Patrick Springer, Published May 06 2012
Whistleblower sees deleted record as part of broader problems at WSI
One of those blows came with brute force when a heavy metal hydraulic cylinder came crashing down on his head while he was working on the assembly line at Case IH.
The other happened much more quietly and came almost a year later. Unknown to Buzalsky, a state official he never met ordered the deletion of a record – an electronic note he since has come to believe would have helped him get support for a life-altering injury.
A whistleblower has said the record was ordered deleted because it “weakened” the position of Workforce Safety and Insurance in denying Buzalsky’s claim for certain workers’ compensation benefits stemming from his on-the-job accident.
His life has never been the same since the hard knock on the head he sustained on Aug. 27, 2010, which sent him to the emergency room.
He routinely gets splitting headaches, and he experiences anxiety attacks when his job requires him to work beneath heavy equipment – as he was at the time of his work accident.
He was tightening axel bolts and a suspended lift cylinder came off an overhead hoist, hitting him on the head, lacerating his scalp.
The severity of his anxiety problems first became clear to Buzalsky in May 2011 when he was working underneath a tractor on the assembly line.
“All of a sudden, I’m sweating and shaking and I couldn’t hold on to my tools,” he says. “That’s when I knew something was really wrong. I came out, and my shirt was just drenched with sweat.”
The 36-year-old has chronic mental health problems, including recurring severe headaches, depression, anxiety and post-traumatic stress disorder.
He requires medication for his headaches, anxiety and stress disorder, as well as other costs involving clinical treatments. The costs are covered by his health insurance, except for co-pays and deductibles. Buzalsky said WSI should be paying those expenses.
The whistleblower’s allegations, made in a sworn statement, have triggered an investigation by the Bureau of Criminal Investigation to determine whether the record was a public record and whether any laws were violated.
WSI maintains that the notepad was legally deleted and improperly contained the nurse case manager’s personal opinions.
Buzalsky, meanwhile, has long since returned to work full time, without workers’ comp assistance for the medications and treatments for the mental health issues that still plague him.
Two treating physicians and two other health specialists have attributed the problems – including post-traumatic stress disorder – to the serious blow to the head he suffered at work.
But an “independent medical examiner” hired by WSI, whom Buzalsky said examined him in a 45-minute visit at an office in Milwaukee, disagreed with his treating medical specialists.
“It is opined that this adjustment reaction is due to the vicissitudes of life, and as such, cannot be substantially related to the objective injury sustained as a result of the work accident,” wrote Dr. Joseph Burgarino, WSI’s outside examiner.
Armed with that opinion, WSI rejected the conclusions of Buzalsky’s treating health professionals and last August, denied his request to reinstate disability benefits.
The reason given for the denial: He was removed from work because of post-traumatic stress disorder, and workers’ compensation doesn’t consider that a “compensable injury” unless connected to a physical injury.
A few days later, Buzalsky sent a request for reconsideration, also rejected. Buzalsky consulted with a lawyer, who believed he had a valid claim.
A hearing was scheduled before an administrative law judge to contest the denial. But Buzalsky ultimately decided, early this year, to drop his claim and settle with WSI.
Fighting the denial would mean paying thousands of dollars of legal costs he couldn’t afford. The settlement Buzalsky signed allowed him to recoup $18,172 in wages lost when he was away from work because of his injuries.
But that amount was offset by his agreement to repay about $8,500 in disability payments to his employer because his claim had been denied.
As a result, for every paycheck he receives, $340 is deducted until the sum is repaid.
“I basically brought up a deal with them because I couldn’t afford to go to court,” he said. “In my mind, I was forced into it.”
* * *
On Aug. 17, 2011, Barbara Frohlich was at her desk when a colleague stopped by with a question about a copy of a document she held in her hand – the record that now is the focus of the BCI investigation.
Frohlich works at WSI as a liaison to medical providers who care for injured workers. The colleague, a claims adjuster, wanted to know whether the content of the document, an electronic notepad entry – part of an injured worker’s claims file – was proper.
In her affidavit and supporting documents provided to the BCI, Frohlich outlined this description of events:
The note, by a nurse case manager, described conversations with the claims adjuster, who said “the plan is to deny” Buzalsky’s claim reapplying for disability benefits because of his continued problems.
In her notepad entry, the nurse case manager raised the issue of whether Buzalsky’s claim should be reviewed by WSI’s medical director, a physician, to determine whether it should be approved.
The medical director had someone in his office, and the claims adjuster talked to a WSI lawyer, Rob Forward, who said there was no need for the medical director to review the claim, the nurse case manager said in her notepad entry. That’s because WSI doesn’t approve mental health claims that are not the result of physical injury – the conclusion of WSI’s independent medical examiner, but not of his treating physicians.
The nurse case manager recorded in her notepad entry that she was going to note that the medical director wasn’t consulted on the claim, and that she thought she should bring Buzalsky’s claim back before an internal “triage” review committee, a step she thought would be needed in the event auditors later were looking to see if WSI followed through properly.
Frohlich thought deletion of the notepad entry would be wrong – so wrong she filed a report through WSI’s internal fraud hotline.
The deleted record was part of a broader pattern of irregularities in the medical review of claims, in Frohlich’s view. She also noted what she regarded as pressure placed on WSI’s medical director involving his official opinions.
She began meeting with administrators, to convey her concerns and see about addressing them. She filed her fraud report on Aug. 31, less than two weeks after becoming aware of the deletion.
It was the beginning of a series of meetings, letters and memos seeking action, inside and outside WSI, an effort that would end in frustration for Frohlich.
Bryan Klipfel, director of WSI, ordered an internal audit report of the deleted notepad entry and related agency policies.
Initially, Frohlich believed the audit would focus on the deleted electronic notepad entry from Buzalsky’s claims file.
The two internal auditors assigned to the report, however, tried to persuade her to separate the notepad deletion from two instances involving pressure on the medical director to delete passages from his reviews, according to her affidavit.
“I said I would not agree, because the two were intertwined,” she said in her sworn statement.
She asked whether the deleted Buzalsky note would be part of the report and was told the internal auditors would take a “random” sample of deleted notepad entries, but would be sure to include the record Frohlich reported.
Eight days later, on Sept. 15, she met with the two internal auditors to try to convince them to restore the deleted notepad entry, “so it would be available to the injured worker in the event of appealing the denial” of the claim.
But, Frohlich added in her April 11 affidavit, “I was given no assurance that would be done, and to this day, the notepad entry has not been restored to the claimant’s file.”
When the final report was issued a few weeks after the follow-up meeting with the internal auditors, on Oct. 25, Frohlich was disappointed, and concluded it was not a “good-faith effort to address either the notepad deletion or the pressure brought to bear” on WSI’s medical director.
Believing the report to be “deeply flawed,” Frohlich decided to write about her concerns to Attorney General Wayne Stenehjem, whose staff replied that it was an internal WSI matter and outside his office’s jurisdiction.
A similar letter to the Office of the Burleigh County State’s Attorney advised Frohlich that she should take her report to the North Dakota Highway Patrol, the law enforcement agency with jurisdiction over WSI, to investigate.
Because Klipfel formerly headed the State Patrol, the North Dakota Bureau of Criminal Investigation is handling the case.
Klipfel has declined to be interviewed about the investigation and WSI’s internal examination of Buzalsky’s deleted notepad entry but has responded in writing to emailed questions from The Forum.
“I believe the changes that have been implemented due to the review conducted are positive ones that will help alleviate the misunderstandings that have resulted,” he said.
Initially, WSI directed that notepad entries deleted for authorized reasons, such as a record placed in the wrong worker’s claims file, would be kept separately in a permanent file.
Recently, however, Klipfel changed policy and announced that no more deleted notepad entries would be allowed. He said he welcomes the investigation.
“We are fully cooperating with Bureau of Criminal Investigation,” Klipfel said, “and look forward to the results of the investigation.”
* * *
JR Buzalsky first learned that the deleted notepad entry involved his claim in a roundabout manner. The whistleblower’s concerns about the deleted document, reported earlier by The Forum, also were explored by Chad Nodland, a Bismarck lawyer who blogs as Northdecoder. Nodland’s detailed description of the case sounded familiar to a reader who happened to be a friend of Buzalsky, who put the two in touch.
Buzalsky and the lawyer who reviewed his claim say he would have been better able to challenge the claim’s denial if they had known about the deleted notepad entry.
The document revealed the nurse case manager’s concerns about following procedures, and documented that the claim never had been reviewed by WSI’s medical director – a physician whose role is to weigh conflicting medical opinions and decide which is supported by the evidence.
Klipfel said the medical director was consulted about Buzalsky’s psychological conditions and deferred an opinion to the independent medical examiner.
The lawyer who reviewed Buzalsky’s claim, Steve Schneider, said the notepad entry documents a WSI lawyer’s assertion that workers’ comp does not compensate post-traumatic stress claims – a statement he said is not supported by the law.
North Dakota law allows coverage for post-traumatic stress disorder that stems directly from a physical injury. Buzalsky said there was no evidence he suffered from post-traumatic stress before his injury, and said he found out that a “neuropsych” assessment to determine that should have been conducted soon after his injury, but was not.
Klipfel said the denial of Buzalsky’s mental health coverage didn’t turn on the neuropsych assessment. The medical examiner’s rejection and legal determination hinged on the weight of the medical evidence, Klipfel said.
“If I would have seen this there would have been a lot more input from me and questions,” Buzalsky said. “This deletion started a tumbling effect because I started asking a lot of questions.”
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Readers can reach Forum reporter Patrick Springer at (701) 241-5522