[Congressional Record Volume 144, Number 150 (Tuesday, October 20, 1998)]
[Extensions of Remarks]
[Pages E2244-E2245]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                     MULTIPLE CHEMICAL SENSITIVITY

                                 ______
                                 

                          HON. BERNARD SANDERS

                               of vermont

                    in the house of representatives

                       Tuesday, October 20, 1998

  Mr. SANDERS. Mr. Speaker, I rise today to discuss the issue of 
Multiple Chemical Sensitivity as it relates to both our civilian 
population and our Gulf War veterans. I continue the submission for the 
Record the latest ``Recognition of Multiple Chemical Sensitivity'' 
newsletter which lists the U.S. federal, state and local government 
authorities, U.S. federal and state courts, U.S. workers' compensation 
boards, and independent organizations that have adopted policies, made 
statements, and/or published documents recognizing Multiple Chemical 
Sensitivity disorders for the benefit of my colleagues.

          Recognition of MCS in 8 U.S. Federal Court Decisions

       In decisions affirming MCS (by this or another name) as a 
     real illness, handicap or disability under:
       Daubert: Kannankeril v. Terminix Internationals Inc. Third 
     Circuit Court of Appeals (CA 3), No 96-5818 [17 Oct. 1997, 5 
     pages, R-148], overturning a lower court's summary judgement 
     for the defendant (District of NJ, No 92-cv-03150) on a 
     Daubert motion, saying it had ``improperly exercised its gate 
     keeping role by excluding'' the plaintiff's medical expert, 
     Dr. Benjamin Gerson, and his testimony on causation--
     specifically his view that the plaintiff developed MCS as a 
     result of overexposure to chlorpyrifos. [Terminix had sprayed 
     Dursban in the plaintiff's home 20 times in 17 months.] The 
     court described MCS as becoming ``sensitized to multiple 
     other chemicals'' and said ``It is an acknowledged scientific 
     fact that chlorpyrifos, the active ingredient in Dursban, is 
     harmful to humans and can cause the very symptoms displayed 
     by Dr. Kannankeril,'' which included headaches, fatigue, 
     numbness, memory and concentration problems, sleeplessness, 
     nausea, and skin rashes. Even though Dr. Gerson had not 
     examined the plaintiff or written about the toxic effects of 
     organophosphates, the court said his ``opinion is not a novel 
     scientific theory'' and ``is supported by widely accepted 
     scientific knowledge of the harmful nature of 
     organophosphates.''
       Fair Housing Act: United States v. Association of Apartment 
     Owners of Dominis West et al, Case No. 92-00641 (D. Ha.) 25 
     August 1993 [19 pages, R-61], in which a consent order won by 
     the Department of Justice's Housing and Civil Justice 
     Enforcement Section requires the management of an apartment 
     complex in Honolulu to take several steps to accommodate a 
     tenant with MCS.
       Rehabilitation Act: Vickers v. Veterans Administration, 549 
     F. Supp. 85, W.D. Wash. 1982 [4 pages, R-56], in which the 
     plaintiff's sensitivity to tobacco smoke was recognized as 
     handicap by the VA and the court, but his request for totally 
     a smoke-free environment was denied on the grounds that the 
     VA had already made sufficient reasonable efforts; Rosiak v. 
     Department of the Army, 679 F. Supp. 444, M.D. Pa. 1987 [6 
     pages, R-57], in which the court, although finding the 
     plaintiff ``not otherwise qualified'' to continue working, 
     implicitly recognized his MCS disability, as did the Army, 
     which the court found had made sufficient reasonable (albeit 
     unsuccessful) efforts to accommodate the plaintiff's chemical 
     sensitivity.
       Social Security Disability Act: Slocum v. Califano 
     (Secretary, HEW), Civil No. 77-0298 (D. Haw.) 27 August 1979 
     [9 pages, R-60], in what is believed to be the earliest 
     decision of any court recognizing MCS, the US District Court 
     of Hawaii awarded disability benefits to a plaintiff whose 
     pro se claim of ``chemical hypersensitivity'' dated from 1 
     May 1968; Kornock v. Harris, 648 F.2d 525, 9th Cir. 1980 [3 
     pages, R-59]; and Kouril v. Bowen, 912 F.2d 971, 974, 8th 
     Cir. 1990 [7 pages, R-58]; Creamer v. Callahan, Civil No. 97-
     30040-KPN (D. Mass.), 5 November 1997, [7 pages, R-150] 
     reversing and remanding the decision of the SSA Commissioner, 
     who agreed that the administrative law judge's ``analysis was 
     flawed with respect to MCS.'' The court ordered the 
     Commissioner to file a supplemental memorandum on SSA's 
     ``position with respect to MCS,'' which he did--specifically 
     stipulating that SSA ``recognizes multiple chemical 
     sensitivity as a medically determinable impairment'' (31 
     October 1997, 2 pages, R-164).

          Recognition of MCS in 21 U.S. State Court Decisions

       In decisions affirming MCS illness (by this or some other 
     name) as a handicap or injury in cases regarding:
       Housing Discrimination: Lincoln Realty Management Co. v. 
     Pennsylvania Human Relations Commission, 598 A.2d 594, Pa. 
     Commw. 1991 [47 pages, R-62].
       Employment Discrimination: County of Fresno v. Fair 
     Employment and Housing Commission of the State of California, 
     226 Cal. App. 3d 1541, 277 Cal. Rptr. 557 Cal App. 5th Dist. 
     1991 [11 pages, R-63]; and Kallas Enterprises v. Ohio Civil 
     Rights Commission, 1990 Ohio App. 1683, Ohio Ct. App. May 2, 
     1990 [6 pages, R-64].
       Health Services Discrimination: Ruth, Barbara; June P. 
     Hall; Cricket J. Buffalo; Susan Molloy; and Cathy Lent v. 
     Kenneth Kizer/Molly Coe, Director, CA. Department of Health 
     Services, No. 665629-8, 1989 [1 page, R-65], in which the 
     plaintiffs won the right to receive oxygen treatments for MCS 
     by successfully appealing to the CA Superior Court of Alameda 
     County which overturned the prior ruling of an administrative 
     law judge.
       Negligence/Toxic Tort: Melanie Marie Zanini v. Orkin 
     Exterminating Company Inc. and Kenneth Johnston, Broward 
     County Circuit Court, No. 94011515 07, verdict of 7 December 
     1995 and final judgement of 28 December 1995 [4 pages, R-92], 
     in which the jury ruled that the pesticide applicator's 
     negligence in applying Dursban was the legal cause of damage 
     to the plaintiff, who was awarded a total of $1,000,000 in 
     damages by the jury. This was subsequently reduced to 
     $632,500 in the final judgement.; Ruth Elliott, et al., v. 
     San Joaquin County Public Facilities Financing Corp. et al., 
     California Superior Court, San Joaquin County, No. 244601, 31 
     October 1996 [2 page verdict report, R-112] in which a public 
     lease-back corporation was held responsible for 14 awards of 
     partial to permanent disability based on MCS and various 
     other health complaints that started after extensive 
     renovations were inadequately ventilated (half the roof air 
     conditioners did not work). Awards ranged from $15,000 to 
     $900,000 each (total $4,183,528) Linda Petersen and Eleni 
     Wanken v. Polycap of California, California Superior Court, 
     Alameda County, No. H7276-0, 1 April 1988 [1 page verdict 
     report, R-143], in which plaintiffs were awarded $250,000 and 
     $13,000, respectively, for MCS they developed after a 
     polyurethane roofing material was installed at two school 
     buildings where they worked. These jury awards led to prompt 
     settlement of a dozen other cases against the same defendant.
       Tort of Outrage and ``Deliberate Intention'' Exception to 
     Workers Compensation: Birklid et al v. The Boeing Company, 
     Supreme Court of the State of Washington, 26 October 1995, 
     No. 62530-1, in which the court issued an EN BANC ruling in 
     response to a question it ``certified'' from the Ninth 
     Circuit Court of Appeals. By unanimous 9-0 decision, the WA 
     Supreme Court found sufficient evidence of Boeing's 
     deliberate intent to harm its employees from chemical 
     exposure that the 17 workers who claim they were physically 
     and/or emotionally injured as a result (including those with 
     MCS) can sue the company for civil damages in addition to 
     their workers' compensation benefits. (This ``deliberate 
     intention'' exception was last allowed by the court in 1922). 
     The court also found that the chemically-injured workers had 
     a claim under the Tort of Outrage for recovery of damages 
     arising from Boeing's intentional infliction of emotional 
     distress. The matter now returns to the U.S. District Court 
     for the Western District of Washington for a jury trial. [25 
     page decision with a 2 page background paper from Randy 
     Gordon, one of the plaintiffs' attorneys., R-66].

[[Page E2245]]

       Workers' Compensation Appeals (State Courts only, others 
     follow):
       Arizona: McCreary, Robert v. Industrial Commission of 
     Arizona, 835 P.2d 469, Arizona Court of Appeals 1992 [1 page, 
     R-70];
       California: Kyles v. Workers' Compensation Appeals Board et 
     al, No. A037375, 240 Cal. Rptr. 886, California Court of 
     Appeals 1987 [9 pages, R-68]; Menedez v. Continental Ins. 
     Co., 515 So.2d 525, La. App. 1 Cir. 1987 [6 pages, R-69];
       Kansas: Armstrong, Dan H, v. City of Wichita, No. 73038, 
     907 P.2d 923, Kansas Court of Appeals [9 pages, R-185];
       Nevada: Harvey's Wagon Wheel, Inc. dba Harvey's Resort 
     Hotel v. Joan Amann, et al, No. 25155, order dated 25 January 
     1995, Nevada Supreme Court [4 pages, R-93], in an order 
     dismissing the casino's appeal of a district court ruling 
     that reversed the decision of an appeals officer in favor of 
     a group of 23 claimants. The Supreme Court agreed with the 
     lower court's finding that the officer had ``overlooked 
     substantial evidence offered by the [23] claimants that 
     clearly supported a causal relation between their work place 
     injuries [due to pesticide exposure] and their continuing 
     disabilities.''
       New Hampshire: Appeal of Denise Kehoe (NH Dept. of Labor 
     Compensation Appeals Board), No. 92-723, Supreme Court of New 
     Hampshire 1994, 648 A.2d 472, which found that ``MCS 
     Syndrome'' due to workplace exposure is an occupational 
     disease compensable under NH's workers' compensation statute 
     and remanded to the Compensation Appeals Board ``for a 
     determination of whether the claimant suffers from MCS and, 
     if she does, whether the workplace caused or contributed to 
     the disease'' [3 pages, R-71, see also]; (2nd) Appeal of 
     Denise Kohoe (NH Dept. of Labor Compensation Appeals Board), 
     No. 95-316, Supreme Court of New Hampshire 13 November 1996, 
     in which the Court again reversed the Compensation Appeals 
     Board, finding both that the claimant had MCS (legal 
     causation) and that ``her work environment probably 
     contributed to or aggravated her MCS'' (medical causation) [5 
     pages, R-127];
       Oregon: Robinson v. Saif Corp, 69 Or. App. 534; petition 
     for review denied by 298 Ore. 238, 691 P.2d 482 [5 pages, R-
     67]; Saif Corporation and General Tree v. Thomas F. Scott, 
     824 P.2d 1188, Ore.App. 1992 [6 pages, R-89];
       South Carolina: Grayson v. Gulf Oil Co, 357 S.E.2d 479, 
     S.C. App. 1987 [6 pages, R-88];
       West Virginia: Arlene White v. Randolph County Board of 
     Education, No. 93-11878, 18 November 1994 decision of 
     Administrative Law Judge Marshall Riley, Workers' 
     Compensation Office of Judges, reversing denial of MCS claim 
     for temporary total disability and medical payments by 
     Workers' Compensation Division [7p, R-131]; Julie Likens v. 
     Randolph County Board of Education, No. 93-14740, 4 April 
     1995 decision of Chief Administrative Law Judge Robert J. 
     Smith, Workers' Compensation Office of Judges, reversing 
     denial of MCS claim for temporary total and medical 
     disability by Workers' Compensation Division [8p, R-132]; and 
     Barbara H. Trimboli v. Randolph County Board of Education, 
     No. 92-65342-OD, 10 June 1996 decision of Administrative Law 
     Judge Terry Ridenour, Workers' Compensation Office of Judges, 
     reversing denial of MCS claim for temporary total disability 
     and medical payments by Workers' Compensation Division [5 
     pages, R-133].

     Recognition of MCS in 14 Workers' Compensation Board Decisions

       In decisions affirming MCS illness (by this or some other 
     name) as a work-related injury or illness in:
       Alaska: Hoyt, Virginia v. Safeway Stores, Inc, Case 
     9203051, Decision 95-0125, Alaska Workers' Compensation Board 
     1995 [21 pages, R-73].
       Connecticut: Sinnamon v. State of Connecticut, Dept. of 
     Mental Health, 1 October 1993 Decision of Nancy A. Brouillet, 
     Compensation Commissioner, Acting for the First District, 
     Conn. Workers' Compensation Commission. [10 pages, R-106]. 
     The commissioner, citing testimony from Dr. Mark Cullen, 
     among others, found ``the great weight of medical evidence 
     supports the diagnosis of MCS syndrome causally related to 
     the Claimant's exposure while in the course of her 
     employment'' in state office buildings with poor indoor air 
     quality. She ordered payment of temporary permanent 
     disability benefits as well as payment ``for all reasonable 
     and necessary medical treatment of the Claimant's MCS 
     syndrome.''; O'Donnell v. State of Connecticut, Judicial 
     Department, 22 May 1996 Decision of Robert Smith Tracy, 
     Compensation Commissioner, Fourth District, Conn. Workers' 
     Compensation Commission. [5 pages, including cover letter 
     from plaintiff's attorney, R-107]. The commissioner 
     recognized MCS ``caused by numerous exposures to pesticides 
     at work . . . and exacerbated by repeated exposure to other 
     odors and irritants at work'' in a Juvenile Court building. 
     Because ``this claimant has been given special accommodations 
     since March 1992 when she was granted an isolated office and 
     the stoppage of spraying of pesticides'' that allowed her to 
     continue working full-time, no monetary benefits were 
     awarded.
       Delaware: Elizanne Shackle v. State of Delaware, Hearing 
     No. 967713, Delaware Industrial Accident Board in and for New 
     Castle County, December 1993 [21 pages, R-142] awarding total 
     temporary disability benefits and ``one attorney's fee'' 
     based on the IAB's finding that the claimant's work exposure 
     (in a state correctional facility built by prison labor) had 
     ``caused her present respiratory symptoms'' and that this 
     ``has sensitized her to other odors.''
       Maryland: Kinnear v. Board of Education Baltimore County, 
     No. B240480, Md. Workers' Compensation Commission, 28 June 
     1994 [1 page, R-75].
       Massachusetts: Sutherland, Karen v. Home Comfort Systems by 
     Reidy and Fidelity & Casualty Insurance of New York, Case No. 
     023589-91, 8 February 1995 decision of Mass. Department of 
     Industrial Accidents [21 pages, R-74]; Steven Martineau v. 
     Fireman's Fund Insurance Co, Case No. 9682387, 15 May 1990 
     decision of Administrative Judge James McGuinness, Jr., Mass. 
     Industrial Accident Board, ordering that the employer pay for 
     disability benefits as well as ``all costs, including 
     transportation, lodging and meals, incurred or to be incurred 
     in the course of seeking and obtaining reasonable medical and 
     related care . . . including treatment rendered by and at the 
     Center for Environmental Medicine.'' [18 pages, R-125]; 
     Elaine Skeats v. Brigham & Women's Hospital, Case No. 
     02698693, 24 October 1996, decision of Administrative Judge 
     James McGuinness, Jr., Mass. Industrial Accident Board, 
     ordering that the employee ``compensate the employee for 
     expenses incurred in the course of satisfying the historic 
     and prospective prescriptions of Doctors . . . prompted by 
     her industrial injury and relative to: intravenous therapy, 
     vitamin and nutritional supplements, message therapy, air 
     conditioning, air purification, air filtration, masking, 
     water filtration, allergy bedding, laboratory testing and 
     mileage travelled.'' [14 pages, R-126]
       New Mexico: Elliott, Erica v. Lovelace Health Systems and 
     Cigna Associates Inc, No. 93-17355, 8 November 1994, decision 
     of Rosa Valencia, Workers' Compensation Judge, finding that 
     MCS was triggered by glutaraldehyde and Sick Building 
     Syndrome for which employer had been given timely notice. 
     Also supported Elliott's refusal to return to work in the 
     buildings that made her sick buildings as ``reasonable under 
     the circumstances.'' Decision granted 3 months of temporary 
     total disability pay followed by permanent partial disability 
     for ``500 weeks or until further order of the Court'' [15 
     pages, R-113]
       New York: Crook v. Camillus Central School District #1, No. 
     W998009, 11 May 1990, decision of Barbara Patton, Chairwoman, 
     NY State Workers' Compensation Board specifies ``modify 
     accident, notice and causal relationship to multiple chemical 
     sensitivity'' and awarded continuing benefits of $143.70 per 
     week [1 page, R-108].
       Ohio: Saks v. Chagrin Vly. Exterminating Co Inc., No. 97-
     310968, 18 September 1997 [2 pages, R-151], decision of 
     District Hearing Officer Arthur Shantz, recognizing claim of 
     chemical sensitivity; and Kelvin v. Hewitt Soap Company, No. 
     95-599131, 5 June 1996 [2 pages, R-152], decision of District 
     Hearing Officer Steven Ward, recognizing claim of multiple 
     chemical sensitivity as ``occupational disease'' contracted 
     ``in the course of and arising out of employment.''
       Washington: Karen B. McDonnel v. Gordon Thomas Honeywell, 
     No. 95-5670, 22 October 1996 decision of Judge Stewart, WA 
     State Board of Industrial Appeals, recognizing ``toxic 
     encephalopathy'' as an acceptable diagnosis for MCS-induced 
     permanent partial disability [2 p, R-118].

     

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