United States of America 

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION 

1120 20th Street, N.W., Ninth Floor 

Washington, DC 20036-3457 

SECRETARY OF LABOR, 

Complainant, 

OSHRC Docket No. 19-0550 v. 

UHS OF DENVER, INC., d/b/a HIGHLANDS 

BEHAVIORAL HEALTH SYSTEM, 

Respondent. 

ON BRIEFS: 

Amy S. Tryon, Senior Attorney; Heather R. Phillips, Counsel for Appellate Litigation; 

Edmund C. Baird, Associate Solicitor of Labor for Occupational Safety and Health; 

Seema Nanda, Solicitor of Labor; U.S. Department of Labor, Washington, DC 

For the Complainant 

Melanie L. Paul, Esq., Dion Y. Kohler, Esq.; Jackson Lewis P.C., Atlanta, GA 

For the Respondent 

DECISION AND REMAND 

Before: ATTWOOD, Chairman; LAIHOW, Commissioner. 

BY THE COMMISSION: 

The Occupational Safety and Health Administration cited UHS of Denver, Inc.—the 

operator of a psychiatric hospital in Littleton, Colorado—for a serious violation of the 

Occupational Safety and Health Act’s general duty clause, 29 U.S.C. § 654(a)(1), based on the 

company’s alleged failure to protect its employees from acts of violence by patients.1 Former 

Administrative Law Judge Peggy S. Ball affirmed the citation and assessed the proposed penalty 

The general duty clause provides that “[e]ach employer . . . shall furnish to each of 

his employees employment and a place of employment which are free from recognized hazards 

that are causing or are likely to cause death or serious physical harm to his employees.” 29 U.S.C. 

§ 654(a)(1). 

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of $11,934.2 In so doing, the judge found that during discovery, UHS failed to produce certain 

documents and make its chief financial officer (CFO) available for a deposition as requested by 

the Secretary. As a result of that failure, the judge drew an adverse inference against the company 

and treated the economic feasibility of the Secretary’s proposed abatement measures as 

established. See Baroid Div. of NL Indus., Inc. v. OSHRC, 660 F.2d 439, 447 (10th Cir. 1981) 

(“[T]he Secretary has . . . [the] burden to show that a feasible [abatement] method exists[,] . . . 

[which] means economically and technologically capable of being done.”). On review, UHS 

challenges the propriety of this inference. 

For the reasons that follow, we find the judge erred in drawing the adverse inference, and 

we therefore set aside her decision in this regard and remand the case to the Chief Judge for 

reassignment to another judge to determine whether the record otherwise establishes economic 

feasibility. 

BACKGROUND 

OSHA conducted an inspection of UHS’s Littleton facility after receiving an employee 

complaint about workplace violence. In the citation, as amended, the Secretary alleges that 

hospital “employees were exposed to physical threats and assaults by patients” and lists ten 

proposed abatement measures.

3 Prior to the hearing, the parties filed joint stipulations in which 

UHS conceded three of the four elements required to prove a general duty clause violation.4 The 

2 Judge Ball retired from the Commission shortly after issuing her decision. 

3 The Secretary’s proposed abatement measures are: (1) reconfiguring nurse stations to prevent 

patients from entering and using items as weapons; (2) providing communication devices to all 

staff members; (3) continuously monitoring security cameras; (4) developing “one written 

comprehensive” workplace violence prevention program; (5) designating qualified staff to monitor 

for potential patient aggression and respond to violent events; (6) communicating workplace 

violence incidents to all employees; (7) training staff who may come into contact with patients; 

(8) investigating and debriefing affected staff after each workplace violence incident; (9) 

“[e]nsur[ing] safe staffing levels across all shifts to ensure adequate staff coverage for behavioral 

emergencies”; and (10) “[e]valuat[ing] and . . . replac[ing] or redesign[ing] furniture to assure that 

it cannot be used as a weapon.” 

4 “To prove a violation of the general duty clause, the Secretary must establish that: (1) a condition 

or activity in the workplace presented a hazard; (2) the employer or its industry recognized the 

hazard; (3) the hazard was causing or likely to cause death or serious physical harm; and (4) a 

feasible and effective means existed to materially reduce the hazard.” Integra Health Mgmt., Inc., 

27 BNA OSHC 1838, 1841 (No. 13-1124, 2019). The parties stipulated that UHS’s employees 

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only remaining issue before the judge was whether the Secretary had established the feasibility of 

the proposed abatement measures, a burden that includes establishing their economic feasibility. 

See Waldon Healthcare Ctr., 16 BNA OSHC 1052, 1063 (No. 89-2804, 1993) (consolidated) 

(“One of the criteria for determining whether a proposed measure of abatement is feasible is 

whether [it] is cost prohibitive,” because “an employer is not required to adopt measures that would 

threaten its economic viability.”) (citations omitted). 

Following a fourteen-day hearing, the Secretary, in his post-hearing brief, asserted that 

UHS “provided no evidence that it could not afford to implement [the proposed abatement] 

measures,” but see id. at 1064 (burden of proving economic feasibility rests with the Secretary), 

and that several of the proposed measures are, in any event, economically feasible because they 

involve minimal costs. In addition, the Secretary claimed for the first time in his post-hearing brief 

that he “was not able to perform any economic feasibility analyses because [UHS] refused to 

produce financial information” in discovery. In particular, the Secretary asserted that he had 

requested, but UHS did not produce, “copies of annual budgets and strategic plans related to the 

worksite,” nor did the company make its CFO available for a requested deposition. The Secretary, 

therefore, asked that the judge draw “an adverse inference . . . with respect to economic feasibility 

based on [UHS’s] failure to produce or introduce financial information,” and reject “any claim by 

[UHS] that the abatement measures are not economically feasible.” The judge summarily granted 

this request in her decision without analyzing whether the Secretary had otherwise established 

economic feasibility.

5 

DISCUSSION 

The Commission has stated that “when one party has evidence but does not present it, it is 

reasonable to draw a negative or adverse inference against that party, i.e., that the evidence would 

were exposed to the hazard of workplace violence, that the hazard was recognized by UHS and its 

industry, and that injuries from patient violence could result in serious harm. 

5 UHS contends on review that the Secretary never made any economic feasibility arguments 

before the judge, apart from the requested adverse inference. But, as noted above, the Secretary 

did in fact assert that some proposed abatement measures are economically feasible because they 

involve minimal costs. In any event, whether the record establishes a violation is typically not an 

issue that can be waived. But cf. Mansfield Indus., Inc., No. 17-1214, 2020 WL 8871368, at *3 

(OSHRC, Dec. 31, 2020) (affirmative defense of preemption waived where employer “failed to 

include [it] in its answer and did not raise the argument until its post-hearing brief”); CMH Co., 9 

BNA OSHC 1048, 1055 n.12 (No. 78-5954, 1980) (argument regarding exclusion of witness 

testimony waived where employer failed to object at hearing). 

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not help that party’s case.” Capeway Roofing Sys., Inc., 20 BNA OSHC 1331, 1343 (No. 00-1986, 

2003) (citations omitted), aff’d, 391 F.3d 56 (1st Cir. 2004). The Commission has also stated that 

“any deficiencies in [an employer’s] response [to interrogatories] should be taken as establishing 

that there was no such evidence, not that the Secretary failed to carry [his] burden.” N. Landing 

Line Constr. Co., 19 BNA OSHC 1465, 1473 (No. 96-0721, 2001). Relying on these two cases, 

the judge found that the discovery requested by the Secretary here would “presumably” have 

disclosed UHS’s financial condition and allowed the Secretary to perform an economic feasibility 

analysis, and that “the lack of production on [UHS’s] part would show the proposed abatements 

were not infeasible.” 

On review, UHS argues that the inference drawn by the judge was erroneous because it 

amounted to a discovery sanction imposed without the Secretary having ever moved to compel 

production of the information being sought, without UHS having an opportunity to respond, and 

without the judge having ordered any such production. In response, the Secretary asserts that it 

was “appropriate [for the judge] here to infer that if any documents supporting [UHS’s] claim of 

economic infeasibility existed, they would have been produced, and that instead, the withheld 

discovery material would have demonstrated the economic feasibility of the Secretary’s proposed 

abatement.” 

We agree with the company that the judge erred in drawing an adverse inference. 

Commission Rule 52(f) specifically allows a judge to issue the following sanctions, among others, 

for a party’s failure to comply with an order compelling discovery: (1) “[a]n order that designated 

facts shall be taken to be established for purposes of the case in accordance with the claim of the 

party obtaining that order”; (2) “[a]n order refusing to permit the disobedient party to support or 

to oppose designated claims or defenses”; and (3) “[a]n order dismissing the action or proceeding 

or any part of the action or proceeding or rendering a judgment by default against the disobedient 

party.” 29 C.F.R. 2200.52(f)(2)(i), (ii), (iv). Rule 52 makes clear, however, that any decision to 

impose a discovery sanction is appropriate only after a “party . . . file[s] a motion conforming to 

[Commission Rule 40] . . . when another party refuses or obstructs discovery,” and after the judge 

“afford[s] an opportunity [for the non-moving party] to show cause why the order [compelling 

discovery] should not be entered.” 29 C.F.R. § 2200.52(f)(1)-(2). 

Here, we find that the Secretary’s request—that economic feasibility be taken as 

established due to UHS’s alleged failure to produce the requested information—was in fact a 

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remedy in line with those specified in Commission Rule 52(f) and thus should have been handled 

during discovery. Specifically, the Secretary should have filed a separate, written motion seeking 

to compel production of the discovery he sought and requesting a sanction in the event of UHS’s 

noncompliance. 29 C.F.R. § 2200.52(f)(2); see also Commission Rule 40(a), 29 C.F.R. 

§ 2200.40(a) (“A motion shall not be included in another pleading or document, such as a brief or 

petition for discretionary review, but shall be made in a separate document.”). This would have 

provided UHS with an opportunity to respond and the judge with an opportunity to inquire into 

the matter after hearing from both parties. See, e.g., Stone & Webster Constr., Inc., 23 BNA OSHC 

1939, 1943 (No. 10-0130, 2012) (consolidated) (to impose sanction such as dismissal, judge must 

find “contumacious conduct by the noncomplying party, prejudice to the opposing party, or a 

pattern of disregard for Commission proceedings”). The judge would then have been able to 

consider whether issuing an order compelling UHS to comply was warranted. None of these 

necessary steps were followed here. 

As noted, the Secretary asked in his third set of document requests that UHS “produce 

copies of annual budgets and strategic plans related to the worksite for October 1, 2017, to the 

present.” UHS responded that this request was “overbroad, unduly burdensome, and not relevant 

to any issue in controversy and not proportional to the needs of this case,” and improperly sought 

“highly sensitive and proprietary information without demonstrating a sufficient justification or 

need for such information.” The Secretary’s only response, at that point, was to move to compel 

production of certain documents sought in his first and second sets of requests, and to compel 

production of video recordings related to incidents of patient violence sought in his third set of 

requests—he made no such motion for the specific documents he now claims were central to 

conducting an economic feasibility analysis. Likewise, there is nothing in the record showing the 

Secretary ever filed a motion to have the CFO deposed. See Commission Rule 56(a), 29 C.F.R. 

§ 2200.56(a) (“Depositions . . . shall be allowed only by agreement of all the parties or on order of 

the Commission or the Judge following the filing of a motion of a party stating good and just 

reasons.”). 

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Notably, it was not until his post-hearing brief that the Secretary first raised any of these 

issues and requested the adverse inference.6 As such, the judge never examined whether UHS had 

any annual budgets or strategic reports, or what any such documents or a deposition of the 

company’s CFO would have revealed about the economic feasibility of the Secretary’s proposed 

abatement. Accordingly, we find that treating economic feasibility as established was not a 

reasonable inference for the judge to draw from the facts in the record—rather, it was a discovery 

sanction imposed outside the discovery process and without following the proper procedure under 

Commission rules. 

Moreover, the uncertainty surrounding the contents and significance of the Secretary’s 

sought-after discovery distinguishes this case from the cases upon which the Secretary relies for 

requesting the inference and upon which the judge relied in granting that request. In Capeway 

Roofing, the Secretary, seeking to show the cited employer had engaged in work on a roof without 

fall protection, presented testimony from an OSHA compliance officer that the employer’s 

foreman stated during the inspection that such work had been done the previous day. 20 BNA 

OSHC at 1342. The Commission concluded that the employer’s “failure to present testimony from 

either of the two supervisory employees who were present during the inspection suggests that 

neither of them would have been able to contradict the [compliance officer’s] testimony.” Id. at 

1343. In North Landing Line, the Secretary sought to establish the inadequacy of the cited 

employer’s safety program, such that a supervisor’s violative conduct—failure to stay 28 inches 

away from an energized part—was foreseeable and could be imputed to the employer. 19 BNA 

OSHC at 1473. The Secretary relied on a statement from the employer’s president to an OSHA 

compliance officer that there was no company policy regarding minimum distances to energized 

parts, and that it was up to the supervisor to determine a safe distance. Id. In addition, during 

discovery, the Secretary had served the employer with interrogatories, seeking evidence of its 

safety training and enforcement, but received “scant” information in response—a letter generally 

describing the safety program, which required work areas to be 5 feet away from energized parts. 

Id. Thus, the Commission found that “[b]ecause the only specific distance rule that [the employer] 

provided in meeting its discovery obligations was the five-foot rule, and [the employer] did not 

6 Given that the Secretary stopped pursuing the requested annual budgets, strategic plans, and CFO 

deposition through the appropriate mechanisms, it appears reasonable for UHS to have concluded 

that these discovery issues were closed. 

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rebut [its president’s] statements,” the Secretary had established an inadequate safety program. Id. 

at 1474. 

Neither of these inferences involved a discovery dispute, and each was limited in scope 

and eminently reasonable under the circumstances. In Capeway Roofing, the facts underlying the 

adverse inference arose at the hearing, where the employer could have called one or both of its 

supervisors—one of them was sitting in the courtroom—as a witness to rebut the compliance 

officer’s testimony. See 20 BNA OSHC at 1342-43. In North Landing Line, the employer had in 

fact responded to the Secretary’s interrogatories but provided little information and nothing to 

show the company had a work rule meeting the OSHA standard. See 19 BNA OSHC at 1474. In 

each case, therefore, it was reasonable to infer that the employer’s failure to present such testimony 

or evidence when it had the opportunity to do so meant that it could not rebut the Secretary’s proof. 

Cf. Fluor Daniel, 19 BNA OSHC 1529, 1531 (No. 96-1729, 2001) (consolidated) (“Although the 

Commission may draw reasonable inferences from the evidence, we do not think that the evidence 

in this case supports such an inference.”), aff’d, 295 F.3d 1232 (11th Cir. 2002). 

By contrast, the judge’s inference here required speculation—namely, that the information 

the Secretary sought in discovery, of which the judge knew very little, would have on its own 

shown the proposed abatement measures to be economically feasible.7 As noted, the judge: (1) 

“presum[ed]” that the requested financial information “would disclose [UHS’s] financial 

condition”; (2) found, based on that presumption, that the information would, “in turn, permit [the 

Secretary] to perform an analysis of whether its proposed abatements would be economically 

feasible”; and (3) inferred that “the lack of production on [UHS’s] part would show the proposed 

abatements were not infeasible.” Each step in the judge’s analysis required a leap in logic that, 

taken together, render her inference unreasonable. See Pioneer Centres Holding Co. Employee 

Stock Ownership Plan & Trust v. Alerus Financial, N.A., 858 F.3d 1324, 1334 (10th Cir. 2017) 

7 It is unclear whether the Secretary’s third request for production of documents, seeking “copies 

of annual budgets and strategic plans,” was in fact asking for financial documentation relevant to 

an economic feasibility analysis. As UHS notes, “strategic plans” was not defined in the document 

request and is a vague term that does not necessarily refer to financial documents, let alone those 

sufficient to conduct an economic feasibility analysis. As for “copies of annual budgets,” the 

company asserts that budgets simply estimate future expenditures and revenues, and that to 

determine the economic impact of further expenditures, other documentation like balance sheets 

and income and cash flow statements would be necessary. These uncertainties further demonstrate 

the speculation underlying the judge’s inference. 

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(“[A]n inference is unreasonable if it requires a degree of speculation and conjecture that renders 

[the factfinder’s] findings a guess or mere possibility.”) (citation and internal quotation marks 

omitted); United States v. Jones, 998 F.2d 883, 886 (10th Cir. 1993) (“While multiple inferences 

are not per se impermissible, courts have long been cautious about accepting conclusions that were 

arrived at “by piling inference upon inference.’ ”) (quoting Direct Sales Co. v. United States, 319 

U.S. 703, 711 (1943)). Indeed, the judge’s observation that the information sought by the Secretary 

would merely “permit” him “to perform” an economic feasibility analysis is a tacit 

acknowledgment that the information would not necessarily have proven the measures were 

economically feasible. 

In short, we find that the adverse inference drawn by the judge here goes beyond the 

inferences drawn by the Commission in Capeway Roofing and North Landing Line. In effect, the 

judge imposed a discovery sanction on UHS in the absence of a motion to compel production of 

the requested documents or to conduct the deposition the Secretary purportedly sought, which 

would have given UHS an opportunity to respond and the judge an opportunity to examine the 

matter, make necessary findings, and issue an appropriate order. See Commission Rule 52(f), 29 

C.F.R. § 2200.52(f); Commission Rule 40, 29 C.F.R. § 2200.40. Because none of this occurred, 

we set aside her decision in this regard.8 

The Secretary asks on review that we nevertheless affirm the citation, claiming that the 

record shows the economic feasibility of at least some of his proposed abatement measures. But 

the judge did not address any of the record evidence relating to economic feasibility in the first 

instance, and in the briefing notice, the parties were asked to address only the propriety of the 

inference and “no other issues.” See Bay State Refining Co., 15 BNA OSHC 1471, 1476 (No. 88-

1731, 1992) (“[T]he Commission . . . has discretion to limit the scope of its review.”); County 

Concrete Corp., 16 BNA OSHC 1952, 1953 n.4 (No. 93-1201, 1994) (“The Commission . . . 

ordinarily does not decide issues that are not directed for review.”). Accordingly, we remand this 

8 On review, UHS filed a motion to reopen and supplement the record with a declaration from its 

counsel and three emails purportedly showing that the Secretary: (1) never moved to compel, and 

never took issue with, UHS’s responses and objections to his document request at any time before 

or during trial; and (2) voluntarily withdrew his request to depose the CFO. Given that we find 

the inference drawn by the judge erroneous, any facts that would have been relevant to a motion 

to compel—what UHS’s motion essentially seeks to introduce—are now irrelevant. UHS’s motion 

is therefore denied as moot. 

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case to the Chief Judge for reassignment to allow a judge to assess the record as it stands, make 

any necessary factual findings, and decide whether the Secretary has proven that the proposed 

abatement measures are economically feasible. See MasTec N. Am., Inc., 20 BNA OSHC 1900, 

1904 (No. 99-0252, 2004) (rejecting dissent’s assertion “that the Commission should decide 

without remand whether the general duty clause was violated here,” and remanding because “[t]he 

better course is for the judge, who did not consider the merits of the Secretary’s alternative theory 

under the general duty clause, to decide these questions in the first instance, particularly where the 

issues were not raised in the Commission’s briefing notice”) (citation omitted). 

SO ORDERED. 

/s/ 

Cynthia L. Attwood 

Chairman 

/s/ 

Amanda Wood Laihow 

Dated: December 8, 2022 Commissioner 

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Some personal identifiers have been redacted for privacy purposes. 

United States of America 

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION 

SECRETARY OF LABOR, 

OSHRC Docket No. 19-0550 Complainant, 

v. 

UHS OF DENVER, INC., d/b/a HIGHLANDS 

BEHAVIORAL HEALTH SYSTEM, 

Respondent. 

Appearances: 

Alicia A.W. Truman, Esq. & Beau Ellis, Esq, Department of Labor, Office of the Solicitor, Denver, 

Colorado 

For Complainant 

Melanie L. Paul, Esq. & Dion Kohler, Esq., Jackson Lewis P.C., Atlanta, Georgia 

For Respondent 

Before: Judge Peggy S. Ball – U. S. Administrative Law Judge 

DECISION AND ORDER 

In this matter, Complainant alleges Respondent failed to adequately protect its employees 

from the hazard of workplace violence in an in-patient psychiatric hospital. Although patient-onemployee violence is a hazard Respondent is responsible for preventing, the parties recognize 

workplace violence is an unavoidable aspect of providing care to individuals with psychiatric 

disorders. Patients come to Respondent’s facility during difficult times in their lives when they are 

incapable of self-regulation and need treatment for their illness. In other words, Respondent is 

responsible for managing and maintaining a therapeutic, yet safe, environment with unpredictable 

individuals in complicated circumstances. 
 

 

 

 

Respondent’s obligation to provide a safe environment, however, is not limited to its 

patients. Under the Occupational Safety and Health Act, Respondent is also obliged to ensure its 

employees are provided with adequate protections against violence perpetrated by the patients for 

whom the employees provide care. As will be discussed further below, providing a therapeutic 

environment for mental health patients while simultaneously ensuring a reasonably safe work 

environment for employees caring for them is, no doubt, a delicate balance to strike. 

Notwithstanding the complex nature of the problem, however, the Court finds Complainant proved 

Respondent failed to achieve the appropriate balance between the treatment of its patients and the 

safety of its employees. While Respondent argues its clinical approach to patient care is the most 

effective way to address patient-on-employee violence, the evidence shows this approach resulted 

in a patchwork of ad hoc policies and programs primarily geared towards patient care with 

employee safety as an ancillary consideration. While the Court does not doubt Respondent’s desire 

to protect its employees, the evidence shows Respondent’s workplace violence protection program 

was ill-suited to that purpose. 

I. PROCEDURAL HISTORY 

Complainant initiated an inspection of Respondent’s workplace on October 2, 2018, in 

response to an anonymous complaint about workplace violence and the lack of a workplace 

violence prevention plan (WVPP). (Tr. 47). The inspection was conducted by Compliance Safety 

and Health Officer (CSHO) Aimee Stark. CSHO Stark visited the UHS Highlands facility three 

times over the course of her inspection, during which time she interviewed members of the 

management team and approximately twenty-two employees. (Tr. 50-54). At the conclusion of her 

inspection, CSHO Stark recommended, and Complainant issued, a Citation and Notification of 

Penalty. (Ex. C-1). In the Citation, Complainant alleged Respondent violated the general duty 

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clause, 29 U.S.C. § 654(a)(1), because it failed to adequately protect its employees from the hazard 

of workplace violence and proposed a penalty of $11,934. (Tr. 68-69; Ex. C-1). Respondent timely 

filed a Notice of Contest. 

The parties exchanged multiple motions during the course of litigation; however, only one 

warrants discussion at this point.

1 Complainant filed a motion to amend the Complaint to (a) add 

UHS-Delaware as a party, alleging Respondent and UHS-Delaware were a single entity under the 

three-part test described in Loretto-Oswego Residential Health Care Facility, 23 BNA OSHC 1356 

(No. 02-1164, 2011); and (2) add two additional means of abatement. As to (a), the Court found 

Complainant failed to establish the two entities functioned as a single-employment entity or had 

an identity of interest “such that addition of Delaware at this late point in the litigation would not 

be unduly prejudicial.” As to (b), the Court found the amendments to the abatement section of the 

Citation did not significantly alter the allegations, nor did they add new facts or issues. Thus, the 

amendment was granted as to the abatement but not as to the addition of a new party. 

Trial in this matter was originally scheduled to commence on June 1, 2020; however, due 

to the COVID-19 pandemic, it was rescheduled multiple times. Ultimately, the trial commenced 

roughly one year later on June 7, 2021, and lasted for 14 days.

2 Both parties timely filed post-trial 

briefs for the Court’s consideration. Based on the evidence presented at trial, and the parties’ 

respective briefs, the Court issues the following Findings of Fact and Conclusions of Law. 

II. STIPULATIONS & JURISDICTION 

Prior to the first trial date in this matter, the parties filed a set of Joint Stipulated Facts. 

While some basic facts regarding the nature of the hospital are included, the most notable 

1. Additional motions were filed both prior to and during trial with respect to the admissibility of evidence, including 

the failure to provide camera footage and the failure to disclose amendments to expert disclosures; however, to the 

extent necessary, those matters will be discussed later in this opinion. 

2. The final two days of trial were done over video conference. 

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stipulations include those related to jurisdiction and Complainant’s burden of proof. As to 

jurisdiction, the parties agree Respondent is an employer engaged in a business affecting 

commerce under Section 3(5) of the Act and that the Commission has jurisdiction over this matter 

pursuant to Section 10(c). See 29 U.S.C. §§ 652(5), 659(c). 

In addition, the parties also stipulated to required elements of Complainant’s burden of 

proof in a general duty clause case. Specifically, the parties stipulated: (1) employees were exposed 

to the hazard of workplace violence; (2) Respondent and its industry recognized the hazard of 

workplace violence, defined as assaultive or violent behavior of patients toward staff, at the time 

of the alleged violation; (3) exposure to patient violence and/or assaults by patients could result in 

serious injuries. The only remaining element at issue before the Court is the question of feasibility 

of abatement.3 With respect to that particular element, the parties agree “the hazard of workplace 

violence . . . cannot be eliminated at Highlands through feasible abatement measures.” 

III. FACTUAL BACKGROUND 

A. UHS-Highlands Worksite and Operations 

Respondent operates a stand-alone behavioral health facility in Littleton, Colorado, which 

provides in-patient psychiatric care for adults and adolescents ages 11 years and older. (Tr. 58). 

Most patients are admitted to Highlands involuntarily and are treated for conditions such as 

depression, anxiety, psychosis, schizophrenia, and suicidal thoughts. (Tr. 3197). The average stay 

ranges approximately 7-10 days but can be as long as three months. (Tr. 58). According to the 

former Medical Director, Dr. David Weiss, the individuals admitted to Highlands “tend to be pretty 

ill” and “are having a break from reality.” (Tr. 3924-3925). 

3. As will be discussed in Section IV, proof of this particular element requires a three-part analysis, which is laid out 

clearly in Integra Health Management, infra. 

4 
 

 

The Highlands hospital building is a three-floor facility with a locked entrance to restrict 

entry into and exit from the facility. (Tr. 397; Ex. R-2). The first floor of the facility contains the 

dining room, cafeteria, administrative offices, group therapy rooms, and intake/admissions. (Tr. 

397; Ex. R-2). The top two floors are primarily used to house patients. (Id.). There are 86 total 

beds in the facility spread between three units: Discovery, Horizon, and Compass. (Tr. 397; Ex. 

R-2). The Discovery unit, which is for adolescents, and the Horizon unit, which is for low-acuity4 

adults suffering from illnesses such as depression and bipolar disorder, are both located on the 

second floor. (Id.). The Compass unit, which is for high-acuity adult patients suffering from 

schizophrenia and schizo-affective disorders, is located on the third floor. (Id.). The number of 

patients in the hospital at a given time fluctuates due to new patients being admitted or discharged. 

Respondent employs approximately 220 staff members to provide care and services to its 

patients. (Tr. 58). Those responsible for providing direct care to patients include: doctors, 

registered nurses, social workers, therapists, and behavioral health associates (BHAs). Though all 

employees who provide direct care at Highlands are exposed to the hazard of patient-on-employee 

violence, most of the incidents discussed in this decision include the nurses, BHAs, and individuals 

who work in intake/admissions. 

According to Respondent, its operations are governed by multiple regulatory and 

accreditation organizations, including the State of Colorado and the Federal Government. (Tr. 

3136, 3379). Specifically, Respondent is accredited by a body known as the Joint Commission, 

licensed by the Center for Medicare and Medicaid Services (CMS), and regulated by the Office of 

Behavioral Health for Colorado and the Colorado Department of Public Health and Environment 

(CDPHE). (Tr. 3379, 4022, 4023). As such, any abatement determinations must operate within the 

4. The term “acuity” refers to the severity of the psychiatric disorder in an individual case but was also used as a metric 

to gauge the level of mental illness on a particular unit as a whole. (Tr.3530). 

5 
 

 

 

 

 

boundaries of the accrediting and regulatory frameworks, including EMTALA,5 which requires 

Respondent to accept all patients with some very narrow exceptions. (Tr. 3467, 4029-4030). 

B. WPV Incidents Occurring at UHS-Highlands 

The Court was presented with evidence of multiple incidents of patient-on-employee 

violence at UHS-Highlands, each of which relate to some aspect of Complainant’s abatement 

proposals. In lieu of reproducing a recap of each incident of workplace violence, the Court 

accentuates testimony it finds to be illustrative of the remaining issues central to this Decision. 

While the following reflect individual instances of violence, every employee who testified 

indicated he or she had been the subject of or observed multiple incidents of patient-on-employee 

violence during their tenure which was similar to the incidents exemplified.

6 

[redacted] was a nurse at Highlands for approximately 8 years, from May 2013 to April 

2021. (Tr. 613). While he testified he had been assaulted “a lot” during his tenure, there were two 

incidents that occurred proximate to the inspection that bear mentioning. First, in December 2017, 

[redacted] testified he was hit in the face by a patient while he was sitting behind the nurse’s 

station.

7 (Tr. 626-627). Second, in June 2020, [redacted] was attacked by a group of adolescents 

in the Discovery unit who had barricaded themselves in a room. (Tr. 660). According to [redacted], 

this event was essentially a repeat of an incident which had occurred the week before involving 

the same patients.8 (Tr. 660). This time around, [redacted] was repeatedly attacked by the patients 

as they came out of the room. While the first two were restrained by other staff members, the third 

5. EMTALA is short for Emergency Medical Treatment and Active Labor Act and requires hospitals accepting 

Medicare benefits to provide care to individuals regardless of citizenship, legal status, or ability to pay. See 42 U.S.C. 

§ 1395dd. 

6. Overall numbers and reporting will be discussed below in Section III.C.1.v. 

7. Nearly all of the nurses and BHAs testified to an incident involving a patient acting violently towards staff working 

behind the nurse’s desk. (Tr. 409, 478, 631, 673, 981, 1247, 2204). 

8. As noted by Complainant, even though this event occurred post-inspection, it is nonetheless relevant to show 

workplace violence of the sort complained of is ongoing. It is also relevant to show the abatement methods utilized 

by Respondent and claimed as effective were, in fact, not. See, e.g., SeaWorld, 748 F.3d 1202. 

6 
 

 

 

and fourth managed to pull [redacted] to the ground and choke him with his lanyard and, 

subsequently, with a carotid choke hold. (Tr. 660-662). [redacted] suffered serious injuries 

resulting in two months away from work. 

[redacted] worked as a BHA from June 2016 to May 2020. (Tr. 1087-1088). [redacted] 

suffered two significant injuries during her time at Highlands. In February 2018, her shoulder was 

dislocated while performing a hold on a large, out-of-control patient, who started the confrontation 

by reaching over the nurse’s station. (Tr. 1103-1105, 1118). According to [redacted], the patient 

had exhibited violent outbursts during the period leading up to the injury, as well as during a 

previous stay at Highlands. (Tr. 1099-1100, 1110; Exs. C-44, C-60). Notwithstanding her injury, 

[redacted] had to maintain the hold until she could be relieved. In July 2019, [redacted] was kicked 

in the head by a patient wearing boots, which managed to get onto the unit even though such 

footwear was not allowed by policy. (Tr. 1126). According to [redacted], the patient, who also had 

a history of violent behavior, was brought up to the unit by intake even though they were told there 

was insufficient staff for another patient on the unit. (Tr. 1125). Due to her injuries, [redacted] was 

out of work from July 2019 until April 2020, when she was cleared by her doctor. (Tr. 1128-1129). 

Many other nurses and BHAs testified they had been attacked and/or injured while 

performing their jobs, including being kicked in the chest, having a dreadlock ripped from their 

scalp, being spit on, and bitten. (Tr. 801, 939, 948, 1727-1728). While violent incidents could, and 

did, occur at any time of day under different circumstances, the weight of the evidence suggests 

many of these incidents occurred in the evening or overnight when staffing levels were at their 

lowest. (Tr. 147; Ex. R-57). The evidence also indicates that a significant number of the injuries 

occurred when staff had to go “hands-on”, or place patients in holds to restrain them. (Tr. 86-87; 

Ex. C-4 at 8). 

7 
 

 

 

 

 

C. Respondent’s Policies and Procedures – Administrative Controls 

The following discussion addresses the ways Respondent attempted to address patient 

aggression through policy and procedures. These policies and procedures address how incoming 

patients are handled during the admissions and intake process, how employees are trained to act 

in response to an act of aggression, and how the information about particular acts of aggression is 

used for subsequent data collection, communications, treatment, and training. 

1. Policies and Procedures to Address Patient Aggression 

i. Code Greens 

Everyone testified their first response to a patient who is exhibiting signs of aggression is 

to engage in what is called Verbal De-escalation. Direct care staff are trained to first attempt to 

calm and redirect the patient from the source of their aggravation. (Ex. R-30). In some instances, 

however, verbal de-escalation is not possible or successful, and an employee will need assistance 

restraining an aggressive patient. In those instances, the employee can call for a Code Green, which 

is, for lack of a better term, a distress call to all available members of the hospital staff. Code 

Greens could be called in through the use of panic alarms (intake), verbally calling out to other 

members of the unit, walkie-talkies when they are available, or the intercom system. (Tr. 3132-

3133). 

While all staff members are expected to respond, if possible, there are often limitations on 

who can respond. For example, if an employee is engaged in one-on-one care with a patient under 

doctor’s orders, that employee cannot respond to a Code Green. (Tr. 95, 708, 3294). The same is 

true of staff members doing patient rounds, which have to occur every 15 minutes, and staff 

transporting patients around the facility for lunch and other activities. (Tr. 95, 708, 831, 2530, 

3294). Even if staff members are designated as Code Green responders for their shift, there is no 

8 
 

 

 

 

 

 

 

policy preventing them from being assigned to one-on-one care of a patient or other activities that 

would prevent them from responding to a Code Green. (Tr.377, 2350). Thus, the employees 

testified there were instances where: (1) calls for a Code Green were not responded to or required 

repeated calls; and (2) multiple Code Greens were called simultaneously, and there were not 

enough people to respond. (Tr.413, 961, 1149, 2296). This is so even though the staff roster for 

each shift has designated responders. 

Respondent contends the typical response time to a Code Green is “within seconds”; 

however, now-former Director of Risk Management, Amy Petschauer testified she did not track 

response times. (Tr. 3495). Further, while many members of management downplayed the number 

of Code Greens called for and the average response to those Code Greens, staff members 

repeatedly complained of how long it took staff to respond to Code Greens. (Tr. 149, 464). This 

gap in perception is due, in no small part, to the fact that most management employees work during 

the daytime when both staff and management are available to respond. Comparatively, the evening 

and overnight shift employees do not have additional employees or management at their disposal. 

ii. Clinical Approaches to Aggressive Behavior 

Respondent is adamant that clinical management is the most effective way to materially 

reduce the incidence of patient-on-employee violence because the source of the violence is the 

patient’s mental illness. While Dr. Lipscomb agreed clinical management is a necessary aspect of 

reducing workplace violence, she noted it was not, of itself, sufficient. This is illustrated by 

numerous aggression propensity assessment forms and policies introduced by Respondent. Some 

of the forms were only partially implemented, implemented for short periods of time, or never 

used at all. 

9 
 

 

 

 

 

 

 

For example, there were programs such as the Managing Aggressive Patient Protocol, or 

MAPP, which was designed to identify aggressive tendencies of a patient prior to being admitted 

to Highlands. (Ex. C-13). This form was only in use for a short period of time, because employees 

did not find it helpful. (Tr. 714). Further, it appears the MAPP references other plans/programs 

that were never implemented. (TR. 591). Other forms, such as the Conduct Expectation for 

Aggressive Behaviors, Promoting Patient Safety Review, and Source of Aggression, were 

similarly short-lived or introduced but never actually used. (Tr. 715, 1156, 3221; Ex. C-15, R-23). 

In response to an act of aggression requiring staff to place a patient in a hold, staff were 

required to fill out a Restraint/Seclusion packet. (Tr. 3265; Ex. R-9, C-42, C-46). The packet 

contains a treatment plan; however, the treatment plans were basically the same for all patients 

and, ultimately, did not change the course of treatment for an individual patient or patient 

management as it related to employee safety. (Tr. 419-420; Ex. C-42, C-46). This is illustrated in 

the cases of NS and HM, who had multiple documented restraints. (Ex. C-42, C-46 The treatment 

plans in their files are largely pro-forma with the exception of the specific event that precipitated 

the hold. (Ex. C-42; C-46). There is no indication changes were made to these patients’ treatment 

plans to address their “aggressive behaviors.” (Ex. C-42). 

As will be discussed later, Respondent is not being cited for implementing programs that 

ultimately failed. However, it is noteworthy these attempts to address patient aggression on a 

purely individual, clinical level resulted in a patchwork of ad hoc solutions instead of being 

addressed by a comprehensive plan to deal with patient-on-employee violence, which is clearly 

endemic to the business of running a mental health facility. 

iii. Admissions & Intake 

10 
 

 

 

 

Respondent contends its clinical approach to addressing patient-on-staff violence starts 

with the admissions process. Patients are typically admitted to Highlands on a referral from an 

emergency department and usually arrive by ambulance, but some come to the facility as walkins. (Tr. 4025). Once the prospective patient is allowed into the building, they are immediately 

separated from their belongings, which are checked with a metal detector, to ensure the prospective 

patient is not carrying prohibited items, including anything that could be used as a weapon. (Tr. 

3331; Ex. R-34). Staff is also required to perform a “non-invasive body search” for the same 

reason. (Ex. R-34). 

After the initial screening for contraband is complete, prospective patients meet with intake 

staff. (Tr. 3212). This consultation takes place in a consult room just down the hallway from the 

main entrance and is recorded on CCTV; though there is no indication these consultations are 

monitored in real time. (Tr. 67, 4026). Respondent says staff are required to wear a panic alarm 

during intake as a standard precaution for the possibility a prospective patient becomes violent; 

however, CSHO Stark was told the intake staff used their personal judgment regarding when to 

wear them. (Tr. 65-66; 4027). Intake staff conduct an assessment, which includes legal history, 

past hospitalizations, diagnoses, medications, and drug screening (if one has not been done at the 

referring emergency department). (Ex. R-7). Part of the reason for this assessment is to determine 

whether the patient is at risk of self-harm or harm to others. (Tr. 2894). If a patient was determined 

to be at high risk for aggression, a High Risk/High Alert Notification form, which is bright pink in 

color, was supposed to be filled out and included in the patient’s file. (See R-5 at Highlands 00624). 

Respondent also stated intake staff will contact the unit if the patient has been admitted to 

Highlands before. (Tr. 2898). Ultimately, the decision to admit is up to the on-call psychiatrist and 

11 
 

 

 

 

 

is informed by current capacity and the medical needs of the patient, which may not be appropriate 

for Highlands.9 (Tr. 4024-4025). 

While the policy governing Admissions/Intake appears thorough and designed to prevent 

violent behaviors, the reality of the process was much different. Direct care staff were not always 

consulted about re-admitting a previous patient, even when the patient had a history of violent 

behavior at Highlands. For example, Patient JH was re-admitted to Highlands even though he had 

assaulted [redacted], who had pressed charges against JH. (Tr. 637-638). In addition, intake would 

sometimes admit a patient to a unit that was either understaffed or, at that particular moment, was 

not ready to admit the patient to the unit. In one instance, [redacted] was seriously injured by an 

extremely aggressive patient admitted before the unit was prepared to admit him/her. (Tr. 1124). 

Even if a patient’s Comprehensive Assessment indicated a history of aggressive/assaultive 

behavior, this was not indicated on the High Risk/High Alert Notification form. For example, 

Patient JH assaulted an employee in December 2017, but upon being readmitted six months later, 

his HR/HA Notification form did not indicate an assault risk. (Tr. 646, C-43 at 11). Patient MG’s 

assessment indicated a history of violence and aggression but was assessed as low- to no-risk on 

the HR/HA form. (Tr. 1241-1243; Ex. R-5 at Highlands 00624). Both JH and MG ended up 

assaulting staff after they had been readmitted. (Ex. C-43 at 12; Ex. R-5 at Highlands 00626). 

iv. Debriefing 

According to Respondent’s policy, the only time a staff debrief is required is after a patient 

has been restrained. (Tr. 163-64). According to Respondent, this is required by CMS regulations 

and the State of Colorado. See Resp’t Br. at 32. The staff debriefing can be found in the Restraint 

and Seclusion packet, which was included in the numerous redacted patient files submitted into 

9. As noted above, this is governed, in part, by EMTALA. 

12 
 

 

 

 

 

 

evidence. (See, e.g., C-40 to C-49). Respondent contends debriefing also occurs after any incident 

of patient-on-staff violence; however, the evidence shows staff debriefs, if they occurred, were 

cursory at best. Respondent’s policy also indicates camera review of such incidents should occur 

for the purposes of training. (Ex. C-11). 

Two of the staff members, Mr. Harriott and [redacted], stated they had not participated in 

a debrief after particularly violent encounters even though the documentation indicated a debrief 

had occurred. (Tr. 808, 813, 1110). This was the case for many of the staff members who testified. 

(Tr. 637, 663, 954, 1279, 1747, 2221-2222). In [redacted]’s case, the debrief indicated a camera 

review had occurred, but she testified she was not included in any such review. (Tr. 1120-1123; 

Ex. C-26). Further, on two separate occasions, [redacted] asked to see video of the encounters but 

was told it was not available to her. (Tr. 1115, 1135). To the extent debriefings did occur, they 

were often cursory checks to ensure no one got hurt during the hold. (Tr. 1738). Indeed, 

Respondent’s own review of its files indicated staff debriefings did not include all parties involved 

in the incident. (Tr. 2410-2411; Ex. C-35 at 2). 

It appears management debriefings and camera reviews are, at best, lip service to regulatory 

requirements, as opposed to an integral part of a robust workplace violence prevention program. 

Nearly every employee who testified indicated the debrief was little more than a check to ensure 

there were no injuries rather than a method to evaluate how a situation could have been handled 

more safely or identify needed changes in procedure. According to Mark Helferich, this was likely 

because there were “not enough staff to entertain those things”. (Tr. 943-944). As for camera 

reviews, Mr. Helferich testified he had participated in at least 50 Code Greens and had participated 

in only one camera review. (Tr. 954). Lori Ayala, a house supervisor, testified, at least as of 

13 
 

 

 

 

 

 

February 2020, she had not participated in a camera review as part of the debriefing process. (Tr. 

3315). 

v. Reporting 

Respondent’s reporting system for employee injuries during the relevant period was an 

amalgam of multiple, different sources without any consistency as to where information should be 

documented, what should be reported, or how the data should be compiled. This lack of 

consistency is reflected in both the data and the testimony provided at trial. 

Based on CSHO Stark’s review, Respondent’s workplace violence injuries were supposed 

to be documented in-house in Employee Accident Reports (EARs) until mid-2018, when it began 

using a third-party, called Sedgwick, to record employee injuries. (Tr. 86; Ex. R-35). Using 

Sedgwick requires either the employee or their supervisor to call a hotline to report the injury. The 

problem, as noted by some of the employees at trial, is aggressive or violent behavior “was so 

normalized” it did not occur to them to report injuries, including those not requiring immediate 

medical attention. (Tr. 1901, 1977, 2080). Respondent also said it uses the MIDAS system to 

record injuries; however, closer review of that system reveals it is a patient-focused system with 

no section for employee injuries, except for the “Comments” section, and is entirely dependent on 

the individual entering the data. (Tr. 2400). A clear illustration of the inadequacy of the MIDAS 

system for recording employee injuries was illustrated by two examples: (1) when [redacted] was 

kicked in the head by RM, the report simply coded the patient as “out of control”, but did not 

mention the injury; and (2) when one patient managed to punch a BHA, slap a charge nurse, bite 

a staff member, and spit in the faces of two others, the MIDAS report indicated “no injury 

involved” because the outcome refers to the patient only. (Tr. 2397-2401; Ex. C-51). Thus, there 

is no data point to be gleaned from those reports elucidating consequences to staff members in the 

14 
 

 

 

 

 

same manner as records of patient injury in the same report. (See, e.g., Ex. C-43 at 2, C-47 at 1, 

C-51). 

Exacerbating the problem of inconsistent reporting in multiple sources and formats, CSHO 

Stark found employee injuries that were either not recorded or were improperly recorded in 

Respondent’s OSHA 300 logs and EARs that were made available to her. (Tr. 87-88). This 

included [redacted]’s injuries, neither of which were coded as lost workdays or restricted duty, 

notwithstanding both requiring long-term absences and restrictions upon her return. (Tr. 1113-

1114, 1132; Ex. C-7 at 3, C-8). 

Given the inconsistencies discussed herein, the Court is skeptical about Respondent’s 

claims about the downward trend in injuries found by CSHO Stark. (Tr. 77, 375; Ex. C-4). Those 

numbers were based purely on the OSHA 300 logs, which, as shown above, do not reflect all the 

injuries that occurred, nor do they accurately reflect the injuries that are reported. Ms. Petschauer 

testified injury tracking was the responsibility of the Human Resources Department. (Tr. 3415). 

While Respondent’s current Human Resources director, Susan Coulter, testified about tracking 

and auditing injury reports, she noted she did not begin at Highlands until May 24, 2019, which 

was after the Citation was issued. (Tr. 3866). She has not reviewed or audited the OSHA logs prior 

to the beginning of her employment. (Tr. 3887). Thus, prior to Ms. Coulter’s tenure, the data is 

questionable at best. This, like other matters discussed herein, highlights another problem with the 

lack of a comprehensive WVPP: lack of accurate data, tracking, and, subsequently, trend analysis. 

vi. Law Enforcement Intervention 

In addition to Code Greens, there have been numerous instances where the violent behavior 

of a patient or group of patients exceeded the staff’s ability to handle the situation. In such cases, 

the police have been called. Exhibit C-10 shows a summary of the of the police reports filed for a 

15 
 

 

 

 

period of three years leading up to the inspection. (Tr. 88-89; Ex. C-10). Some employees testified 

management discouraged calling law enforcement; however, it does not appear anyone was 

prevented from doing so. That said, at the very least, there appears to be inconsistent 

communications and confusion regarding the proper protocol for contacting law enforcement, 

which is another indication Respondent’s WVPP is not being properly or clearly communicated. 

2. Staffing 

A consistent refrain from nearly every employee who testified was a lack of adequate staff 

to properly carry out their jobs, provide care, and feel safe. (Tr. 464, 440, 696, 820, 830, 958, 960, 

1290, 2097). This sentiment was echoed in numerous communications to management, between 

management, and even from a UHS-Delaware Divisional Nursing Director, who audited UHSHighlands’ operations and found, “[a]t [the levels provided for in the matrix] it may be difficult 

for staff to get breaks, handle multiple admissions and/or manage an acute unit.” (Ex. C-25 at 5). 

Complaints about a lack of adequate staff were also included in multiple staff surveys and daily 

house supervisor reports. (Tr. 703-705; Ex. C-17, C-20, C-23, C-37). While employee suggestions 

and complaints are not, of themselves, sufficient indicators of the need for additional staff, the 

following discussion, as well as the legal argument provided later in this opinion, illustrates the 

level of staffing provided for by Respondent was insufficient for the same reasons identified by 

the UHS-Delaware Divisional Nursing Director. 

i. How Staffing Levels are Determined 

Respondent sets staffing levels for each unit based on a staffing matrix, which sets the level 

of BHAs and nurses according to the number of patients, or census. (Tr. 146; Ex. C-16). 

Respondent employs a staffing coordinator, who is responsible for ensuring adequate staffing 

levels and creating daily assignment sheets. (Tr. 3529). This position was held by Jesus Gaspar 

16 
 

 

 

 

during the period leading up to the inspection until he was replaced by Krystal Garnhart in 2020.10 

(Tr. 3525, 4021). According to Ms. Garnhart, she maintained the same procedures Mr. Gaspar 

employed during his tenure as staff coordinator. (Tr. 3526). Ms. Garnhart testified she used the 

matrix as the baseline for staffing and would adjust staffing levels upward based on additional 

factors including acuity, planned admissions, and patients requiring special precautions, such as 

one-to-one observation. (Tr. 3529-3530). The house supervisor may further adjust the assignments 

based on skill and experience. (Tr. 3229). 

The matrix establishes a general standard but does not account for acuity adjustments or 

special orders, such as one-to-one observations,11 nor is there a policy or procedure for such 

adjustments. (Tr. 697, 1291, 2314). Further, the matrix itself is the same for each of the three 

units, notwithstanding the baseline differences in acuity between the different populations. (Tr. 

2328; Ex. C-16). Interestingly, the matrix reduces staff down to one nurse and one BHA for each 

unit during the overnight shift based on an expectation most patients are asleep. (Ex. C-16). Based 

on the testimony of the nurses and BHAs, as well as the statistics regarding confrontations, 

however, it appears a substantial number of confrontations occur during the evening and overnight 

shifts. (Ex. R-57). Complicating matters staff-wise, Respondent would count staff on restricted 

duty or performing one-to-ones as part of the staff count, even though they were not able to perform 

the full panoply of duties required to run the unit. (Tr. 146, 664, 720, 1112, 1920). 

Further complicating matters, employees would frequently call in sick or would not come 

in for various reasons. (Tr. 1142-1143). Respondent said it would send out text blasts and, in some 

cases, offer incentives for people to come in during their days off; however, this was not always 

10. Mr. Gaspar was not able to testify at trial. Respondent sought to introduce Mr. Gaspar’s deposition testimony in 

lieu of his appearance; however, the Court found Respondent failed to make the requisite showing of unavailability. 

11. One-to-one observation is a doctor’s order, also called a special precaution, which requires the patient to be 

observed, within arms-length, at all times until the expiration of the doctor’s order. 

17 
 

 

 

successful, and employees would have to work short-staffed or, on some occasions, alone. (Tr. 

432-433, 1142-1143). 

ii. Impact of Staffing Issues 

The impact of being short-staffed was felt acutely by the staff. According to [redacted], 

Harriot Helferich, [redacted], Broadbent, Panza, and Graumann, the units were, on occasion, 

understaffed even according to the matrix. (Tr. 432-433, 696, 820, 958, 1140, 1290, 2087, 2223). 

This was documented in multiple survey comments, and in daily house reports, which noted staff 

felt discouraged, unsafe, and unable to complete the tasks expected of them. (Tr. 703, 2318; Ex. 

C-17, C-22, C-23, C-37). Also, as previously noted, this was noted by the Divisional Director of 

Nursing in March 2018, who observed the matrix levels would negatively impact the nurses’ and 

BHAs’ ability to handle the basics of their job, let alone be able to take breaks without leaving 

their coworkers alone. (Ex. C-25). 

Difficulties described by the Divisional Director of Nursing’s assessment regarding staff 

played out at Highlands in different ways. In some instances, there were not enough employees to 

respond to Code Greens. (Tr. 830, 1103, 1294). Multiple employees testified they either had to 

work on a unit alone during an overnight shift or would be left alone on the unit to perform 

observation rounds or other duties while their unit colleague would take groups of patients to meals 

or group therapy or had to respond to a Code Green on another unit. (Tr. 698, 1783, 1913, 2008, 

2094). The short-staffing problem not only impacted staff’s ability to perform their jobs, but also 

was noted to negatively impact patient care, which had an ancillary impact on employee safety. 

For example, [redacted] testified group therapy sessions and activities would be cancelled because 

staffing was insufficient. (Tr. 1117). Dr. Argumedo testified these activities are instrumental to 

clinical management and the failure to engage patients in a meaningful way, especially among the 

18 
 

 

 

 

adolescent population, can result in restlessness and acting out in unpredictable ways. (Tr. 1444, 

1507). This was noted by staff members at trial. (Tr. 1137). 

A particularly illustrative example of the impact on short-staffing was summed up by a 

staff nurse, Roseanne Tulley, in an email that was sent to Jill Orr, now-former Assistant/Interim 

Director of Nursing, who, in turn, forwarded the report to both the CEO, Amy Alexander, and 

Aaron Van Dam, the director of nursing. (Ex. C-33). According to Ms. Tulley, “[S]taff has to 

continually open and close doors for bathroom trips. Nurse’s station desk is bombarded with 

patient requests. Staff cannot spend even five minutes with a child who needs some processing 

and it’s impossible to keep an eye on 20 plus patients safely.” (Ex. C-33). In her estimation, 

Respondent needed one staff at the desk, one at the nurse’s station, one in the day room, one in 

group sessions, and one-to-two staff members doing five- and ten-minute rounds. (Tr. 2348; Ex. 

C-33). Even then, Ms. Tulley noted staffing at her suggested levels was not sufficient for any oneto-one orders which may be in place. The Court finds this compelling, not so much because Ms. 

Tulley’s assessment of how many staff members were needed should be adopted in its entirety, 

but as an illustration of the real-life, day-to-day duties staff were called upon to carry out in 

addition to the primary charge of providing therapeutic care. Her account was echoed by other 

BHAs and nurses, who talked about having to man the desk for mundane tasks, such as providing 

telephone access, bathroom breaks, and smoke breaks, all of which needed to be carried out in 

addition to doing observation rounds (whether in 5-, 10-, or 15-minute increments), one-on-ones, 

medicine dispensing, charting, and other medically required duties. (Tr. 804, 928, 1513-1514). 

iii. Respondent’s Attempts to Address Staffing 

Respondent attempted to address the issue of short-staffing using multiple stratagems, 

including text blasts and bonuses/incentives. Respondent’s most direct attempt to address staffing 

19 
 

 

 

 

 

 

issues in a concrete way was to implement a position known as a Qualified Safety Responder, or 

QSR. (Tr. 1143, 2342). The guiding idea behind the QSR position was to have a BHA who could 

float between units and provide assistance as needed. Unfortunately, however, given the problems 

with call-outs, the QSR was often used as a fill-in. (Tr. Id.). Thus, the only remaining float 

personnel on overnight shift was the house supervisor. (Tr. 2335, 3284). The difference between 

daytime and evening/overnight is important because, as noted above, the daytime shifts had 

multiple administrators and management personnel available. Those same people were not 

available at night. Further, according to Ms. Orr the QSR position was not consistently 

implemented, even at night, and was ultimately scrapped due to purported budgetary issues, not 

because it was ineffective. (Tr. 2344-2345). 

Lori Ayala provided unintentional, yet compelling, testimony with respect to the QSR 

position and staffing matrix. In response to a question about the matrix only requiring two 

overnight staff, Ms. Ayala stated this would only happen when the census on a unit fell below 

eleven, which only happened three times in the last two years. (Tr. 3286). Apparently, the matrix 

was changed at some point after the inspection in 2018. (Tr. 3285). Prior to that, a unit could have 

up to 17 patients covered by only two staff during the evening/overnight shifts. (Tr. 3285-3286; 

Ex. C-16). 

3. Staff Communications Regarding Patient Aggression 

A consistent refrain from experts, administrators, and staff alike was the importance of 

communication among direct care staff relating to patient aggression. The Court has already 

addressed how information regarding patient aggression is communicated from intake to the unit, 

which includes the comprehensive assessment, High Risk/High Alert Notice, a pre-admission 

nurse-to-nurse form, and a safety plan form. (Ex. R-21, R-29). The nurse-to-nurse form provides 

20 
 

 

 

 

 

 

 

nurses at Highlands with contact information of the patient’s previous provider to gain a clearer 

picture of the patient’s history, and the safety plan form contains therapeutic information provided 

by the patient, such as what helps them calm down and what activities they like to do. Equally 

essential are communications between shifts about the state of the milieu and aggressive patients.12 

Respondent creates a snapshot of the unit using a census board and “Picture of a Safe 

Milieu” form. (Tr. 3219, 3966; Ex. R-24). Both contain information about each patient on the unit, 

including their doctor, social worker, special precautions, and appropriate interventions. Prior to 

and shortly after the inspection in October 2018,

13 the primary communications regarding patient 

aggression between staff and/or shifts were documented in the shift hand-off report, which 

provided the oncoming shift with information about patient aggression issues on the previous shift. 

(Ex. R-13). 

BHAs and nurses noted several problems with the communications at shift changeover. 

Everyone agreed information was exchanged; however, staff noted they only had about 15 minutes 

to communicate information about the entire unit in that period of time. (Tr. 142). Specifically, 

staff had to convey information about medical issues, medications, interpersonal issues between 

patients, suicide precautions, fall risks, as well as incidents of patient aggression towards staff. (Tr. 

386, 2231). Further compounding the problem, BHAs typically did not review patient records, the 

comprehensive assessment, the previous days’ observation rounds, nor, according to Ms. Orr, were 

they required to do so. (Tr. 143, 1099, 1154, 2230, 2360). 

12. The term “milieu” was used throughout the trial and in the literature to describe the state of the unit, inclusive of 

the physical environment, staffing, and acuity of its patients. 

13. The Court notes the timeframe of communications because Respondent points out that it also uses a “situational 

awareness communication tool”, which is filled out at the end of the shift and is designed to provide an overview 

about each patient’s behavior, as opposed to the general nature of the shift hand-off. See Resp’t Br. at 24. The 

situational awareness form, however, was only put into place in February 2019, after the inspection was completed. 

(Ex. R-36; Tr. 2943). 

21 
 

 

Another key source of information about the state of the milieu and patient aggression were 

the various meetings held by the treatment teams and administrators. While BHAs participated in 

meetings at shift changeover, they did not attend treatment meetings or any other meetings directly 

or tangentially related to staff safety.

14 (Tr. 2230, 3291). Various meetings which were held to 

discuss safety included the Daily Nurse’s meeting, treatment plan team meetings, daily flash 

meetings, Performance Improvement Committee meetings, and Patient Safety Committee 

meetings. 

The daily nurse’s meeting was essentially a nurse-specific version of the shift changeover 

exchange of information. (Tr. 3915-3916). The treatment plan team meetings included discussions 

of each patient and the course of treatment, but it would also include a discussion of any aggressive 

behaviors and how to address those behaviors in a clinical way. (Tr. 3228, 3918; Ex. R-28). If 

appropriate, a behavioral plan would be developed to address those behaviors and included in the 

patient’s chart. (Tr. 2941, 3921; Ex. R-28). Daily Flash meetings, which were typically an 

administration affair, took a birds-eye view of the facility as a whole, but also addressed patient 

aggression incidents and staffing concerns. (Tr. 3392, 4020). 

While the nurse’s, treatment plan, and flash meetings all addressed specific incidents of 

aggression from the standpoint of treatment and staffing, the Performance Improvement 

Committee (PIC) and the Patient Safety Committee (PSC) used those incidents to address policy 

and procedure. The PIC reviewed injuries to determine root causes, whether an injury could have 

been prevented, and whether any patterns emerged. (Tr. 3388, 3868). The PSC is comprised of 

administration and management (CEO, CMO, CNO, director of nurse management) and was 

intended to review big picture issues, including month-to-month and year-to-year trends, major 

14. It is unclear whether this was part of a pattern and practice or whether it had as much to do with the amount of 

time available for them to conduct such a review. In either case, it illustrates a failure of communication. 

22 
 

 

 

 

 

incidents, errors, restraints, and discharge, amongst other things. (Tr. 3381-3382). Respondent 

contends staff members are encouraged to attend these meetings but seldom do so. 

According to staff members and management, staff did not attend these meetings, nor were 

they expected to. (Tr. 481, 846, 1308, 1926, 2017, 2304). Further, while Respondent held town 

hall meetings, which were intended to include staff, they were held during the day, which 

prevented the overnight staff from being able to attend. (Tr. 483). Staff also indicated they raised 

safety issues and other matters with management but never received follow-up or felt as if their 

suggestions were taken seriously. (Tr. 722, 2110). As was the case with staffing, direct care 

workers repeatedly identified lack of communication as a problem in the employee surveys from 

2016 to 2018. (Ex. C-37). Specifically, employees noted “communication is lacking: across levels 

of the organization [and] in team meetings”, staff were “not involved in decision making and not 

told of changes”, “my opinion doesn’t matter”, and “safety is not seen as an issue.” (Tr. 2436-

2437; Ex. C-37). 

4. Respondent’s Workplace Violence Prevention Program 

Complainant argues, although Respondent had a WVPP in place at the time of the 

inspection, such plan had multiple shortcomings, including (1) a lack of meaningful review of the 

policy since it was created; (2) a lack of clarity regarding which department is responsible for 

implementing and providing training on it; (3) a lack of a clear definition of workplace violence, 

which leads to difficulties in tracking trends and data; (4) reliance on outdated, inappropriate, or 

non-existent forms or documentation of patient aggression; (5) failure to follow through on 

program requirements, including camera reviews of violent incidents; and (6) characterizing 

patient-based initiatives as elements of employee participation in the plan. Respondent, on the 

other hand, argues Complainant has put “form over substance” and lists all the clinical-based 

23 
 

 

 

 

 

 

 

 

interventions it uses to control patient aggression. The problem, as will be shown later in this 

decision, is not that Respondent is missing a piece of paper called a Workplace Violence 

Prevention Program, or that it utilizes a clinical approach to patient-on-employee violence. Rather, 

the problem is Respondent’s WVPP is insufficient in design and, in practice, is a patchwork 

amalgam of ad hoc interventions with no clear line of responsibility for its implementation. Thus, 

this is a problem of both form and substance. The following are just a few examples of the 

program’s elements and their insufficiency to accomplish the goal for which they are designed. 

The WVPP states its focus is on Type 2 violence, which is “violence committed by patients 

upon staff members.” (Ex. C-11). This is the extent of the definition of workplace violence.

15 

According to Dr. Jane Libscomb, this definition is inadequate because it does not indicate what 

constitutes an act of violence, which, in turn, impacts Respondent’ ability to prevent and track 

violent acts. (Tr. 3655; Ex. C-62 at 25). This failure of clarity can be seen in the section on 

Management Commitment, which sets goals for reductions in violent incidents and identifies how 

“incidents of patient aggression, restraint and seclusion will be reported”, including HPRs 

(MIDAS reports) and Employee Accident Reporting. (Ex. C-11). As recounted above, however, 

MIDAS reports are patient-based and the Employee Accident Reporting procedure was stopped at 

some point in 2018 when Respondent switched over to the Sedgwick reporting line. (Tr. 85). The 

plan also calls for camera review of all incidents resulting in restraint or seclusion and a debrief of 

all staff involved; however, the evidence shows camera reviews rarely occurred and debriefs were 

not consistently conducted with all staff involved. 

15. Interestingly, Respondent stipulated the hazard of workplace violence is defined as “violent or assaultive 

behavior.” (Jt. Stip. No. 7). While not a complete definition, it nonetheless is more comprehensive than what is 

provided in Respondent’s WVPP. 

24 
 

 

 

With respect to Employee Participation, the WVPP lists a series of purported initiatives, 

which, in reality, read like job requirements and have little or nothing to do with how employees 

should participate in the process of developing violence prevention initiatives. (Ex. C-11). 

Regarding Aggression Analysis and Surveillance, Respondent again refers to HPRs (MIDAS) and 

EARs, which are either inadequate for tracking employee injuries or are no longer in use. As an 

illustration of this, Ms. Petschauer created a Risk Management Report for the first quarter of 2019 

based on an analysis of HPRs, but no information was included regarding employee injuries or 

patient aggression toward staff. (Tr. 2414-2415; Ex. C-36). Ultimately, it appears Respondent has 

a written WVPP, but neither the document itself nor its implementation appear to be coherent, 

comprehensive, or effective to address workplace violence toward workers. 

5. Respondent’s Training Program 

According to Respondent, all its employees receive training during orientation and 

periodically throughout the year at regularly scheduled “competency fairs”, where employees sign 

up for refresher training and develop practical skills (HWC was not available to take during the 

fair). (Tr. 3119-3220; Ex. R-49). All direct care staff are trained in Verbal De-Escalation and 

Handle With Care, which are the two primary programs for dealing with an in-progress act of 

aggression. During orientation, employees are provided classroom training in both disciplines. 

Employees must take an assessment and be certified in both verbal and physical management of 

patients before they can work on one of the units. (Tr. 3109-3111; Ex. R-32). The training itself is 

provided by Respondent’s resident master trainer, Mike Carstens. According to Mr. Carstens, the 

HWC program is designed to account for differences in size between the patient and the staff 

member initiating the hold. (Tr. 3114). Carstens also testified he attempts to respond to all Code 

Greens in order to either participate or coach the staff members engaging in a hold. (Tr. 3066-

25 
 

3067). The training includes self-defense techniques and counsels avoidance of a conflict if at all 

possible, including retreating to a locked room if engaging in a hold is not feasible. (Tr. 3082-

3083). 

Many of the employees took issue with how the training was carried out, the techniques 

taught, the lack of buy-in from certain members of the staff, and the lack of follow-up training. 

According to multiple employees, the practice methods used in training were not at all like the 

real-life violent situations they confronted while on the unit. (Tr. 1160, 2291). Specifically, they 

claimed placing holds on Mr. Carstens was not realistic when compared to dealing with the 

unpredictable nature of a psychiatric patient having a violent episode. Further, employees 

complained they were instructed at least two employees were necessary for every hold but 

experienced a number of situations where they had to go “hands-on” without the assistance of 

another staff member. (Tr. 1785, 3116). Employees also testified they were aware of staff who 

were reluctant or even refused to participate in holds. (Tr. 720, 1920). This included [redacted], 

who refused to participate in holds because of her age and the condition of her knees. (Tr. 1920). 

She testified Mr. Carstens was aware of this. 

Respondent claims it provides refresher training during its training fairs, after debriefs 

identifying improper use of HWC technique, and at the request of employees. (Tr. 3061-3062). 

Respondent’s own internal communications belie this claim. In an email dated October 2018, 

around the time of the inspection at issue in this case, Mr. Carstens noted many members of their 

“veteran team” had not re-certified in verbal de-escalation or HWC “maybe since their [new 

employee orientation] however many months/years ago that was”. (Ex. C-29; Ex. 2369-2371, 

3150-3151). Thus, notwithstanding Respondent’s claims regarding its tracking software for 

refresher training, it appears a fair number of employees slipped through the cracks. (Ex. C-25 at 

26 
 

 

 

 

 

4). Further, in response to a purported assessment of one of her holds, [redacted]’s file indicated 

she had received refresher training in HWC; however, at trial, [redacted] testified she had not 

received any such follow-up training nor had she been told how or why the method she employed 

was insufficient.16 

As regards the WVPP, Respondent’s training program is patchwork, at best. CSHO Stark 

found, and Respondent’s employees confirmed, Respondent does not provide training specific to 

the WVPP. (Tr. 137, 845, 988, 1150). Indeed, two of the people responsible for the program’s 

implementation, Ms. Orr and Ms. Petschauer, testified they did not know whether the WVPP was 

covered during new employee orientation. Thomas Braswell, the director of facilities, apparently 

provides training on doing environmental rounds, which are used to identify unsafe objects in the 

milieu, and workplace violence coming from outside the facility. (Tr. 3341). As an illustration of 

its training, Respondent introduced a presentation entitled, “Preventing Workplace Violence”; 

however, upon closer examination of the presentation, there is nothing specific to Respondent’s 

worksite as a stand-alone psychiatric facility nor does it specifically address the principal cause of 

injury to employees, which is patient-on-staff violence. (Ex. C-12). Further, when Complainant 

presented it to staff members at trial, many did not recall having received that particular training. 

(Tr. 1151, 1297). 

D. Engineering Controls 

In addition to policy-based interventions, Complainant identified several physical 

implements/interventions it believes Respondent could institute to materially reduce the hazard of 

workplace violence. Each of Complainant’s suggestions is essentially a modification to existing 

engineering controls. 

16. According to [redacted], she was attempting to subdue a patient that was significantly larger than her and which 

her training suggested required far more staff members to properly execute a hold. (Tr. 1118_). 

27 
 

 

1. Nurse’s Station 

During CSHO Stark’s inspection, she discovered a number of violent incidents occurred 

around the nurse’s station, which is located in the center of each unit. (Ex. R-2). According to 

Respondent, the station is so designed in order to give nurses and BHAs a clear view of the entire 

unit from one location. The station itself is not enclosed, and the counter is approximately four to 

five feet above the ground. (Tr. 62-64; Ex. C-4 at 12). Nurses and BHAs enter the station through 

a swinging door that does not lock, which means patients can just as easily enter the nurse’s station. 

(Tr. 62, 476, 627; Ex. C-4). On many occasions, patients have done just that. (Tr. 981, 3364; Ex. 

C-7 at 16). In addition to entering through the doorway, patients have also climbed and jumped 

over the counter to attack staff members or grab items such as pens, pencils, and other jobnecessary items to use as weapons. (Tr. 409, 478, 673, 838, 1304, 3364). The Divisional Nursing 

Director’s audit noted similar problems with patient access to the nurse’s station, especially when 

staff is conducting rounds or engaged in other duties requiring them to be away from the station. 

(Ex. C-25 at 6). 

Respondent appears to downplay these concerns in two ways. First, Respondent contends 

a change to the nurse’s station would not necessarily prevent aggressive actions toward staff once 

they leave the nurse’s station, thus calling into question whether the change would be materially 

effective. Second, Respondent contends fully enclosing the nurse’s station could have a deleterious 

effect on the therapeutic milieu, because it would place a physical barrier between patients and 

staff, thereby setting the two parties in opposition to one another. As will be discussed later in this 

opinion, the evidence paints a different picture. 

28 
2. Furniture 

Complainant identified incidents of aggression where patients picked up furniture, such as 

chairs and desks, and used it as a weapon. (Tr. 410, 667, 1788). Respondent was aware of these 

incidents and agreed it would improve staff safety if all furniture was secured; however, it also 

noted securing or weighing down all furniture may be impractical for sanitary reasons, such as 

cleaning the cafeteria chairs after meals. That said, at some point in 2019, Respondent purchased 

weighted furniture and found ways to increase the weight of existing furniture to reduce the 

likelihood it would be used to harm staff and other patients. (Tr. 2887). 

3. Cameras/Surveillance 

At the time of the inspection, Respondent had approximately 100 cameras located 

throughout its facility. (Tr. 3346-47; Ex. R-2). The camera feeds can be viewed at nurse’s stations, 

intake, and in administrators’ offices. (Tr. 3346, 4026). At the time of the inspection, the cameras 

did not possess zoom capability or sound recording; however, since the inspection, Respondent 

upgraded the cameras to include zoom capability and added 10 additional cameras. (Tr. 3346-42). 

While the cameras have been used incidentally for surveillance, for the most part it appears they 

were used for review of violent incidents according to Respondent’s WVPP. 

Although there was one instance where an employee saw an encounter developing over the 

CCTV system and was capable of responding to a violent incident prior to a Code Green being 

called, this appears to have been a singular event. Otherwise, Complainant’s evidence was, more 

or less, limited to the staff’s belief that additional surveillance would make them safer. 

4. Walkie Talkies and Panic Alarms 

At the time of the inspection, each unit had two walkie-talkies, but employees were only 

required to carry them when they went off unit for meals, groups, or activities. (Tr. 65, 390). Intake 

29 
 

 

 

 

 

 

employees were provided with panic alarms, but, as noted above, Respondent did not specifically 

mandate their use and they were not made generally available to other staff members. The only 

other devices available for hospital-wide staff communication were the telephones behind the 

nurse’s stations. Approximately a year or so after the inspection, Respondent made the decision to 

increase the number of radios so employees could always carry them. (Tr. 3160, 3358). 

E. Expert Testimony Recap 

The analysis of any workplace violence case is a complex and nuanced exercise requiring 

the input of experts in the industry in question. This is particularly the case here, where the Court 

is asked to: (1) consider the effectiveness of actions taken by Respondent to guard against the 

hazard of workplace violence in an environment where acts of aggression are endemic, and (2) 

based on that determination, consider whether Complainant’s proposed methods of abatement 

would be materially effective at reducing the hazard without impacting Respondent’s core mission. 

The following is just a brief snapshot of the experts’ respective backgrounds and the 

testimony they provided in support of, or contrary to, (1) and (2). 

1. Dr. Monica Argumedo 

Dr. Argumedo is a board-certified psychiatrist in general psychiatry and forensic 

psychiatry. (Ex. C-63). After medical school, Dr. Argumedo completed a four-year residency at 

Georgetown University Medical center, during which time she became chief resident and was 

responsible for the hospital’s inpatient psychiatry unit, and a forensic psychiatry fellowship at the 

Medical College of Wisconsin. (Tr. 1421-1425). After her residency and fellowship, Dr. 

Argumedo has served in multiple capacities, including performing competency assessments for 

criminal courts and serving as a testifying expert. (Tr. 1427-1428). Dr. Argumedo also worked for 

a free-standing psychiatric hospital, acting as service director for its Consultation Liaison Service, 

30 
 

as well as its intake department, where she worked on the hospital’s intake procedures. (Tr. 1428-

1431). 

Dr. Argumedo’s focus at trial was Respondent’s clinical methodology for managing patient 

aggression. Ultimately, Dr. Argumedo concluded Respondent’s clinical focus was insufficient for 

the purposes of addressing patient-on-employee violence and found Complainant’s proposed 

abatement methods would materially reduce the hazard. Respondent contends Dr. Argumedo’s 

discussion and analysis of Respondent’s clinical methodology is an inappropriate area of inquiry 

for OSHA. The problem with this argument, however, is Respondent also asserted clinical 

management is the principal, if not only, method for mitigating patient-on-employee violence. As 

such, it has placed the clinical management of its patients at issue. Respondent cannot be allowed 

to use its patient management as both sword and shield. 

2. Dr. Jane Lipscomb 

Of the three experts providing testimony, Dr. Lipscomb was the most well-versed in the 

arena of workplace violence. Dr. Lipscomb has conducted studies, researched, written, and 

consulted on this topic for over 30 years. (Ex. C-61). Dr. Lipscomb started her career as a nurse 

after receiving a B.S. from Boston College, which she followed shortly thereafter with a Master’s 

in occupational health nursing from Boston University/Harvard School of Public Health and a PhD 

in epidemiology and occupational health from UC-Berkley. (Ex. C-61). Dr. Lipscomb has served 

as a professor, researcher, CDC/NIOSH Senior Scientist, and consultant to various government 

agencies. Of note to this case, Dr. Lipscomb has made patient-on-worker violence in behavioral 

health facilities a particular focus of her research, noting it is “such a high risk setting within all of 

healthcare.” (Tr. 3591). This includes researching the implementation of OSHA’s Guidelines on 

Violence Prevention in Mental Health in New York State mental health facilities and consulting 

31 
 

 

the Maryland Department of Health and Mental Hygiene to help them improve their own 

workplace violence training in inpatient psychiatric facilities, amongst others. (Tr. 3594, 3599). 

Dr. Lipscomb, much like Dr. Argumedo, analyzed Respondent’s methods for preventing 

workplace violence; however, rather than focusing on the clinical emphasis of Respondent’s 

prevention plan, Dr. Lipscomb was concerned with how Respondent’s methodology compared to 

industry studies and guidelines related to violence against healthcare workers. Further, Dr. 

Lipscomb discussed the importance of a comprehensive and internally coherent WVPP and 

illustrated how Respondent’s plan fell short in multiple areas. 

Respondent argues Dr. Lipscomb’s testimony is not persuasive because she did not conduct 

or cite a study that unequivocally proves Complainant’s proposed abatement measures, taken 

individually, were insufficient to materially reduce the hazard of workplace violence. In some 

instances, Respondent argues its own expert, Dr. Marc Cohen, identified studies where some of 

the proposals supported by Dr. Lipscomb’s were contraindicated in the research, especially in the 

arenas of staffing and how certain abatements may impact the therapeutic milieu. These 

reservations are addressed herein. 

3. Dr. Marc Cohen 

Dr. Marc Cohen received his medical degree from the University of Southern California 

School of Medicine. Somewhat similar to Dr. Argumedo, Dr. Cohen completed a four-year 

psychiatric residency, followed by an additional year of training in forensic psychiatry. (Tr. 2441). 

Dr. Cohen testified he has been recognized as a permanent expert witness in Los Angeles County 

and is currently associate clinical professor in the Department of Psychiatry at UCLA School of 

Medicine. (Tr. 2446). In addition to serving as a professor, Dr. Cohen trained residents and treated 

veterans on an outpatient or partial hospitalization basis at the Veterans Affairs Hospital in Los 

32 
 

 

 

 

 

Angeles, which is one of the UCLA teaching sites. (Tr. 2447). Following that position, Dr. Cohen 

worked at Olive View Medical Center, which was another teaching facility through UCLA. During 

his tenure at Olive View, Dr. Cohen briefly oversaw a secondary inpatient unit and worked in the 

psychiatric emergency room. (Tr. 2451-2452). Ultimately, Dr. Cohen testified his background in 

forensic psychiatry uniquely situated him to assess a patient’s violence risk, which is in line with 

Respondent’s claims regarding a clinical approach to patient-on-staff violence prevention. (Tr. 

2456). 

Dr. Cohen’s testimony, for the most part, focused on the engineering and control-based 

abatements proposed by Complainant and how they could negatively impact the therapeutic 

milieu. He also highlighted studies regarding the potential negative impact of increased staffing 

on patient-on-staff violence and the difference between staff perception of safety resulting from a 

chosen abatement and the actual impact a chosen abatement has. Dr. Cohen also opined 

Respondent’s WVPP exceeded industry standards for such a program. 

Although Dr. Cohen clearly has extensive experience with clinical management of 

psychiatric conditions and forensic psychiatry, he does not have substantial experience working in 

an inpatient psychiatric unit and testified he had virtually no experience performing psychiatric 

intake or developing a comprehensive WVPP in the context of an inpatient psychiatric hospital. 

Thus, while he was well-suited to providing an analysis of Respondent’s clinical management 

program and methodologies for assessing individual violence risk, workplace violence in an 

inpatient setting is not an area Dr. Cohen has done research, lectured, or studied outside the 

confines of this case. (Tr. 2627, 2641, 2775-2776). 

33 
 

 

 

 

 

IV. LEGAL ANALYSIS 

A. Citation 1, Item 1 

Complainant alleged a serious violation of the Act in Citation 1, Item 1 as follows: 

OSH ACT of 1970 Section 5(a)(1): The employer did not furnish employment and 

a place of employment which were free from recognized hazards that were causing 

or likely to cause death or serious physical harm to employees in that employees 

were exposed to physical threats and assaults by patients: 

a) On or about October 2, 2018, and at times prior, the employer, UHS of Denver, 

Inc. dba Highlands Behavioral Systems (HBHS), failed to keep the workplace free 

of hazards. Employees in direct contact with patients (including BHAs, RNs, Intake 

Clinicians and other direct care providers) have suffered serious workplace 

violence (WPV) related injuries such as concussions, broken skin, bruising, 

scratches, sprains and strains, and injuries to the head and torso while performing 

their job duties, including but not limited to providing care to patients and placing 

patients in therapeutic holds. The majority of the affected employees are BHAs, 

who are responsible for direct patient care. Two-thirds of the documented incidents 

occurred during the evening and weekend shifts. 

Among other methods, feasible and acceptable means to abate the WPV hazards at 

HBHS include implementation of a comprehensive and effective WPV prevention 

program which includes engineering and administrative controls, as well as training 

to reduce WPV hazards. These controls include: 

Engineering Controls: 

1. Re-configure the nurses [sic] stations in the units, to include design features 

that prevent patients from jumping over, reaching into or over or otherwise entering 

into the workstations. Ensure items in the workstations, such as but not limited to 

hole punches, staplers, telephones, cords, pens, computers, computer peripherals, 

and other items are not accessible by patients, so they cannot be used as weapons. 

2. Provide all staff members with a reliable and readily available communication 

device, such as a walkie-talkie or panic alarm button, in order to rapidly and reliably 

summon assistance to minimize or eliminate employee injury from WPV. In 

addition, provide training and procedures on use and limitations of the equipment. 

3. Evaluate and subsequently replace or redesign furniture to assure that it cannot 

be used as a weapon to injury [sic] staff or other patients. 

Administrative Controls 

34 
 

 

 

 

 

4. Ensure that trained security or in-house monitoring staff continuously monitor 

security cameras for all units. 

5. Develop, integrate, and implement WPV policies and programs into one 

written comprehensive WPV Prevention Program (WPVPP). This WVPP must 

include: (1) A worksite specific hazard analysis that analyzes the worksite for risks, 

including but not limited to, potential weapons, potential for victims to be cut off 

from communication, delays in activating emergency alert systems, potential for 

physical entrapment of victim. The assessment should also include a records review 

and employee surveys to further assess potential risks; (2) the WVPP must address 

patient-on-employee violence and describe hazard prevention and control 

measures, providing clear written procedures for how employees should respond to 

patients making threats, showing aggression, and assaults; (3) The WVPP must also 

provide for the participation of direct care staff such as BHAs and RNs, e.g., 

through the committees that discuss WPV incidents; (4) Provide copies of the 

WVPP and make it readily available to all staff; (5) Annually review the WVPP 

and update as necessary. Solicit employee feedback during the review process; and 

(6) Provide bi-annual training on the WVPP to all staff. 

6. Designate specific staff with specialized training in security and/or hire trained 

security officers to monitor patients for potential aggression on all shifts and to 

assist in preventing and responding to violent events occurring in the units. Staff 

must have the physical capability to effectively respond to aggressive patients. The 

staff designated to monitor and respond to patient aggression should not be given 

other assignments such as patients rounds, which would prevent the designated 

person from immediately responding to an alarm or other notification of a violent 

incident. Conduct periodic drills for psychiatric crisis/patient aggression (currently 

known as Code Green) to allow all designated staff to practice and evaluate their 

skills in real-life settings. 

7. Establish a system to communicate to all affected staff members any incidents 

of WPV and/or escalating behavior to ensure that the on-coming staff members are 

notified and aware of a patients [sic] previous acts of violence or aggression. 

Information sharing should occur during shift changes as well as with other staff 

(such as food service employees) who may come into contact with aggressive 

patients. Assure that affected staff have dedicated time to review all intake 

information on a patient before working with them. 

8. Ensure safe staffing levels across all shifts to ensure adequate staff coverage 

for behavioral emergencies or other types of codes, one-to-one patient watch levels, 

and instances where patients are accompanied off the unit. 

Training 

9. Ensure all staff members who may come into contact with patients in the 

course of their work are trained in all elements of a comprehensive WVPP, 

including opportunities for them to be involved in evaluating and improving the 

35 
 

 

 

program. Training should specifically include: (1) When and how to call for 

assistance, including how to use emergency communication systems such as 

walkie-talkies, the overhead pager, and/or panic buttons; (2) Uniform and effective 

methods for responding to a Code Green or other type of WPV incident; (3) Handson exercises for de-escalation and restraint that include practice drills, and assault 

scenario drills to improve staff skills and confidence in responding to Codes, 

emphasizing the importance of team restrain. Include training tactics that teach selfextrication and escape. Assess the frequency needed for this training based on 

employees [sic] abilities; (4) How to contribute to a post-incident debriefing and/or 

root cause analysis; and (4) Properly wearing/storing badges/communication 

devices so they cannot be taken by patients. The hands-on exercises, practice drills 

and assault scenario drills should occur at least bi-annually. A staff member is not 

considered available to assist with incidents of WPV if they are not able to complete 

the training and/or they are not comfortable implementing the appropriate actions 

while working with aggressive patients. 

10. Conduct an investigation and debriefing after each act of WPV, including near 

misses, with the attached and/or injured employee and other involved employees, 

including root cause or similar analysis, lessons learned, and corrective actions to 

prevent reoccurrence. Maintain accurate records of patient assault on staff. Provide 

the attack and/or injured employee and other involved employees with an 

opportunity to provide feedback about specific measures that could prevent such 

future incidents. Review and evaluate each WPV related incident, both on a caseby-case basis and to monitor for trends in area with high rates of incidents such as 

the acute units. 

See Citation and Notification of Penalty at 6-8. 

B. General Duty Clause Standard 

The general duty clause requires every employer to provide its employees with a workplace 

“free from recognized hazards that are causing or are likely to cause death or serious physical 

harm.” 29 U.S.C. § 654(a)(1). Typically, in order to prove a violation of Section 5(a)(1) of the Act, 

Complainant must show: (1) there was an activity or condition in the employer’s workplace that 

constituted a hazard to employees; (2) either the cited employer or its industry recognized that the 

condition or activity was hazardous; (3) the hazard was causing or was likely to cause death or 

serious physical harm; and (4) there were feasible means to eliminate the hazard or materially 

reduce it. Waldon Health Care Ctr., 16 BNA OSHC 1052, 1058 (No. 89-3097, 1993). The 

evidence must also show the employer knew, or with the exercise of reasonable diligence, could 

36 
 

 

 

have known of the hazardous condition. See Otis Elevator Co., 21 BNA OSHC 2204, 2207 (No. 

03- 1344, 2007). 

As noted above, the parties stipulated to all but the fourth element of a general duty clause 

violation: whether there were feasible means to eliminate or materially reduce the hazard. Prior to 

addressing the feasibility and efficacy of Complainant’s proposed methods of abatement, however, 

Complainant must show “as a threshold matter, that the methods undertaken by the employer to 

address the alleged hazard were inadequate.” Integra Health Management, Inc., 2019 WL 1142920 

at *12 n.14 (No. 13-1124, 2019); see also Sea World of Florida, LLC v. Perez, 748 F.3d 1202 

(D.C. Cir. 2014) (holding adequacy of employer’s precautions against a hazard is measured against 

precautions taken by “a reasonably prudent employer familiar with the circumstances of the 

industry”). If Respondent’s existing means of abatement are determined to be inadequate as 

compared to precautions taken by a reasonably prudent employer, Complainant must then show: 

(1) the proposed measures are capable of being put into effect, and (2) those methods would be 

effective in materially reducing the incidence of the hazard.” See Integra Health Management, 

Inc., 2019 WL 1142920 at *12 (citing Beverly Enters., Inc., 19 BNA OSHC 1161, 1190 (No. 91-

3344, 2000) (consolidated)). 

C. Respondent’s Abatement Measures Were Inadequate 

Complainant asserts Respondent failed to take reasonably prudent measures to materially 

reduce the hazard of patient-on-staff violence. Complainant argues the inadequacy of 

Respondent’s attempts to mitigate the hazard are illustrated by the “frequent extent to which 

employees continue to be injured as a result of patient aggression.” Compl’t Br. at 55 (citing 

SeaWorld, 748 F.3d 1202, 1215 (D.C. Cir. 2014)). As noted above, and as agreed to by the parties, 

complete elimination of the hazard of workplace violence is not the appropriate metric under the 

37 
 

 

circumstances; and the standard does not require complete elimination of the hazard. (Jt. Stip. No. 

11). Respondent is only required to rid its workplace of preventable hazards. See Nat’l Realty & 

Constr. Co. v. OSHRC, 489 F.2d 1257, 1266–67 (D.C. Cir. 1973). Notwithstanding the 

unpredictable nature of psychiatric patients under duress, the Court finds Respondent’s method of 

abating the hazard of patient-on-staff violence is inadequate. 

Respondent contends Complainant failed to prove the inadequacy of its program in two 

principal ways: (1) the existence of injuries alone is not sufficient to establish Respondent’s 

program is inadequate, and (2) its WVPP contains the requisite building blocks OSHA 

recommends for developing an effective WVPP. With respect to (2), Respondent discusses the 

WVPP’s component parts, especially as it relates to its clinical management of patients, which it 

claims is “the best way to mitigate the hazard of Type 2 workplace violence.” Resp’t Br. at 50. The 

Court will address each position in turn. 

1. Respondent’s Injury Data 

One of the primary problems with Respondent’s argument regarding the incidence of 

injuries is Respondent’s failure to consistently collect good data. As discussed at length above, the 

way Respondent collected staff injury data was haphazard and inconsistent. At any given point 

during the inspection period and afterward, it appears there were multiple potential sources of 

employee injury data: Employee Accident Reports, which were discontinued and inconsistently 

used; HPR (MIDAS) reports, which are patient-based forms and only incidentally track employee 

injuries insofar as that information is entered into the “Comments” section; the Sedgwick hotline, 

which, more often than not, requires the employee to make the report; and the OSHA 300 logs, 

which should serve as a snapshot of all injuries but failed to include all injury data. (Ex. C-4 at 7 

to 9). The result is an incomplete picture of the number and severity of injuries that have occurred 

38 
 

 

at UHS-Highlands. This jigsaw puzzle of data leads to a number of problems, including: injuries 

that were not recorded; injuries that were documented but missing information; and, perhaps most 

importantly, insufficient data to establish trends and, thus, measure effectiveness of a particular 

abatement/intervention. (See, e.g., Ex. C-4 at 6 to 7). As an example, CSHO Stark noted 

Respondent provided her with 4 EARs for 2018, only one of which corresponded with an injury 

listed on the OSHA 300 log for that year. (Ex. C-4 at 9). Given this inconsistency and considering 

CSHO Stark identified 31 EARs filed in 2017, she reasonably concluded the data for 2018 was, at 

best, incomplete. (Ex. C-4). 

Further, even if the Court accepts as accurate the data as Respondent collected and reported 

it (it does not) and as CSHO Stark summarized, there is no adequate foundation on which the Court 

could reasonably conclude Respondent’s focus on clinical management of the hazard has been 

effective in reducing patient-staff violence. What Respondent characterized as a “slight reduction” 

in workplace injuries is a change from 8 recorded injuries in the OSHA 300 log to 7.17 While a 

reduction in injuries is certainly a worthy goal and evidence of effectiveness, the number alone is 

not particularly convincing when the number of record injuries was reduced by one, but the number 

of workdays lost to such injuries multiplied by three over the same time period. (Ex. C-4). 

Additionally, though Complainant did not make comparisons to national averages, or its own 

internal benchmarks, the Court does not find any such comparison would have been useful given 

the unreliability of Respondent’s data and any conclusions derived from it. As noted by the D.C. 

Circuit, “‘[H]azardous conduct need not actually have occurred,’ or have occurred at any particular 

rate, for an employer to be liable.” BHC NW Psychiatric Hosp. LLC v. Sec’y of Labor, 951 F.3d 

17. The Court focused, in particular, on the years 2017 and 2018, because they represent two “complete” years of data 

prior to the issuance of the citation. As noted by CSHO Stark, the data from 2019 was incomplete. (Ex. C-4 at 7). The 

years before, 2015 and 2016, also show a downward trend; however, the Court is skeptical of the data and any 

conclusions derived from it based on the inconsistencies identified by CSHO Stark. 

39 
 

 

 

 

 

 

 

 

558, 565 (D.C. Cir. 2020) (quoting Nat’l Realty, 489 F.2d at 1267). More specifically, the court 

held the general duty clause is not concerned with how an employer’s accident rate compares 

internally or to the industry as a whole; rather, the key question, as always, is “whether a reasonably 

prudent employer familiar with the circumstances of the industry would have protected against the 

hazard in the manner specified by the Secretary’s citation.” Id. (citing SeaWorld, 743 F.3d at 1207). 

The existence of injuries was not the sole basis supporting the Complainant’s assertion the 

Respondent’s workplace prevention program was inadequate as is more fully explicated herein. 

2. Respondent’s Existing Program 

Respondent repeatedly asserted clinical management of patients is the most effective 

method to prevent patient-on-staff violence in an inpatient psychiatric hospital. Included under the 

rather broad umbrella of Respondent’s methodology of patient management to curb aggression 

are: proper evaluation and diagnosis, clinical care, monitoring patients and managing the milieu, 

de-escalation, medication management, and treatment by physicians and other direct care staff. 

Resp’t. Br. at 51. Respondent also claims its WVPP exceeds the recommendations in the OSHA 

Guidelines for Preventing Workplace Violence for Healthcare and Social Service Workers. (Ex. 

C-65). The Court has addressed many of these issues in Section III.C.4, supra. 

Dr. Argumedo and Dr. Lipscomb, as well as Respondent’s direct care staff, agreed effective 

patient management is vital to addressing workplace violence; however, they also testified patient 

management is only one piece of a comprehensive WVPP and identified a number of areas where 

patient management alone was insufficient, or, at the very least improperly carried out. For 

example, as noted above, treatment plans were generated for patients as part of the mandatory 

restraint and seclusion paperwork; however, a review of those treatment plans showed they were 

mostly pro-forma, identical for nearly each patient for whom they were completed, and not 

40 
 

reviewed by staff. (Tr. 419-420, 686; Ex. C-42). In some instances, multiple treatment plans were 

generated for the same patient with no change in the form or documentation within the same file. 

(Ex. C-42 at 17, 26). Respondent pointed to its use of individualized safety plans as a clinicalbased method for controlling violent behavior; however, Dr. Argumedo only found one such plan 

out of 80 files she reviewed in this case. (Tr. 1489, 1600). She also noted the plans themselves 

were not timely implemented nor timely modified when it was apparent the plan did not work. (Tr. 

1489, 1499-1502, 1600). In one instance, a behavior plan was not implemented until a patient had 

already committed 10 acts of aggression towards staff and, even after its implementation, the only 

actual changes were related to medication. (Tr. 1494-1502; Ex. C-49). Consistent with 

Complainant’s criticism of Respondent’s program being patient-focused but not designed to 

address care staff safety, the behavior plans directed how a patient should manage his/her own 

behavior, not how staff should work with the patient. (Tr. 1495). 

Dr. Argumedo also identified failures in the admissions process, including numerous 

patients whose history indicated a violence risk but whose file indicated no- or low-risk of 

violence, a lack of consistency in how forms were filled out and inadequacies in the transmission 

of information regarding an incoming patient to direct care staff. (Tr. 1469-1474; Exs. C-13, R-8). 

Dr. Argumedo was also critical of how the milieu was managed to the extent that acuity did not 

appear to be a consideration in admissions and identifying examples of highly acute patients being 

admitted to a unit already housing multiple patients with high acuity and low staffing. (Tr. 1449-

1459). 

As argued by Complainant, neither OSHA nor this Court are positioned to second-guess 

how patients are managed for the purposes of providing therapeutic care. That said, while 

Respondent’s methodologies for patient management might be sufficient for the purposes of 

41 
 

 

 

 

providing medical care to its patients, those methods alone are not adequate for addressing the 

discrete hazard of patient-on-staff violence. This is best illustrated by the fact that multiple patients 

were involved in repeated acts of aggression towards staff and yet their files do not indicate 

changes to their therapeutic care or management designed to prevent the repeated acts of violence, 

some of which were directed at the same staff member who was the subject of the initial act of 

aggression. (Tr. 438, 662-663, 1725-1745, 3302; Ex. C-42, C-46). 

In addition to clinical management, Respondent touts its training program, including its 

workplace violence power point presentation, which Respondent argues is fundamental to its 

clinical approach towards identifying signs of patient aggression which may lead to assaultive 

behavior and corresponding methods of early intervention and management to prevent such 

behavior. (Ex. C-12). Per the guidelines, Respondent also provides de-escalation and selfdefense/restraint training (HWC) to its employees to deal with an aggressive patient. 

Respondent appears to suggest any problem with its training program was not its failure to 

comport with the OSHA Guidelines or that its methodologies were inadequate for the task, but 

only its employees’ failure to understand certain aspects of their training were related to the WVPP. 

Not only does this highlight a key problem with Respondent’s WVPP—namely, the patchwork 

nature of its presentation and implementation—but it does not begin to identify the inadequacies 

of its program. 

First, as explained by Dr. Lipscomb, Respondent’s training cannot be limited to Deescalation, HWC, and clinical management of its patients; instead, Respondent’s training program 

must be comprehensive. Not only should training include the WVPP itself, training which neither 

Ms. Orr nor Ms. Petschauer could confirm took place, but it should set a clear standard for how 

violence is defined, how it should be reported, when it should be reported, how staff can participate 

42 
 

 

 

 

in the process to improve the WVPP consistently with milieu experience, and provide examples 

of patient-on-staff violence and how to properly respond. (Tr. 3695, Ex. C-62 at 51). According to 

Dr. Lipscomb, simply training staff on de-escalation and HWC is insufficient without generating 

an understanding of their context within the entire scheme of workplace violence prevention, and 

the Court agrees. (Ex. C-62 at 51). To suggest, as Respondent has, the failure to understand the 

context of workplace violence training inures to its employees is to fundamentally misunderstand 

an employer’s role to ensure its employees are properly trained. 

Second, although Respondent has a program to track training, it appears most of 

Respondent’s veteran staff was overdue for HWC and verbal de-escalation training by months if 

not years without evidence of adequate effort on Respondent’s part to bring them up to planned 

training level. This is particularly problematic because over 60% of staff injuries occurred during 

the process of implementing a hold. (Ex. C-4). Along the same lines, Respondent did not present 

any evidence showing the power point presentation on the WVPP was presented to its employees, 

and many employees who testified did not recall seeing the document at any point during their 

tenure at UHS-Highlands. 

The WVPP has a substantial problem at its foundation which impacts Respondent’s ability 

to identify, track, and respond to workplace violence: the lack of a clear definition of workplace 

violence. Respondent’s WVPP targets what is characterizes as “Type 2” violence, which is defined 

as “violence committed by patients on staff members”.18 (Ex. C-11 at 1). However, as noted by 

Dr. Lipscomb, without an adequate definition of workplace violence, Respondent’s ability to track, 

predict, and respond to violent incidents is limited. Interestingly, Respondent’s Power Point 

18. Interestingly, though Respondent’s WVPP definition is vague and unhelpful, Respondent stipulated to a much 

more nuanced definition of workplace violence, which the parties defined as “violent or assaultive behavior or patients 

toward staff”. (Jt. Stip. No.7). 

43 
 

 

 

presentation, which was purportedly introduced during orientation—though employees dispute 

ever having seen it—includes a more comprehensive definition of workplace violence, which 

includes physical attacks “resulting in any degree of injury”, verbal or written threats “that express 

the intent to cause physical harm”, and stalking, harassment, or intimidation. Short of an attack 

resulting in injury that was self-reported by an employee or that warranted management review, 

none of these more thoroughly included acts of violence were tracked, nor does it appear actions 

were taken to prevent them from occurring or recurring. 

An overarching issue in this case is whether Respondent provided adequate staffing. 

Respondent contends Complainant failed to show “specific data” to establish understaffing was a 

systemic issue or that having more staff would have materially reduced the hazard of patient-onstaff violence. Respondent also argues Complainant failed to show its staffing levels were below 

what is provided at comparable facilities or what would have been adequate given the 

circumstances at UHS-Highlands. Although Respondent contends the testimony of its staff 

members, alone, is not sufficient to show it was understaffed or that more staff would have 

materially reduced the hazard, the Court disagrees. First, the complaints regarding insufficient 

staffing were not limited to a couple of dilettantes unhappy with the amount of work they had to 

perform as alleged by the Respondent. Staffing inadequacy was a constant refrain in years’ worth 

of surveys, shift handoff paperwork, resignation letters, and employee complaints to management. 

(Ex. C-22, C-21, C-22, C-33). Nearly every employee who testified before this Court stated they 

had worked on shifts, typically evening and overnights, where there were as few as one or two 

people on a unit. This resulted in Code Greens that were not responded to or that required multiple 

calls for help because too many staff were designated to perform one-to-ones or other tasks which 

prevented them from responding to codes; only one or two employees performing holds even 

44 
 

 

 

 

 

 

 

 

though they were trained such holds required at least three to perform; and, as a more extreme 

example, situations such as those described by Ms. Graumann, who was required to work a shift 

alone on more than one occasion. (Tr. 600). Though these employees could not identify specific 

dates,19 it is clear to this Court these were not isolated occurrences but were merely part of the job 

as experienced by Respondent’s employees. Respondent attributes many of these hazardous 

situations described by its employees to uncontrollable call-outs, where employees canceled or 

failed to show up for scheduled shifts, but this merely elucidates the challenges encountered by 

the Respondent in the development of its WVPP. It does not illustrate how its WVPP is designed 

to address such hazards. Respondent knew it had a problem with call-outs and could have 

addressed that specific problem through other means. Additionally, from what the Court can infer, 

many of the call-outs were a result of the staffing problem in the first instance. Finally, the fact 

that a UHS-Delaware Divisional Nursing Director’s audit found even perfect staffing in 

accordance with the matrix would have made it difficult for Respondent’s employees to perform 

basic duties on a consistent basis, let alone “handle multiple admissions and/or manage an acute 

unit”, identifies the WVPP’s shortcomings both from a staffing perspective as well as a clinical 

one. 

In summary, Respondent’s attempts to abate the hazard of patient-on-staff violence were 

inadequate for several reasons.20 Respondent’s primary response to the hazard of patient-on-staff 

violence is to focus on the patient, but this has resulted in a patchwork of policies, some of which 

are only tangentially related to the hazard. This is best illustrated by the multitude of forms 

19. The Court would not expect employees to remember exact dates during which they were short-staffed. To the 

extent Respondent suggests this is a problem of credibility, the Court finds the testimony of these staff members was 

truthful in light of the detail provided about the specific incidents attested to, as well as the fact that each employee 

appeared to have similar, repeated experiences. 

20. Due to the substantial overlap of the issues, some of these matters have been discussed in Section III.C, in this 

section, as well as in Section IV.D, which discusses the specific abatements proposed by Complainant. 

45 
 

 

 

Respondent introduced into evidence to demonstrate its commitment to reducing workplace 

violence which were either (1) the same for every patient, thereby undermining its claim such 

forms had value as individualized responses to particular patient behaviors, or (2) were left blank. 

As noted by Complainant, Respondent introduced several blank forms that purported to exemplify 

its methods to manage aggressive patient behavior, including Managing Aggressive Patient 

Protocol, Promoting Patient Safety Review, Expectations for Aggressive Behaviors, Picture of a 

Safe Milieu, Assaultive/Aggressive Individual Treatment Plan, Safety Plan, and the Situational 

Awareness Communication Tool. (Ex. R-20, R-23, R-22, R-24, R-25, R-29, R-36). Without any 

testimony as to how these forms were used in any specific case or related to any specific behaviors 

encountered in the workplace, or even evidence to establish consistent implementation, it is 

impossible for the Court to conclude they effectively served the purpose for which they were 

designed. Accordingly, on this, and the other grounds discussed above, the Court finds Respondent 

failed to properly address the hazard of patient-on-staff violence. 

D. Complainant’s Proposed Abatement Measures 

As stated previously, Complainant must show: (1) the proposed measures are capable of 

being put into effect, and (2) those methods would be effective in materially reducing the incidence 

of the hazard. See Integra Health Management, Inc., 2019 WL 1142920 at *12 (citing Beverly 

Enters., Inc., 19 BNA OSHC 1161, 1190 (No. 91-3344, 2000) (consolidated)). For the most part, 

Respondent does not seriously challenge whether the proposed abatements are capable of being 

put into effect; in fact, Respondent has implemented, or begun to implement, many of these 

proposals since the inspection. Instead, the remaining key issue is whether the proposed 

abatements would be materially effective at reducing, albeit not eliminating, the hazard. 

46 
 

 

 

 

 

The standard for assessing whether a particular abatement proposal would be materially 

effective at reducing the hazard is not necessarily mathematical. In BHC Northwest Psychiatric 

Hospital, the D.C. Circuit held: 

Contrary to Brooke Glen’s assertions . . . , the Secretary need not quantify the extent 

to which that program and its component parts “would have materially reduced the 

likelihood” of patient-on-staff violence, Nat’l Realty, 489 F.2d at 1267. Instead, the 

Secretary satisfied the General Duty Clause’s test by establishing that a 

comprehensive workplace safety program would more effectively and consistently 

apply measures designed to reduce patient-on-staff violence than Brooke Glen’s 

present system did. 

BHC NW Psych., 951 F.3d at 565. In that respect, the courts have found expert testimony, insofar 

as it is reliable, is sufficient to establish a particular abatement method would materially reduce 

the hazard. See Integra Health Mgmt., 2019 WL 1142920 at *13-14 (finding expert testimony 

regarding material reduction of hazard of workplace violence sufficient without requiring expert 

to quantify extent of reduction). Effectiveness of a particular abatement proposal can also be 

established through successful use of a similar approach elsewhere and compliance with industry 

standards. See Pepperidge Farm Inc., 17 BNA OSHC 1993 (No. 89-265, 1997). 

Complainant does not attempt to specify a fully evolved violence prevention plan for the 

Respondent to implement, but rather leaves discretion in the hands of the Respondent to adapt, try, 

and modify suggested abatement measures to address the needs and circumstances of its facility. 

It is acceptable for Complainant to propose a process-based approach to abatement. See 

Pepperidge Farm Inc., 17 BNA OSHC 1993 (“[W]here actual injury is present and substantial 

causation has been shown, the Secretary may require [an employer] to engage in an abatement 

process, the goal of which is to determine what action or combination of actions will eliminate or 

materially reduce the hazard.”). Complainant asserts the package of abatement measures proposed, 

either as a whole or in part, will serve to materially reduce the hazard of workplace violence even 

if the Court determines any specific abatement proposals do not meet the two-prong test for 

47 
 

 

 

feasibility. Accordingly, the Court does not find affirmation of the Citation will rise or fall based 

upon Complainant’s ability to prove each and every one of the proposed abatement measures will 

result in significant reduction of workplace violence standing alone, but rather considers whether 

each is a feasible element of a more effective WVPP under the general duty clause. 

1. Nurse’s Stations 

As discussed at length above, CSHO Stark discovered and staff testified to multiple acts of 

aggression and injury that occurred behind the nurse’s station: patients have climbed/jumped over 

the counter to attack staff, patients have reached across the counter to stab or punch staff, and 

patients have grabbed the phone and used it as a weapon. Further, the door to the nurse’s station 

just swings open and does not lock, which allows patients to enter without having to jump or climb 

over the counter. As noted by the Divisional Nursing Director, this allows patients an opportunity 

to access items behind the station when staff is away from the desk performing other duties. 

Respondent contends, consistently with OSHA and Joint Commission Guidelines, it determined 

the nurse’s station configuration is appropriate based on a balance between the need to protect 

employees from violent acts and the need to maintain a therapeutic atmosphere for its patients. 

Further, Respondent contends there is no scientific study to indicate changing the nursing station’s 

configuration would materially reduce the incidence of violence or assault; rather, Respondent 

suggests such a barrier would only change the location of the assault. 

As regards feasibility, there is no evidence to show changing the configuration of the 

nurse’s station is not capable of being put into effect. The Court does not perceive, nor does 

Respondent argue, any barrier to modifications such as raising the counter height, installing a lock 

on the entrance, or other change to decrease the possibility of a patient accessing the station. In 

48 
 

 

 

 

 

 

fact, according to Lori Ayala, at the time of the trial, the process was already under way to modify 

the nurse’s station to raise the counter height. (Tr. 3293). 

The Court also finds modifying the nurse’s station to prevent entry or reaching/jumping 

over the counter would materially reduce the hazard of patient-on-staff violence. This conclusion 

is based on the testimony of all the experts, as well as a dose of common sense. Both Dr. Argumedo 

and Dr. Lipscomb agreed a change to the nurse’s station to limit patient access would have 

prevented many of the violent interactions documented by CSHO Stark and testified to by 

Respondent’s staff. Even Dr. Cohen acknowledged an enclosed nurse’s station with locking doors 

would have prevented some of the assaults. (Tr. 2684-2692). While Respondent spent much of the 

trial attacking the concept of an enclosed station because it would have a negative impact on the 

therapeutic milieu, this characterization amounts to a straw man. Although enclosure of the station, 

including full barrier installation, was considered, it was not part of the recommended abatement 

measure; rather, the focus was on a targeted modification which prevented the types of violent acts 

presently occurring at the nurse’s station. 

Respondent also seems to suggest any such modification would not reduce violent assaults 

because a barrier will only slow or delay a patient who is determined to cause harm to staff. Resp’t 

Br. at 61. This is not a convincing argument to oppose any of the proposed abatements, because it 

seems to suggest there is no way to prevent violent acts in the first instance, which similarly calls 

into question the efficacy of Respondent’s methods to prevent violent acts, including clinical 

management. The parties have stipulated complete elimination of patient-to-staff violence is not 

feasible, but the Court does not accept this as a reason not to take reasonable steps to reduce the 

incidence or severity. The Court finds, at a very basic level, a modification to the nurse’s station 

would prevent at least some of the type of assaults identified in this case by limiting the opportunity 

49 
 

 

 

 

 

 

 

or temptation for such assaults to occur and\or delaying patient activity long enough for staff to 

implement other preventative measures. 

Finally, as regards this and other proposed methods of abatement, the Court would like to 

discuss the Blando study referenced by Dr. Cohen, which suggests a disparity between staff 

members’ perception of safety based on abatement measures and the actual impact of those safety 

measures. (Ex. R-73). While the study found “elements of the workplace that might make nurses 

feel safe might not actually result in a lower risk of assault”, the study itself considered disparate 

perceptions of safety between two populations of nurses: those working in emergency departments 

and those in psychiatric departments. Ultimately, the key finding was that variances in perceptions 

of safety were based on personal experience, noting in particular the perceptions of emergency 

room nurses: “[Emergency Department] nurses and psychiatric nurses perceive their safety 

differently, which is likely the result of the particular characteristics of the environment where they 

work, their background and how each group defines ‘violence’.” (Ex. R-73 at 8). The Court places 

little weight on the conclusions derived from this study as it relates to any particular abatement 

proposal in that it does not meaningfully assess the basis for differences between perceptions of 

nurses and verifiable impact on safety in any meaningful way. 

2. Reliable Communications Devices 

As with the modification of nurse station configuration proposal, the Court finds this 

abatement not only capable of being put into effect, but also likely to materially reduce the 

incidence of injury from workplace violence. First, since the inspection, Respondent has purchased 

additional radios and made them more readily available to direct care staff, which belies any 

argument the proposed abatement is not capable of being put into effect. Second, the Court finds 

any argument this would not materially reduce the likelihood of injury from patient attacks is 

50 
 

 

 

 

 

specious, especially under the facts of this case. For example, [redacted] testified she needed to 

send a patient to get help when she was in the process of performing a hold on a violent patient. 

(Tr. 1148). Likewise, Jennifer Ranus testified she and two other employees needed help controlling 

a patient in the exam room but could not get the attention of other staff on the unit even though 

they were screaming, resulting in one of the employees being injured. (Tr. 1737-1738). Further, 

multiple employees testified there were times they were left alone on a unit and would not be able 

to call out to other employees or use the phone at the nurse’s station if they were performing rounds 

or other duties. If each employee was equipped with a panic alarm or radio, the employees 

discussed in the foregoing scenarios could have more quickly summoned help, which, in at least 

one instance, could have prevented, or at least lessened, the possibility of injury. 

As with the previous abatement discussion regarding the nurse’s station, Respondent 

argues the ability to summon assistance quickly and effectively “would not necessarily prevent a 

patient from becoming violent.” Resp’t Br. at 64. For much the same reasons, the Court finds this 

argument unavailing. The abatement proposals under consideration are not solely about preventing 

an individual from being violent, but also about preventing injury and/or exposure to such hazard. 

If an employee is capable of summoning help quickly and effectively, this will reduce the 

likelihood of having to engage a violent patient alone, which the evidence shows impacts an 

employee’s ability to safely perform a hold. Given the staffing issues identified throughout this 

case, it is not unusual for one of Respondent’s employees to be alone, rendering apparent the need 

for each employee to have a communications device available to him/her at all times. Accordingly, 

the Court finds this method of abatement is feasible under the general duty clause. 

3. Replace/Redesign Furniture 

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The OSHA Guidelines recommend securing furniture and other items that could be used 

as weapons. Also, like the discussion regarding the nurse’s station, the Guidelines note it is 

important to strike a balance between creating an appropriate atmosphere for the services provided 

and securing furniture to prevent acts of violence. With respect to this recommendation, the Court 

finds the abatement proposal is both capable of being put into effect and likely to reduce the 

probability and severity of injury from a patient using furniture as a weapon. Respondent does not 

necessarily disagree, because it already adds weight to pre-weighted chairs and replaces and/or 

updates its furnishings “as design and industry standards change.” Respondent’s primary issue 

with this abatement proposal is that certain pieces of furniture, such as cafeteria chairs, should not 

be bolted down due to sanitary reasons, such as the need for frequent floor cleaning. This is 

Respondent’s prerogative according to the Guidelines and something that might require situational 

planning room by room, but it in no way detracts from a finding of feasibility. The evidence shows 

patients have used furniture as projectiles, which could injure staff. Thus, the Court finds this 

abatement proposal would be feasible. 

4. Continuous Monitoring of Security Cameras 

The evidence as to the effectiveness of this abatement proposal was minimal. The Court 

does not see any particular barriers to implementing the proposal; however, the answer to that 

question is mostly related to staffing. As for effectiveness, the Court finds there is little evidence 

to show a dedicated individual or individuals watching security camera footage from 120 different 

cameras simultaneously for 24 hours every day would enable Respondent’s staff to respond to acts 

of violence more quickly than ensuring each team member has an adequate means to call for 

assistance. With the exception of the one instance where Mr. Harriot, who just happened to be 

looking at the monitors at the right time, was able to respond quickly to an assault prior to the 

52 
 

 

 

 

 

 

 

 

 

Code Green being called, there was little to no evidence presented to show the proposed monitor 

would be able to (a) identify an imminent assault without the aid of sound, which the cameras do 

not have; (b) respond more quickly than employees on the unit from an as-yet-undefined location 

where they were watching what would no doubt be an unwieldy bank of monitors; or (c) call for a 

Code Green more quickly than the employee engaged with the patient, especially if, as discussed 

above, the direct care employees are consistently equipped with a communication device, such as 

a walkie-talkie or panic alarm. 

The metric for feasibility is whether a particular form of abatement will be “materially 

effective” at reducing the hazard. While there may be some minor, potential benefit, the evidence 

presented at trial failed to convince the Court this element of Complainant’s comprehensive 

approach would provide a material reduction of the hazard when compared to an increase in staff 

and on-hand communications devices. 

5. Comprehensive WVPP 

In addition to the shortcomings identified above in Sections II.C.4 and others, supra, the 

Court notes a few additional problems with Respondent’s WVPP to highlight the importance of a 

comprehensive program. Dr. Lipscomb took great pains to identify specific aspects of a WVPP 

which are essential to both preventing patient-on-staff violence and explain how those specific 

elements work together to form a comprehensive approach to patient-on-staff violence. 

Respondent contends its program in place at the time of the inspection was based on the OSHA 

Guidelines, was comprehensive, and, according to Dr. Cohen, was above the standard of care for 

acute psychiatric facilities. For the reasons identified by Dr. Lipscomb in her testimony and expert 

report, including the OSHA Guidelines, the Court finds Respondent’s WVPP fell short in 

numerous respects and that Complainant’s proposed abatement is feasible. 

53 
 

 

 

 

 

Clearly, the proposed abatement measure is capable of being implemented, as Respondent 

technically has a WVPP, albeit one which is inadequately constructed and poorly implemented. 

Thus, as with most of the proposed abatement methods, the question is whether Complainant’s 

abatement proposal “would more effectively and consistently apply measures designed to reduce 

patient-on-staff violence” than Respondent’s WVPP. BHC NW Psych., 951 F.3d at 565. The Court 

finds the following factors illustrate that it would. 

According to Dr. Lipscomb, management commitment to the WVPP is a foundational 

element of the safety program because it supports other program elements, such as risk analysis, 

hazard control, training, and evaluation/recordkeeping. (Ex. C-62 at 12). Without management 

commitment, Dr. Lipscomb opined the WVPP is just a paper exercise. (Tr. 3633). The most notable 

deficiencies in Respondent’s current workplace violence prevention procedures relate to 

Respondent’s implementation of its own program elements. Respondent’s WVPP sets a goal to 

reduce restraints and seclusion below the UHS benchmark and to reduce employee injuries 

resulting from patient aggression by 20%. (Ex. C-11 at 1). The problem, as noted repeatedly above, 

is Respondent does not adequately track employee injuries, nor does it consistently define 

workplace violence such that there is a benchmark to identify what, exactly, constitutes an act of 

violence and how the incidence has been accurately recorded and measured. This failure prevents 

any meaningful collection of data to show a reduction in staff injuries resulting from patient 

aggression. Further, given the disparate sources of data, Respondent is unable to adequately 

comply with the second element of Management Commitment, which is to record, report, and 

monitor all acts of patient aggression. 

Dr. Lipscomb and the OSHA Guidelines identify Employee Participation as another 

fundamental element of a comprehensive WVPP. In particular, Dr. Lipscomb noted the risk of 

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workplace violence is not monolithic and reduction of the risk requires multiple perspectives, 

including the viewpoints of the individuals who confront that risk on a daily basis. (Tr. 3643). 

Similarly, the Guidelines indicate employees can provide useful input through committees 

discussing reports of violent incidents, facility design, and policies and procedures which impact 

safety. (Ex. C-65 at 12). The “Employee Participation” section in Respondent’s WVPP includes 

none of these elements but is instead predominantly focused on staff obligations with respect to 

patients. Respondent’s witnesses testified about the number of committees and meetings it holds 

with respect to workplace violence, including the PIC and PSC committees, but direct care staff 

were not members of those committees. Instead, they were told they could come to those meetings, 

even though the staffing levels on the units likely prevented their ability to do so. Further, though 

Respondent distributed employee surveys, there is no indication management entertained, let alone 

responded to, its employees’ repeated entreaties regarding staff and communication inadequacies21 

In order to assess the effectiveness of the program as a whole, as well as any particular 

intervention within the program, Dr. Lipscomb highlighted the importance of methodical hazard 

analysis. As noted previously, this requires both a clear definition of workplace violence and the 

establishment of a clear and effective policy for reporting and documenting incidents of violence. 

(Tr. 3627-3630). The evidence discussed throughout this Decision illustrates Respondent’s WVPP 

lacked both or, at the very least, its protocol for reporting and documenting incidents of violence 

was poorly implemented. For example, employees testified about injuries and incidents that either 

went unreported or unrecorded. The platforms for reporting incidents of workplace violence were 

not designed for that purpose, i.e., HPRs (MIDAS) reports. See, e.g., BHC NW. Psych Hosp., 951 

F.3d 558 (D.C. Cir. 2020). In that respect, not only is the underlying data questionable, but there 

21. Indeed, as noted above, these requests extended beyond the survey responses and started popping up in shift handoff reports, which were also disregarded. 

55 
 

 

 

is a total lack of tracking and trending of workplace violence. Contrary to Ms. Petschauer’s claims, 

the only documented reports of trends came from CSHO Stark’s analysis of OSHA 300 logs, 

EARs, and MIDAS. (Ex. C-4). Ultimately, Respondent’s WVPP uses the language of the OSHA 

Guidelines and Joint Commission’s Sentinel Alert, but its components bear little relationship to 

the actual purpose of a comprehensive WVPP. 

Dr. Lipscomb’s testimony was not limited to identifying the problems with Respondent’s 

WVPP, nor did she rely solely on the OSHA guidelines and industry standards to illustrate the 

necessary components of a comprehensive WVPP. Dr. Lipscomb also supported her conclusions 

by reference to a comprehensive study,22 which showed implementing the OSHA guidelines was 

effective in reducing the risk of patient-on-staff violence by 60% within 24 months of their 

implementation. (Tr. 3613; Ex. C-62 at 32, C-68). In addition to this study, Dr. Lipscomb identified 

other behavioral health facilities that experienced reductions in staff injuries due to patient assaults 

after fully implementing a comprehensive WVPP. (Tr. 3663-3664; Ex. C-62 at 32, C-70). 

Respondent did not introduce any persuasive countervailing evidence. Accordingly, the Court 

finds Complainant established the implementation of a comprehensive WVPP is feasible. 

6. Designated Security Staff 

To start, it is important to note what, exactly, Complainant is proposing. Respondent 

categorically interprets this abatement proposal to mandate the presence of a uniformed, armed 

security force, whose sole responsibility is to respond to acts of patient aggression, without giving 

due consideration to other options. While that is one method by which a security staff could be 

utilized, another method would be for Respondent to re-institute its QSR program in a sustained 

and carefully designed manner. Because the QSR program has been used in the past, it is capable 

22. Indeed, it was a randomized clinical trial, which Dr. Lipscomb referred to as the “gold standard”. 

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of being implemented. The fact that Respondent ended the program does not speak to either its 

ability to be implemented or its effectiveness, because, as discussed above, it was never truly 

implemented as it was designed, and was only ended due to purported budgetary restraints. 

Respondent’s objection to the idea of a dedicated security staff is two-fold: (1) Respondent 

claims the presence of a uniformed force would have a negative impact on the therapeutic 

environment, and (2) Complainant failed to provide competent, scientific evidence regarding the 

efficacy of its proposal. The Court finds Respondent’s arguments are unpersuasive and, 

consequently, that Complainant established the feasibility of this measure. 

First, Respondent’s assertion regarding the presence of uniformed security officers’ 

negative impact on the therapeutic environment appears to be no more based on persuasive 

scientific or practical evidence than Respondent’s assertions regarding their effectiveness (or lack 

thereof). Dr. Cohen cited three articles he claims indicate a negative correlation between the 

presence of security staff and the therapeutic environment. However, upon a closer review of those 

articles, the Court finds Dr. Cohen overstates the conclusions contained therein.23 For example, 

the Shannon article indicated some reporters described the presence of security as countertherapeutic, whereas others found their presence resulted in a more therapeutic ward. (Ex. R-72 at 

323). These differences of opinion appear to be attributable to significant uncontrolled variables 

in employment relationships, role function, and training of the security employees being 

considered. (Id.). The other articles cited for this proposition do not render any conclusions about 

security personnel specifically, but instead discuss the concept of increased staffing generally. 

Equally unpersuasive, Respondent’s other witnesses discussed their individual feelings about the 

23. It is interesting to note Dr. Cohen testified Olive View, where he works, has a dedicated security force. (Tr. 2722-

2724). While he expressed his personal displeasure at their presence, he could not say how or whether they affected 

the patients. Dr. Argumedo also testified security has been present at every facility she has worked in without any 

perceptible negative effects. (Tr. 1537). 

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presence of security officers but none of them identified any cognizable basis upon which to find 

the use of designated security staff, whether uniformed or otherwise, was ineffective, infeasible, 

or even contraindicated for the therapeutic environment. Further, notwithstanding Respondent’s 

claims regarding the effectiveness of security personnel, the police are often summoned to UHSHighlands to address violent incidents which exceed the ability of Respondent’s staff to control. 

Thus, it could be said Respondent already relies on a uniformed security force as an effective 

means to address violence at its facility. 

Second, Complainant identified multiple foundations to support a finding that the 

implementation of a security staff would be effective in materially reducing the hazard of 

workplace violence. Both the OSHA Guidelines and the Joint Commission’s Sentinel Alert 

identify providing security as a potential method of addressing workplace violence, especially 

when properly trained in the “psychological components of handling aggressive and abusive 

clients.” (Ex. C-65 at 25, 32, Ex. C-67 at 3, 6). Similarly, as noted by Dr. Lipscomb, a document 

entitled “Caring for Our Caregivers, Preventing Workplace Violence: A Road Map for Healthcare 

Facilities” identified multiple facilities that had successfully reduced violent injuries to staff by 

implementing a security staff with training in de-escalation, security, and mental health. (Ex. C66 at 21-23). See Beverly Enters., Inc., 19 BNA OSHC at 1191 (finding abatement measures may 

be required even if the practice is not yet industry standard); Gen. Dynamics Corp., Quincy 

Shipbuilding Div. v. OSHRC, 599 F.2d 453, 464 (1st Cir. 1979) (same). 

This proposal is inextricably linked to the issue of adequate staffing, which the Court 

addressed at length in Section III.C.2, supra, and found to be lacking at UHS-Highlands. 

Respondent identified Code Green responders on a per shift, per unit basis, but this was mostly lip 

service, as those employees were simultaneously assigned duties, such as observation rounds and 

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patient transport, which prevented them from participating in Code Greens or other emergency 

response. The Court agrees with Dr. Lipscomb that the QSR position could serve as a solution to 

this issue, so long as the designated individuals were not counted in the staffing matrix, which is 

targeted to meet other shift requirements, and not assigned duties which prevented them from 

immediately responding to a Code Green. (Tr. 3679). The Court finds Complainant established the 

implementation of a “dedicated” security staff would materially reduce the hazard and would, 

therefore, be feasible under the general duty clause. 

7. Communications 

Complainant argues, and Respondent does not seriously dispute, an effective 

communication program is critical for relaying vital information about incidents of workplace 

violence, escalating behavior, and patient history so that staff members can be prepared for and 

respond to acts of patient aggression. There is no question such a program is capable of being 

implemented, because Respondent has policies regarding the exchange of information from intake 

to the unit, between shifts on a particular unit (shift handoff reports), and through 

meetings/committees such as the PIC, PSC, and treatment team meetings. Respondent’s difficulty 

lies not in the lack of a program requiring vital communications among staff but in the way it has 

implemented its system of communicating hazards. The Court has already reviewed these failures 

in Section III.C.3, supra. Accordingly, the Court finds Complainant has established this abatement 

proposal is feasible. 

8. Staffing 

As with Complainant’s other proposed abatement methods, the Court has addressed the 

issue of staffing at length in Sections III.C.2 and IV.C.6, supra, and incorporates those findings 

here. Because this issue is clearly the most contentious of Complainant’s abatement regime, there 

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are a few items on which the Court will focus in more detail in addition to the two prongs of the 

feasibility question. Ultimately, however, the Court finds Complainant established the feasibility 

of this proposed abatement measure. 

There is a wide discrepancy between what Respondent says it does with respect to staffing 

and what actually happens. Respondent has a matrix to determine minimum staffing levels and 

employs a staffing coordinator, who Respondent asserts works in conjunction with the house 

supervisor to adjust staffing levels up or down based on factors such as the census of the unit, 

admissions/discharges, and acuity. While this sounds workable, there is no policy establishing 

standards or protocol for how these factors will be taken into consideration and what adjustments 

should be made. Further, the base levels provided for in the matrix are exactly the same for each 

unit, notwithstanding each unit being divergent in the age and acuity of its patients. (Tr. 1506-

1507; Ex. C-16). Another complicating factor is the difference, literally, between night and day. 

During the daytime shifts, people like administrators, supervisors, and trainers are all on-site and 

capable of filling in when necessary and responding to Code Greens. Those same people are 

typically not available during the night shifts, when staffing levels are reduced pursuant to the 

matrix. Further complicating matters is the fact that discharges only occur during the daytime 

hours, but admissions can occur at any time. While admits are not always predictable, Respondent 

lacks any method or plan to address unexpected increases in the census, nor has it found a 

consistent way to address call-outs, which appear to be a fairly regular occurrence. 

In response to Complainant’s allegations regarding short-staffing, Respondent asserts two 

key arguments: (1) complaints by staff are not a sound, scientific basis upon which to conclude 

staffing is inadequate; and (2) Complainant has not articulated a metric for defining what 

constitutes “adequate staffing”. As regards (1), the Court finds Respondent underestimates the full 

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scope of duties carried out by its staff members when making decisions regarding staff levels. 

Further, the Court also finds the testimony and assessments of Respondent’s staff regarding staff 

levels to be credible, supported by the evidence, and by the determinations of Drs. Lipscomb and 

Argumedo. Staff members are uniquely positioned to understand the specifics of their job, how 

staffing levels impact their ability to not only carry out the major duties required of them, but also 

the ancillary responsibilities which are overlooked. As documented by Nurse Tulley, nurses and 

BHAs are required to facilitate bathroom trips, phone calls, and patient requests for each patient 

on the unit in addition to their rounds, charting, and any special orders, such as one-to-ones, but, 

according to staff, these are not taken into consideration by the administration in making staffing 

decisions. Indeed, these are the types of issues repeatedly identified in years’ worth of surveys, 

house reports, staff resignation letters, and audits performed by UHS’s own Divisional Nursing 

Director.24 

With respect to Respondent’s complaint that Complainant has not articulated a metric for 

determining adequate staff levels, the Court finds the problem is not the lack of a hard and fast 

number Respondent can utilize to determine if staffing is adequate, but whether Respondent has a 

policy that accounts for the frequently encountered variables impacting staff duties, including: 

acuity; special doctors’ orders, such as one-to-ones; discharges and admits; and any other factor 

impacting staff’s ability to carry out their required duties, day-to-day tasks, and unanticipated 

events such as Code Greens. This may also require Respondent to articulate how acuity is defined 

and how increases or decreases in acuity can be addressed through staffing adjustments or other 

means. At present, Respondent contends it considers these things, but there is no policy articulating 

24. For all of Respondent’s complaints about its ability to cross-reference actual dates of staff shortages, it appears 

there were at least a handful of these reports identifying this very issue. 

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these considerations, and the evidence—especially the identical base level staffing for units with 

different base level acuities—belies that assertion. 

In support of its claim Complainant’s proposed abatement is insufficiently specific, 

Respondent cites to Mid-South Waffles, wherein the Commission vacated a citation for 

Complainant’s failure to prove what a sufficient work rule would be. See Mid-South Waffles, Inc. 

d/b/a Waffle House #1283, 2019 WL 990226 (No. 13-1022, 2019). The problem for OSHA in that 

case was Respondent had an existing work rule, derived from the fryer’s manual, requiring 

cleaning once a day. Id. Complainant proposed cleaning on a “regular and timely basis”, which 

the Court found failed to specify the additional steps the employer needed to implement beyond 

what it already required. Id. Although here Complainant’s proposed abatement does not specify 

how many employees is too much or too many, MSW is hardly an apt comparison. Ultimately, 

Respondent is being asked to consider, and put into action, the factors it claims to be considering 

but clearly does not. In the cases cited by Respondent, MSW and A.H. Sturgill, the problem was 

not merely the lack of specificity, but Complainant’s failure to identify the “specific, additional 

steps—beyond those already implemented—[the employer] should have taken” to abate the 

hazard. See A.H. Sturgill Roofing, Co, No. 13-0224, 2019 WL 1099857 at *10 (OSHRC, 2019). 

Based on the testimony of every employee witness, Respondent never actually took the factors it 

claims to have relied upon into consideration and often had staffing levels which did not even meet 

the base levels provided for in the matrix. Further, Respondent’s problem is one of proof, as the 

individuals who testified they considered such matters were either not involved in staffing 

decisions or did not participate in setting staffing levels until after the citation was issued. (Tr. 

3398, 3525, 3554, 4059). Consistent with the cases cited by Respondent, Complainant has 

identified specific, additional steps as part of the panoply of abatement measures, including the 

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addition of a dedicated security staff or QSR position not otherwise encumbered by duties which 

would prevent that person from responding to emergencies. 

Finally, with respect to the two-prongs of the feasibility analysis, the Court finds 

Complainant established the proposed abatement is capable of being implemented and would be 

materially effective at reducing the hazard. First, as discussed by Lori Ayala, Respondent has 

already changed the base levels in the matrix following the inspection and Citation and has, in the 

past, utilized the position of QSR to address some of the issues identified in the proposed 

abatement.

25 (Tr. 3221-3222). 

Second, Respondent attempts to undermine the question of effectiveness through the 

testimony of Dr. Cohen, who referenced a study authored by Vincent S. Staggs, PhD, which found 

a correlation between increased staffing levels and assaults by patients against staff. (Tr. 2727; Ex. 

R-55, R-75). There are at least a few problems with Respondent’s reliance on this study. First, as 

noted by Complainant, the study does not draw any conclusions about causation, i.e., whether 

increased staffing levels causes an increase in assaults or whether high levels of assaults resulted 

in increased staffing levels. (R-75 at 1165). Further, the author of the study himself notes the study 

lacks context to the extent that subsequent studies should include considerations of patient-level 

data, which “would allow for control of differences in patient mix, and researchers should consider 

studies exploiting natural variations in staffing over time.” (R-75 at 1166). As such, Staggs 

recommends it would be helpful for a hospital, such as Respondent, to experiment with staff 

adjustments on individual units and compare rates of assault to a control unit. (Id.). Finally, the 

Court does not find this study stands for the proposition that Respondent specifically does not need 

to add additional staff when it is clear, based on the testimony, its own employees did not have 

25. Though the position was ultimately scrapped, it was done for financial reasons, which had nothing to do with its 

effectiveness. 

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enough staff to perform the basic duties expected of them. There was nothing in the study to 

establish a baseline number of employees per patient, above which further increases resulted in an 

identifiable increase in assault. At best, the Staggs study, as admitted by the author, only 

challenged the common sense assumption that the problem of violence will be solved simply by 

throwing more employees onto a unit. 

Based on the foregoing, the Court finds the proposed abatement is feasible. 

9. Training on WVPP 

Complainant identified five distinct areas of training where it claims Respondent has failed 

to implement its WVPP in an effective manner, including: (1) the consistent availability of 

working communication devices to enable calls for assistance as needed; (2) uniform Code Green 

response; (3) hands-on training and drills to practice HWC and verbal de-escalation; (4) using the 

post-incident debriefing process; and (5) wearing/storing badges to prevent them from being taken 

by patients. As noted at the beginning of this decision and throughout, Complainant’s biggest 

concern is the lack of a comprehensive approach to the WVPP, which has resulted in a patchwork 

of policies and procedures without the context of effective assessment regarding the importance 

of each to the prevention of workplace violence directed at staff. This is particularly the case in 

the arena of training. 

Respondent’s staff testified they did not feel the training they received had been consistent 

with the experiences they had working at UHS-Highlands. In particular, staff noted the practice 

scenarios during training were not comparable to the real-life acts of aggression they faced: 

techniques that may work for smaller patients were not as effective for larger, more aggressive 

patients, and training focused on team application of holds although staffing shortages too 

frequently left employees to engage in single-person restraints. (Tr. 718, 1160, 2015, 2291). 

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Moreover, the individual trainings on HWC and verbal de-escalation were not connected to 

training on the WVPP as a whole, including processes for reporting injuries, calling for codes, or 

the debriefing process. 

Further compounding problems is the lack of follow-up training by Respondent. Though 

Respondent claims it provides refresher training on HWC and other issues through its training fair 

and in response to requests for additional training and debriefings, the evidence suggests otherwise. 

[redacted] testified her file indicated she had received follow-up training on HWC after a violent 

encounter, but she had not received such additional training. [redacted] testified he requested, but 

did not receive, recertification in HWC when his expired. (Tr. 719). This was the case across the 

board, as Mr. Carstens noted many of the veteran staff had not received HWC refresher training 

since their orientation, which could have been years in the past. (Tr. 2369-2371; Ex. C-29). 

Dr. Lipscomb testified training, both in-class and real-life drills, is part of a successful 

comprehensive WVPP and a widely accepted necessary safety measure throughout the industry. 

(Tr. 3693; Ex. C-62 at 53). Her testimony was consistent with the Joint Commission’s Sentinel 

Alert and the OSHA Road Map. The Sentinel Alert recommends conducting practice drills “that 

include response to a full spectrum of violent situations”. (Ex. C-67 at 6). The Road Map refers to 

the practices of the Sheppard Pratt System, which treats psychiatric patients in an inpatient setting 

like Respondent’s. (Ex. C-66 at 32). According to the Road Map, Sheppard Pratt provides monthly 

refresher training and real-time training during incidents. (Tr. C-62 at 53, C-66 at 32). 

The Court finds the foregoing establishes the proposed abatement is both capable of being 

implemented and likely to be effective at materially reducing the hazard. Respondent has a system 

to track training, as well as trainers certified to provide training in HWC and verbal de-escalation 

(Carstens). The key to this abatement is to connect the disparate pieces of Respondent’s WVPP 

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and sew them together to provide a comprehensive and contextual system to prevent workplace 

violence toward staff. 

Respondent’s principal response to this abatement proposal is that it does these things 

already and Complainant is simply asking Highlands to “do more” for the sake of doing more; 

however, as discussed herein and above, the Court finds otherwise. 

10. Investigation and Debriefing 

Complainant seeks to require Respondent to expand upon the investigation and debrief 

program within its WVPP and to adhere to the requirements already contained therein. As to the 

proposed expansion, Complainant proposes Respondent conduct investigations and debriefs after 

each act of WPV, including near-misses, and to engage staff in the post-incident investigation and 

review process over and above the cursory debrief process it currently implements. With respect 

to this abatement proposal, the Court notes Respondent’s WVPP already requires postrestraint/seclusion debriefings with all staff involved, but in practice Respondent limits its 

investigation and review process to management through the PIC, PSC, and other forums. 

Respondent also claims it performs debriefs with employees after patient aggression incidents 

which don’t involve restraint and seclusion, but there is no documentation of this, and employees 

testified their participation in debriefs was limited, if it occurred at all. 

With respect to this issue, Respondent, again, does not so much dispute the feasibility of 

the concept of debriefing and investigation so much as it takes issue with Complainant’s inclusion 

of near misses as part of the debrief process. Specifically, Respondent claims Complainant does 

not define a “near miss” and questions whether it would be practical to debrief such incidents 

because “it is not predictable when violence or assault would have happened.” Resp’t Br. at 74. 

The Court disagrees. Respondent’s own expert, Dr. Cohen, stated Respondent’s program did not 

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include/document near-misses and could be improved by documenting its debriefing process. (Tr. 

2779; Ex. R-55 at 14). Further, Dr. Cohen noted the OSHA Guidelines include a similar 

recommendation that near misses, which it characterizes “a situation that could potentially have 

resulted in death, injury, or illness”, should be investigated, reported, recorded, and monitored. 

(Ex. C-65 at 12, 29). Dr. Lipscomb and Dr. Argumedo also testified to the importance and 

effectiveness of post-incident debriefings, regardless of whether a restraint or injury occurred. 

Consistent with the testimony of all the experts who testified, as well as the OSHA 

Guidelines and Roadmap, the Court finds the additional abatement steps identified by 

Complainant—namely, the addition of near misses and the inclusion of staff in post-incident 

investigation and response—are both capable of being implemented and will materially reduce the 

hazard of workplace violence. 

E. Economic Feasibility 

Respondent contends the Citation should be dismissed because Complainant failed to 

present evidence regarding the economic feasibility of the proposed abatement measures. The 

Commission and circuit courts have held OSHA must show a proposed abatement is economically 

feasible. See Baroid Div. of NL Industries, Inc. v. OSHRC, 660 F.2d 439, 447 (10th Cir. 1981); 

Waldon Healthcare Ctr., 16 BNA OSHC 1052 (No. 89-2804, 1993). The D.C. Circuit held an 

abatement proposal is infeasible if it “would clearly threaten the economic viability of the 

employer.” Nat’l Realty, 489 F.2d 1257, 1266 n.37 (D.C. Cir. 1973). This requires a cost-benefit 

analysis of the abatement proposal as it compares to the financial condition of the employer. 

The evidence shows Complainant requested “copies of annual budgets and strategic plans 

related to the worksite” and sought to depose Respondent’s CFO, which, presumably would 

disclose the financial condition of Respondent and, in turn, permit Complainant to perform an 

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analysis of whether its proposed abatements would be economically feasible. Respondent refused 

to provide the requested information and refused to permit Complainant to depose its CFO because 

“it is not limited in scope to any subject or issue related to employee safety with respect to 

Highlands’ direct care staff. The only material issues remaining in this litigation are whether 

Respondent’s current means of preventing workplace violence are adequate the feasibility of the 

Secretary’s proposed abatement and whether such abatement methods will materially reduce the 

hazard of workplace violence.” (Ex. C-72 at 11). Respondent also stated the requested information 

does not “seek information related to the costs of the abatements proposed. . . .” In seeking such 

information, Complainant was not looking for information about abatement costs, which the 

parties could research of their own accord; rather, it was seeking information regarding the 

financial condition of Respondent and, presumably, attempting to identify how the costs of the 

proposed abatements compared to Respondent’s annual budget. Respondent refused to provide the 

requested information relating to its economic circumstances and asserted that was not a relevant 

consideration. 

Accordingly, the Court finds the lack of production on Respondent’s part would show the 

proposed abatements were not infeasible. See N. Landing Line Constr. Co., 19 BNA OSHC 1465, 

1473 (No. 96-0721, 2001) (“[D]eficiencies in [the employer’s] response should be taken as 

establishing that there was no such evidence, not that the Secretary failed to carry her burden.” 

(citing Ocean Elec. Corp. v. Sec'y of Labor, 594 F.2d 396, 403 n. 4 (4th Cir. 1979))); see also 

Capeway Roofing Sys., Inc., 20 BNA OSHC 1331, 1342-43 (No. 00-1968, 2003) (“The 

Commission has also noted that when one party has evidence but does not present it, it is 

reasonable to draw a negative or adverse inference against that party, i.e., that the evidence would 

not help that party's case.”) (citations omitted). 

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F. Fair Notice 

In its Answer, Respondent alleged the affirmative defense of lack of fair notice. Respondent 

did not pursue this defense either at trial or in its post-trial brief, so the Court deems the issue 

abandoned. See Georgia-Pacific Corp., 15 BNA OSCH 1127, 1130 (No. 89-2713, 1991). 

V. Penalty 

Under the Act, the Secretary has the authority to propose a penalty according to Section 17 

of the Act. See 29 U.S.C. §§ 659(a), 666. The amount proposed, however, merely becomes 

advisory when an employer timely contests the matter. Brennan v. OSHRC, 487 F.2d 438, 441–42 

(8th Cir. 1973); Revoli Constr. Co., 19 BNA OSHC 1682, 1686 n. 5 (No. 00-0315, 2001). 

Ultimately, it is the province of the Commission to “assess all civil penalties provided in [Section 

17]”, which it determines de novo. 29 U.S.C. § 666(j); see also Valdak Corp., 17 BNA OSHC 

1135 (No. 93-0239, 1995). 

“Regarding penalty, the Act requires that “due consideration” be given to the employer’s 

size, the gravity of the violation, the good faith of the employer, and any prior history of 

violations.” Briones Util. Co., 26 BNA OSHC 1218, 1222 (No. 10-1372, 2016) (citing 29 U.S.C. 

§ 666(j). These factors are not necessarily accorded equal weight. J.A. Jones Constr., 15 BNA 

OSHC 2201, 2216 (No. 87-2059, 1993) (citation omitted). Rather, the Commission assigns the 

weight that is reasonable under the circumstances. Eric K. Ho, 20 BNA OSHC 1361, 1379 (No. 

98-1645, 2003) (Consol.), aff'd sub nom., Chao v. OSHRC, 401 F.3d 355 (5th Cir. 2005). It is the 

Secretary’s burden to introduce evidence bearing on the factors and explain how he arrived at the 

penalty he proposed. Valdak Corp., 17 BNA OSHC at 1138. The gravity of the violation is the 

‘principal factor in a penalty determination. Assessing gravity involves considering: (1) the number 

of employees exposed to the hazard; (2) the duration of exposure; (3) whether any precautions 

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have been taken against injury; (4) the degree of probability that an accident would occur; and (5) 

the likelihood of injury. See, e.g., Capform, Inc., 19 BNA OSHC 1374, 1378 (No. 99-0322, 2001), 

aff’d, 34 F. Appx. 152 (5th Cir. 2002) (unpublished). 

Complainant proposed a penalty of $11,934, which includes a 10% reduction based on 

Respondent’s size. The Court finds the foregoing findings of facts and conclusions of law provide 

more than adequate support for Complainant’s assessments of gravity and size. There was no 

evidence justifying further discounts for good faith or citation history. Accordingly, the Court finds 

the penalty of $11,934 is appropriate. 

ORDER 

The foregoing Decision constitutes the Findings of Fact and Conclusions of Law in 

accordance with Rule 52(a) of the Federal Rules of Civil Procedure. Based upon the foregoing 

Findings of Fact and Conclusions of Law, it is ORDERED that: 

1. Citation 1, Item 1 is AFFIRMED as serious, and penalty of $11,934 is ASSESSED. 

SO ORDERED 

/s/ 

Peggy S. Ball 

Judge, OSHRC 

Date: March 1, 2022 

Denver, Colorado 

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