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Patrick Springer, Published July 31 2012

Prosecutors: No crimes committed in WSI deletion

BISMARCK – Prosecutors have determined that no crimes were committed when an electronic record from an injured worker’s claim file was deleted at Workforce Safety and Insurance.

Richard Riha, the Burleigh County state’s attorney, released a letter Tuesday announcing his decision.

The deleted notepad entry was reported by Barbara Frohlich, a liaison with medical providers who treat injured workers for WSI, the state’s workers’ compensation program.

Believing the deleted record was important to the worker’s claim file, she filed a report with WSI’s internal “fraud hotline” in August 2011.

Later, when she became frustrated by what she believed was an effort by WSI to minimize and cover up what she regarded as wrongdoing, she filed a criminal complaint with the Bureau of Criminal Investigation.

Riha and two of his assistants independently concluded the deleted electronic record was a public record and therefore subject to public records laws.

The prosecutors determined, however, that the official who deleted it could be charged with a crime only if doing so “knowingly, without lawful authority,” Riha wrote in a letter sent Monday to Dallas Carlson, director of the BCI.

“The individual did not act with the requisite culpability for the offense,” Riha wrote, expanding upon his reasoning. The claims official consulted with others before deleting the record and had authority under WSI policies to delete the record, he wrote.

“It is our opinion that the person who deleted the notepad entries cannot be charged with a criminal offense under these circumstances,” Riha wrote.

Also, Riha said in his letter, it appears WSI has taken steps to “reform the policies with respect to notepad entries,” an apparent reference to a decision by WSI Director Bryan Klipfel that the practice would no longer be permitted.

That should help ensure that violations of tampering with records don’t occur in the future, Riha said.

But Riha said his office’s decision “does not address the public perception of deleting records at WSI nor does it address any possible civil liability that may result from the actions taken in this case.”

When asked for a comment on Riha’s decision, Klipfel issued a statement to The Forum.

“We appreciate the decision and the effort of the various officials and agencies in completing their work,” he said. “We take these matters very seriously and are glad they found no (criminal) violations in the law.”

“I’m pleased that the notepad entry is confirmed as a record, because how can it not be?” Frohlich said when informed of Riha’s decision. “The reason I did it is I need clarity on what is a record and when is it not to be tampered with.”

Frohlich, who said she received a lower performance appraisal after her “whistleblowing” activities, has filed an internal grievance alleging retaliation. The complaint is pending and WSI has yet to make its formal response.

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

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