William D. Brewster successfully convinced the Arbitrator to reject the petitioner's theory of Multiple Chemical Sensitivity and neurotoxicity causing permanent and total disability.

Summary

While cleaning a computer lab at Hillcrest High School in June of 1996, the petitioner was sprayed, from a distance of a few feet on the back of her neck with Dust-Off by a co-employee. While originally telling medical providers that the Dust-Off straw was placed in her ear canal, she admitted at trial that she was simply sprayed from behind, with the straw never touching her body. Over the next 13 years the petitioner visited over 20 physicians/facilities, with complaints from head to toe, including: itching and burning eyes; dermatitis; chemical sensitivity; headaches; dry eyes and dry throat syndrome; dry mouth; blurred vision; tingling and numbness; organic brain dysfunction; nausea; high blood pressure; photophobia; electric shocks down her body; memory loss; confusion and poor concentration; decreased sense of smell and appetite; crying spells; hypertension; and depression; insomnia; weight loss; chronic fatigue, anxiety and respiratory distress, all of which she claims prevented her from working. At the time of the trial, the petitioner had not worked in over nine years.

While readily admitting the incident itself, the respondent relied on several independent medical examiners, including Neurotoxicologist, Dr. David Hartman and Board-Certified Occupational Disease Specialist, Dr. Shirley Conibear.

The petitioner hired Dr. Raymond Singer, a New Mexico Neuropsychologist who rendered opinions on the assumptions that the Dust-Off straw was placed in the petitioner's right ear and opined that the difluoroethane compound found in Dust-Off caused neurotoxicity, organic brain dysfunction and multiple chemical sensitivity. However, on cross‑examination Dr. Singer was unable to cite even a single case of a brief exposure to Dust‑Off or its components producing a symptom profile even remotely similar to that alleged by petitioner. Dr. Singer had not published nor given any lectures pertaining to single exposure to Dust-Off, admitted he was not trained to review brain MRI films and was forced to concede that his multiple chemical sensitivity diagnosis is not only controversial but has not been accepted by the mainstream medical community. He was also forced to admit that difluoroethane is considered one of the least toxic of the hydrogenate fluorocarbons and was seemingly unaware that difluoroethane is used regularly in deodorants, hairsprays and personal care products.

The Arbitrator found that the petitioner's left and right eye conditions of ill-being were causally related to the spraying incident of June 6, 1996 but rejected the petitioner's numerous other claimed conditions of ill-being. The Arbitrator found credible the opinions of Dr. Conibear and Dr. Hartman while rejecting those of Dr. Singer. Dr. Conibear testified that the tympanic membrane separates the outer ear from the middle ear and prevents gases and liquids from penetrating into the middle ear. Noting there was no sign of any injury due to frostbite at the time of the initial examination in June of 1996, she opined this was direct evidence that the Dust-Off spraying occurred from a greater distance rather then being placed directly in the ear canal as per the petitioner's original history. Dr. Conibear testified that there was simply no way that spraying gas into someone's ear could penetrate all the way to the brain and refuted Dr. Singer's testimony that spraying a gas into the ear canal would result in contact with brain matter as representing a serious lack of knowledge of human anatomy and was something even a first year medical student should know. Dr. Conibear further testified that difluoroethane is a gas, 2.4 times heavier than air which means that when it comes out of the Dust-Off can, if you could see it, you would see that it sinks to the ground and stays there unless someone walks around and stirs it up, but it always seems to settle. This was further evidence of petitioner's limited exposure to the chemical.

The Arbitrator also found credible the opinions of Dr. David Hartman who conducted a neuropsychological evaluation of the petitioner, subjecting her to numerous tests. He found no evidence petitioner developed any neurotoxic or neuropsychological symptoms following her alleged exposure to Dust-Off, that there is no evidence in the medical literature of acute neurotoxicity resulting from similar exposure, nor is there any evidence of a single exposure to Dust-Off ever producing a symptom profile even remotely similar to that alleged by petitioner. Most damming to petitioner was her performance on Dr. Hartman's "Word Memory Test," a very easy test of word recognition sensitive to deliberant malingering of memory impairment. The test has been designed to be insensitive to brain injury, even severely brain damaged patients. Therefore, individuals who do poorly on the test are not doing so for neurological or physical reasons. Ms. Johnson's performance was below that of brain injured patients and even lower than that of mentally retarded children and her scores were most similar to groups asked to fake brain injuries.

In rejecting the opinions of Dr. Singer the Arbitrator relied in part of the decision of Bernardoni vs. Industrial Commission, 362 Ill.App3d 582, 840, N.E.2d 300 (3^rd Dist. 2006). In Bernardoni, the petitioner alleged respiratory illness and chemical sensitivity while working for respondent, shortly thereafter experiencing coughing, headaches, nausea and nose and throat problems resulting the ultimate diagnosis of multiple chemical sensitivity. Citing Frye vs. United States, 293 F. 1013, 1014 (D.C. Circuit Cir. 1923) the Court held that scientific evidence is admissible at trial only if the methodology or scientific principle upon which the opinion is based is "sufficiently established to have gained general acceptance in a particular field in which it belongs." The Court held that multiple chemical sensitivity is not a generally accepted syndrome in the medical community and, thus, expert testimony regarding claimant's MCS diagnosis was not admissible in proceedings to recover under the Workers' Compensation Act.

The Arbitrator rejected the petitioner's theory of permanent and total disability, denying her claim for TTD and medical benefits and awarded her nominal permanent partial disability of 10% loss of use of the left eye and 7.5% loss of use of the right eye and a mere 5/7ths weeks of TTD benefits. The petitioner originally appealed the matter to the Commission but withdrew her Petition and the award was paid.