Edith Stromatt v. The Metropolitan Employee Benefit Board of the Metropolitan Government of Nashville and Davidson County, Tennessee ( 1998 )

EDITH STROMATT, )
)
Plaintiff/Appellant, ) Appeal No.
) 01-A-01-9707-CH-00354
v. )
)
THE METROPOLITAN ) Davidson Chancery
EMPLOYEE BENEFIT BOARD ) No. 96-1250-I
OF THE METROPOLITAN )
GOVERNMENT OF NASHVILLE )
AND DAVIDSON COUNTY,
TENNESSEE,
)
)
FILED
) September 2, 1998
Defendant/Appellee. )
) Cecil W. Crowson
Appellate Court Clerk
COURT OF APPEALS OF TENNESSEE
APPEAL FROM THE CHANCERY COURT FOR DAVIDSON COUNTY
AT NASHVILLE, TENNESSEE
THE HONORABLE IRVIN H. KILCREASE, JR., CHANCELLOR
CHARLES R. RAY
JEFFERY S. FRENSLEY
211 Third Avenue North
P. O. Box 198288
Nashville, Tennessee 37219-8288
ATTORNEYS FOR PLAINTIFF/APPELLANT
JOHN L. KENNEDY
WM. MICHAEL SAFLEY
204 Metropolitan Courthouse
Nashville, Tennessee 37201
ATTORNEYS FOR DEFENDANT/APPELLEE
AFFIRMED AND REMANDED
WALTER W. BUSSART,
SPECIAL JUDGE
OPINION
The appellant in this action is Edith Stromatt, a former employee of the
Metropolitan Government of Nashville, Tennessee. When Ms. Stromatt sought
disability with the Metropolitan Employee Benefit Board ("the Benefit Board"),
she was granted a medical disability pension; however, she was denied the in-
line-of-duty pension (IOD) that she desired. Ms. Stromatt brought suit in
chancery court claiming that the Benefit Board erred in its failure to grant her an
IOD pension. She also claims that the Benefit Board denied her the
constitutional right to be heard prior to its decision. The trial court agreed with
the conclusions of the Benefit Board and dismissed Ms. Stromatt's appeal.
I. FACTS AND PROCEDURAL HISTORY
At the time that she ceased work, Ms. Stromatt had been employed by the
Metropolitan Government for 23 years. At all times material to this case, she
held a position as the Executive Assistant to Bill Covington, the County Clerk
of the Metropolitan Government. In September of 1995, following a lengthy
medical leave of absence, Ms. Stromatt was advised that she would never be
medically fit to return to work.
These proceedings began when, on May 12, 1995, Ms. Stromatt filed a
claim with the Benefit Board seeking disability in the form of an IOD pension.
The Metropolitan Government offers two types of pensions, an IOD pension and
a medical disability pension. Though the two pensions are the same in amount,
only the medical disability pension is treated as income for federal income tax
purposes making it the less desirable of the two. In Ms. Stromatt's claim for an
IOD pension, she alleged that she suffered from a condition of
"stress/depression" which had begun at her work on March 28, 1995. Among
Ms. Stromatt's allegations were that she was falsely accused of going through the
desk of her boss, Mr. Covington, that she was often confronted with Mr.
Covington's excessive in-office alcohol consumption as well as his illicit
fraternizing with a female co-worker, and that she was ostracized by her co-
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workers at the instruction of Mr. Covington.
At the September 11, 1995 Benefit Board meeting, a staff report on Ms.
Stromatt shows that the Board considered information from Dr. Robert Cochran,
Dr. Michael Bottari, and Dr. Jack Corban. The Board approved a medical
disability pension for Ms. Stromatt and referred the matter to the IOD Committee
to decide the issue of whether she could qualify for an IOD pension. As Mr.
James Luther, the Benefit Board's Executive Secretary, notified Ms. Stromatt by
letter, "[t]he issue to be dealt with at [IOD Committee] stage is not whether a
disability exists as this has already been decided by the Board, but to determine
whether the basis of the disability is job-related and arises out of [Ms. Stromatt's]
employment."
On February 26, 1996, the IOD Committee held a meeting at which it
considered the Executive Secretary's Staff Report to the IOD Committee ("the
Staff Report"). In this report, Mr. Luther summarized information from many of
Ms. Stromatt's co-workers, Mr. Covington, and the doctors who treated Ms.
Stromatt. Plaintiff and her attorney were present at the February 26 meeting;
however, the Committee denied their requests to make any legal argument or to
present any evidence to the Committee. The Committee adopted the Executive
Secretary's Staff Report which had the effect of denying Ms. Stromatt's
application for an IOD disability pension. The Benefit Board then adopted the
IOD Committee's report.
As stated above, Ms. Stromatt petitioned for a writ of certiorari in the
chancery court pursuant to Tennessee Code Annotated section 27-8-101 and
Tennessee Code Annotated section 27-9-101. The trial court found that Ms.
Stromatt was given the opportunity to submit her own argument to the IOD
Committee in writing and that she presented no other witnesses at the hearing.
Further, the court found that her claim to a property right in the IOD disability
pension before it is ever granted is without merit. It was the court's position that
Ms. Stromatt would only have such a right if the requirements for the pension
were met and the pension granted. Therefore, in this case, there was no due
process violation. Finally, the court found that the Board's decision to deny Ms.
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Stromatt an IOD disability pension was supported substantial and material
evidence.
II. STANDARD OF REVIEW
Review in this case is by common law writ of certiorari which is embodied
in the Tennessee Code as follows:
The writ of certiorari may be granted whenever authorized by law,
and also in all cases where an inferior tribunal, board, or officer
exercising judicial functions has exceeded the jurisdiction
conferred, or is acting illegally, when, in the judgment of the court,
there is no other plain, speedy, or adequate remedy.
Tenn. Code Ann. § 27-8-101 (Supp. 1997). As the supreme court has
summarized, "[r]eview under the common law writ is limited to whether 'the
inferior board or tribunal (1) has exceeded its jurisdiction, or (2) has acted
illegally, arbitrarily, or fraudulently.' " McCallen v. City of Memphis, 786
S.W.2d 633, 638 (Tenn. 1990) (quoting Hoover Motor Exp. Co. v. Railroad and
Pub. Util. Comm'n, 261 S.W.2d 233, 238 (Tenn. 1953)); see also Hoover, Inc.
v. Metropolitan Bd. of Zoning Appeals, 924 S.W.2d 900, 904 (Tenn. Ct. App.
1996). "An illegal, arbitrary, or fraudulent action could be any number of things.
Examples include the following: 1) the failure 'to follow minimum standards of
due process'; 2) 'the misrepresentation or misapplication of a legal standard'; 3)
the making of a decision for 'ulterior motives'; or 4) the violation of a
constitutional standard." Hoover, Inc., 924 S.W.2d at 905 (quoting Ben H.
Cantrell, Review of Administrative Decisions by Writ of Certiorari in
Tennessee, 4 Mem.St.U.L.Rev. 19, 28-29 (1973)).
"The reviewing court is required to determine whether there is any
material evidence that supports the action of the administrative agency."
Laidlaw Envtl. Servs. v. Metropolitan Bd. of Health, 934 S.W.2d 40, 49 (Tenn.
Ct. App. 1996) (citing Lansden v. Tucker, 321 S.W.2d 795 (Tenn. 1959)).
While judicial review of the issue of whether there is any material evidence is
limited to the record, "new evidence is admissible on the issue of whether the
administrative body exceeded its jurisdiction or acted illegally, capriciously or
arbitrarily." Davison v. Carr, 659 S.W.2d 361, 363 (Tenn. 1983) (citing Watts
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v. Civil Serv. Bd., 606 S.W.2d 274, 276-77 (Tenn.1980)).
III. PROCEDURAL DUE PROCESS
Ms. Stromatt has presented two issues on appeal. First, she raises a
constitutional challenge involving the Fourteenth Amendment's guarantee that
property interests, once given, will not be taken away without the due process of
law. See U.S. Const. amend. XIV, § 1. Ms. Stromatt submits that she was
deprived of procedural due process when she was denied the opportunity to be
heard with respect to eligibility for an IOD disability pension. It is Ms.
Stromatt's position that her property right vested when the Benefit Board
determined that she met the requirements for a disability pension at its September
11, 1995 meeting.
Evaluation of a due process claim entails a two-step analysis of which the
first step is to determine whether the plaintiff was deprived of a protected
interest. Board of Regents of State Colleges v. Roth, 408 U.S. 564, 569-70, 92
S. Ct. 2701, 2705, 33 L. Ed. 2d 548 (1972). Only after a court has decided that a
plaintiff had a property or liberty interest does it address the second issue of what
process was due the plaintiff. As Ms. Stromatt's case hinges on the existence of
a property interest, we turn to our supreme court's articulation of the legal
principles of protected property interests:
The Fourteenth Amendment's procedural protection of property
safeguards the security of interests that a person has already
acquired in specific benefits. Roth, 408 U.S. at 576, 92 S.Ct. at
2708. Property interests are not created by the federal constitution.
Instead, they are created and defined "by existing rules or
understandings that stem from an independent source such as state
law." Roth, 408 U.S. at 577, 92 S.Ct. at 2709. To be entitled to
procedural due process protection, a property interest must be more
than a "unilateral expectation" or an "abstract need or desire." It
must be a "legitimate claim of entitlement" to a specific benefit. Id.
Indeed it is the purpose of the ancient institution of property to
protect those expectations upon which people rely in their daily
lives. Id.
Rowe v. Board of Educ., 938 S.W.2d 351, 354 (Tenn. 1996) (citing Roth, 408
U.S. at 569-70, 92 S.Ct. at 2705).
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In the instant case, the "independent source" from which an alleged
property interest must be derived is Chapter 3.28 of the Metropolitan Code which
addresses disability pensions. In the section entitled "disability defined," the
Code deems that an employee such as Ms. Stromatt is "'disabled' if he [or she]
becomes permanently disabled as a result of a medically determinable bodily
injury or disease or mental disorder so that during the continuation of his [or her]
disability he [or she] is incapable of engaging in any business or occupation or
to perform any work or compensation, gain or profit, so that the sum of his [or
her] earnings while disabled and his [or her] gross disability pension does not
exceed one hundred percent of his [or her] frozen earnings." Metro. Code §
3.28.010(B). For those employees who are disabled not in the line of duty, the
code provides the following:
A member who is covered for a disability pension, who has
completed ten years of credited service and who becomes disabled
as defined in Section 3.28.010, shall be eligible to receive a
disability pension, subject to all applicable requirements of this
chapter.
Metro. Code § 3.28.030. Regarding the employees who are disabled in the line
of duty, Section 3.38.040 of the Metropolitan Code provides in pertinent part as
follows:
A member who is covered for a disability pension, who becomes
disabled, as defined in Section 3.28.010, in the line of duty, shall be
eligible to receive a disability pension, provided his disability is a
result, directly or indirectly, of an act occurring or a thing done or
a risk taken which, as determined in the discretion of the Board,
was required of him in the performance of his duty as a
metropolitan employee. . . .
In other words, for either type of pension, the Benefit Board must make a finding
that the employee is disabled pursuant to the definition in Section 3.28.010(B).
While such a finding, plus ten years of service, is all that is needed for a medical
disability pension, the IOD pension requires an additional finding that the
employee became disabled as "a result, directly or indirectly, or an act occurring
or a thing done or a risk taken which, as determined in the discretion of the
Board, was required of him in the performance of his duty as a metropolitan
employee."
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Under the language of the Metropolitan Code, an employee can have no
"legitimate claim of entitlement" to an IOD pension until the Benefit Board has
found both that the employee is disabled pursuant to Section 3.28.010(B) and
that the employee became disabled in the line of duty as defined in Section
3.38.040. At the September 11, 1995 meeting, the Benefit Board found only that
Ms. Stromatt qualified for a medical disability pension referring the issue of
whether her injury was in the line of duty to the IOD Committee. Therefore, at
that point in time, Ms. Stromatt had a property interest in a non-IOD pension that
could not be deprived absent constitutionally adequate due process. However,
she did not have a "legitimate claim of entitlement" to an IOD medical disability
pension. Rather, her claim to an IOD pension following the September meeting
could have been well characterized as a "unilateral expectation" or an "abstract
need or desire." See Rowe, 938 S.W.2d at 354.
Our opinion is consistent with the holding of the unreported opinion from
this court that a metropolitan employee's "pension vested at the time it was
granted." Wilburn P. Jones v. Metropolitan Gov't, slip op. at 8 (M.D. Tenn.
Ct.App. Nov. 30, 1979). In Jones, Justice Drowota, then of the Court of
Appeals, reasoned that "[f]or a disability pension a finding by the appropriate
board, in this case the Employee Benefit Board, that the applicant is indeed
disabled and therefore entitled to benefits is the criterion for eligibility to receive
payments." Id. slip op. at 8. Vested is defined as "[f]ixed; accrued; settled;
absolute. Having the character or given the rights of absolute ownership; not
contingent; not subject to be defeated by a condition precedent." Blacks Law
Dictionary 1401 (5th ed. 1979). Before Ms. Stromatt's IOD pension was granted,
it could not have been "vested" as it was contingent upon the IOD Committee of
the Benefit Board making the requisite finding that Ms. Stromatt met the
criterion for eligibility. Because Ms. Stromatt has failed to prove the existence
of a constitutionally protected property interest in an IOD pension prior to such
finding, the Benefit Board did not violate the Constitution in its refusal to hear
Ms. Stromatt at this meeting.
IV. SUFFICIENCY OF THE EVIDENCE
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In her second and final issue, Ms. Stromatt asserts that the trial court erred
in holding that the Benefit Board's determination to deny her an IOD disability
pension was supported by substantial and material evidence. Initially, we point
out that, though the lower court stated that the verdict must be supported by "any
material evidence," it ultimately found that the Benefit Board's decision was
supported by "substantial and material evidence." The substantial and material
evidence standard is taken from Tennessee Code Annotated section 4-5-322 and
does not apply to proceedings before local boards and commissions. As set out
above, "[u]nder common law certiorari, the agency decision need only be
supported by 'any' [material] evidence." Laidlaw Envtl. Servs. v. Metropolitan
Bd. of Health, 934 S.W.2d 40, 49 (Tenn. Ct. App. 1996) (citing Tennessee
Cartage Co. v. Pharr, 199 S.W.2d 119, 120-21 (Tenn. 1947)). In Laidlaw, the
court noted that "[t]he difference between the two standards, though subtle, can
be important when there is a dispute over the sufficiency of the evidence." Id.
Therefore, we must conduct our review of the sufficiency of the evidence
looking for "any material evidence."
To answer the "material evidence" question, we must determine the
applicable law. As stated in the Executive Secretary's Staff Report, when
considering IOD disability applications for stress or post-traumatic stress
disorders, the Benefit Board uses analogous legal standards from workers'
compensation law. For purposes of workers' compensation cases, Tennessee
Code Annotated, section 50-6-102(a)(4) provides that "'[i]njury' and 'personal
injury' means an injury by accident arising out of and in the course of
employment which causes either disablement or death of the employee." While
the courts have interpreted stress to be a compensable "accidental injury" under
this law, there must "be a specific incident of stress which constitutes the
accident." Sexton v. Scott County, 785 S.W.2d 814, 816 (Tenn. 1990).
In Cabe v. Carbide Corp., 644 S.W.2d 397 (Tenn.1983), the court found
that there had been an accident within the meaning of workers' compensation
laws where a worker suffered a heart attack and died after a heated argument
with a co-worker concerning the use of safety goggles. The court stated the law
"that the term 'injury by accident' should not be limited to cases where some
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physical or traumatic injury is shown; but 'some acute, sudden or unexpected
emotional stress directly attributable to employment' and precipitating a heart
attack would constitute a compensable accidental injury." Id. at 399 (citing
Allied Chemical Corp. v. Wells, 578 S.W.2d 369, 372 (Tenn. 1979)). However,
the court "limited the interpretation of that term, holding that 'worry, anxiety or
emotional stress of a general nature' are not, in and of themselves, sufficient to
establish an accident." Id. In Jose v. Equifax, 556 S.W.2d 82 (Tenn. 1977), the
court upheld the employer's motion to dismiss a claim in which the employee
alleged he was exposed to a tremendous amount of pressure and tension in his
job which resulted in a severe psychiatric illness and later an habitual alcoholic
problem. The court held that though "[a] liberal interpretation has been given to
the statutory criterion of 'injury by accident,' . . . this still does not embrace every
stress or strain of daily living or every undesirable experience encountered in
carrying out the duties of a contract of employment." Id. at 84.
As in the foregoing cases, the Benefit Board has interpreted the
Metropolitan Code to require that a "specific incident of stress" be shown in
order to prove that an injury was in the line of duty when that injury involves
stress. Under the worker's compensation body of law, the "specific incident"
requirement is based upon the statutory language, "injury by accident." See
Tenn. Code Ann. §50-6-102(a)(4) (1991). As stated above, in the case of
disability pensions for metropolitan employees, the governing law is the
Metropolitan Code which defines an IOD injury as one which is the "result,
directly or indirectly, of an act occurring or a thing done or a risk taken which,
as determined in the discretion of the Board, was required of him in the
performance of his duty as a metropolitan employee." Metro. Code § 3.38.040.
We find that the language, "an act occurring or a thing done or a risk taken,"
contemplates a specific incident much like the term "accident" does in the
workers' compensation cases. As such, it is helpful to look to this well-
developed worker's compensation law to guide us in the determination of the
often difficult question of whether one's stress-related disability resulted from a
specific incident.
Thus, in light of the foregoing, the question for the lower court as well as
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for this court is whether the record contains material evidence supporting the
Benefit Board's conclusion that Ms. Stromatt's disability did not result from "an
act occurring or a thing done or a risk taken" in the performance of her duty as
a metropolitan employee. The Benefit Board adopted the finding of the IOD
Committee which was "that there are no facts that would indicate . . . that the
application should be granted as an in-line-of-duty injury. . . . [T]he facts
submitted by Edith Stromatt would be categorized as nothing more than the
stress or strain of daily living encountered in carrying out the duties of
employment and that this pension should, in fact, remain a medical disability
pension and not be converted to an in-line-of-duty disability pension."
In the Executive Secretary's Staff Report to the IOD Committee, the
Executive Secretary, Mr. Luther states that he reviewed the allegations submitted
by Ms. Stromatt and then interviewed Mr. Covington as well as almost every
other individual named in Ms. Stromatt's statement. He summarized all the
information by dividing it into nine general categories of allegations. The first
and second of these alleged incidents involved Ms. Stromatt's being accused of
going through Mr. Covington's desk and then new locks being placed on Mr.
Covington's office doors "in an effort to deliberately intimidate and cause
additional emotional stress." When interviewed about this, Mr. Covington stated
that after the janitor advised him that Ms. Stromatt was going through his desk,
he did approach her about this. When confronted, Ms. Stromatt said that she had
been looking for a pencil. Two other employees, Ms. Abbott and Ms. Norman,
stated that they never heard Mr. Covington make such accusations and that this
must have occurred in a private conversation. As for changing the locks, Mr.
Covington confirmed that new locks were put on his door to secure his office at
night and that there had been talk of this for some time. Ms. Abbott testified
similarly that the old locks had not worked and that new locks had been
requested for a while.
Thirdly, Ms. Stromatt claimed that her co-workers were instructed not to
talk to her. Mr. Covington disputed this saying that he had, in fact, encouraged
other employees to talk to Ms. Stromatt when she seemed depressed. Six co-
workers were interviewed and they gave consistent testimony that Mr. Covington
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had never asked them not to talk to Ms. Stromatt. Indeed, they all stated, as Mr.
Covington had, that he had encouraged them to talk to her. One employee even
characterized Mr. Covington's request as "begging and pleading" to get along
with Ms. Stromatt. The employees said that they felt free to talk to Ms. Stromatt
and did talk to her about her family issues. One employee stated that, for a
period of about two and a half months, Ms. Stromatt would not talk to him so he
asked Mr. Covington to speak with her in an attempt to restore communication.
Ms. Stromatt had specifically mentioned that a Mr. Dozier was asked not to talk
to her; however, when interviewed, Mr. Dozier said that Mr. Covington had
never discouraged him from talking to Ms. Stromatt.
The fourth category involves Ms. Stromatt's intimations that Mr.
Covington had helped individuals who had embezzled funds from the office.
She stated that "the thieves in the office were treated with more respect than" she
was. When interviewed, Mr. Covington stated that there had been three incidents
of embezzlement over the past eight and a half years. In two of these, the matters
were turned over to the district attorney. The other resulted in the perpetrator
being imprisoned, and when Mr. Covington testified in that case, he
recommended that the individual not be placed on probation.
Next, Ms. Stromatt made several references to Mr. Covington's
consumption of alcohol in the office after hours as well as to her concern that
he was going to be arrested for a DUI and thereby expose the office to negative
publicity. Mr. Covington stated that these statements were absolutely not true
and that the conversations alleged by Ms. Stromatt did not occur. Two
employees, Ms. Abbott and Ms. Norman, stated that there had never been any
evidence that Mr. Covington had been drinking in the office. Ms. Stromatt
claimed there had been conversations between her and the janitor, Mr. Patton, in
which she asked the janitor to protect Mr. Covington by not discussing the beer
cans with anyone else. However, Mr. Patton denied that this conversation took
place and said that the only time he noticed any beer cans in the office was after
a Christmas Party during which three friends of Mr. Covington brought beer to
the office.
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The sixth category, as summarized by the Executive Secretary's Staff
Report, involves Mr. Covington's socializing with an unnamed female. Both Mr.
Covington and Ms. Abbott and Ms. Norman were asked about this and all three
indicated that nothing of this nature had occurred. Likewise, two other
employees, Mr. Brasser and Mr. McKinnon, denied that there was any truth to
the seventh class of allegations, that Mr. Covington had directed metropolitan
employees to purchase beer and snacks for his personal consumption. Mr.
Brasser said that he had been employed in that office for eight years and had
never seen Mr. Covington take a drink.
The eighth classification involves Ms. Stromatt's references to Mr.
Covington's assigning busy work to the employees. Again, Mr. Covington and
another employee, Mr. McClure, denied such allegations. Mr. McClure asserted
that "busy work" was never generated for the employees. Though he had given
work to Ms. Stromatt to do, he did so on his own and not at the insistence of Mr.
Covington. He was emphatic that the only reason he did so was because Ms.
Stromatt had requested that she be allowed to help if there was a need. Finally,
Ms. Stromatt made a reference to Mr. Covington's failure to set the night alarm.
When interviewed, Mr. Covington stated that this area had always been his
responsibility and not Ms. Stromatt's. He stated that there had been a few
problems with the alarm over the years but that he had dealt with the alarm
company when such problems arose.
The Staff Report concluded its section on the non-medical facts with some
general comments. The employees who were interviewed expressed their
opinion that Mr. Covington had treated Ms. Stromatt well and exhibited much
tolerance for her situation. It was the conclusion of the Executive Secretary in
the Staff Report that, "[w]hile there may have been a perception by Edith
Stromatt that she was being singled out and treated differently, the overwhelming
evidence from other employees is that, from a factual standpoint, this was not
happening."
The Staff Report also included a section on the medical facts in which the
Executive Secretary summarized the information from the doctors who had
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treated Ms. Stromatt. The summaries indicate that Ms. Stromatt's medical
conditions were diagnosed as having originated with stress and anxiety that she
was placed under at work. In a separate report received by the Benefit Board
from Dr. Bottari, a clinical psychologist, Ms. Stromatt was diagnosed with an
adjustment disorder which had the possibility of developing into more prolonged
depression. He made reference to the fact that there were many stresses at Ms.
Stromatt's job including conflict with her boss and upsetting job interactions and
policies. He reported that Ms. Stromatt was particularly fearful of retribution
from Mr. Covington. In a letter dated August 4, 1995, Ms. Stromatt's physician,
Dr. Cochran, informed the Benefit Board that she was suffering from depression
and connective tissue disorder dating the illness to January 26, 1995. This letter
did not refer specifically to work anxiety; however, some physician's notes from
Dr. Cochran reflect that Ms. Stromatt was under stress at work on May 18, 1993.
Again on March 22, 1995, Dr. Cochran made the following notation: "Many
stresses at her job. She's coming apart. She's out of control and this lady's been
in control most of her life." Dr. Cochran's records failed to recount any specific
incidents giving rise to the stress. Finally, an October 17, 1995 letter from Dr.
Jacobi mentioned only "an exceptional amount of situational stress with resultant
anxiety and depression."
Ms. Stromatt submits that there is not any material evidence to support a
finding that there was no specific incident of stress which caused the disability.
We respectfully disagree. While Ms. Stromatt has certainly alleged specific
incidents of stress, the fact is that all such allegations were contradicted quite
consistently by her superior at work as well as her co-workers. We acknowledge
that one of the doctors who treated Ms. Stromatt referred to her experiencing
conflict with her boss and to her being upset by certain work policies. However,
even if these rise to the level of "specific incidents of stress," this information
was based on Ms. Stromatt's report of the facts to the doctor, facts which are in
dispute. To reiterate, the question for this court is not whether there is any record
evidence to support a finding of a specific incident of stress. Rather, it is
whether there is any material evidence to support a converse finding. We
conclude that there is material evidence to support the Benefit Board's
determination that "the facts submitted by Edith Stromatt would be categorized
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as nothing more than the stress of daily living encountered in carrying out the
duties of employment."
V. CONCLUSION
We affirm the trial court and remand this case to the trial court. There can
be no property interest in an IOD pension before it is granted. Therefore, the
Benefit Board did not violate the Fourteenth Amendment's guarantee of
procedural due process when it denied Ms. Stromatt a chance to be heard on the
matter of her qualification for an IOD pension. Finally, we find that there was
material evidence to support the Benefit Board's determination that it must deny
Ms. Stromatt an IOD disability pension based on the record before it.
The cost of this appeal should be taxed to Edith Stromatt.
________________________________
WALTER W. BUSSART,
SPECIAL JUDGE
CONCUR:
__________________________________
BEN H. CANTRELL, JUDGE
__________________________________
WILLIAM C. KOCH, JR., JUDGE
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