The end of the legislative session will provide an opportunity for our elected officials in Augusta to supply relief for businesses across Maine that are grappling with rapidly rising workers’ compensation costs. Indeed, legislators will either confirm that the dual goals of our workers’ compensation system are to provide the highest level of benefits to employees with the most serious work-related injuries and to control costs or, they will declare that our system of compensating injured workers is something far different than what was contemplated when the 1992 Blue Ribbon reforms were enacted.

The governor has introduced legislation to overturn a February Maine Supreme Court case and to prevent Maine businesses, municipalities and schools from absorbing a staggering increase in workers’ compensation costs. The bill title, LD 2202-An Act to Ensure that 25% of Workers’ Compensation Cases with Permanent Impairment Remain Eligible for the Duration of Disability Benefits in Accordance with the Workers’ Compensation Act, is a mouthful and has consequently been dubbed the “Kotch” bill in reference to the Maine Supreme Court case that is its genesis.

In Kotch v. American Protective Services, the court ruled that work-related and non-work-related injuries could be combined for the purposes of determining whether a worker is eligible for lifetime benefits, even if that pre-existing, non-occupational condition was not affected by the work-related injury.

Over the past two weeks, we have learned of substantial plant closings in Waterville and Rockland that will put more than 500 Maine workers on the street. Bangor Hydro, Mead Paper Co. and other Maine businesses have announced layoffs that will impact even more Maine families. Those school districts that have recently learned of cuts in state subsidies will now face the daunting prospect of higher workers’ compensation costs and have nowhere to turn but property tax payers for additional funds. In these challenging economic times, neither the state, its municipalities nor its many businesses can afford unanticipated cost increases for workers’ compensation insurance.

Intuitive as it may seem to want to reserve the highest level of benefits for those employees suffering from the most severe occupational injuries, the court has opened the floodgates by ruling that pre-existing, non-occupational diseases or conditions can combine with injuries incurred on the job for the purposes of determining eligibility for lifetime benefits. If the system is designed to compensate workers who are injured on the job, then it is inappropriate to consider non-occupational injuries or conditions, having no connection to the actual work injury, for the purpose of determining the level of benefits to which an individual may be entitled.

It is not only contrary to logic and sound policy, but failing to reverse the court’s ruling will turn the present workers’ compensation insurance system into a hybrid policy of disability insurance for non-occupational injuries, hardly what the 1992 reforms were intended to accomplish. It will also end up hurting Maine workers and it is shortsighted to suggest otherwise. Such a drastic policy departure should only be the product of reasoned deliberations by policy makers in Augusta making a conscious and defensible choice.

It must be defensible because, in the event that the Legislature fails to act, legislators will have to explain to policyholders and businesses across the state why their workers’ compensation rates have risen so sharply. For Maine businesses receiving notice of premium increases during the summer and fall, as well as for policy-makers in Augusta, the economic and political implications of a failure to act will be acute. In an attempt to avoid debate and to defeat LD 2202, some legislators have suggested it is somehow improper to consider this bill so late in the legislative session.

Those legislators need to be reminded that the Maine constitution and Maine law contemplate and provide for this very situation. First, the constitution states that the business of the second regular session of the Legislature “shall be limited to … legislation in the Governor’s call” as well as “legislation of an emergency nature.” Furthermore, the statutory adjournment date is April 17.

When Goodwill Industries, Bath Iron Works, the Maine School Management Association, municipalities, hospitals and small businesses such as Portland Yacht Services stand as one at a hearing Tuesday to beseech the Legislature to pass a law, it is not, as suggested by organized labor, an attempt by the insurance industry to cause panic. It is an insult to the Maine citizens who sat through more than six hours of public hearing, interrupted by numerous House roll call votes, as snow, sleet and freezing rain coated the roads on which they must travel to suggest they are nothing more than insurance industry pawns.

In November, legislators who fail to support this legislation will understand how important this issue is to our state.

Jon A. Fitzgerald of Falmouth is a legislative and regulatory attorney at Bernstein, Shur, Sawyer & Nelson in Portland and Augusta.