# FILED

September 2, 1998 Cecil W. Crowson Appellate Cou rt Clerk EDITH STROMATT, ) ) Plaintiff/Appell

ant, ) Appeal No.

) 01-A-01-9707-CH- 00354 v. ) ) THE METROPOLITAN ) Davidson Chancery EMPLOYEE BENEFIT BO ARD ) No. 96-1250-I OF THE METROPOLITAN ) GOVERNMENT OF NASHVILLE ) AND DAVIDSON COUNTY, ) TENNESSEE, ) ) Defendant/Appellee. ) )

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 N

orth P. O. Box 198288 Nashville, Tennessee 37219-8288 ATTORNEYS FOR PLAINTIFF/APPELLANT

JOHN L. KENNEDY WM. MICHAEL SAFLEY 204 Metropolitan Cour

thouse Nashville, Tennessee 37201 ATTORNEYS FOR DEFENDANT/APPELLEE

AFFIRMED AND REMANDED

WALTER W. BUSSART, SPECIAL JUDGE-2- 

## OPINION

The appellant in this act

ion is Edit

h Stromatt, a former em

ployee of the Metropolitan Government of Nashville, Tenn essee. When Ms. Stromatt sought disability with the Metropolita

n Employee

Benefit Board ("the Benefit Board"), she was granted a medical disability pen sion; however, she was denied the inline-of-duty

pension (IOD) tha

t 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 claim s that the Benefit B oard denied her the constitutional right to be

heard prior to its de

cision. The trial court a

greed with the conclusions of the Benefit Board and d ismissed Ms. S tromatt's appe al.

I. FACTS AND PROCEDU RAL HISTORY

Atthe time that she

ceased work, Ms.

Stromatt had been employ

ed by the Metropolitan Government f or 23 years. A t all times m aterial to this case , she hel d a position as the Executive Assistant to Bill Covington, the County Clerk of the Metropolitan Go

vernment. In

September of

1995, following a le

ngthy medical leave of absence, Ms. Stromatt was advised that she woul

d never be medically fit to return to work

.
Theseproceedings began w hen, on May 12,

1995, Ms. Strom

att filed a claim with

the Benefit Board

seeking disability in the f orm of an IOD

pension. The Metropolitan Government offers two types of pensions, an IOD pens ion and
a medical disability pension. Though the two pensions arethe same in am ount, 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 t hat she suffered f

rom a condition of "stress/depression" whic h had begun at her wor k on March 28, 1995. A mong Ms. Stromatt's allegations were that she was falsely

accused of going thro

ugh the de sk of her boss, Mr. C

ovington, that she wa

s often confronted w

ith M r . Covington's exc essive in-office alcohol consumption as w ell as his illicit f rater nizing with a femal

e co-worker, a

nd that she was ostra

cized by her co

--3-

workers at the inst

ruction of Mr. Covi

ngton.

Atthe September 11, 1995 Ben efit Board meeting, a staff r eport on Ms. Stromatt shows that the Board considered information from Dr. Robert Cochran, Dr. Mi chael Bott ari, 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 Bene

fit Board's Exec

utive Secretary,

notified Ms. Strom

att by lett er, "[t]he issue to be dealt with at [IOD Committee] stage is not whet her a disability exists as this has alr

eady been decid

ed by the Board,

but to determine whether the basis of the disability

is job-related and a

rises out of [Ms. S tromatt's] employment."

On February 26, 1996, the IOD Comm ittee held a mee ting a t which it considered the Executive Secretary's Staf f Report to the IOD C ommittee ("the Staff Report"). In this report, Mr. Luther summ arized inform

ation from m

any of Ms. Stromatt's co-workers, Mr. Covington, and the doctors who trea ted Ms. Stromatt. Pla in tiff and her attorn ey were pre sent at the Februar y 26 meeting ; however, the Commit

tee denied their

requests to mak

e any legal arg

ument or to present any evidence to the Commit tee. The Committee

adopted the

Executive Secretary's Staff Report whi c h had the effect of denying Ms. Stromatt's application

for an IOD disability

pension. The Bene

fit Board then adopted the IOD Comm

ittee's report.

As stated above, Ms. Stromatt petitioned for a wri t of certi orari in the chancery court pursuant to Te nnessee Cod

e Ann otated section 27-8- 101 and Tennessee Code Annotated sec tion 27-9-101. The t

rial court fo und that Ms. Stromatt was given the opport unity to submit her own argu ment to the IOD Committee

in w rit ing and that she prese nted no other witnesses at the hearing. Further, the cou rt found that her claim to a property r

ight in the IOD disa

bility pensionbefore it is ever grantedis without merit. It was the court's position that Ms. Stromatt would only have such a right if the requir ements for the

pension
were met and the pens

ion granted. The

refo re, in this case,

there was no due process violation. Finally, the c ourt found that the Boa

rd's decision to deny

Ms.-4-

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 em bodied in the Tennessee Co

de 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 fun

ction s has exceeded the j urisdiction conferred, or

is acting illegally , when, in the judgment of the

court, there i s no oth er plai n, spee dy, or ade quate r emedy.
Tenn. Code Ann. § 27-8-101 (Supp. 1 997). As t he supreme court has summariz ed, "[r]eview unde

r the comm

on law writ is lim

ited to whether ' the inferior board or tribunal (1 ) has exceeded its ju ris diction, or (2) has acted ille gal ly, arbitrarily, or fraudulently.' " McCallen v. City of Memphis , 786 S.W.2d 633, 638 (Tenn. 1990) (quot ing 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 App eals , 924 S.W.2d 900 , 904 (Tenn. Ct. A pp. 1996). "An illegal, arb

itrary, or fraudulent action c

ould be any

number of things. Examples include the followin g: 1) the failure 't

o follow minim

um standards

of due process'; 2) 'the

misrepresent

ation or misappli

cation of a legal sta

ndard'; 3) the making of a decision for 'ulterior motives'; or 4) the violation of a constitutional standard." Hoover, Inc. , 924 S.W.2d a t 905 (quotin g Ben H. Cantrell, Review of Administrative Decisions by Writ of Certio rari in Tennessee , 4 Mem.St.U.L.Rev. 19, 28-29 (1973))

.
"The reviewing court is re quired to determine w hether there is any materialevidence that supp orts the action of th e administrative agency." Laidlaw Envtl. Servs. v. Metropolitan Bd. of Health , 934 S.W.2d 40, 49 (Tenn. Ct. App. 1996) (citing Lansden v. Tucker , 32 1 S.W.2d 795 (Tenn. 1959)). While judicial review

of the issue of whet

her there is any

material evi

dence is limited to the reco rd, "new evidence is a dmissible on the is sue of whether the administrative

body exceeded its juri sdiction or acted illegally , capriciously or arbitrarily." Davison v. Carr, 659 S.W.2d 361, 363 (Tenn. 1983) (ci ting Watts-5-

v. Civil Serv. Bd . , 606 S.W.2d 274, 276-77 (Te nn.1980)).

III. PROCEDURAL DUE PROCESS

Ms. Stroma tt has presented two i ssues on appeal. Fir st, she raises a constitutional cha ll enge involving the Fourteenth Amendment's guarantee that property interests, once gi

ven, will not

be taken away

without the due process of law. See U.S. Const. am end. XIV, § 1.Ms. Stromat t submits th at she was deprived of procedural due process when she was denied the opportunity to be heard with respect to eligibili ty 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 re

quirements for

a disability pens

ion at its September 11, 1995 meeting.

Evaluation

of a due process cla

im entails a tw

o-step analysis

of which the first step is to determ ine 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.E

d.2d 548 (1972). Only

after a court has

decided that a plaintiff had a property

or liberty inte

rest does it address

the second issue of what process was due the plaintiff. As Ms. Strom att's case hinges on the existence

of
a property inter

est, we turn to our

supreme court

's articulatio

n of the legal principles of protec

ted property int

erests: The Fourteenth Am

endment's proc

edural prote cti on of property safeguards the secur

ity of interests that a per

son has already acquired in specific benefits

. Roth , 408 U.S. a t 576 , 92 S.Ct. at 2708. Property inte

rests are not

created by the

federal constituti

on. Instead, they are cre

ated and defined "by

existing rul es or understandingsthat stem from an independent

source such as state law." Roth , 408 U.S. a t 57 7, 92 S.Ct. at 270 9. To be entitled t

o procedural due process protection, a property

interest must be more than a "unilateral expe

ctation" or an "abstr

act n eed or desire." It must be a "legitima

te claim of en

titlement" to

a specific benefit. Id. Indeed it is the purpose

of the ancient institution of property to protectthose expecta

tions upon which people re ly 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).-6- In the instant case, t

he "independent sourc

e" from whic

h an alle ge d property interest must be

derived is Chapter 3.28of the Metropolitan Code which addresses disability pensions. In the section entitled "disa bility defined, " the Code deems tha

t an employee such as Ms. Stromatt is "'disabled' if he [or she] becomes permanently

disabled as a result

of a medicall

y determin

able bodily injury or disease or mental disorder so that during the conti

nuation 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 th

at the sum of his [

or her] earnings while disa

bled and his [or her] gross d isabil ity p ension does not exceed one hundred percent of his [or her] f rozen earnings." M etro. Code § 3.28.010(B). For

those employ

ees who are disable

d not in the line

of duty, the code provides the fol

lowing: A member w

ho is covered for a d

isability pension,

who h as completed

ten years of credited service and who becomes disabled as defined i n Section 3.28.010, shall be eligible to receive a disability pension, subject to al l ap plicable requirem ents 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 Metr opolitan Code

provides in pertinent part as follows: A member w

ho is covered for a d

isabil ity pensi on, 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 ri sk taken which, as d

etermined in th

e discretion of the

Board , was required of him in the performance o f his duty as a metropolitan employee. . . .
In other words, for either typ e of pension, the Be

nefit Board mu stmake a finding that the employee i s 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 dis ability pension, the IOD pension requires an a dditional finding that t

h e employee became disabl

ed as "a result,

direct ly or ind irectl y, or an act occurrin g
or a thing done or a risk t aken which, as det

ermined in t

he discretion of the Board, was req uired of him in the performance of his duty as a m etropolitan employee."-7- 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 foundboth that the employee is dis abled pursuant to Sec tion 3.28.010(B) an

d that the employe

e became disa

bled i n the line of duty as de fined in Section 3.38.040. At the Septem

ber 11, 1995 meeting, the

Benefit Board found only that Ms. Stromatt quali

fied for a me

dical disability pen sion referring the issue of whether her injury w

as in the line of

duty to the IOD Committee. Therefore, at that point in time, M s. Stromatt ha d a property inte

rest in a non-IOD pension

that could not be deprived absent constitutionall y adequate due process. However, she did not have a "legitim ate claim of entit

lement" to an IOD me

dical disability pension. Rather, her cla

im to an IOD pension fol

lowing the Septem

ber meeting couldhave 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

withthe holding of the unre ported opinion from this court that a metropolitan employee's "pension vested at the time it wa s granted." Wilburn P. Jones v. Metropolitan Go v't , slip op. at 8 (M. D. Tenn. Ct.App. Nov. 30, 1979). I n Jones , Justice Drowot a, th en of th e Court of Appeals, r easoned that "[f] or a disability pe nsion a finding by th

e appropriate board, in this case the Employee Benefit Board, that the applicant is indeed disabled and therefore entitled to benefits is the cr iterion for eligibil

ity to receive payments." Id. slip op. at 8. Ves ted is defined as "[f

]ixed; accrued;

settled; absolute. Having the charac ter or g iven the rights of abso

lute ownership; not contingent ; n ot subject to be defeated by a condition precedent." Blacks Law Dictionary 1401 (5th ed. 1979). Before Ms. Stromatt's I OD pension

was granted, itcould not have been "ve sted" as it was contingent upon the IO D Committ

ee of the Benefit Board m

aking the requisite f

inding that Ms. Strom

att met the criterion for eligibility. Because Ms. Stromatt has failed to prove the

existence of aconstitutionally

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 TH E EVIDENCE-8- In her second and final issue, Ms. Stromatt asserts that the trial court erred in holding that the Benefit Board's det ermination to deny her an IOD disability pensionwas supported by substantial and m

aterial evidence.

Initially, w

e point out that, though the lower court stated that the ver dict mus t be sup ported by " any materialevidence," it ultim ate l y found that the Benefit Board's decision was supported by " substantial and materialevidence." The substantial and material evidence standard is taken from T ennessee Code Annot

ated section 4-5-322 and does not apply to proce

edings before local

boards and comm

issions. As set out above, "[u]nder com

mon law certi

orari, the agenc

y decisi on need only be supported by 'any' [material] evidence." Laidlaw Envtl. S ervs. v. Metropolitan Bd. of Health , 934 S.W.2d 40, 49 (Tenn. Ct. A

pp. 1996) (citing Tenn essee 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 disput e over the sufficiency of th e evidence." Id. Therefore, we must conduc t o ur review of the sufficiency of the evidence looking for "any material evi dence."

To answer the "m

aterial evidence" question , we m ust determine t

he applicable

law. As stated in the Executive Secretary's Staff R eport, when considering

IOD disability

applications for str

ess or post-traum

atic stress disorders, the Benefit Boar d us es analogous legal sta ndards from w

orkers' compensation l aw. For purposes of workers' compensation cases, Tennessee Code Annotated, sectio

n 50-6-102(a)(4) pr

ov ides th at "'[i]njury' and 'personal injury' means an inj ury by accident arising out of and in the course o f employm ent which causes either disa

blement or

death of the em

ployee." W

hile the courts have in terpret ed stre ss to be a compens able "a cciden tal inj ury" under this law, there m

ust "be a specific

incid ent of stress which constitutes the accident." Sexton v. Scott C ounty , 785 S.W.2d 814, 816 (Tenn. 1 990).

In Cabe v. Carbide Corp. , 644 S.W.2d 397 (Tenn.1983), the

court found that there had been an a

cc ident within the m

eaning of workers'

compensation l aws wher e a worker suffe red a heart attac

k and died after a he

ated argument withaco-worker conce

rning the use of safety goggles. The court stated the law "th atthe term 'inj ury by acci dent' should not be lim

ited to cases wher

e so m e-9-

physical or traumatic injury is shown; but 'some ac ut e, sudden or unexpected emotional stress directly

attributable to em

ployment' a

nd precipitating a heart at tack would constitute a compensable accidental injury." Id. at 399 (citing Allied Chemical Corp. v. Well

s , 578 S.W.2d 369, 372

(Tenn. 1979)). However, the court "limited

the interp retati on of th at term, h oldin g that ' worry, anxiety or emotional stre ss of a general natu re' 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 employ

er's motion to

dism iss 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 psyc hiatric illness

and later an habitua

l alcoholic prob lem. 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

livin g or every undesirable experi ence encountered i

n carrying out the duties of a contract of employment. " Id. at 84.

As in the foregoing c a ses, the Benefit B oard has interprete d the Metropolitan Code to require tha t a "spe cific incident of st

ress" be shown in order to prove that an injury was in the l ine of duty when that injury involves stress. Under the worker 's compensation

body of law, th

e "sp ecific inc ident" requirement

is based upon the statutory language, "injury by accident." See Tenn. Code Ann. §50-6-102 ( a )(4) (1991). As s tated above, in the case of disability pensi on s for metropoli tan employe

es, the governing la

w is the Metropolitan Code which defines an IOD injury as one wh ich is the "result, directly or indirectly, of

an act occurring or

a thing done or a risk

taken which,
as determined in t

he discretion of the Board, was requi r ed of him in the performance

of his duty as a m

etropolitan emp

loyee." Metr

o. Code § 3.38.040. We find th at the language, "a n act occurring or a

thing done or a risk ta

ken, " contemplates a specific incident much like the t erm "accide nt" does in the workers'compensation ca ses. As such, it i s helpful to look to this welldeveloped worker's compensation law to guide us in the determ i nation of the often difficult

question of whether one's stress-related disab ilit y resul ted fr om a specific incident.

Thus, in light

of the foregoing, the question for the lower court as well as-10-

for this court is whethe

r the record conta

ins material e

vidence supporting the Benefit Board's conclusion

that Ms. Stromatt's disability did not result from "an actoccurring or a thing done or a risk taken" in the performance of her duty as
a metropolitan e

mployee. The Benefit Boar d adopted the finding o

f the IOD Committee

which was "that there are no fac ts that would indicate . . . th

at the application

should be granted as an in-line- of-duty inju ry. . . . [ T]he facts submittedby Edith Strom att would be categor

ized as not

hing more than the stress or strain of daily living encountered in carrying out the duties o f
em pl oyment and that this pension shou ld, in fact, rem

ain a medical d

isability pension and not be converted to an in-line-of-duty disability pension."

In the Executive Sec

retary's Sta

ff Report t

o the IO D Committ

ee, the Exec uti ve Secretary, Mr. Luther states that he reviewed the allegations submitted by Ms. Stromatt

and then interviewe

d Mr. Covingt

on as well as almost every otherindividual named in Ms. St romatt's statement. H

e summari

zed all the information

by dividing it into nine general categories of allegations. T he first and second of these alle

ged incidents involved M s. Stromatt's be ing accused of going through Mr. Covington's desk and then new lock s bei ng placed on Mr. Covington's office doors "in an e ffort to d elib erately intim idate and cause additional emotional stre ss." When inter viewed about this, Mr. Covington stated that after the janito

r advised him tha

t Ms. Stromatt wa

s going through hisdesk, he did approach her abo ut this. When confronted, Ms. Stromatt said that she had been looking for a pencil.Two other em ployees, Ms. A

bbott and Ms. Norm

an, stated that they never

heard Mr. Covingto

n make such accusations and that this must have occurred in a private conversation. As for ch anging the locks, Mr. Covington

confirmed

that new locks were put on his door to secure his office at night and that there had bee n talk of this for so me time. M s. Abbott te stified similarly that the old locks had not worked an d that ne w locks had been requested for a while.

Thirdl y, Ms. Stromatt claimed that her co-workers were instructed n ot to talk to her. Mr. Covington dispute d this saying that he

had, in fact, encouraged otheremployees to talk to Ms. Stromatt when she seem ed depressed. Si x c oworkers were interview

ed a nd they gave con sistent testimony that Mr. Covington-11-

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 characterizedMr. Covington' s request as "begging and pleadi

ng" to get along withMs. Stromatt. The employe es said that they f

elt free to talk to Ms. Strom

att and did talk to her about h er family issues. One employee stated that, for a period of about two and a ha

lf months, Ms.Stromatt woul d not talk to him so he asked Mr. Covington to spea k with her in an atte

mpt torestore comm

unication. Ms. Stromatt had sp

ecifically m

entioned that a Mr. Dozier was aske d not to talk to her; however, w

hen interviewed,

Mr. Dozier said

that Mr . Covington had never discouraged h im from talking to Ms. Stromatt.

The fourth category

invol ves Ms . Stromatt's intimations that Mr. Covington

had helped individuals w ho had embezzle

d funds from the

o ffice. She stated that "the thieves in the office wer e treated with m

ore respect than" s

he
was. When interviewed, Mr. Covington stated that therehad been three incidents of embezzlem

ent over the past eigh

t and a half years. In two of these, t he matters
were turned overto the dis trict attorney . The other resul ted in the perpetra

tor bei ng imp risoned, and when M r. Covington testifi

ed in that case, he
recomme nded that the individual

not be placed on probat

ion.

Next, Ms. Stromatt

made several

references to

Mr. Co vington's consumption

of alcohol in the off

ice after hours as

well as to her concern that he was going to be arrested for a DUI a nd thereby

expose the office t

o negative publici ty. Mr. Covington state d that these statem

ents were absolute

ly not tru e and that the conversa

tions alleg ed by Ms. Stromatt did not occu r. Two emp loyees, Ms. Abbott and Ms. Norman, sta ted that there had ne

ver been a

n y evidence that Mr. Covington had been drinking in the off ice. Ms . Stromatt claimed there had been conversations between her and the janitor, Mr. Patton, in which she asked the janit or to protect Mr. Covington by not discussing the beer
cans with anyone else. However, Mr. Patton denied that this conversatio

n 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 beerto the office.-12- The sixth c ategor y, as summari zed by the Exe cutive Secretary's Staff Report, involves Mr. Covingto n's socializing

withan unnamed female. Both Mr. Covington

and Ms. Abbott and

Ms. Norman were asked about this and all three indicated that nothing of th is nature had occurred

. Likewise, two other employees,

Mr. B rasser and Mr. McKinnon, denied that there w

as any truth to the seventh class of all egations, that Mr. C ovi ngton had directed metropolitan employees to purchase beer an d snacks for his personal consumption. Mr. Brasser said that he had be

en 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 wor k to the employ

ees. Again, Mr. Covington and anotheremployee, Mr. McClure, denied such allegations. Mr. McClure asserted that "busy work" wa

s never generated f

or the employ

ees. Though he

had given work to Ms. Stroma

tt to do, he did so on his

own and not at the insistence of Mr. Covington. He was emphatic that t he only reason he

did so was because M s. Stromatt had requested that sh

e be allowed to

help if there was a need. F inally, Ms. Stromatt

made a refe

rence to Mr. Covin

gton's failure to se

t the nigh t alar m. When interviewed, Mr. Covington stated t hat this area had al ways been his responsibility

and not Ms. St romatt's . He stated that there had been a few prob lems wi th the alarm over the years but that he had dealt with the alarm company when such problems arose.

The Staff Report conc

luded its section on the non-medical facts with s ome general comments.

The employ

ees who were inte

rview ed expressed their opinion that Mr. Covington ha d treated Ms. Str

omatt well

and exhib ited much tolerance for her situation. It was the conclusion of

the Executive Secre

tary in the Staff Report that

, "[w]hile the

re may ha

ve been a perceptio

n by Edit

h Stromatt that she was being si

ngled out and treated diffe rently, the ove rwhelming evidence from other em

ployees is that,

from a factu

al standpoi n t, this was not happening."

The Staff Report also

included a section on t

he medical fa

cts in which the E xecutive Secretary summarize d the information from the doctors who had-13-

treated Ms. Stromatt. The summ aries indicate tha

t Ms. Stromat

t 's medical conditions were diagnosed as having originated with str ess and anxiety th

at she

w as placed under at work. In a separate report received by the Benefit Board from Dr. Bottari, a

clinical psychol

ogist, Ms. Strom

att was diagnosed with an adjustment

disorderwhich had the possibil ity of developing into more prolonged depression. He made reference to the fact that there were many stresses at Ms. Stromatt's job including conflic t with her boss and

upsetting job

interactions and policies. He reported that Ms. Stromatt was particularly

fearful o f

retribution from Mr. Covington. In a

letter dated August

4, 1995, Ms. Stromatt's ph ysician, Dr. Cochran, informed the Benefit Board that she was suffering

from depressi

on and connective tissue dis order dating the illness to January 26, 19 95. This letter did not refer

specifically t

o work anxiety; however, som e physician's not

es from Dr. Cochran reflect

that Ms. Strom

att was under stress a

t work on May 18,

1993. Againon March 22, 1 995 , Dr. Cochran made the follow ing notation: "Many stresses ather

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 spe

cific incidents giving

rise to the str ess. Fin ally, an October 17, 1995 letter from Dr. Jacobi mentioned only

"an exceptional am

ount of situational stre ss with resultant anxiety and depressio n."

Ms. Stromatt subm

its that there is not a

ny material evidence

to support a finding that there was no sp ecific incident of

stress which ca used th e disab ility. We respectfully disagree. While M s. Stromatt has c ertainly alleg

ed specific incidents of stress, the fa ct is that all such al

legations were con

tradicted quit

e consistently

by her superior at work as well as her co-w orkers. We acknowledge that one of the doctors w ho tr eated Ms. Stromatt ref erred to her exper

iencing conflict with her boss and to he r being upset by ce

rtain work policies

. However,
even if the se ris e to th e leve l of "s pecif ic inc iden ts of s tress ," thi s info rma tio n
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 s u pport a finding of a spe cific incident of st

ress. Rather, it is whether t here i s any material ev idence to s upport a co nverse fin ding. We conclude tha t there is material evidence to support the Benefit Board's determination

that "the facts subm

itted by Edith St

romatt would be categorized-14-

as nothing more t

han the stress of dai

ly living encounte

red in carryi

ng out the duties of employment."

V. CONCLUSION

We affirm the trial court and remand this case to the trial court. There can be no prop erty i nterest in an IOD pension bef

ore it is granted. T

herefore, the Be nefit Board did not violate t he Fourteenth Am

endment's guar

antee 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 materialevidence to support the Benefit Board's determination that it must deny Ms. Stromatt an IOD disabilit y pension based on th e record before it.
The cost of this appea l should be taxed t o Edith Stromatt.

________________________________ WALTER W. BUSSART, SPECIAL JUDGE

CONCUR:

__________________________________ BEN H. CANTRELL, JUDGE

__________________________________ WILLIAM C. KOCH, JR., JUDGE