Multiple chemical sensitivity syndrome: The wavering influence of the courts on public policy

Regulatory Toxicology and Pharmacology

Volumn 24, Issue 1 II, 1996, Pages

  Custer, William V ^a  

^a Powell Goldstein Frazer and Murphy   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

CONFERENCE PAPER; COURT; DISABILITY; HUMAN; LAW; MULTIPLE CHEMICAL SENSITIVITY; PRIORITY JOURNAL;

ENVIRONMENTAL HEALTH; MULTIPLE CHEMICAL SENSITIVITY; PUBLIC POLICY; UNITED STATES;

EID: 0029854946     PISSN: 02732300     EISSN: None     Source Type: Journal    
DOI: 10.1006/rtph.1996.0094     Document Type: Article

References (35)

1. American Academy of Allergy and Immunology (1986). Position statements: Clinical ecology. J. Allergy Clin. Immunol. 78, 269-270;
2. alifornia Medical Association (CMA) (1986). Scientific Board Task Force on Clinical Ecology: Clinical Ecology - A Critical Appraisal. West. J. Med. 144, 239-245;
3. American College of Physicians (1989). Clinical ecology (position paper). Ann. Intern. Med. 111, 168-178;
4. Council on Scientific Affairs, American Medical Association (1992). Clinical ecology. JAMA 268(24), 3465-3467;
5. Board of the International Society of Regulatory Toxicology and Pharmacology (1993). Report of the ISRTP Board. Reg. Toxicol. Pharmacol. 18, 79.
6. The Program Operations Manual for the Social Security Administration contains the following passage relating to MCS: "Clinical ecology" or "environmental medicine" (as it is now called) is an approach to medicine that ascribes a wide range of symptoms to exposure to numerous common substances in the environment. Recent publications by clinical ecologists have suggested that chemicals cause toxic damage to the immune system. However, there is no indication that individuals with a clinical ecology diagnosis of chemical sensitivity have immune deficiency, immune complex disease, autoimmunity, or abnormal function of their immune systems. The principal clinical ecology procedure in diagnosing sensitivity to a chemical or food is the provocation-neutralization technique, in which the patient records symptoms occurring during a 10-min period immediately following the administration of a test dose of a chemical, food extract, or allergen applied either as a sublingual drop or by subcutaneous or intracutaneous injection. Symptoms are "neutralized" by injecting or applying sublingually a lower dose of the same test substance. The results are based solely on the subjective report of symptoms by the patient. In claims alleging disability due to an environmental illness, it is often difficult to identify abnormal signs and laboratory findings which can be associated with the alleged symptoms. Therefore, in evaluating claims based on environmental illness, all of the claimant's symptoms, signs, and laboratory findings must be considered to determine if there is a medically determinable impairment and the impact of any impairment on the claimant's ability to work. This evaluation should be made on an individual case-by-case basis to determine if the impairment prevents substantial gainful activity. U.S. Department of Health and Human Services, Social Security Administration, Program Operations Manual System, Part 4, § 24515.065, Evaluation of Specific Issues - Environmental Illness.
7. No. 93-8039, 1993 U.S. App. LEXIS 33369 (10th Cir. Dec. 15, 1993)(unpublished decision).
8. Id. at*11-*12.
9. 912 F. 2d 971 (8th Cir. 1990).
10. No. 88 C10128, 1990 U.S. Dist. LEXIS 18758 (N.D. Ill. Oct. 30, 1990)(Report and Recommendation of Magistrate Judge) adopted by the district court in Lawson v. Sullivan, No. 88 C10128, 1991 U.S. Dist. LEXIS 1560 (N.D. Ill. Feb. 6, 1991).
11. Section 223(d) of the Social Security Act defines physical or mental impairment for all disability claimants as "an impairment that results from anatomical, physiological, or psychological abnormalities which are demonstrable by medically acceptable clinical and laboratory diagnostic techniques." See 42 U.S.C. § 423(d)(3).
12. Lawson v. Sullivan, 1990 U.S. Dist. LEXIS 18758 at*19-*20 [quoting Gallagher v. Schweiker, 697 F. 2d 82, 84-85 (2nd Cir. 1983)].
13. No. 92 C 5448, 1993 U.S. Dist. LEXIS 10448 (N.D. Ill. July 27, 1993).
14. 15 F. 3d 97 (8th Cir. 1994).
15. Id. at 100. A similar holding was reached by the United States Court of Appeals for the Fifth Circuit in Greenspan v. Shalala, 38 F. 3d 232 (5th Cir. 1994).
16. 863 F. Supp. 994 (E.D. Mo. 1994).
17. 29 U.S.C. 1132 (a)(1)(B).
18. Donato v. Metropolitan Life Insurance Co., 19 F. 3d 375, 380 (7th Cir. 1994); Brandon v. First Republic Bank Group Medical Plan, No. CA-7-89-00 1990 (N.D. Tex. Apr. 25, 1990).
19. 42 U.S.C. 3601 et. seq.
20. 24 C.F.R. Ch. I, Subch. A, App. III, Final Fair Housing Accessibility Guidelines, March 6, 1991.
21. Memorandum from George L. Weidenfeller, HUD Deputy General Counsel (Operations) to HUD Regional Counsel dated April 14, 1992.
22. "Accordingly, even if MCS was a psychological or mental impairment, rather than a physical one, a person with MCS would still be afforded full protection under the Act, so long as that condition substantially limited one or more of his or her major life activities, or the person had a record of such an impairment, or was regarded as having such an impairment. 42 U.S.C. § 3602(h); 24 C.F.R. § 100.201." Memorandum to Frank Keating, General Counsel, HUD, from Carole W. Wilson, Associate General Counsel for Equal Opportunity and Administrative Law, March 5, 1992, p. 2, fn. 3.
23. "More Claim Chemicals Made Them Ill," Wall Street Journal, January 17, 1995, p. B1; also see The Secretary, United States Department of Housing and Urban Development, on behalf of Melinda M. Lebens v. Country Creek Association, Inc. et al., No. HUDALJ 03-93-0002-1; also see Burnham v. City of Rohnert Park, 1992 WL 672965 (N.D. Cal. May 18, 1992).
24. 42 U.S.C. § 12101 et. seq.
25. 28 C.F.R. 35, App. A at p. 453; 28 C.F.R. 36, App. B at p. 594 (7-1-95 edition).
26. 60 F. 3d 766 (11th Cir. 1995).
27. Appeal of Denise Kehoe, 648 A. 2d 472, 474 (N.H. 1994).
28. 1995 WL 228247 (Va. App. Apr. 18, 1995); also see Chanin v. Eastern Virginia Medical School, 20 Va. App. 587, 459 S.E. 2d 523 (1995).
29. McCreary v. Industrial Commission of Arizona, 835 P. 2d 469 (Ariz. App. 1992); Weekley v. Industrial Commission, 615 N.E. 2d 59 (Ill. App. 1993).
30. No. 90 CA 10594, Superior Court of the District of Columbia.
31. Frye v. United States, 293 F. 1013, 1014 (1923).
32. U.S., 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993).
33. 852 F. Supp. 690 (N.D. Ind.), aff'd., 42 F. 3d 434 (7th Cir. 1994).
34. Summers v. Missouri Pacific Railroad System, 1995 WL 519206 (E. D. Okla. Aug. 25, 1995); Cavallo v. Star Enterprise, 892 F. Supp. 756 (E.D. Va. 1995).
35. Also see Reference Manual on Scientific Evidence (Federal Judicial Center 1994), pp. 73-75 for a discussion of the effect of Daubert upon the theories espoused by the clinical ecology movement.