forth in Counts I, II, III, VI and VII of his Second Amended Complaint. Dow, the American Home Assurance Company, the Dow Chemical Company VGA Plan and the Dow Chemical Company as Administrator of the Dow Chemical Company VGA Plan filed a motion for summary judgment on all of Gray's claims relating to the VGA Plan. The plaintiff also moved for summary judgment on all issues. All parties have requested attorneys fees and have submitted briefs and affidavits in support of their respective positions.
Gray became an employee of Dow in its Dowell Division commencing on September 6, 1978, and remained in active employment until May 12, 1979, when he was involved in an automobile accident which allegedly resulted in his injury. Gray never returned to work after his accident, but he was carried by Dow on its payroll until late August 1980. On September 14, 1980, Gray was terminated as an employee of the Dowell Division and accepted a career assistance severance check of approximately $1,600.00. Gray unsuccessfully applied to be rehired in late 1981, and submitted with his application a doctor's certification that he was physically fit to perform manual labor, based on an examination of October 19, 1981.
During all times relevant to this suit, Dow maintained the LTD Plan, the Medical Care Program, and the VGA Plan for the benefit of its employees, including Gray. Each plan has a summary plan description which describes the claim procedure to be followed. The affidavit of Larry J. Bollinger, Manager of the U.S.A. Benefits Department of Dow, provides that summary plan descriptions of the LTD Plan, the Medical Care Program and the VGA Plan were distributed to Dowell employees. In addition, the claim review and appeal procedure available to any claimant is described in a document entitled "The Dow Chemical Company Welfare Benefit Plan Claims Procedure," which is made available to participants in the plans. Claims for benefits under each benefit plan are treated and reviewed separately.
Gray never filed a claim for benefits under the LTD Plan or the VGA Plan with respect to any injuries resulting from the automobile accident or with respect to any other disability. Claims for benefits are to be commenced by a plan participant's completion and submission of a claim form, which is available through the local Dow Group Insurance Benefits Department.
The claims that the plaintiff is making are to recover benefits under the "employee welfare benefit plans," as that term is defined and governed by the regulatory provisions of ERISA. 29 U.S.C. § 1002(1). Under ERISA, a civil action may be brought by a participant to recover benefits due him under the terms of the plan. 29 U.S.C. § 1132(a)(1)(B). While ERISA does not explicitly state that administrative remedies must be exhausted before a civil action can be brought to recover benefits, "it is now settled law in this Circuit that the policy favoring exhaustion of nonjudicial remedies applies in full measure to ERISA litigation." Tomczyscyn v. Teamsters, Local 115 Health & Welfare, 590 F. Supp. 211, 213 (E.D.Pa. 1984), citing Wolf v. National Shopmen Pension Fund, 728 F.2d 182 (3d Cir. 1984).
Courts have created a few exceptions to this rule, excusing claimants from the exhaustion requirement only if the claimant is threatened with irreparable harm, if resort to administrative remedies would be futile, or if he has been denied meaningful access to the administrative procedures. Tomczyscyn, supra, at 213.
The plaintiff does not contend he failed to file an administrative claim because he is threatened with irreparable harm, nor because resort to such administrative remedies would be futile. The plaintiff argues, however, that he has been denied meaningful access to the claim procedures, principally stating in his affidavit that he was misled into believing that he was not entitled to disability benefits by a letter he received in March or April of 1983, from C. J. Swyden, Benefits Manager for Dow, which stated that the plaintiff did not qualify for Dow's disability benefits under its LTD Plan since he had not been actively employed by Dow for one full year.
No administrative claim review, whether sought by a new claim form or by an appeal from any payment or any alleged denial of any further payment, has been filed with respect to Gray's contention that he is entitled to benefits in addition to those he has already received under the Medical Care Program. The defendants acknowledge that some payments were made to the plaintiff under the Medical Care Program. The plaintiff must, however, appeal the Plan Administrator's refusal to award additional benefits to the administrative review level provided by the Medical Care Program prior to instituting suit. The notice that he received which stated that no further payments would be forthcoming did not alert him to the review process. Therefore, the plaintiff is entitled to a remand of his claim to the Plan Administrator for disposition pursuant to the plan claims and review procedure. Grossmuller v. International ...