Multiple Chemical Sensitivity
(Legal implications)
Me Judith Cohen
May 12, 2011
MCS and Labor Relations
Moreau et Commission scolaire de Val-d’Or c.
Commission des lésions professionnelles (2002)
Claim
Appeal to CLP of decision of the CSST which confirmed
the decision that the appellant did not suffer from
professional injury and therefore has no right to
compensation.
Recognition
Initial diagnosis indicated dry rhinitis and dry irritative
laryngitis. Complementary report indicated mucus
hypersensitivity. Both were attributed to MCS.
Contradictory reports linked his symptoms to allergies
or more likely to a depressive mental state – the fact
that the symptoms did not improve after employee
stopped working suggest an unlikely relation between
the two.
Continued…
Moreau et Commission scolaire de Val-d’Or c.
Commission des lésions professionnelles (2002)
Decision
Confirmed presence of occupational disease.
Motives:
• preponderant medical and factual proof,
• his prolonged exposure to chemicals (only at the
work place),
• the absence of previous personal or psychological
illnesses,
• and the flaring up of MCS symptoms when exposed
to similar chemicals.
NB
Judgement which officially recognized MCS as a
compensable disease.
Lemoy et Litho Associates Ltée c. Commission des lésions
professionnelles (2003)
Claim
Demanded compensation for occupational disease due
to exposure to toluene in print shop.
Recognition
MCS and rhinitis caused by chemical sensitivity were
the accepted diagnosis, even though the chemical
substance did not exceed the regulatory exposure limits
– made clear that workers exposure to low level of
toluene triggered her disease.
Continued…
Lemoy et Litho Associates Ltée c. Commission des lésions
professionnelles (2003)
Decision
Confirmation by 6 doctors leads to acceptance of claim.
NB
CLP begins to acknowledge that a medical controversy
regarding the diagnosis of MCSS can no longer justify
refusal of a claim, as was the previous practice (see
Rolko: 1994).
Creighton v. Workplace Health, Safety and
Compensation Commission (2009)
Claim
Appeal of a decision of the Appeals Tribunal which
denied her appeal from a refusal by the Commission to
compensate her for particular treatments, products, and
expenses which she believes are necessary.
Recognition
On March 27, 2002 the Appeals Tribunal ordered the
Commission to accept her claim for disablement from
employment for “multiple chemical sensitivity” and
determined a start date of injury as early as August 8, 1995.
Panel acknowledges existence of condition but does not find it
necessary to determine or justify a prescient precise diagnosis.
Common-sense understanding that diesel exhaust is harmful
to ones health which were present in appellants workplace
which has effectively forced her from her workplace and
prevented her from going back.
Additionally her condition has improved over the past 3 years .
Continued…
Creighton v. Workplace Health, Safety and
Compensation Commission (2009)
Compensation
In total, Ms. Creighton received compensation of
approximately $37,000 for the following medical aid from
April 1998 to June 30, 2003:
•
•
•
•
Physiotherapy until December 15, 2002;
Acupuncture Therapy until April 18, 2003;
Chiropractic treatment until June 26, 2003;
I.V. supplements and various natural health products prescribed
by Dr. Reid until June 30, 2003.
From June 30, 2003 forward Ms. Creighton sought various
lifestyle modifications and medical treatments; Commission
advised that it would not pay for lifestyle modifications for
her and it would be unable to continue paying for treatment.
Decision
Appeal denied, upon absence of evidence of medical
effectiveness for the continuation of treatment not generally
approved.
Workers’ Compensation Board (P.E.I.) v. Cormier (2010)
Claim
Board sought to appeal decision of the Workers
Compensation Appeal Tribunal (WCAT) which awarded
compensation to respondent.
Recognition
After review, WCAT concluded that the evidence
showed that the respondent's health issues arose out
of, and in the course of, her employment and therefore
were compensable by the Board.
Decision
Appeal allowed based on the fact that the issue at hand
is an arguable one.
Serigraffiti Inc c. Commission des lésions professionnelles (2001)
Claim
Employer seeks to infirm pervious decision and to
declare the absence of occupational injury.
Recognition
Environmental evaluation conducted.
Repeated exposure to solvents in work environment
cited as cause of aggravation of migraines (despite
genetic predisposition), symptoms which reappeared
upon new exposure, and abated with absence from work
environment.
Decision
Appeal rejected.
Rolko et Canada (Department of National Defense) (1994)
Claim
Demands Appeals board of CLP to overturn the
decision of the review board and to declare that he
suffered an occupational disease (MCS).
Recognition
Review board argued that there is no scientific
evidence to support a diagnosis of MCS  this opinion
considered out-dated, as the illness has been accepted
and recognized by various boards and commissions
However, appellants symptoms differed from medically
and classically recognized symptoms resulting from
exposure to ethylene glycol (toxin in question) 
failure to establish causal link.
Decision
Reject Rolkos’ appeal.
MCS and the Canadian
Human Rights Act
Harris v. Camosun College (2000)
Claim
Complainant alleges Camosun College discriminated
against her by not accommodating her physical
disability, referred to her as MCS and environmental
sensitivities, to the point of undue hardship (in
violation of 15(2) of the Canadian Human Rights Act.
Recognition
No substantiated diagnosis was deposited. Later tests
revealed allergies to animals and dust, neither of
which established a link with the Respondents
environment.
Decision
Reject Complainants claim based on absence of proof.
Guibord v. Canada (Treasury Board-Transport Canada) (1996)
Claim
Application for judicial review of the decision of the
Public Service Staff Relations Board holding that the
Respondent did not fail in its duty to accommodate the
Applicant in refusing to allow her to return to her job
on a part-time basis.
Recognition
Exposure to chemical carpet cleanser in applicants
work area and subsequent blood tests indicated
environmental sensitivity.
Decision
Reject Applicants application on basis that employer
did not fail in their duty to accommodate applicant, as
they offered a reasonable alternative (alternate
employment with same level and money at another
location). The fact that a relocation could be
detrimental to Applicants health was not disclosed, so
she failed in her duty.
OPSEU v. Ontario (Ministry of Correctional Services) (2003)
Claim
Alleges that employer failed to properly accommodate
him by providing a smoke-free environment, which
aggravated his asthma (with a particular sensitivity to
cigarette smoke).
Recognition
Medical notes supported his sensitivity to cigarette
smoke.
Decision
Confirm applicants claim that employer failed to
accommodate him by repeatedly assigning him to
areas and tasks that put him in direct contact with
cigarette smoke.