Controversial Decision Made
WCB Appeals Tribunal
UPdate December 1999 (Winter 2000)
Following a seven-day hearing in December, the NS Workers' Compensation Appeals Tribunal (WCAT) denied benefits to a Camp Hill Medical Centre worker on the grounds that the physical symptoms experienced by EIS [Environmental Irritant Syndrome] sufferers are a physical manifestation of an underlying psychological disorder. The Tribunal decision has shocked many people. Ripples from the decision are already affecting other NS workers with Environmental Illness/Multiple Chemical Sensitivities (EI/MCS). All these names refer to the same illness, but until this case, Workers Comp referred to it as EI or MCS, the more commonly accepted names.
Within two weeks of the decision, school board employees in two districts were refused claims for paid sick leave. Their boards representatives claimed that the Tribunal decision showed the cause of MCS to be stress, so their illnesses were excluded from insured benefits. Ironically, the well publicized "its all in their heads" decision is not the only recent Workers' Comp decision on an MCS case. Shortly after this case, two other workers with MCS were both granted compensation benefits.
The Tribunal decision is confusing in many ways. It found that the worker had a legitimate, disabling illness and that he had EIS, but defined EIS as a psychologically caused, not physically caused, illness. It even found that the illness was caused by the workplace, but only in the sense that the worker and fellow workers, the media and treating physicians all believed that the workplace caused the illness. (Perhaps this was the only way to explain a workplace with 50% of its staff sick.) The Tribunal then ruled that the illness was not covered by Workers' Comp because, although it was stress related, it was not an acute reaction to a traumatic event, (the only type of stress covered).
A key part of the Appeals Tribunal decision reads "the workplace relationship with EIS arises as follows:1. The condition arises, at least in part, out of the sufferer's belief that his or her illness was caused by exposure to workplace toxins.These conclusions have serious implications. Does the Tribunal believe that an employer should not fix conditions which are making workers ill? That the media should suppress all information about workplace illnesses? That doctors should not be treating patients who have MCS?
2. The sufferer's belief is generally shared by his or her workplace colleagues. Widespread publication of the illness throughout the media contributes to the spreading or contagion aspect of the EIS phenomenon.
3. Investigative and clean-up measures undertaken by an employer at the worksite also contribute to the sufferer's general belief of the existence of an environmental problem within the workplace which caused them to become ill.
4. The sufferer's belief system as to the origins of his or her illness was shared and promoted by his or her treating physicians. In other words, his or her illness was, at least in part, iatrogenic or physician induced."
Where did these conclusions come from? The panel seems to have based their decision overwhelmingly on the testimony of Workers' Compensation Board (WCB) witnesses Dr. Herman Staudenmayer and Dr Ronald Gots. Both argue that toxicological or chemical explanations of the Camp Hill illnesses are not valid and that since chemicals are not the cause, the only other logical explanation is psychological.
Staudenmayer, a psychologist, consistently pooh-poohs chemical causes of MCS. He calls it EIS, removing chemicals from the name as well as the explanation. He claims that EIS is triggered by stress, combined with "inappropriate coping mechanisms" often caused by childhood abuse. Staudenmayer explains cases where large numbers of people become ill in one place as a type of psychological contagion, false beliefs spreading between co-workers resulting in mass psychogenic illness.
Gots, whose background is in pharmacology and surgery, argues along the same lines, characterizing the illnesses as "psychosocial, the sort of contagion that can occur from individual to individual."
The WCAT decision also quoted from the Langley Report of 1998, which stated "...the degree of disability observed and symptoms reported were out of proportion to the values obtained [through air quality studies... which suggests that] some other factor or factors other than chemical exposure should be sought as the explanation of the symptoms of workers at Camp Hill."
Traditional toxicology recognizes that certain substances, usually in single, significant exposures, can result in illness characterized by particular symptoms. MCS is a different disease and does not claim to fit the toxicological model. This is one reason it is so hotly debated in medical circles. MCS researchers and physicians recognize this disease as being triggered by much smaller amounts of toxic substances, often by the interaction (synergy) of a number of substances, often over an extended period of time. MCS by definition involves a number of systems in the body and is characterized by a "spreading" phenomenon, whereby people become sensitized to an increasing number of substances beyond those involved in the original exposure.
Looking at the amounts and types of chemicals found at Camp Hill and the symptoms experienced by hundreds of workers, MCS provides a completely logical explanation of why people became and remained sick. Over 460 workers, 50% of hospital staff, including doctors, nurses, dieticians, office and maintenance staff, in different areas of the building, made Workers' Compensation claims. At the present time, over 100 are still unable to work. Camp Hill workers were initially granted benefits when evidence of ammonia-based chemicals and a faulty ventilation system were found. However, their benefits were discontinued on the date the hospital ventilation system was repaired. The issue in dispute in this case, and 200 others which will be heard over the next few months, is whether continued illness after this date will be recognized as work related.
PHYSICAL CAUSES DISCOUNTED
Dr. Michael Joffres of the Nova Scotia Environmental Health Centre was a witness for the worker. He presented evidence of research carried out in a number of countries which has established a physical basis for MCS. He also refuted the Staudenmeyer-Gots psychogenic argument. Joffres evidence on these points was completely discounted in the Tribunal's decision.
Evidence supporting the argument of physical causes of EI is not hard to find. Nicholas Ashford, MIT professor and co-author of the book Toxic Chemicals: Low Levels, High Stakes, noted, "The research that we investigated for the second edition (1998) involved twice as much published research as in the previous 50 years, and almost all of it is in peer review journals by environmental scientists. In the 7 years between the 2 editions not only has the physical basis for this condition been greatly strengthened by both animal and human data, but the psychogenic origin of the problem has not been strengthened at all."
Among the advances in showing physical effects of exposure to minute amounts of chemicals are two types of brain scans which can detect changes in brain function in EI/MCS patients. One of these has already passed the stringent test to be accepted as evidence in U.S. courts.
This Camp Hill case is being appealed to the NS Court of Appeals on numerous grounds, including the grounds that there is sufficient documentation of chemical exposure from air quality studies to prove, in conjunction with scientific literature, that workplace exposure is the probable cause of both short and longer term disabilities.
The case did establish one point helpful to MCS sufferers. The Tribunal ruled that the "EI Policy", adopted by the Compensation Board in 1995 and revised in July 1996, was invalid. This policy has been the basis for denying almost every EI/MCS case at the initial stage. The policy states that workers must be able to document specific chemicals or agents to which they were exposed in the workplace, including levels and measurements, and prove a relationship between these chemicals and the injury or illness they suffered. This meant that EIS/MCS sufferers were required to provide more evidence than workers with other types of claims, evidence that was often impossible for them to provide, in part because many of these substances, or combinations of substances, have not yet been scientifically studied.
Environmental illness cases have fared better in the courts than in front of compensation boards or appeals tribunals. It was a NS Court of Appeals decision in December 1998 which made the groundbreaking ruling that, where "scientific proof of causation" doesn't exist, workers need only show that chemical exposure was just as likely as anything else to be the cause of their illness.
The WCB came to the Tribunal to defend their original decision to deny benefits. Given the Court of Appeals ruling, the WCB needed to prove a more likely cause of illness than chemical exposures. To do so they brought in witnesses who have an international reputation for blaming MCS on the flawed psyches of the sick.
MCS is not the only disease to have been attributed to patients' mental problems. Medicine has often assumed illnesses had emotional causes when doctors and scientists were unable to establish a physical cause. It was only in the 1970s that asthma was accepted as having physiological causes. Until then it was blamed on patients' emotional problems. Epilepsy, lupus and syphilis were also attributed to patients emotional weaknesses, until science found a physical explanation.
While the battle over the causes of MCS is not new, it has recently taken a new turn. Organizations with impressive sounding names, like the Environmental Sensitivities Research Institute (ESRI) and the National Medical Advisory Service, have sprung up to "proactively respond" to the rising number of MCS lawsuits. The ESRI was founded in 1995 by Gots and its Board members include representatives of Dow-Elanto (now Dow Agro Science), Monsanto, the Cosmetic, Toiletry and Fragrance Association, and Responsible Industry for a Sound Environment, a pesticide industry trade association. Membership fees for ESRI are $10,000 for Enterprise Membership and $5,000 for Service Membership. Gots also founded the National Medical Advisory Service whose role is to provide expert medical witnesses to attorneys defending corporations in product liability lawsuits. The two organizations share the same office and fax line.
According to Albert Donnay of the MCS Information and Referral Service, Gots has not treated patients in 20 years. While Gots readily speaks out against MCS, his recent book Toxic Risks: Science, Regulation and Perception was trashed by a reviewer in the Journal of Occupational Medicine as "of little value to public health professionals and scientists" and "replete with sweeping generalizations, overstatements and exaggerations."
LIKE CIGARETTE SCIENCE
Parallels have been made between the institutes actively denying chemicals possible role in MCS/EIS, and what has become known as "cigarette science." Cigarette science refers to the scientific research sponsored by the Council for Tobacco Research (formerly the Tobacco Industry Research Committee) which served to maintain "scientific controversy" surrounding questions of tobacco and health and justify government inaction for decades after the American College of Surgeons identified smoking as a major cause of lung cancer.
It isn't surprising that the exact relationship between various factors contributing to MCS is unknown. There is still debate over the extent to which genetic, environmental and psychological factors contribute to causing cancer, despite the extensive research done on this disease. MCS is known as an "emerging illness", which seems to function differently from existing illnesses and about which much less research has been done.
The existence of debate is not bad in itself. What is disturbing is the vehemence with which some parties refuse to acknowledge the extensive evidence pointing to a link between chemicals and EI/MCS. While evidence of chemical causes is not conclusive, it is certainly strong. But the chemical defenders use ridicule and distortion to point a finger at the supposed emotional instability of MCS sufferers, discredit research pointing to chemical causes with labels such as "junk science" and imply that environmental physicians are unethical. In this way, they raise enough questions to allow insurance programs like Workers' Compensation to wiggle out of their responsibility to provide benefits to workers who desperately need them. And that is even more disturbing.