S1-Post-Only

West Virginia Workers’ Compensation Legislation is a Dilemma with No Clear Solution – Yet

Recent legislation passed in West Virginia designed to help first responders manage post-traumatic stress disorder (PTSD) has a bit of a problem – no carrier offers the coverage.

West Virginia Legislation and Comment from WV's Offices of the Insurance Commissioner

Effective April 10, 2021, West Virginia House Bill 3107 “…declares that Post-Traumatic Stress Disorder (PTSD) suffered by a first responder may be recognized as a compensable occupational disease when the first responder's employer has elected to provide optional coverage for PTSD [emphasis mine] and the PTSD has been diagnosed by a licensed psychiatrist. PTSD is defined as “a disorder that meets the diagnostic criteria for post-traumatic stress disorder specified by the American Psychiatric Association in the Diagnostic and Statistical Manual of Mental Disorders, fifth edition, or later edition as adopted by rule of the Insurance Commissioner."

A 'first responder' is defined as “a law enforcement officer, firefighter, emergency medical technician, paramedic and emergency dispatcher." The PTSD diagnosis applies to a PTSD diagnosis made on or after July 1, 2021.

The law in West Virginia makes clear that absent physical injury, PTSD is not a covered condition. What's known in workers compensation as “mental-mental" claims are “not compensable" for PTSD per statute.

The Catch 22

While I attempt to stay current on workers' compensation laws, I was unaware of this until one of our agents who writes in West Virginia corresponded with me to ask which markets offered the coverage. Bear in mind that this coverage is voluntary, and in checking with the National Council on Compensation Insurance (NCCI), no carriers currently offer the coverage, and the Commissioner's Office confirms.

According to an NCCI spokesperson, some public entities that are probably self-insured are now offering the coverage in West Virginia; however, I was unable to verify this independently.

The NCCI Endorsement

NCCI provided us with the endorsement developed to provide this coverage, WC 47 03 07, West Virginia Optional Occupational Disease Coverage for First Responder Post-Traumatic Stress Disorder Endorsement.

Interestingly, the endorsement includes this provision under the heading Experience Raring Modification.

“Occupational disease claims for post-traumatic stress disorder suffered by a first responder paid by the carrier will not be included in your experience rating modification." Perhaps this is why no carriers are stepping up to write the coverage.

According to a spokesperson for NCCI, “The optional PTSD coverage outlined in endorsement WC 470307 is a non-ratable element, which means it is based on an extraordinary exposure. Therefore, it is excluded from the regular rate making and is not subject to experience rating. Our Basic Manual for WV has rules regarding the application of non-ratable elements. Rule ID: BM-SUPN-R78E3," which states in part: “Do not apply experience rating or retrospective rating to premium for a non-ratable element."

While treatment and recovery for PTSD under workers compensation laws vary by state, PTSD treatment and compensability are clearly issues that are very important to those first responders and to the agencies and employers who employ them. The Psychiatric Times estimates that 30% of first responders develop depression and “behavioral health conditions" as compared to 20% in the general population. They state that between 125 and 300 police officers commit suicide each year.

One Expert Speaks Out

James Moore, workers compensation consultant and President of J&L Risk Management Consultants in Raleigh, NC, had this to say about the bill.

“Compensability decisions made on whether an insured has purchased voluntary alternative PTSD insurance seem to be contrary to the basic tenets of workers comp insurance. Acceptance or denial claims-adjusting decisions should not be based on whether an employer has purchased a supplemental policy or coverage."

For those of you who insure ambulance companies and any other entities with first-responder employees, we want you to be aware of this legislation and know how to respond to the question of the market availability of coverage to your clients. We'll update this article as we learn more.

Last Updated: March 10, 2023