                    United States Court of Appeals
                          FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 06-3054
                                   ___________

Russell L. Wakkinen,              *
                                  *
     Plaintiff/Appellant,         *
                                  *
     v.                           * Appeal from the United States
                                  * District Court for the
UNUM Life Insurance Company of    * District of Minnesota.
America; UNUM Provident           *
Corporation,                      *
                                  *
     Defendants/Appellees.        *
                             ___________

                             Submitted: March 16, 2007
                                Filed: July 2, 2008
                                 ___________

Before WOLLMAN, JOHN R. GIBSON, and MURPHY, Circuit Judges.
                          ___________

JOHN R. GIBSON, Circuit Judge.

       Russell Wakkinen was denied long-term disability benefits under a plan offered
by his employer. After exhausting his administrative appeals, he brought this action
against UNUM Life Insurance Company and UNUM Provident Corporation
(collectively “UNUM”) as the issuers of the policy. Wakkinen alleges that UNUM’s
decision to deny his claim for disability benefits is in violation of the Employee
Retirement Income Security Act of 1974 (“ERISA”). The district court1 granted
summary judgment to UNUM and denied Wakkinen’s summary judgment motion,
holding that UNUM did not abuse its discretion in denying Wakkinen’s claim and that
the administrative record supports UNUM’s determination that Wakkinen failed to
meet the policy’s 180-day elimination period. We affirm.

                                          I.

      Russell Wakkinen is a certified public accountant who was employed by RSM
McGladrey as a Senior Manager in its Financial Management Group. His position
was that of a business consultant. As such, Wakkinen was covered by a UNUM Life
Insurance Company long-term disability policy offered by his employer (“the
policy”). Wakkinen has suffered from a variety of medical conditions over the past
twenty years. He was diagnosed with fibromyalgia in 1998 and began treatment for
major depressive disorder in 1999. Those conditions, along with chronic fatigue
syndrome, were the basis for his request for long-term disability benefits.

       Wakkinen’s last day of work was November 30, 2001. On December 3, he
urgently saw his treating psychiatrist when he felt particularly depressed and realized
that he had no work to record on his time sheets for the past two months. He had also
become unable to take care of his own hygiene, housework, and other needs. The
psychiatrist, Dr. Bebchuk, completed a six-week work excuse for him due to severe
depression and suggested that he seek approval for short-term disability. Wakkinen
applied for and received short-term disability benefits from December 3, 2001 through
May 31, 2002. Those dates begin and end his 180-day elimination period, a time
during which a claimant must be continuously disabled to be eligible for benefits.




      1
      The Honorable Joan N. Ericksen, United States District Judge for the District
of Minnesota.

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       During those six months, Wakkinen received medical care from a number of
providers. Dr. Bebchuk continued to monitor his medication for depression, and he
also saw a psychotherapist, Dr. Nye. Wakkinen returned to his internist, Dr. Lehman,
complaining of excessive tiredness and continued difficulties due to fibromyalgia. On
January 9, 2002, he asked Dr. Lehman for a “disability slip” for fibromyalgia, and
while Dr. Lehman agreed that Wakkinen had issues with pain, he felt that most of his
fatigue and inability to work were psychiatric. Dr. Lehman declined to provide the
slip and advised Wakkinen to discuss his disability with Dr. Bebchuk. Wakkinen had
a sleep study performed at Dr. Lehman’s direction in April, but its results were
inconclusive. On May 28, Wakkinen began seeing Dr. Brutlag, a specialist in physical
medicine, for treatment of his fibromyalgia and pain. In her notes from his first visit,
Dr. Brutlag recounted the extensive treatment he had received for the condition:
physical therapy, ultrasound, TENS, massage therapy, acupuncture, home exercise,
medication, activity restriction, aerobics, Chi Gong (a practice involving breathing and
movement exercises), and meditation. She noted that he was struggling tremendously
with his pain level, fatigue, and overall endurance and energy level. In addition to
her own treatment, Dr. Brutlag referred Wakkinen to Dr. Stormo for pain management
counseling.

       Wakkinen filed his claim for long-term disability benefits under the policy in
April 2002. He listed severe depression combined with fibromyalgia and chronic
fatigue syndrome as the disabling sicknesses which had left him unable to work since
December 3, 2001. In addition to having to demonstrate that he was “disabled” as
defined by the policy, Wakkinen also had to show that he was continuously disabled
to satisfy a 180-day elimination period and be eligible for long-term disability
benefits. The policy states,

      You must be continuously disabled through your elimination period.
      Unum will treat your disability as continuous if your disability stops for
      30 days or less during the elimination period. The days that you are not
      disabled will not count toward your elimination period.

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UNUM denied Wakkinen’s claim on the basis that the only work restriction that was
supported during the elimination period was that of major depression, and it was not
supported past April 8, 2002. Although UNUM recognized that Wakkinen continued
to suffer depression after that date, it concluded from the medical records that his
condition was not severe enough to prohibit occupational functioning. Thus, UNUM
concluded that under the terms of the policy, Wakkinen was not continuously disabled
because he was not limited from performing the material and substantial duties of his
regular occupation throughout the elimination period.

       Dr. Bebchuk was the only medical care provider that Wakkinen listed on his
disability claim form, and on April 30, 2002, he completed the Attending Physician’s
Statement that supported the claim. He provided a diagnosis of “major depressive
disorder recurrent in partial remission” that began on November 5, 2001, but with
symptoms that first appeared in August 1999. Dr. Bebchuk’s notes from his next few
encounters with Wakkinen tell of changes in his condition. Dr. Bebchuk wrote
following his May 20 appointment that Wakkinen “feels better than he has in a long
while. He is more optimistic and finds that his activity level has increased. . . .
Activity level would suggest that he can probably return to work on a part-time basis.”
Dr. Bebchuk gave him a note that day to return to a twenty-hour work week as of June
3. However, eight days later Wakkinen telephoned Dr. Bebchuk and expressed his
concern about returning to work. He did not feel able to work full-time, and he
recounted that his employer had earlier told him that part-time was not an option. Dr.
Bebchuk urged him to get more information about whether he could return to work
on a part-time basis and work up to full-time, and Wakkinen agreed to do so. Three
days later, on May 31, Wakkinen telephoned Dr. Bebchuk again and stated that his
depression and headaches were such that he was “incapacitated to the point where he
has regressed somewhat from our last visit. As such, he is not ready to return to work
even on a part-time basis and would benefit from continued medical leave.” Dr.
Bebchuk approved the continuation of his short-term disability until June 30.

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                                          4
       The UNUM policy defines “disabled” as being “limited from performing the
material and substantial duties of one’s regular occupation due to sickness or injury,”
with a corresponding “twenty percent or more loss in indexed monthly earnings.”
Had Wakkinen been considered disabled due to one of his physical conditions, he
would have received payment under the policy until he reached age 67. If UNUM had
determined that he was disabled due to depression, he would have received benefits
for only twenty-four months. Wakkinen was 48 years old at the time he submitted his
claim.

       Wakkinen appealed the denial three times, arguing that he was disabled due to
depression and physical problems. During this process, he provided UNUM with
records from care he continued to receive after May 31, 2002, the end of his
elimination period. He first saw Dr. Stormo, a psychologist, on June 10. She
diagnosed him with chronic pain disorder associated with both psychological and
medical factors, major depressive disorder, adjustment disorder, fibromyalgia, chronic
pain and fatigue, and other anxiety issues. She noted that several factors may have
compromised his ability to cope with pain and increased his disability. Wakkinen
continued his therapy with Dr. Stormo over the next seven months, and her notes
reflect that he often spoke of the uncertainty of his financial situation and his
difficulties in functioning. Dr. Bebchuk continued to prescribe and monitor
Wakkinen’s medications to treat his major depressive disorder. Wakkinen also began
receiving trigger point injections from Dr. Brutlag to relieve pain. On October 8,
2002, Dr. Brutlag wrote that Wakkinen had been completely disabled since August
1 due to fibromyalgia, chronic pain, and severe fatigue, and she opined that his
disability was likely to continue until at least November 15. Dr. Brutlag continued to
treat Wakkinen and to administer trigger point injections, which would provide him
pain relief for up to three weeks. Wakkinen also saw a chiropractor beginning in
September 2002, when he wrote that one of his goals for treatment was to get back to
work.



                                         -5-
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       Following UNUM’s original denial on October 7, 2002, Wakkinen submitted
new notes from Drs. Bebchuk and Brutlag excusing him from work through July 31
and November 15, respectively. Although UNUM did not find the information
sufficient to reverse its decision because it lacked supporting medical documentation,
it treated the submission as Wakkinen’s first appeal. Dr. Brutlag’s note listed
Wakkinen’s disabling conditions as fibromyalgia, chronic fatigue, and severe chronic
pain, and Dr. Bebchuk’s notes listed depression. Accordingly, UNUM chose a
clinical consultant nurse, Dr. Jacobson (occupational medicine physician), and Dr.
Brown (psychiatrist and neurologist) to review Wakkinen’s file. They concluded that
Wakkinen’s chronic depression was characterized by periods of worsening and
improvement, and that the period of November 1, 2001 to April 4, 2002 was the only
time during which restrictions and limitations were supported. UNUM also concluded
that the clinical findings and tests concerning Wakkinen’s fibromyalgia did not
indicate that he was physically impaired to the point of being unable to function.
UNUM thus upheld its denial of Wakkinen’s claim because it continued to find that
he was not prevented from working in his regular occupation throughout the 180-day
elimination period. Its letter detailing the review and decision is dated January 15,
2003.

        Wakkinen then retained the services of counsel who submitted an appeal
(Wakkinen’s second) with additional supporting documentation on May 1, 2003. The
documents included updated medical records from the same providers whose records
already had been supplied to UNUM along with those of a rheumatologist, pain
specialists, and chiropractor. Wakkinen also submitted statements from his former
wife and his two children concerning the changes in his physical condition and
abilities. UNUM had the documents summarized by a nurse and reviewed again by
Dr. Brown from a psychiatric perspective and by Dr. Jacobson with respect to
Wakkinen’s physical conditions. Dr. Brown concluded that Wakkinen’s depression
was mild to moderate with no suggestion of significant impairment and “continued
waxing and waning of symptoms.” The additional information did not cause him to

                                         -6-
                                          6
change his earlier conclusion of no disability. Dr. Jacobson found that some of the
clinical findings were inconsistent with an inability to perform activities such as
housework – no loss of muscle strength or tone, frequent and regular exercise and
working out with weights – and noted that Dr. Brutlag had deemed Wakkinen disabled
through November 15 without providing any clinical explanation. Although the
records spoke of a long history of fatigue and sleep difficulties, Wakkinen had only
one sleep study with results that were not clinically significant. There was no
documentation of cognitive functional impairment, but rather the entries showed that
Wakkinen was alert and oriented and able to follow commands. On July 30, 2003,
UNUM issued its denial of Wakkinen’s second appellate review and upheld its
original decision.

       Wakkinen’s counsel made one additional attempt to have UNUM reverse its
decision by responding to several points raised in UNUM’s most recent denial letter.
The only new medical evidence he submitted included progress notes from his first
appointment with Dr. Brutlag, chiropractic records, and records from Wakkinen’s
office visits with Drs. Bebchuk and Brutlag since his May 1, 2003 appeal. In other
words, Wakkinen submitted only one item of new medical evidence with his
attorney’s March 1, 2004 letter that went to the issue of whether he was disabled
throughout his 180-day elimination period ending May 31, 2002. That item was Dr.
Brutlag’s notes from Wakkinen’s first appointment with her on May 28, 2002. Her
objective findings contained nothing remarkable, and her assessment was that he had
chronic mild cervical sensory findings following a diskectomy and fusion, and that he
had fibromyalgia. She noted that he was having an extremely difficult time coping
with pain, fatigue, overall endurance and energy, and that he would benefit from pain
management to allow him to pace his activities and thereby reduce his pain.

      UNUM responded on May 13, 2004, and noted that Dr. Brutlag’s report did
“not support a level of decreased functionality” and thus did not alter the denial of
Wakkinen’s claim. UNUM informed him that he had exhausted his administrative

                                         -7-
                                          7
remedies and that it would not conduct any further appellate reviews. Although
Wakkinen sought reconsideration once again, UNUM declined to re-open its claim
proceedings. Wakkinen brought this action, and on cross-motions for summary
judgment, the district court denied Wakkinen’s motion and granted UNUM’s.

                                          II.

       We review de novo the district court’s summary judgment ruling, Cash v. Wal-
Mart Group Health Plan, 107 F.3d 637, 640 (8th Cir. 1997), and whether the district
court applied the appropriate standard of review to the administrator’s decision, Clapp
v. Citibank, N.A. Disability Plan, 262 F.3d 820, 826 (8th Cir. 2001). The district
court applied an abuse of discretion standard, which is appropriate when an ERISA
plan grants discretionary authority to the plan administrator to determine eligibility
for benefits. Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 115 (1989).
Wakkinen argues that the district court erred by not applying a de novo standard of
review because the plan did not grant UNUM the discretion that warrants a more
deferential standard and because conflicts of interest and serious procedural
irregularities caused a breach of UNUM’s fiduciary duty.

       We conclude that the district court did not err in deciding that UNUM’s denial
is subject to an abuse of discretion review. The district court thoroughly analyzed
Wakkinen’s arguments in favor of a less discretionary standard by examining the
record and correctly applying the law.

                                          A.

       Wakkinen asserts that the policy as issued does not grant UNUM the discretion
to make benefit determinations, and thus its denial of Wakkinen’s claim is subject to
de novo review. Wakkinen’s argument depends upon an incomplete look at what
constitutes the policy. By its terms, the UNUM plan consisted of all policy provisions

                                         -8-
                                          8
and amendments, the employees’ signed applications, and the certificate of coverage.
The certificate states, “When making a benefit determination under the policy, UNUM
has discretionary authority to determine your eligibility for benefits and to interpret
the terms and provisions of the policy.” An amendment to the policy, effective
December 1, 2001 (two days before the onset of Wakkinen’s claimed disability),
provides:

      In exercising its discretionary powers under the Plan, the Plan
      Administrator, and any designee (which shall include Unum as a claims
      fiduciary) will have the broadest discretion permissible under ERISA
      and any other applicable laws, and its decisions will constitute final
      review of your claim by the Plan. Benefits under this Plan will be paid
      only if the Plan Administrator or its designee (including Unum), decides
      in its discretion that the applicant is entitled to them.

These provisions adequately state the requisite discretion granted to UNUM under the
policy. See Walke v. Group Long Term Disability Ins., 256 F.3d 835, 839 (8th Cir.
2001). The district court was correct in applying an abuse of discretion standard of
review.

                                          B.

       Wakkinen argues that UNUM should be afforded no deference because he has
presented “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.” Woo v. Deluxe Corp., 144 F.3d 1157,
1160 (8th Cir. 1998). Wakkinen alleges both were present.

       The first conflict of interest he urges is that UNUM Life both administered the
plan and was the self-insured provider of benefits due under the plan. Acknowledging
the state of the law as it existed when he filed his brief, Wakkinen conceded that no
conflict of interest could be assumed in such a situation. However, the Supreme Court

                                          -9-
                                           9
has recently held that a plan administrator which both evaluates claims for benefits
and pays benefit claims (as UNUM does) is operating under a conflict of interest.
Metropolitan Life Ins. Co. v. Glenn, ___ U.S. ___, 2008 WL 2444796, at *5 (U.S.
June 19, 2008). The rule holds true for both employers and insurers who hold dual
roles. Id. at *5-7. Although the conflict is more apparent where it is the employer
who both funds the plan and evaluates the claims, the Court noted that it exists just the
same for insurers. ERISA requires a plan administrator to discharge its discretionary
duties solely in the interests of the plan’s participants and beneficiaries, it mandates
full and fair review of claim denials, and it “supplements marketplace and regulatory
controls with judicial review of individual claim denials.” Id. at *7.

       However, the existence of a conflict did not lead the Court to announce a
change in the standard of review. We are to review an administrator’s discretionary
benefit determination for abuse of discretion. Id. The Court concluded that “a
conflict should be weighed as a factor in determining whether there is an abuse of
discretion.” Id. (quoting Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 115
(1989)).


      In such instances, any one factor will act as a tiebreaker when the other
      factors are closely balanced, the degree of closeness necessary depending
      upon the tiebreaking factor's inherent or case-specific importance. The
      conflict of interest at issue here, for example, should prove more
      important (perhaps of great importance) where circumstances suggest a
      higher likelihood that it affected the benefits decision, including, but not
      limited to, cases where an insurance company administrator has a history
      of biased claims administration. See Langbein, supra, at 1317-1321
      (detailing such a history for one large insurer).


Glenn, at *9 (citing John H. Langbein, Trust Law as Regulatory Law: The
Unum/Provident Scandal and Judicial Review of Benefit Denials Under ERISA, 101
Nw. U. L. Rev. 1315, 1323-1324 (2007)).


                                          -10-
                                           10
       Even though no conflict of interest could be assumed pre-Glenn, Wakkinen
argued in his brief that a palpable conflict exists because UNUM engaged in unlawful
procedures in handling his claim. The procedures he refers to are those that were
subject to a multistate examination of the claims handling practices of UNUM Life
and other subsidiaries of UNUM Provident. These practices are the subject of the law
review article quoted by the Supreme Court in the passage above. In September 2003,
the Department of Labor and state regulators began a joint examination of claim files
and claim administration and policy manuals from these companies to determine if
their disability income claims handling practices reflected systemic unfair claim
settlement practices. The examiners found several areas of concern, including
excessive reliance upon in-house medical professionals, unfair construction of
attending physician or independent medical exam reports, failure to evaluate the
totality of the claimant’s medical condition, and inappropriate burdens placed on
claimants to justify their eligibility for benefits. The result was a plan of corrective
action implemented through a regulatory settlement agreement and consent orders
entered into with the states.

       We are instructed by Glenn to give importance to this conflict of interest,
“perhaps . . . great importance,” Glenn at *9, depending upon how closely the other
factors are balanced. The findings of the investigation are troubling, and we do not
minimize their import. Taking into account the remaining factors discussed below,
we conclude that there is not a sufficiently close balance for the conflict of interest to
act as a tiebreaker in favor of finding that UNUM abused its discretion. See id.

      Wakkinen asserts that another procedural irregularity existed in that UNUM
lacked knowledge of Wakkinen’s condition and failed to inquire into his fibromyalgia
and chronic fatigue syndrome when it denied his claim. We continue to examine this
claim under Woo v. Deluxe Corp., 144 F.3d 1157, 1160 (8th Cir. 1998). The record
does not support his argument. Although Wakkinen’s medical records mention
fibromyalgia and chronic fatigue syndrome, his application for benefits was supported

                                          -11-
                                           11
by a single attending physician’s statement from Dr. Bebchuk attributing his disability
to “major depressive disorder recurrent in partial remission.” None of his treating
physicians opined until well after the elimination period had ended that another
condition was disabling . Dr. Brutlag wrote a one-sentence note which Wakkinen
provided to UNUM on October 9, 2002: “Totally disabled 8/1/02 thru 11/15/02 due
to fibromyalgia, chronic fatigue & severe chronic pain.”

       Wakkinen also argues that UNUM failed to conduct an independent review by
a physician with appropriate expertise, thereby creating a procedural irregularity. He
questions the ability of Dr. Jacobsen, a board-certified occupational medicine
physician, to offer an opinion on Wakkinen’s fibromyalgia. However, Wakkinen
points to no evidence that calls into question the expertise of Dr. Jacobsen personally
or of a doctor who specializes in occupational medicine to offer an opinion on the
condition of fibromyalgia. As the district court pointed out, UNUM did not doubt the
diagnosis. Rather, it consistently took the position that Wakkinen’s fibromyalgia was
not sufficiently severe during his 180-day elimination period to render him disabled
from performing his occupation, and Wakkinen’s own doctors provided no opinion
to the contrary.

       Finally, Wakkinen argues that a procedural irregularity existed because UNUM
did not conduct an independent review of his claim during each of his appeals. Dr.
Bolinger, a board-certified psychiatrist, conducted a clinical review of Wakkinen’s
original application. Dr. Bolinger agreed that sufficient evidence existed to support
a diagnosis of major depression, recurrent. However, he concluded that the medical
records only supported psychiatric restrictions and limitations to the point of
prohibiting occupational functioning through April 8, 2002. Wakkinen complains
that, in his first appeal, Dr. Jacobsen’s review was not independent because he
consulted Dr. Bolinger’s report. The record suggests no such inference. In
Wakkinen’s first appeal, his file was reviewed by a clinical consultant from a
psychiatric perspective, Dr. Bolinger, a clinical consultant from a physical

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                                          12
perspective, and Dr. Jacobsen. In response to Wakkinen’s second appeal, Dr.
Bolinger and an appeals specialist reviewed his file, and a clinical consultant
conducted the review in his third appeal. Wakkinen has not demonstrated that UNUM
failed to independently review his claim on appeal.

      The district court was correct in reviewing the administrator’s determination for
abuse of discretion.

                                           III.

        Wakkinen argues that UNUM’s denial of his application for benefits was
improper under any standard of review, but he acknowledges the deference that is
implicit if the question is whether the plan administrator abused its discretion. Under
that standard, we will not disturb the administrator’s decision if it was reasonable. We
measure reasonableness by whether substantial evidence exists to support the decision,
meaning “more than a scintilla but less than a preponderance.” Woo v. Deluxe Corp.,
144 F.3d 1157, 1162 (8th Cir. 1998). We examine only the evidence that was before
the administrator when the decision was made, and we are to determine whether a
reasonable person could have – not would have – reached a similar decision. Phillips-
Foster v. UNUM Life Ins. Co., 302 F.3d 785, 794 (8th Cir. 2002).

      With this in mind, we consider the ways in which Wakkinen asserts that UNUM
abused the discretion granted it under the plan. He argues that UNUM did not address
the physical causes of his disability until his first appeal, and then it did not give due
consideration to the new evidence he submitted. The record does not support
Wakkinen’s argument. As we have already discussed, although he listed depression,
fibromyalgia, and chronic fatigue syndrome as disabling conditions on his application
for benefits, depression was the only condition for which he submitted a treating
doctor’s opinion of disability. UNUM determined that Dr. Bebchuk’s conclusion was
not supported by his own treatment records, which showed him urging Wakkinen to

                                          -13-
                                           13
return to work just days before he pronounced him disabled. It was therefore not
unreasonable for UNUM to deny Wakkinen’s application for long-term disability
benefits due to depression.

       When Wakkinen submitted his first appeal with additional medical records,
virtually all of those were for care he received before the alleged onset date or after
the elimination period ended. The only medical opinion he offered as to the disabling
nature of his fibromyalgia condition came from Dr. Brutlag, and she wrote that the
disability began in August 2002, well after the elimination period. Wakkinen never
submitted any medical evidence to the effect that chronic fatigue syndrome limited
him from performing his job during the 180-day elimination period. The additional
mental health records came from Dr. Bebchuk, but those records contained no new
information with respect to Wakkinen’s depression during the relevant 180 days.
Wakkinen also provided records from Dr. Stormo, with whom he began treatment in
the summer of 2002, but he acknowledges that Dr. Stormo offered no opinion that
Wakkinen was disabled.

       While we do not doubt that Wakkinen has suffered from each of these
significant medical conditions, and one or more may well have rendered him disabled
after the elimination period ended, that does not deter our conclusion that the plan
administrator’s decision to deny benefits was reasonable. The policy requires him to
be continuously disabled through the 180 days of his elimination period to be eligible
for benefits. Because substantial evidence exists that he was not continuously
disabled from December 3, 2001 through May 31, 2002, we will not disturb the
administrator’s decision. See Butts v. Cont’l Cas. Co., 357 F.3d 835, 839 (8th Cir.
2004).

      While Wakkinen objects to the reasons UNUM gave in denying his initial claim
and each of his appeals, UNUM was consistent in its position. UNUM concluded that
Wakkinen had not demonstrated through his own treatment records that depression,

                                         -14-
                                          14
fibromyalgia or chronic fatigue syndrome, or any combination of those conditions
precluded him from performing the material and substantial duties of his position
through the elimination period. We have examined the same record and we conclude
that substantial evidence exists to support UNUM’s decision. Although UNUM was
operating under a conflict of interest when it denied Wakkinen’s claim, the remaining
facts in the case indicate that it did not abuse its discretion.

      We affirm the judgment.
                      ______________________________




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