[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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