BEFORE THE UNITED STATES OF AMERICA 


OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION 


SECRETARY OF LABOR * 

Complainant, * OSHRC DOCKET NO. 13-1124 

v. * 

INTEGRA HEALTH MANAGEMENT, INC. * HON. DENNIS L. PHILLIPS 


ADMINISTRA TIVE LAW JUDGE 


Respondent. * 


* * * * * * * * * * * * 

EMPLOYER'S REPLY BRIEF 

Respondent Integra Health Management, Inc. ("Integra"), by and through its undersigned 

counsel, hereby submits this Reply Brief in response to the Post-Hearing Brief ("Brief") 

submitted by the Secretary of Labor. 

INTRODUCTION 

The sole disputed issue in this case is whether or not Integra violated the general duty 

clause of the Occupational Safety and Health Act of 1970 (the "Act") by failing to provide a 

workplace free of what the Secretary alleges was the "recognized hazard" of criminal assaults by 

certain members of the community to whom Integra provides services. In his Brief, the 

Secretary admits that enforcement of the "novel" Citation would be unprecedented, in that only 

one prior citation involving an alleged violation of the general duty clause based on an incident 

of workplace violence has ever previously been litigated. See Megawest Financial, Inc., 17 

BNA OSHRC 1337, 1995 OSAHRC Lexis 80 (No. 93-2879, 1995) (hereafter, "Megawest)"; 

Secretary's Brief at 24. Notably, the ALJ presiding in that case declined enforcement of the 

citation on the grounds that the violent conduct of third parties at issue in that case was not a 

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recognized hazard. The Secretary thus seeks to break entirely new ground in sanctioning Integra 

for a criminal act committed by a third party, even though Integra had in place at the time of the 

criminal assault a safety program for its employees that exceeded the standards for similarly 

situated community health workers. 

Equally troubling is the fact that the Secretary's proposed findings of fact in support of 

the Citation depict a grossly distorted picture of Integra's employee training and safety programs. 

The most egregious example appears at Paragraph 100 of the Secretary's proposed findings of 

fact, which blithely asserts: "Integra did not provide safety training to its employees." That 

assertion is plainly incorrect in light of the extensive testimony offered at the hearing and 

references within the Secretary's own Post-Hearing Brief concerning the extensive employee 

training programs provided by Integra. Such programs included not only the week-long online 

training course for newly hired employees (referred to throughout the hearing as the "Neumann 

training"), but also multiple in-person training sessions conducted by Integra management as 

well as weekly telephone conferences. (Tr. 766-67, 849-50, 875-76, 889-94, 1027). Likewise, 

the Secretary's proposed finding that "[t]here was no real buddy system or partnering for safety 

reasons" ignores the testimony of multiple witnesses - including compliance safety and health 

officer Jason Prymmer - that Integra did have a "buddy system" in place as of December 2012. 

(Tr. 231-32, 793-94, 821-22, 847-48). The findings of fact proposed by the Secretary depict a 

wholly distorted and inaccurate view of the facts underlying this case, relying on: 

1. 	 selective presentation of certain statements from former disgruntled employees whose 

documented job performance and circumstances of separation from the company cast 

considerable doubt on their own credibility; 

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2. selective presentation of certain statements from a retained witness hired by the Secretary 

who produced a report citing the absence of numerous safety protocols and practices 

within Integra that she subsequently acknowledged were in fact present, and whose scope 

of expertise was recognized by the ALl to be limited to clinical Social Work and 

specifically did not include the areas of safety training, industry safety standards or the 

community health workers industry; and 

3. the omission of all testimony concerning the safety programs, training, protocols and 

practices proactively put in place by Integra prior to death despite the absence 

of generally accepted standards for the same within the community health worker 

industry. I 

For the reasons set forth herein, and as fully set forth in Integra's Post-Hearing Brief, the 

Secretary has failed to carry his burden of establishing each of the elements constituting a 

violation of the general duty clause. Specifically, "being physically assaulted" was not a 

recognized hazard to Integra employees within the meaning ofthe Act, nor has the Secretary met 

his burden of establishing that the abatement measures identified in the Citation would have 

materially reduced or eliminated the alleged hazard. Further, the general duty clause is 

unconstitutionally vague as applied on the facts of this case, particularly in light of the 

I The Secretary's proposed findings of fact draw largely on the testimony of ex-employees Laurie Rochelle, to the 

outright exclusion of contradictory testimony from other witnesses. Nowhere does the Secretary acknowledge, 

however, that Ms. Rochelle was terminated by Integra shortly after announcing her resignation, following Integra's 

discovery of unauthorized charges on a company credit card. (Tr. 332; Ex. TIT). Moreover, several of the other 

witnesses called by the Secretary also had numerous disciplinary and/or workplace performance problems of their 

own, that would call into question their objectivity and bias against Integra. Exhibits VV-AAA, TIT, VVV, FFF, 

GGG, HHH, Ill, JJJ, KKK and RRR. In his Brief, the Secretary also states that the Service Coordinators are under 

pressure to have contact with the members, and that if two face to face contacts are not made each month, Integra 

would not get paid, suggesting that the Service Coordinators were somehow pressured into seeking members" or not 

get paid. Such a claim is utterly false. As Michael Yuhas testified without challenge, the Service Coordinators were 

paid a salary fur their work that was not dependent on any set quotas or variables based on the number ofvisits they 

made in a given month. (Tr. P. 762-766). 

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Secretary's admission that no cases exist in which an employer has previously been found to 

have violated the general duty clause based upon violent acts of third parties. 

I. 	 The Secretary Has Failed to Establish That Violent Assaults by Members Were a 


Recognized Hazard Within the Meaning of the Act. 


The hazard upon which the Secretary bases Citation One, Item One is that of "being 

physically assaulted" by certain of the Members to whom Integra provides assistance. (Exhibit 

1). The Secretary thus seeks to define as a recognized hazard criminal, violent acts by 

individuals in the community who are receiving services from Integra or presumably, by 

extension, other residents of these same communities with whom Integra staff may have 

occasion to interact or even pass on the street in the course ofperforming their jobs. 

The attempt to classify such criminal conduct as a recognized hazard was rejected in 

Megawest, which the Secretary acknowledges to be the only litigated case in existence in which 

a citation was issued based on an incident of violence against an employee.2 The ALJ who 

decided Megawest concluded that the danger of violent conduct was fundamentally different 

from the type ofhazards which the Act was designed to regulate. Id at *24. The ALJ noted that 

"[gJenerally, when an employer addresses safety hazards in the workplace, he is dealing with 

inanimate objects or processes over which he can exercise a certain degree of control. A 

difference regarding employees is that the employer now must deal with people, capable of 

volitional, deliberate acts." Id at *26-27. This was deemed to be particularly true of "third 

parties not in its employ," over which an employer has "even less control." Id at *27. 

The Secretary urges that notwithstanding the lack of any other relevant precedent, the 

Megawest reasoning should not be applied in this case due to what the Secretary characterizes as 

2 The Secretary notes that Megawest was "unreviewed" by the OSAHRC, suggesting that the decision has no 

precedental value. As the Court is aware, if the Secretary believed that Megawest was wrongly decided, it could 

have appealed that decision to the OSAHRC. The fact that it did not undercuts any attempt to challenge the decision 

now, some 19 years later. 

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"instances of violence or aggression" against Service Coordinators. The Secretary's argument 

on this point fails on several grounds. 

First, the Secretary's attempt to distinguish the facts of Megawest based on alleged prior 

incidents involving Service Coordinators ignores the analysis adopted in Megawest, in which the 

ALJ concluded that given the fundamental unpredictability of violent conduct, "It is not enough 

that an employee may fear that he or she is subject to violent attacks, even if that fear is 

communicated to the employer, and even if the employee is one whose knowledge can be 

imputed to the employer. Nor is it sufficient that there has been a previous injury from a violent 

incident." Id. at *29. It is precisely this type of evidence upon which the Secretary bases his 

contention that Integra was aware of the hazard identified in the Citation. The Secretary's 

argument in support of the existence of a recognized hazard is thus directly at odds with the 

reasoning in Megawest. 

Second, notwithstanding the Secretary's assertions concerning "several instances" of 

violence or aggression prior to the record in fact contains no evidence of any 

injuries or criminal assaults suffered by Service Coordinators at the hands of Members prior to 

the attack Instead, the Secretary references various events which he categories as 

"close calls," which include a Service Coordinator having been chased by a dog. See Secretary's 

Briefat 17. Such incidents, however, are not of the same nature as the hazard upon which the 

Citation is based. 

3 In his Brief, the Secretary attempts to address this point by characterizing a comment made by 

was "tmcomfortable" with s evidence that Integra was aware tha~ "n..,"~"rlt"'1'1 

_ That characterizati res the testimony on this point, as OSHA's investigator, Mr. Prymmer, 

testified that the only available evidence indicated that the statement bymJlDlJthat led to lIIIIII comment about 

being "uncomfortable" was of a flirtatious, as opposed to a threatening, nature. (Tr. 23~oreover, even if 

Integra had conducted a criminal background check, as the Secretary claims it should have, nothing in 11511d.prior 

criminal history would suggest, let alone establish. that iiIiDIWho had lived in the community for many years 

without any serious criminal conduct, would have put Integra or anyone else on notice that _as likely to or 

capable of the serious criminal assault that he inflicted on -01.1 

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Third, the Secretary's suggestion that Megawest can be distinguished on the grounds that 

prior incidents of violence had not occurred in that case is belied by the facts cited in that 

decision. The ALJ noted that the employees in Megawest "were often subjected to threats or 

belligerent conduct and, on a few occasions, to physical attack," ld. at *7. Those events 

included an incident in which two employees had to be hospitalized following an attack by a 

resident armed with mace, as well as an incident in which an employee was attacked with a 

telephone. !d. at *8-9. 

Notwithstanding those facts, the AL] in Megawest concluded that given the unpredictable 

nature of violent criminal acts by a third party, the Secretary had failed in that case to satisfy the 

"high standard of proof' needed to support enforcement of the Citation. ld. at *29. That 

reasoning is equally applicable in the instant case. Indeed, if any distinction could be drawn with 

Megawest it would be that the nature of the interaction between the employees and residents in 

that case were arguably more likely to lead to violence given what the AL] characterized as the 

inherently "adversarial relationships" occasioned by the employee's duties vis-a.-vis the 

residents. ld. at *23. Service Coordinators, in contrast, provided a beneficial service that 

Members were free to accept or decline, at no cost to the Members. 

The Secretary urges that the Megawest analysis should be ignored, and that the hazard of 

"being physically assaulted" should be deemed recognized based on the existence of various 

publications in which the topic of workplace violence has been addressed. In so arguing, the 

Secretary mischaracterizes the nature of an industry's "recognition" of a hazard needed to 

support a violation of the general duty clause. The case of Bethlehem Steel Corp. v. OSHRC 

cited by in the Secretary's Brief - is instructive. In affirming a finding that the employer in that 

case had violated the general duty clause in connection with an accident involving the use of a 

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crane during high winds, the Court relied on the fact that the employer's safety officer testified 

that the published standard at issue in the case "represented the consensus in the ship repair 

industry." 607 F.2d 871, 874 (3d Cir. 1979). Here, in contrast, there was no testimony 

whatsoever as to whether the additional abatement measures referenced in the Citation have been 

adopted by a meaningful number of employers, let alone that their use represented a consensus 

such that Integra's decision not to adopt such measures could be construed as creating a 

recognized hazard. Indeed, as conceded by the Secretary's own retained expert, there were no 

such standards for community health workers, and the policies she discussed concerning clerical 

social workers were nothing more than "guidelines" that have yet to be formally adopted or 

mandated for use with social workers. 

In sum, the evidence presented in this case fails to satisfy the "high standard of proof' 

identified in Megawest as required to support a finding that potential criminal acts by a third 

party posed a "recognized hazard" for Integra employees. Absent such a recognized hazard, 

enforcement of Citation One, Item One must be denied. 

II. 	 The Secretary Has Not Established That the Proposed Abatement Measures 

Would Materially Reduce or Eliminate the Alleged Hazard. 

Assuming arguendo the existence of a recognized hazard, the Secretary has failed to 

carry his burden under the fourth element of the general duty clause to demonstrate that "a 

feasible means existed to eliminate or materially reduce the hazard." CSA Equip. Co., LLC, 24 

BNA OSHC 1476,2014 OSAHRC LEXIS 9 at *2 (No. 12-1287,2014). 

In his Brief, the Secretary characterizes his retained witness Janet Nelson, identified as an 

"expert" witness despite the ALI's determination that Ms. Nelson's expertise is not in 

community industry safety training, as having testified that the proposed abatement measures 

identified in Citation One, Item One would be effective in eliminating or materially reducing the 

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hazard of physical assaults. Contrary to the Secretary's portrayal of Ms. Nelson's testimony, 

however, Nelson repeatedly disclaimed an ability to authoritatively speak to the effectiveness of 

the abatement measures: 

Q: In your opinion, even though Service Coordinators are not 

clinicians, would more - more adequate, more, uh, 

appropriate safety training have made them less exposed to 

the workplace violence, risk of workplace violence? 

A: I don't know if they would be less exposed. They may be 

better able to assess ­

Q: Hum-hum. 

(Tr.615). 

Q: 	 Are you saying that, uh, Integra should have required its 

Service Coordinators to always be partnered? 

A: 	 No, no. Vh, I think given the popUlation they're dealing 

with and because they have a paucity of information, that 

double teaming on an initial, uh, helps. Does that mean 

violence won't happen? It still could. It still could. 

(Tr.625). 

Q: 	 In your opinion, does a risk violence risk assessment, uh, 

does that decrease the incidence of workplace violence? 

A: 	 I don't know statistics on that, but yes, the more 

information you have on what you're walking into, the 

better off you are. 

Q: 	 (Nodding affirmatively). 

A: 	 So I guess I would say yes. 

(Tr. 650) (emphasis added). 

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Further, the Secretary presented no evidence at the hearing, from Ms. Nelson or any other 

witness, regarding the potential effectiveness of any of the proposed abatement measures4 or, for 

that matter, that any of these measures would have prevented the criminal assault at issue in this 

case. Indeed, Ms. Nelson was unable to testify as to how widespread any of the measures are in 

the industry, indicating that she lacks a basis upon which to offer an opinion as to any 

demonstrated effectiveness of such measures in preventing incidents of workplace violence 

relative to the measures that have been clearly documented as having been actually in place at 

Integra, as well as a lack of knowledge that those measures in fact were in place at the time of 

(h) (hi 

•eath . 

Given the absence of evidence demonstrating the potential effectiveness of the 

abatement measures proposed in Citation One, Item One, the Secretary has failed to meet his 

burden of establishing a violation of the general duty clause. 

III. 	 The Secretary's Acknowledgement as to the Unprecedented Nature of this 

Enforcement Proceeding Further Demonstrates That the General Duty 

Clause Is Unconstitutionally Vague as Applied to the Facts of This Case. 

As noted in Integra's Post-Hearing Brief, courts considering the general duty clause have 

noted that the "problems of fair notice" inherent in the clause dissipate only when the clause is 

read "as applying when a reasonably prudent employer in the industry would have known that 

the proposed method of abatement was required under the job conditions where the citation was 

issued." Donovan v. Royal Logging Co., 645 F .2d 822, 831 (9th Cir. 1981). 

In his Brief, the Secretary acknowledges that the 1995 Megawest decision - in which the 

ALl concluded that the violent conduct by third-parties at issue in that case was not a recognized 

4 The Secretary attempts to rectify this issue by pointing to the filet that severn I of the abatement measures listed in 

the Citation were drown from OSHA's directive on workplace violence. The source of the proposed abatement 

measures, however, does not remedy the absence of any evidence as to the likely effectiveness of those measures to 

prevent the claimed hazard at issue on the particular facts of this case. 

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hazard - is the only case ever litigated by the Secretary in which workplace violence was alleged 

to support a violation of the general duty clause. See Secretary's Brie/at 24. 

Given the fact that, prior to this case, the Secretary had not sought to enforce a general 

duty clause citation against any employer based on an incident of workplace violence in nearly 

twenty years - and had never successfully litigated enforcement of the general duty clause on 

such facts - Integra cannot be deemed to have "known that the proposed method of abatement, 

nor in fact any proposed methods beyond those already in place, was required." To the contrary, 

the construction of the general duty clause urged by the Secretary in the instant case, if adopted, 

would be entirely unprecedented. 

Further, as described in Integra's Post-Hearing Brief, the Secretary failed to offer any 

evidence in this case as whether the proposed abatement measures identified in the Citation have 

been implemented by other employers in the industry, let alone that their use represents an 

industry norm or recognized, established means for preventing such incidents. Instead, the 

Secretary's retained witness, presented as an expert in Integra's industry, offered her own 

opinion that the abatement measures were "best practices." (Tr. 616, 642-43, 673, 722, 731). 

Given the absence of facts to indicate whether any significant number of employers has adopted 

the abatement measures specified in Citation, there is no basis on which it can be concluded that 

a reasonably prudent employer would have known them to be required. To the contrary, 

Integra's Medical Director, Dr. Krajewski, gave detailed testimony as to Integra's training 

protocols being "above and beyond" standard in the industry. (Tr. 1023-27). 

Taken together, the circumstances of this case dictate that a reasonably prudent employer 

in Integra's position would not have known that the Act required the adoption of the methods of 

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abatement identified in Citation One, Item One. Given that fact, the general duty clause, as 

applied in this case, is unconstitutionally vague. 

IV. 	 Citation One, Item One Is Not Properly Classified as a Serious Violation. 

As fully set forth in Integra's Post-Hearing Brief, in the event that Integra is found to 

have violated the general duty clause, the facts of this case do not support classification of the 

violation as serious pursuant to Section 17(k) ofthe Act. 

In citing Section 17(k) in his Brief, the Secretary notably omits the provision of the 

statute declaring that a violation involving a substantial probability that serious harm could result 

will be classified as serious "unless the employer did not, and could not with the exercise of 

reasonable diligence, know of the presence of the violation." See 29 U.S.C. § 666(k). For the 

reasons cited herein and in Integra's Post-Hearing Brief, Integra did not know (and could not 

have known through reasonable diligence) that it was in violation of the Act. By the Secretaris 

own admission, no precedent exists under which the general duty clause has ever been construed 

as supporting enforcement of a citation stemming from a criminal attack on an employee. 

Moreover, the Secretary presented no evidence as to the extent to which the proposed 

abatement measures have been adopted by the community health worker industry, such that it 

could be argued that Integra was not operating in a manner consistent with the industry standard. 

In contrast, Integra presented testimony and evidence pertaining to its comprehensive training 

program involving a week-long online training course, multiple in-person training sessions, and 

weekly telephone conferences. (Tr. 766-67, 849-50, 875-76, 889-94, 1027). 

Given the absence of evidence capable of supporting a conclusion that Integra "knew or 

should have known" that it was in violation ofthe general duty clause, Section 17(k) dictates that 

any potential violation cannot properly be classified as serious. 

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CONCLUSION 

In light of the foregoing, Integra respectfully requests that the Proposed Conclusions of 

Law set forth in its Post-Hearing Brief be adopted, and that enforcement of Citation One, Item 

One be denied. 

Respectfully submitted, 

~-- Kevin C. McCormick 

Whiteford, Taylor & Preston, L.L.P. 

7 Saint Paul Street, Suite 1800 

Baltimore, Maryland 21202 

(410) 347-8700 

kmccormick@wtplaw.com 

Counsellor Respondent 

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CERTIFICATE OF SERVICE 


I HEREBY CERTIFY that, pursuant to the instructions provided at the close of the 

hearing in this matter, a copy of the foregoing Reply Brief was served electronically on counsel 

for the Secretary ofLabor as follows: 

Lydia 1. Chastain, Esq. Chastain.lydia.j@dol.gov 

Rolesia Butler Dancy, Esq. Dancy.rolesia@dol.gov 

Kevin. C. McCormick 

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