No, this is not an easy course. This course is not for the average sophomore in Workers’ Comp 202. This course is for the above-average citizen willing to tackle difficult issues in difficult times. One must keep their head cool and heart calm as one hears all sides speak into each ear, simultaneously contradicting each other and leaving most completely confused and worried that we in the State House will get it all wrong today.

This course is Workers’ Comp 2202, and welcome to it. By day’s or week’s end, we will have a healthy solution, where most of us will have shown our willingness to meet somewhere in the middle and solve these newest workers compensation problems. For what my eight years are worth, as I head to Augusta today, I forecast a rough day of wrangling, followed by passage of a new law which clarifies that Workers’ Compensation does not cover non-workplace injuries but does cover multiple workplace injuries beginning immediately.

As always, our legislative day today will begin with bells and prayers, after which various Republican and Democratic caucuses will be whistled and whisked into our strategy sessions. We’ll re-focus on LD 2202, as amended three or four times. In my opinion, each amendment has sought to improve the balance between employer-employee rights and responsibilities.

At this point, know, too, that a large majority of legislators agrees that non-workplace injuries should not be covered in our Workers’ Compensation law. We will reverse this provision in the recent Maine Supreme Court decision in Kotch v. American Protective Services (2002), a.k.a. “Kotch” case.

In Kotch, the court looked at more than non-workplace injuries however. As explained in this case, Maine law addresses how an injury that “aggravates, accelerates or combines” with a pre-existing physical condition can determine benefits. Some argue that the statute concerning the combining of workplace injuries is confusing. Others claim that it perfectly clear. Regardless, the Maine Supreme Court did its job, read and interpreted the law as it was written in 1992 and decided that the law was, at the very least, not explicit about what injuries can be combined to determine benefits.

In short, the remaining question for us all concerns how to cover multiple workplace injuries.

The term for the day is “stacking” together of workplace injuries. How do we “stack,” given the court’s opinion that that our currently-worded law is vague on this point?

Back in 1913, when Maine first entered the Workers’ Compensation policy arena, the agreement between employer and employee was this: I, employer, will pay into a system that will provide you, employee, benefits in the event of injury in return for you, employee, forgoing your legal options to sue me in court for injuries sustained at my workplace.

Then, in 1992, to control costs, our new law set forth an agreement whereby 25 percent of our injured workers will be called “permanently impaired” thereby qualifying for lifetime payments of 80 percent of their wages. The remaining 75 percent of our injured workers can only receive seven years of pay, also at 80 percent. Again, to help us all stay clear, the issue today concerns how we stack, or not, the workplace injuries to figure what workers qualify for lifetime benefits.

The emerging compromise: With cost-neutrality and workplace-only injuries very much on our minds, today’s emerging compromises all seem to point to our willingness as a state to cover the stacking of workplace injuries at least beginning in January 2002. For some of us, the horrible reality is that we may not be able to cover workers with multiple injuries whose injuries post-dated 1992 and predated 2002. We are told that covering this group, too, would be retrospective and therefore skew the 25 percent to 75 percent balance. Regardless, it seems arbitrary and one would hope for better data upon which to decide.

If our truth be known, no one really knows. No one can say how many 1992-2002 cases are out there or how they would skew the 25 percent to 75 percent balance. All we know is that insurance companies are sending out notices. Today, one of the town managers in my Senate district called to tell me that his letter said that rates would go up 75 percent. Another business person called to say he was confused but he thought he wanted me to vote for the amendment. I thanked him for his honesty and intelligence.

So, here we have it. LD 2202 is really a graduate-level course that, in my opinion, merits the course title, Workers Compensation 2202. Despite the complexities, we can and will find a way through this issue. At the very, very least, we will come out of this session with a new law that clarifies that non-workplace injuries do not belong in our Workers’ Compensation law. I maintain that we also will come out of this session with clarification on what workplace injuries can be combined, or stacked, to determine benefits.

We in the Legislature hear the business community loud and clear, and we want to make sure that what we do does not raise costs. Many of us also want to make sure that we also hear and respect the rights of workers injured on the job. This may be a difficult and delicate balance, but no one said this was an easy course. Nevertheless, it is one that we all can and will pass.

Sen. Susan W. Longley, D-Waldo, is a fourth-term senator who chairs the Health and Human Service Committee and is a Democratic candidate for Congress in Maine’s 2nd Congressional District.