                    United States Court of Appeals
                          FOR THE EIGHTH CIRCUIT
      ___________

      No. 05-1565
      ___________

Sandra J. Chronister,                 *
                                      *
            Plaintiff - Appellant,    *
                                      *
      v.                              *
                                      *
Baptist Health; Unum Life Insurance   *
Company of America,                   *
                                      *
           Defendants - Appellees.    *
      ___________                         Appeals from the United States
                                          District Court for the
      No. 05-1566                         Eastern District of Arkansas.
      ___________

Sandra J. Chronister,                 *
                                      *
            Plaintiff - Appellee,     *
                                      *
      v.                              *
                                      *
Baptist Health;                       *
                                      *
            Defendant,                *
                                      *
Unum Life Insurance Company           *
of America,                           *
                                      *
            Defendant - Appellant.    *
                                    ___________

                              Submitted: November 17, 2005
                                 Filed: March 23, 2006
                                  ___________

Before SMITH, HEANEY, and BENTON, Circuit Judges.
                            ___________

SMITH, Circuit Judge.

       Both Sandra Chronister and Unum Life Insurance Company of America
("Unum") appeal the final decision of the district court,1 regarding Chronister's claim
for long term disability benefits pursuant to the Employee Retirement Income Security
Act (ERISA), 29 U.S.C. § 1001, et seq. For the reasons set forth below, we affirm.

                                        I. Facts
       Chronister worked as a registered nurse for Baptist Health, an Arkansas
nonprofit corporation, which owns and operates hospitals. Chronister was injured in
a car accident in 1995. As a result, she began suffering from chronic pain associated
with a diagnosis of fibromyalgia, cervical arthritis, high blood pressure,
hypothyroidism, depression, and irregular heart beat/postural orthostatic tachycardia.
In 1997, Chronister filed a claim for long-term disability benefits under Baptist
Health's long-term disability plan. Baptist Health's plan was insured by a group
insurance policy from Unum.

       Unum investigated Chronister's claim. On February 23, 1998, Unum determined
that Chronister was entitled to long-term disability benefits effective October 16,
1997. Unum's consultants determined that Chronister had no work capacity and no
likelihood of future recovery. However, on December 15, 2001, Unum discontinued

      1
        The Honorable James M. Moody, United States District Judge for the Eastern
District of Arkansas.

                                         -2-
Chronister's disability benefits on the basis of a policy provision that limited benefits
to twenty-four months if the disability was primarily based on self-reported symptoms
(the "self-reported symptoms limitation"). Unum determined that Chronister's
fibromyalgia diagnosis was subject to the self-reported symptoms limitation because
the severity of her symptoms was not supported by objective medical evidence.

       Chronister exhausted her administrative remedies, and thereafter, brought suit
against Unum in Pulaski County Circuit Court, seeking reinstatement of her long-term
disability benefits. Unum removed the case to federal district court, alleging that the
federal court had jurisdiction pursuant to ERISA. Chronister, in her motion for
remand, disputed that ERISA controlled her claim, stating that Baptist Health is a
religion-based hospital, and, therefore, its welfare-benefit plan is exempt from ERISA
under the "church plan" exception.

       The district court denied Chronister's motion for remand, holding that
Chronister's case was controlled by ERISA because Baptist Health's employee-benefit
plan does not qualify for the "church plan" exception. Unum then filed a motion for
judgment on the ERISA record. The district court found that Unum's decision denying
Chronister benefits based on the self-reported symptoms limitation was not supported
by substantial evidence. As such, the district court remanded the case to Unum and
directed Unum to re-open the administrative record and make a new determination of
the claim.

      Both parties asked the district court to alter or amend its judgment. Chronister
asked for a trial on the merits, or in the alternative, reinstatement of benefits pending
Unum's further review. Unum argued that the district court incorrectly applied the
policy language to the facts and asked the district court to enter judgment in its favor.
The district court denied both motions. Both parties appeal.




                                          -3-
                                     II. Discussion
       Chronister argues that the federal district court does not have jurisdiction over
her claim because ERISA does not govern her claim for long-term disability benefits.
Chronister asserts that the Baptist Health Employee Benefit Plan is a "church plan"
under ERISA because Baptist Health is a charitable organization according to 26
U.S.C. § 501(c)(3), and it is "controlled by or associated with" the Baptist church. It
is "associated with" the Baptist church because it "shares common religious bonds and
convictions" with the Baptist church under 29 U.S.C. § 1002(33)(C)(iv). Moreover,
Baptist Health has not elected to exercise its right to be covered by ERISA.
Alternatively, Chronister argues that if subject matter jurisdiction is present, the
decision of the district court remanding the case to Unum should be affirmed.
However, Chronister claims that the district court should have maintained the status
quo by entering an award of interim benefits.

       Unum, on the other hand, maintains that Baptist Health's long-term disability
plan is governed by ERISA. Unum states that ERISA's narrow "church plan"
exception does not apply to Baptist Health's plan due to the lack of any specific
organizational or financial tie between a Baptist church and Baptist Health. Moving
to the district court's review of Unum’s decision to deny benefits to Chronister, Unum
claims that the district court applied the correct standard of review—abuse of
discretion. However, the district court erred in reversing Unum's decision on the self-
reported symptoms limitation. Unum argues that its decision to discontinue benefits
was supported by substantial evidence and should have been affirmed by the district
court. If this court disagrees, Unum, in the alternative, asserts that the district court
acted appropriately in remanding the case to Unum for further review because the
district court based its decision on Unum's discretionary authority and the need for
Unum to exercise its discretion with respect to Chronister's disability claim. Further,
Unum contends that the district court was correct in ordering remand to Unum without
requiring it to pay interim benefits to Chronister.



                                          -4-
        A. Subject Matter Jurisdiction & ERISA's "Church Plan" Exception
       "We first consider our jurisdiction to hear this appeal. 'Every federal court has
the inherent power to determine as a preliminary matter its own subject matter
jurisdiction.'" Hunter v. Underwood, 362 F.3d 468, 475 (8th Cir. 2004) (quoting In re
Gaines, 932 F.2d 729, 731 (8th Cir. 1991)). "If the disability plan [is] a church plan,
no federal question would exist because the plan would not be covered by ERISA . .
. we must remand the case to state court if the disability plan [is] a church plan." Lown
v. Cont'l Cas. Co., 238 F.3d 543, 547 (4th Cir. 2001). Conversely, federal courts have
jurisdiction to hear actions brought to recover benefits under an ERISA plan. Id.

       Church plans are not ERISA plans. Id. "The term 'church plan' means a plan
established and maintained . . . for its employees (or their beneficiaries) by a church
or by a convention or association of churches which is exempt from tax under section
501 of Title 26." 29 U.S.C.A. § 1002(33)(A) (2005). Further, the statute defines
church plans to include plans "established and maintained for its employees by a
church or by a convention or association of churches includ[ing] a plan maintained by
an organization, whether a civil law corporation or otherwise, the principal purpose
or function of which is the administration or funding of a plan or program for the
provision of retirement benefits or welfare benefits, or both, for the employees of a
church or a convention or association of churches, if such organization is controlled
by or associated with a church or convention or association of churches. . . ." 29
U.S.C.A. § 1002(33)(C)(i) (emphasis added). "An organization, whether a civil law
corporation or otherwise, is associated with a church or a convention or association
of churches if it shares common religious bonds and convictions with that church or
convention or association of churches." 29 U.S.C.A. § 1002(33)(C)(iv). For example,
an organization is controlled by a church when a majority of the officers or directors
are appointed by a church's governing board or by officials of a church. 26 C.F.R. §
1.414(e)-1(d)(2). The regulations also state that an organization is associated with a
church if it shares common religious bonds and convictions with that church. Id.



                                          -5-
       Chronister acknowledges that there is very little case law interpreting the
ERISA "church plan" exception. However, Chronister believes that the facts support
her contention that Baptist Health's plan is a church plan because Baptist Health is
"controlled by or associated with the Baptist church." Specifically, Chronister points
out that Baptist Health requires its CEO, its board of directors, and its chaplains to be
members of Baptist churches. Baptist Health's management is instructed to follow
religious principles, and under Baptist doctrine, operating a facility for health care is
part of the healing ministry of the church. Moreover, if Baptist principles and secular
medicine conflict, Baptist principles control, i.e. in the case of abortion. Elective
abortions cannot be performed at Baptist Health, and clinical abortions require the
unanimous consent of two physicians and one Baptist chaplain. For that reason,
Chronister asserts that Baptist Health's employee benefit plan qualifies as a "church
plan" and is not covered by ERISA, thus depriving federal court of jurisdiction.

       In this case, we must determine whether Baptist Health is controlled by or
associated with the Baptist church or convention or association of churches, giving
rise to an exception from ERISA's governance. Baptist Health severed its ties to the
Arkansas Baptist State Convention after 1966, and that Convention no longer controls
Baptist Health. Thus, as Baptist Health has not been directly controlled by the Baptist
church since 1966, we must evaluate whether Baptist Health is "associated with" the
Baptist Church because it "shares common religious bonds and convictions."

      Only the Fourth Circuit has directly addressed this issue. In Lown v.
Continental Casualty Company, the plaintiff claimed that the federal court lacked
subject matter jurisdiction over her case because her long term disability plan was a
church plan not governed by ERISA. 238 F.3d 543 (4th Cir. 2001). Lown worked for
Baptist Healthcare System of South Carolina, Inc. Until 1993, Baptist Healthcare had
been affiliated with the South Carolina Baptist Convention, a group of state Baptist
churches. After 1993, Baptist Healthcare did not receive any funding from either the
Southern Baptist Convention or the South Carolina Baptist Convention. Moreover,

                                          -6-
Baptist Healthcare served individuals of all faiths and creeds. The court in Lown held
that Baptist Healthcare's long-term disability benefits plan did not qualify as a church
plan under ERISA because Baptist Healthcare was not controlled by a church or
convention nor were there common religious bonds and convictions between the two
entities. The court stated that "[i]t is true that the South Carolina Baptist Convention
and Baptist Healthcare both shared the name 'Baptist.' Yet the name is not the thing."
Lown, 238 F.3d at 548.

       In Lown, the Fourth Circuit applied a non-exclusive three-part test to determine
whether an organization shares common bonds and convictions with a church.
"[T]hree factors bear primary consideration: (1) whether the religious institution plays
an official role in the governance of the organization, (2) whether the organization
receives assistance from the religious institution, and (3) whether a denominational
requirement exists for any employee or patient/customer of the organization." Lown,
238 F.3d at 548. We find the Fourth Circuit's test useful and adopt it for analysis of
the instant case.

        Chronister claims that Baptist Health can satisfy all three factors of the Lown
test. First, Chronister contends that Baptist Health has active and on-going ties to the
Baptist church. The president/CEO of Baptist Health stated that "Baptist" is much
more than a title. Second, Baptist Health imposes a strict denominational requirement
on certain employees—administrators, president/CEO, and board members. Further,
the chaplains must be ordained Baptist ministers. The CEO refers to Baptist Health
as a Christian organization that operates a healing ministry where all management
employees are expected to be spiritual leaders as determined by Christian principles.
Consequently, Chronister argues that the principles and precepts of the Baptist church
govern and control the kind of health care that the hospital provides to its patients.
Chronister points out that Baptist Health requires all management employees to attend
a seminar entitled "Spiritual Dimensions of Leadership"as part of their employment.
Although lower level managers need not be members of the Baptist faith, they must

                                          -7-
listen and adhere to the Baptist precepts to the extent it relates to their management
of fellow Baptist Health employees. For those reasons, Chronister posits that Baptist
Health is controlled by the Baptist church, or, in the alternative, explicitly shares
common religious bonds and convictions with the Baptist church sufficient to be
associated.

       Applying the Lown factors to the facts of this case, we find that Baptist Health's
long-term disability-benefits plan is not a "church plan" under ERISA, and is,
therefore, governed by ERISA. Accordingly, this court has subject matter jurisdiction
to decide this matter. First, as stated above, the Arkansas Baptist State Convention has
played no role in the governance of Baptist Health for nearly forty years. Moreover,
the Arkansas Baptist State Convention does not appoint or approve any of Baptist
Health's board members. Lown, 238 F.3d at 548. "Indeed, [Chronister] points to no
factor indicating that Baptist Health[] consulted with the [Arkansas Baptist State
Convention] on any matter." Id. Baptist churches are not hierarchically governed and
it would be inaccurate to ascribe Baptist Health's generally religious outlook to a
specific Baptist Church or association of Baptist churches given their disaffiliation
with the Arkansas Baptist State Convention. Second, there is no evidence that Baptist
Health received any support from the Arkansas Baptist State Convention after its
dissociation. The only financial support mentioned comes from the Baptist Health
Foundation, which is made up of a number of local business people with no
requirement of any affiliation with the Baptist faith. Third, Baptist Health's
denominational requirement for certain employees of Baptist Health is limited to
administrators, the president/CEO, chaplains, and board members. Management
employees are instructed to be guided by Christian principles, not specific doctrines
of a Baptist church. Baptist Health treats patients of all religions or faiths.

      In sum, Baptist Health's long-term disability plan is an ERISA plan, not a
"church plan." Because Chronister has produced insufficient evidence that Baptist
Health is controlled by a Baptist church or association of churches or that there are

                                          -8-
common religious bonds and convictions between the entities, subject matter
jurisdiction is proper.

                    B. District Court Review of the ERISA Record
                                 1. Standard of Review
       First, we review de novo whether the district court applied the proper standard
in reviewing the decision of the plan administrator. McGarrah v. Hartford Life Ins.
Co., 234 F.3d 1026, 1030 (8th Cir. 2000). "In general, the abuse-of-discretion standard
applies if . . . the plan expressly gives the administrator discretion to determine
eligibility for benefits and to construe the terms of the plan. However, the degree of
deference to be given the plan administrator's decision under the abuse-of-discretion
standard may vary." Id. (internal citations omitted). In this case, it is undisputed that
the policy at issue gives Unum discretionary authority to determine eligibility for
benefits and to interpret the terms and provisions of the policy. Thus, initially, the
abuse of discretion standard seems appropriate. "This deferential standard reflects our
general hesitancy to interfere with the administration of a benefits plan." Heaser v.
Toro Co., 247 F.3d 826, 833 (8th Cir. 2001).

       However, "[a] plaintiff may obtain a less deferential review by presenting
'material, probative evidence demonstrating that (1) a palpable conflict of interest or
a serious procedural irregularity existed, which (2) caused a serious breach of the plan
administrator's fiduciary duty to her.'" Id. (quoting Woo v. Deluxe Corp., 144 F.3d
1157, 1160 (8th Cir. 1998)). The alleged conflict or procedural irregularity must have
some connection to the substantive decision reached by the plan administrator. Id. "A
claimant must offer evidence that 'gives rise to serious doubts as to whether the result
reached was the product of an arbitrary decision or the plan administrator's whim' for
us to apply the less deferential standard." Id. (quoting Layes v. Mead Corp., 132 F.3d
1246, 1250 (8th Cir. 1998)).




                                          -9-
        Chronister seeks a review standard less deferential to the administrator and
argues that a sliding scale of deference is required. Specifically, Chronister alleges
Unum operates under a financial conflict of interest in the Baptist Health plan because
it both makes the claim determinations and pays the claims. Chronister asserts that this
creates a rebuttable presumption of a conflict. In addition, Chronister claims that there
are several identifiable procedural irregularities in this case that warrant a higher
standard of review. First, Unum never considered Chronister's social security
disability award and failed to obtain Chronister's records from the Social Security
Administration. Second, the letter informing Chronister that her benefits were being
terminated failed to comply with Unum's own standards because it failed to inform her
of her appeal rights. In fact, when Chronister filed a complaint with Unum, her
complaint was held to be justified on the basis that the letter failed to inform her of her
appeal rights. Chronister contends the procedural irregularities are such that this court
should review the case using a standard higher than substantial evidence and near a
preponderance of the evidence to support the plan administrator's denial of benefits.

       Addressing Chronister's request for a less deferential standard of review, first,
we turn to the alleged financial conflict of interest. "[I]t is wrong to assume a financial
conflict of interest from the fact that a plan administrator is also the insurer."
McGarrah, 234 F.3d at 1030. Moreover, in this case, Chronister "has presented no
evidence that the alleged financial conflict had 'a connection to the substantive
decision reached.'"Id. (quoting Sahulka v. Lucent Tech., Inc., 206 F.3d 763, 768 (8th
Cir. 2000)). Therefore, because the record does not show that Unum's initial grant and
later termination of Chronister's disability benefits were tainted by any financial
impact that those decisions may have had on Unum as the plan-funding insurer,
Chronister's contention of a financial conflict of interest is without merit. Id.

       Chronister also asserts two procedural irregularities in support of a higher
review standard: (1) Unum never considered her social security disability award and
failed to obtain her records from the Social Security Administration and (2) the letter

                                           -10-
informing Chronister that her benefits were being terminated failed to inform her of
her appeal rights. It should be noted that "the mere presence of a procedural
irregularity is not enough to strip a plan administrator of the deferential standard of
review." McGarrah, 234 F.3d at 1031. Here, Chronister has failed to demonstrate any
connection between the alleged procedural irregularities and the substantive decision
reached. Further, Chronister has not offered any evidence that gives rise to serious
doubts as to whether the result reached was the product of an arbitrary decision or the
plan administrator's whim. As a result, "[a]ny alleged irregularities were not so
egregious that they might trigger a 'total lack of faith in the integrity of the decision
making process.'"Layes, 132 F.3d at 1251. Accordingly, the district court properly
applied an abuse of discretion standard in ruling on Unum's motion for judgment.

         2. Merits of Chronister's Claim for Long-Term Disability Benefits
       After Chronister's automobile accident, she continued to complain of chronic
pain, pain in her joints, and extreme fatigue. In May 1997, Dr. Lipsmeyer performed
an 18-point "trigger test" commonly used in the diagnosis of fibromyalgia. Chronister
tested positive on all eighteen trigger points. Consequently, Chronister was diagnosed
with fibromyalgia and Raynaud's phenomenon. Unum began paying Chronister long-
term disability benefits effective October 16, 1997, however, Unum determined that
benefits were not payable to Chronister after December 15, 2001, based upon a
provision of the long term disability policy which limits benefits to twenty-four
months if the disability is primarily based upon self-reported symptoms. Under the
policy, the limitation states: "Disabilities, due to sickness or injury, which are
primarily based on self-reported symptoms, and disabilities due to mental illness have
a limited pay period up to 24 months." Self-reported symptoms are defined as ". . . the
manifestations of your condition which you tell your doctor, that are not verifiable
using tests, procedures or clinical examinations standardly accepted in the practice of
medicine."




                                          -11-
       The district court explained that, although this circuit has not explicitly stated
that the "trigger point" or "pressure point" test is an objective test for fibromyalgia,
other courts have made this finding. Based upon its finding that the "trigger point" test
constitutes objective medical evidence, the district court determined that Chronister's
condition did not fall under the self-reported symptom limitation. As that was the only
reason for Unum's denial of benefits, the district court remanded this case to Unum
to re-open the administrative record and make a new determination of the claim
exercising the discretion given to it by the plan.

       Applying the abuse of discretion standard, "the plan administrator's decision
will be upheld if it was reasonable, that is, if it was supported by substantial evidence.
If the decision satisfies this standard, it 'should not be disturbed even if another
reasonable, but different, interpretation may be made.'" McGarrah, 234 F.3d at 1031.

       Unum does not dispute Chronister's medical diagnosis of fibromyalgia.
However, Unum does dispute whether Chronister's fibromyalgia is disabling. Unum's
decision discontinuing benefits concluded that the record did not support any
objective measurement of Chronister's impairment, restrictions, or limitations. Unum
argues simply because a test allows physicians to accurately diagnose fibromyalgia
does not mean that the level of limitation is objectively verified by test or clinical
examinations standardly accepted in medicine. In fact, the trigger point test is based
on a patient's self report, and includes no other testing or procedure to verify the
symptoms. Fibromyalgia is verifiable only through patient self-report. Therefore,
Unum suggests that the record is devoid of any objective measurement or analysis of
Chronister's degree of impairment. In this case, Unum states that the question is not
whether fibromyalgia has been objectively diagnosed. The issue is whether the
manifestation of fibromyalgia is self-reported. Unum believes it is. For those reasons,
Unum posits that its decision to deny benefits to Chronister was supported by
substantial evidence, and the decision of the plan administrator was not an abuse of
discretion.

                                          -12-
       Under Unum's policy, the key question then becomes whether fibromyalgia is
subject to the policy's self-reported symptoms limitation. By its plain language the
limitation applies only to disabilities that "are primarily based on self-reported
symptoms. . . ." Self-reported symptoms are specifically defined as those that "are not
verifiable using tests, procedures or clinical examinations standardly accepted in the
practice of medicine." The eighteen point "trigger test" performed by Dr. Lipsmeyer
qualifies as a "clinical examination standardly accepted in the practice of medicine,"
and thus, Chronister's fibromyalgia is not subject to Unum's self-reported symptoms
limitations. Our circuit recently joined the Seventh Circuit in recognizing that trigger-
point test findings consistent with fibromyalgia constitute objective evidence of the
disease. Johnson v. Metro. Life Ins. Co., 437 F.3d 809 (8th Cir. 2006). See also
Brosnahan v. Barnhart, 336 F.3d 671, 678 (8th Cir. 2003) ("Brosnahan's testimony
and reports to the SSA are supported by objective medical evidence of fibromyalgia-
consistent trigger-point findings . . ."); Hawkins v. First Union Corp. Long-Term
Disability Plan, 326 F.3d 914, 919 (7th Cir. 2003) ("Pain often and in the case of
fibromyalgia cannot be detected by laboratory tests. The disease itself can be
diagnosed more or less objectively by the 18-point test . . ."). Chronister's medical
condition consequently does not rest primarily on self-reported symptoms. The district
court did not err in its finding that Unum abused its discretion when it denied
Chronister further benefits based solely upon the self-reported symptoms limitation.
The district court correctly remanded the matter to the administrator for further
proceedings. Given the disposition of the case, i.e. remand to the administrator, we
cannot say the district court abused its discretion in denying Chronister's request for
interim benefits.

                                  III. Conclusion
      For the reasons stated above, the judgment of the district court is affirmed.
                       ______________________________




                                          -13-
