The debate over workers’ comp in the Legislature today is likely to focus on whether to count disparate work injuries together to reach an impairment total that qualifies a worker for permanent benefits and whether workers who sustained those injuries between the 1992 comp reform and Jan. 1, 2002 would also qualify. It is a highly technical debate, turning on various interpretations of small phrases within a large body of law, but it represents both crucial support to injured workers and a significant increase in cost to employers.

Current law, according to the Maine Supreme Judicial Court, allows for both, as is clear from this year’s Kotch decision that set off the recent legislative panic and from the 1999 Churchill decision which said, “permanent impairment from a preexisting condition cannot be considered unless the preexisting condition is aggravated by, accelerated by or combines with a work-related injury. …” It is the “combines with” that causes concern, so much so that the first version of the reform, LD 2202, from the King administration via Sen. Marge Kilkelly, specifically excluded the combining of unrelated work injuries.

Interestingly, the Senate debate that ensued was largely over whether the legislation, in fact, did this, thereby pushing comp standards back before the Churchill decision. For the record, LD 2202 said this: “The impairment ratings may not reflect permanent impairment to the body parts or conditions not medically affected by the work injury even if those impairments or conditions combine with the work injury to give rise to a compensable disability…” Two questions: Does the Legislature’s surprise that such wording has been in existence mean that workers have been shortchanged for at least the last three years? Why do some senators not read important bills before voting on them?

No matter what injured workers should have gotten and did not, there is widespread belief in the Legislature that the reform should result in no added costs to the comp system, but there are a limited number of ways to do this. The leading choice, amendment B to LD 2202, would allow combining injuries prospectively but not retroactively and directing the labor and management members of the state’s workers’ comp board to each identify the proper threshold level of injury to qualify for the benefits and then come together to compromise or turn over their work to an arbitrator.

Many House Democrats in particular want the amendment to apply retroactively as well. But the simplest way for them to get enough votes to do that is by recommending the injury threshold be raised much higher, thereby denying badly injured workers who do not quite make the higher level the benefits they otherwise would receive. It is the simplest option, but not a particularly attractive one.

To maintain cost neutrality, Democrats’ best choices are to either agree with amendment B or a close variation of it, or fight to delay the debate until next year and use the intervening time to gather data and refine their arguments. Either way, comp will be a big issue next session.