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Patrick Springer, Published February 26 2012

WSI worker claims deletions broke law

FARGO – An employee of North Dakota’s workers’ compensation program contends laws were violated when a claims supervisor ordered the deletion of a worker’s electronic medical record.

Barbara Frohlich, who acts as a liaison between Workforce Safety and Insurance, the workers’ comp program, and medical providers, reported the Aug. 18 incident with the agency’s online fraud reporting system.

The deleted record was a nurse case manager’s computer notepad entry and would have been favorable to the acceptance of the worker’s claim for benefits, Frohlich said.

An internal review by WSI concluded that nothing improper happened when the record was deleted.

The deletion was to “eliminate unnecessary information” and was not “unlawful or contrary to WSI policy,” Bryan Klipfel, director of WSI, wrote Frohlich in a Jan. 25 letter.

After months of internal protests, Frohlich took the issue to two prosecutors, Attorney General Wayne Stenehjem and Richard Riha, the Burleigh County state’s attorney.

Deletion of the notepad entry constituted tampering with a public record, a felony crime under North Dakota law, said Frohlich and her lawyer, Mark Schneider of Fargo.

Riha, in a letter to Frohlich and an interview with The Forum, said Frohlich had failed to provide evidence of a crime. Riha advised her to take the matter to the North Dakota State Highway Patrol, which has jurisdiction to investigate possible crimes involving WSI.

Before heading WSI, Klipfel headed the Highway Patrol. Riha said if the patrol had a conflict of interest, it could refer the investigation to another law enforcement agency.

“We don’t have jurisdiction or authority over any state agency,” said Liz Brocker, a spokeswoman for Stenehjem’s office.

Frohlich, who previously worked as a medical laboratory professional and manager, said deletions never should be made from a medical record. If an error is made, a notation should be made to correct the error, she said.

“We’re talking criminal wrongdoing here,” Schneider said. “We’re talking about criminal activity and criminal cover-up.”

In a follow-up letter sent Wednesday to Riha, asking him to reconsider his conclusion that no crime took place, Frohlich said she had discussed the issue with an assistant attorney general who said notepad entries are “clearly a record.”

Brocker would not discuss the issue, repeating that the attorney general’s office lacks jurisdiction.

If a notepad entry is a public record, its destruction clearly would be a crime, Schneider said.

Frohlich asked for protection under North Dakota’s “whistleblower” statute. In writing, Klipfel has said she will not be subject to any “overt or implicit retaliation” for the concerns she reported through the fraud reporting system.

But, Klipfel also wrote, “Apart from the specific concerns you raised, I was disappointed to read the attacks you level against your fellow employees at WSI,” with “unfounded accusations.”

Frohlich said she loves her job and doesn’t want to put it in jeopardy but felt she had no other choice. “People’s lives are affected and how can you not speak up against that?” she said.

Readers can reach Forum reporter Patrick Springer at (701) 241-5522