cuban crisis and are required to be and walk psychiatric facility as such this hospital does have a protocol in place to manage these patients the issue in this case does not have to do with recognition of the hazard protocols there have been evidence put into court that he demonstrated that looking at the overall aggression that was occurring at the hospital had actually reduced over a three year time period there's a piece of evidence that was committed in this case the issue in this case comes down to the question of feasibility of abatement this is not a case similar to a case that was heard by this court many years ago the secretary of labor and cyril case wary of the question and that case really came down to feasible but in a case like this where there is no ability to completely eliminate the hazard the question is what is the material rejection has occurred and it is the fundamental question that we've only goes to you know the notion of due process and their native the reason why we believe that this is such an important issue in this case it is goes to the applicability of the general duty clause to all employers if your employer is completely eliminated oftentimes in these cases similar to the case that this court heard of the world has or have been eliminated as agreed upon by the secretary of labor and the party in that case in this case the experts have agreed there is no abilities fully eliminate this house the question then becomes if we cannot eliminate what must we do there are multiple options that have been provided by the secretary of labor means to question is did just little do enough to  is not absolutely a fact question and i would like to give the scenario that i actually laid out in the briefing in this case so i made a situation very similar to if you were driving down a road and there is no speed limit pays down that road and every day there's a different police officer monitoring that road and every day they're stopping traffic and they're determining what the speed limit is for that day the facts here cannot shift from there to be fair notice and due process to an employer they that an employer has in trying to figure out what to do but i think analogy might be the more corrupt analogy might be a prohibition against reckless driving and if somebody is a minute you don't chapter and verse sort of say you know how many people can have fatal accidents or axes the result in serious bodily harm but we have kinds of training and i've lines that go people notice in context what's reckless and what's not and if an employer fails to have the appropriate kinds of training guidelines or has them doesn't implement them which i read to be the basis of a lot of the basis of the decision here then that that constitutes a violation so i think a lot of the question here was whether the policies that were folks were actually used to their intended effect yes you are and i think that is a good point but i would say that the hospital actually and quite frankly norton the decision but the hospital was looking down and so for the hospital they were looking at it and saying we have protocols we are implementing these we believe we are successfully reducing this hazard in the hospital  that if you look at facts the facts are always shifting for an employer to know whether or not they comply and i think that the issue here really there to two separate issues for a long one is does does it violate due process to have a rule that says you must feasibly the big race is your church which is like judge dillard's hypothetical about reckless driving yes you are and i think that you know that's a tough argument for you but once we once we get past that the only other question is there was a finding adverse to your client about feasible abatement and we're just reviewing ada has what is the material reduction and i think that makes the fundamental difference in this case because the judge ruled in a court below that the secretary does not need to provide that notice to the regularly right regulating unit and i think nobody knows i think your honor to that point if there was actually a notice a comment and a rule made then i think actually that would be the process that should be using this particular case i think there is a question of the world the rule just who's a court i mean doing to him the secretary of labor in the face of a known workplace violence hazard brooklyn didn't do nearly enough to protect its employees from petion attacks was well aware that he needed to do more of workplace violence so fifty one employee injuries due to p c and on staff attacks employees it has made at the hearing described being spent on bitten punched kicked and thrown into walls and found that these types of violent attacks routinely occurred even u h f which is brooklyn's parent company notify the hospital that its employee injury rate was too high they argument not agree explain why brooklyn's efforts were insufficient and policy was completely ineffective employees really don't how would you articulate the standard that you believe applies to determining whether that's a violation of the general duty because i understand feasible for an employer to eliminate or materially reduce the hazard and hear the evidence in the record in the judge's finding is that there are a number of feasible steps that brooklyn could have taken to reduce the hazard and there's also some language in our cases about what a reasonably prudent employer familiar with the circumstances would have done and how do you mesh that with the national realty is it feasible so that going to the node is a question necessarily what the industry standard as i understand it yet you mention the numbers but i also took you to be saying that actually the wrong numbers are time that illuminative because you could have are eliminated because you could have you know one year ago a half of patients were particularly dangerous or another year you know it really depends on the circumstances just like reckless driving or there are more icy days you know or more more people driving more miles it's going to affect the rate so how does the secretary create grades from year to year of injury or i think the grades are very relevant and you know the evidence in the record shows that  doesn't help or anything about the true nature violence but i think your point that sometimes it may be patients that are more violent and employer needs to do more to address that is well taken and i think brooklyn  records show that they didn't even implement their own policies on paper they're supposed to employees are supposed to be able to use phones to call for help in an emergency but the evidence shows that there weren't there a limited number of phones available and there were no bait the hazard to the extent feasible the secretary's burden is to identify and feasible methods for that the employer to do that and that's exactly what the secretary did in this case osha expert identified six measures that together w materially reduce the hazard to the extent he's involved but those measures are not binding in any way on the employer program could implement other comparable measures that would be just as effective to reduce the hazard  brooklyn to be unaware of the measures that were needed to take needed to be taken in this situation so in more pointed answer her question how do they know that you know they're running a business and these measures are each of them has a cost training cost implementation consequent costs how do they know where to draw the line there is some unavoidable level of grass and so they're having to make some kind of judgment i don't know where to draw the line and this record safety and health from professional health care associations measures that can be taken to reduce the hazard but one of the abatement measures that osha identified here and event that brooklyn's an expert considered best practice is i comprehensive hazard evaluation and this would enable the employee to be consistently monitoring for incident workplace violence incidents in the hospital and determining whether there are any additional steps that could be taken to address the hazard so that that process big surprise would it enable the employer to know whether there were more steps that could be taken to address the hazard so there as the judge found substantial evidence or substantial evidence supports the judge's finding that there are these six different abatement measures that could materially reduce the hazard and in fact brooklyn has actually implemented a number of these measures since  haitian they've addressed some of their staffing issues by hiring a security mental health technician to somebody who doesn't have any patient care responsibilities and can respond to codes when they're called it had another staff member who ensures that the walkie talkies are all working at all times so these are really straightforward and sensible measures that proclaimed could take that almost certainly would have prevented some of the attacks on employees like frederick  i had a code green policy that you know we don't actually have what that policy is before us but it was a factor there was no evidence that employees were unable to get the help that they needed when they or when there was a psychiatric emergency situation training was different as well and there was a finding in this case that brooklyn didn't provide the training on its power point to employees but in h r i the employer did provide that train significantly in the case that the secretary conceded that there were efforts already being made by her going but the standard has now become significantly or drastically i think using words that are amorphous and without definition creates a very difficult group going to know what did they do what what can they do more and the same simply there is more that they can do without providing evidence how that would actually materially reduce the hazard leaves the employer with the fundamental lack of knowledge about what they can do to achieve this result and even the secretary downplays the evidence that was supplied about the reduction of aggression at the facility they track aggression at the silty because overall aggression is important if someone throws a bottle if they break a chair that is an aggressive act they can in that he then they are going to escalate a potentially do something to a staff member it is important tracking and training that they do to look to see what is the reduction of aggression over at the facility so i think that number was something that they did rely upon to say we do have policies in effect the nation that there isn't a code policy is simply without merit in this case what about the implementation like to address that briefly and that is that i think that detail jay not pay attention to the testimony of the risk manager and hunter at brooklyn comparatively in the h r eight i case the risk managers testimony was looked at the risk managers actually the morning in charge of tracking training implementing the policies looking at those issues and to ignore her testimony which she testified at length and i have breached her testimony again in the briefing that's important so i think that there is a distinction in the two