Somewhere around 100 million Americans who call themselves “Canaries” just got some great news from the Supreme Court in Hawaii. Multiple Chemical Sensitivity is “a legitimate diagnosis.” Not only that, if your chemical sensitivity can be proven to have been activated by a work related chemical exposure you are entitled to worker’s compensation for it.
Court overturns major ‘mistake’
Hawaii’s Supreme Court issued a decision Tuesday which vacates a ruling by the intermediate appeals process. The Labor and Industrial Relations Appeal Board made a huge mistake when they denied the claims of a Registered Nurse who alleges she was diagnosed with multiple chemical sensitivity from exposure to chemicals at work.
They were totally wrong when they declared that “Petitioner had not suffered a compensable illness because MCS is not an ‘injury per se.'” Oh yes it is, the justices scolded.
Justice Michael Wilson wrote up the opinion regarding the case which started out as Adeline Porter vs. The Queen’s Medical Center. Ms. Porter was a registered nurse who proudly served Queen’s Medical Center from the time she graduated nursing school in 1967 until 2005 “when her employment was terminated.”
As explained in the opinion of the court, “In 2002, Porter and other QMC employees in her building began suffering from respiratory symptoms precipitated by ‘environmental health issues’ that she believed were the result of ‘contaminated carpet and wall coverings.'” She was treated for her symptoms “in the emergency room on five separate occasions in 2002 and 2003.”
Subsequently, Ms. Porter was diagnosed with Multiple Chemical Sensitivity and “filed multiple claims for workers’ compensation benefits.” For almost 17 years, “Porter has repeatedly alleged that it was a mistake to deny her claims based on the Director’s March 19, 2004 finding that “there is no such injury as multiple chemical sensitivity.” The court agrees. MCS is a medical condition “where the patient develops sensitivities to multiple chemical compounds.”
Most triggering chemicals are in the “volatile organic compound” category. Exposure causes different symptoms in each patient but many are significantly or totally debilitated by them. Ms. Porter alleges “cardiac arrhythmias, vascular spasms, and cardiac ischemia among other symptoms.” Rashes, difficulty breathing, and neurological symptoms are widely reported. A hallmark of MCS is that microscopically low level concentrations can trigger full-blown symptoms in those affected.
Porter did show ‘substantial evidence’
The court made it a point to spell out that to reopen a WC claim, you have to show “substantial evidence” that a mistake was made in determining the facts “related to the physical condition of the injured employee.” Ms. Porter did and it was ignored.
“If the employee does show the proper evidence, the director may review the circumstances and make appropriate changes such as “award, terminate, continue, reinstate, increase, or decrease compensation.” He didn’t. There is a procedure to follow and it wasn’t followed.
According to the ruling, in order for evidence to be called “substantial,” it must be “relevant and credible evidence of a quality and quantity sufficient to justify a conclusion by a reasonable person.”
Ms. Porter’s was but “the LIRAB majority determined that Porter failed to produce ‘substantial evidence’ of a mistake. They were wrong. “The appeals court agreed with the board.” They were wrong too.
As noted in the Supreme Court opinion, the proper question to ask was if her injury was work related or not. Deciding whether MCS is a legitimate diagnosis or not wasn’t their job.
Justice Wilson explains, “the board based their decision on its finding that Porter ‘offered no new credible or reliable evidence that MCS is, was, or has become an accepted medical diagnosis or a valid medical disorder.'” They must have been smoking crack that day. “Porter supported this argument with substantial evidence, including two letters from DCD Administrator Hamada.”
Court sees ‘substantial evidence’
Adding insult to her injury, “That decision, denying Porter’s claims because MCS is not an injury, was signed by DCD Administrator Hamada. Just over two years later, on September 6, 2006, DCD Administrator Hamada represented to Senator Norman Sakamoto that an MCS injury would be compensable if it was found to be work related.”
Between the two of them, the court asserts, those letters “constitute substantial evidence supporting Porter’s contention that it was a mistake to dispose of her claims on the basis that MCS is not a legitimate diagnosis.”
The Hawaii Supreme Court writes, “Both letters from DCD Administrator Hamada plainly represent that MCS is a diagnosis that would be compensable under WC if it is found to be work related. These representations stand in stark contrast to the March 19, 2004 conclusion upon which the DCD Director relied in denying Porter’s 2002 claims: that ‘since there is no such injury as multiple chemical sensitivity, there is no injury per se.'”
They call that clear and “substantial evidence of a mistake of fact in the determination of Porter’s claims.”
Ms. Porter isn’t finished with her court case yet. She now has to prove that she was in fact injured at work. The defendants are fighting hard for the chemical industry by attempting to blame her symptoms on “allergic rhinitis from dust or pollen,” Porter’s “prior history of [breast] cancer,” and even “psychological factors.”
