UNITED STATES OF AMERICA 

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION 

THOMAS E. PEREZ, ) OSHRC DOCKET NO. 

SECRETARY OF LABOR, ) 13-1124 

) REGION IV 

Complainant, ) 

) 

v. 	 ) INSPECTION NO. 

) 781282 

INTEGRA HEALTH MANAGEMENT, INC., ) 

) 

Respondent. ) 

SECRETARY'S POST-HEARING BRIEF 

Complainant Secretary of Labor, United States Department of Labor ("the Secretary"), 

files his Post-Hearing brief pursuant to Occupational Safety and Health Review Commission 

("Commission") Rule ofProcedure 2200.74, 29 C.F.R. § 2200.74, and the Judge's Order. 

I. TABLE OF CONTENTS 

1. Table of Contents page 1 

2. S tipulatio ns page 2 

3. Factual Background -- page 2 

4. Findings of Fact - page 3 

5. Argument - page 21 

6. Table ofAuthorities page 40 

7. Conclusion - page 42 
II. STIPULATIONS 


In the Joint Prehearing Statement dated April 10,2014, the parties agreed that the 

following facts were admitted: 

Integra, based in Owings Mills, Maryland, performs mental and physical health 

assessments and coordinates case management via contracts with various 

insurance companies. These assessments are performed by employees known as 

"community service coordinators." Integra performs these services in four states: 

Tennessee, Pennsylvania, Maryland, and Florida. There are no company offices 

in Florida; service coordinators work from their homes or in the field. The 

Integra service coordinator program focuses on helping clients receive appropriate 

medical care. Service coordinators are assigned a case load of clients and are 

responsible for calling them and for face to face meetings during which the clients 

are assessed and encouraged or persuaded to register for services. Insurance 

companies apparently refer these clients to companies such as Integra due to 

chronic difficulties in contacting them. Many ofthe clients suffer from mental 

illness. 

On December 13, 2012, an inspection was initiated when the OSHA Tampa Area 

Office received an anonymous phone call· violence fatality. 

Three days earlier, on December 10, 2012, an Integra service 

coordinator, was fatally stabbed by a victim was meeting 

the assailant at his house for a required face to face visit to conduct an initial 

assessment. 

Joint Prehearing Statement, p. 8. 

III. FACTUAL BACKGROUND 

This case is the result of an inspection conducted by the Occupational Safety and Health 

Administration ("OSHA"), Tampa Area Office, following a workplace fatality involving 

Respondent Integra Health Management, Inc. ("Respondent" or "Integra") on December 10, 

2012. 

OSHA Compliance Safety and Health Officer ("CSHO") Jason Prymmer conducted a 

fatality-related safety and health inspection (pursuant to the Occupational Safety and Health Act 

of 1970, as amended) ofRespondent as a result of the workplace death 

(Prymmer, Tr. 77). As a result of his fmdings and recommendations, on June 6,2013, OSHA 

2 

issued one "Serious" Citation alleging a violation of the OSH Act's general duty clause with a 

proposed penalty of $7,000, and one "Other Than Serious" Citation alleging a violation of 

regulation set forth at 29 C.F.R. § 1904.39(a), with a proposed penalty of $3,500. OSHA 

contends that (1) Integra 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 the hazard of being physically assaulted by 

members with a history of violent behavior (OSHA § 5(a)(I»; and (2) Integra did not report to 

OSHA the work-related death of its employee (29 C.F.R. § 417(b». Integra 

contested the Citations and proposed penalties and a hearing was held on May 6-9,2014, in 

Tampa, Florida, before Judge Dennis L. Phillips. 

IV. FINDINGS OF FACT 

1. 	 Jurisdiction of this action is conferred upon the Commission by § 1 O(c) of the 

Occupational Safety and Health Act of 1970,29 U.S.c. § 651, et seg. (hereinafter 

"the Act"). See Complaint, ~ I, Answer, ~ I. 

2. 	 Integra is an employer engaged in a business affecting commerce within the meaning 

of §3(5) of the Act. See Complaint, ~ II, Answer, ~ II. 

3. 	 Integra's principal place of business is at 10055 Red Run Boulevard, Suite 105, 

Owings Mill, Maryland 21117. See Complaint ~ III and Answer ~ III. 

4. 

5. 	 Integra did not report the fatality to OSHA; rather, the fatality was reported to OSHA 

by an anonymous caller. (Prymmer, Tr. 82, 86). 

Service Coordinator Job Description and Conditions 

6. 	 In Florida, Integra contracted with Amerigroup, a medical insurance company. 

(Rochelle, Tr. 270). 

On December 10,2012,11 

was fatally stabbed in the course 

lCS100IlLoelili Integra, 

a member 

serviced by the Integra program. Joint Prehearing Statement, p. 

3 

7. 	 ~erigroup provided clients to Integra who were "high utilizers", meaning they often 

used the hospital's emergency rooms for medical treatment. (Rochelle, Tr. 271). 

8. 	 Integra's service coordinators ("SCs") coordinate services for people with medical 

and mental health issues. The purpose ofthe program is to get members connected 

with doctors for their treatment. The program's goal is to prevent the members from 

over utilizing hospital emergency rooms for their treatment. Service coordinators 

were to build a rapport with members to get them to consent to receive these services 

from Integra. (Rochelle, Tr. 250). 

9. 	 Between May and October of2012, SCs in Florida were supervised by Laurie 

Rochelle ("Rochelle"), a licensed mental health counselor. (Rochelle, Tr. 243, 245) 

10. Rochelle supervised the nine SCs in the Florida area. (Rochelle, Tr. 245, 287). 

11. Rochelle reported to Integra Vice President Melissa Amott ("Amott") and her duties 

included training, caseload assignment and geographical assignments. (Rochelle, Tr. 

245,246). 

12. SCs did not work out of an office and communicated with their supervisors by 

telephone and email. (Rochelle, Tr. 269, 288). Weekly meetings were conducted by 

telephone. (Rochelle, Tr. 269). 

13. Rochelle attempted to assign SCs to geographical areas that were familiar to them. 

Rochelle believed this was an important safety precaution. However, her supervisor 

Amott told her that assigning cases based on geographical area was unnecessary. 

(Rochelle, Tr. 254, 255) 

14. Rochelle assigned SCs to work in neighborhoods and areas that were not familiar to 

them. SCs told Rochelle that there were not comfortable with these assignments. 

(Rochelle, Tr. 260) 

15. SCs were required to make at least two face to face contacts with clients each month. 

(Rochelle, Tr. 255). 

16. SCs primarily worked alone. (Schneider, Tr. 452). 

17. Rochelle assigned SCs a very large caseload. (Rochelle, Tr. 260). The SCs caseloads 

started off at about 25 to 30 cases, but increased to as high as 50 to 60 per SC. 

(Schneider, Tr. 454). 

18. The SCs job duties included going out into the community to visit clients and to assist 

them with getting medical treatment/medications, and a variety of other services such 

as obtaining transportation, public assistance and housing. (Rentz, Tr. 369). 

4 

19. "Locating them was the first priority. To do whatever we could to located them. Go in 

wherever, no matter what the conditions looked like, no matter what the situation was 

to try and locate them." (Daniel, Tr. 436). 

20. When asked to describe the members she serviced, service coordinator Kimberly 

Daniel stated, "Dual diagnosis, mental illness and medical. .. was how it was 

presented. Come to [md out later that they would also have ... violent histories, 

robbery, armed robbery, sexual assault backgrounds that weren't always were not 

disclosed to us." (Daniel, Tr. 436). 

21. Integra's ultimate goal was to reduce hospital and crisis stabilization admissions. 

(Schneider, Tr. 450). 

22. Melissa Amott told SCs to locate members "at any cost necessary" (Daniel, Tr. 437). 

23. SCs were to make sure that members were taking their prescribed medications. 

(Stevens, Tr. 416). Ifthe members were not compliant with their doctors' orders, SCs 

were instructed to find out why. (Daniel, Tr. 437-38) 

24. SCs spent 15 to 20 percent of their time driving members in the SCs' personal 

vehicles to doctor's visits, psychiatric visits and mental health facilities. (Schneider, 

Tr. 452-453; Stevens, Tr. 417; Hinman, Tr. 809). 

25. It was mandatory for SCs to drive members in the SCs' personal vehicles to 

psychiatric appointments. (Stevens, Tr. 430). 

26. Employees did not feel safe driving certain mentally ill members in their personal 

vehicles because these members were not always taking their medications. (Stevens, 

Tr.418-19). 

27. Service Coordinators went to hospitals, mental health facilities, clients' homes, 

homeless shelters and restaurants to meet and find clients. (Rochelle, Tr. 251). 

28. Service coordinators would meet with members alone in areas off the beaten path, in 

areas where the general public could not see them; e.g., trailer parks, government 

housing projects, and high crime areas. (Prymmer, Tr. 134:20-25; 135:1-4). 

29. SCs would usually attempt to locate clients by going to their homes first. (Rentz, Tr. 

369). They would also visit homeless shelters, "abandoned looking buildings that 

looked like they should be condenmed" and go to unfavorable parts of the city. 

(Rentz, Tr. 374) (Daniel, Tr. 436-437). They also visited hospitals. (Schneider, Tr. 

451). 

30. SCs had to do two face to face contacts with each member per month and two phone 

calls per month. (Rentz, Tr. 369) (Schneider, Tr. 462). The purpose of the face to 

5 

face contact was to detennine the member's needs. (Rentz, Tr. 369) (Daniel, Tr. 439) 

(Schneider, Tr. 462). 

31. SCs were required to perfonn an initial assessment of each member that addressed the 

member's medical, psychiatric, and living conditions and then develop a care plan 

that would set realistic goals for the member's specific situation. (Schneider, Tr. 459­

60). 

32. SCs experienced a great deal of stress and pressure "to produce an unrealistic goal in 

an unrealistic time frame." (Schneider, Tr. 494). 

33. Service coordinators were not hired to provide counseling; they were hired to 

coordinate medical and mental services. (Rochelle, Tr. 252). 

34. Integra said that the assessments perfonned by SCs were not clinical, but Integra 

manager Rochelle admitted that SCs were doing assessments of the client's needs, 

i.e., whether they should receive counseling and the extent of any substance abuse. 

(Rochelle, Tr. 265). 

35. The initial assessment fonn Integra requires SCs to complete calls for the application 

of clinical tools, such as a brief mental status exam, clinical observations, BPRS 

(brief psychiatric rating scale), and OAF (global assessment of functioning). These 

tools are used by trained clinicians to diagnose a patient for mental illness and to 

assess that patient's level of functioning. (Nelson, Tr. 590-593, 1097-1098; Ex. 34). 

36. The ability to do an accurate clinical assessment of a mentally-ill member would 

better allow the service coordinator to assess the member's propensity for violence. 

(Nelson, Tr. 599, 1100). 

37. Service coordinators -	 who were not required to have any previous experience or 

training as clinicians or social workers - did not have the experience or knowledge 

necessary to accurately apply the clinical tools described in the assessment fonn. 

(Nelson, Tr. 1099-1100). 

38. In part, service coordinators perfonn the jobs ofclinical social workers. (Nelson, Tr. 

1103-1104). 

39. SCs knew very little about a member's background before being assigned a case. 

Initially, SCs were not even given a diagnosis. Rochelle asked for a diagnosis from I 

1 Amerigroup and saw that some members had serious mental health issues. (Rochelle, 

Tr. 255-56). 

40. Amerigroup generally provided only one diagnosis, but many members had multiple 1 diagnoses. (Rochelle, Tr. 257). i 

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 41. SCs were pressured to find members. (Rochelle, Tr. 269). 


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42. SCs filled out progress note reports for every contact or attempted contact with a 

member. The progress notes were for documentation purposes. These notes 

described when contact was made with a client and what happened. (Rochelle, Tr. 

272). 

43. Rochelle reviewed and approved the SCs' progress note reports. (Rochelle, Tr. 272). 

44. Sometimes, progress note reports entered in the Integra database system would 

disappear. (Rochelle, Tr. 297). Rochelle made several complaints to her supervisors 

about the database. (Rochelle, Tr. 298). 

45. Iftwo face to face contacts were not made each month, Integra would not get paid by 

the insurance companies. (Rochelle, Tr. 260). 

46. Rochelle felt pressured by her supervisors to make face to face contacts with 

members. (Rochelle, Tr. 260). 

Characteristics of the Members Integra Serviced 

47. Rochelle knew that the majority of Integra's members had mental illness and criminal 

backgrounds. (Prymmer, Tr. 133:12-18). 

48. Rochelle noticed that Integra had a lot of members who were getting out ofjail and 

Integra required SCs to continue to serve them. (Rochelle, Tr. 247). 

49. Chief Operating Officer ("COO") Dee Brown admitted to CSHO Jason Prymmer that 

"most members have a criminal background." (Prymmer, Tr. 89:9-12). 

50. Vice President Melissa Arnott admitted to CSHO Jason Prymmer that "these 

members have criminal backgrounds and they're severely mentally ill." (Prymmer, 

Tr. 89:13-15). 

51. SCs provided services to members who were drug users and who were involved in 

criminal activity. (Rochelle, Tr. 252). 

52. SCs provided services to member who had severe mental health issues such a 

schizophrenia and bi-polar personality disorders. (Rochelle, Tr. 252). 

53. SCs serviced members with a history of violence and who were volatile. (Rochelle, 

Tr.253). 

54. SCs interacted with members with severe mental illnesses; fifteen to twenty percent 

of the SCs' caseloads carried members with bipolar and multiple personality 

disorders. (Schneider, Tr. 451, 469-70; Stevens, Tr. 417-18; Daniel, Tr. 436). 

7 

55. Some members had violent histories like robbery, armed robbery, and sexual assault 

backgrounds that were not disclosed to SCs. (Daniel, Tr. 436). 

56. Clients included people who were chronically admitted to crisis destabilization units 

because they did not have access to their medications. (Schnieder, Tr. 451). 

57. Neither Integra nor Amerigroup provided service coordinators with criminal 

background information for the members. (Rochelle, Tr. 257). 

58. Integra did not perform criminal background checks on members. (Prymmer, Tr. 

109: 14-16). 

59. Rochelle was afraid, at times, to go into clients' homes. (Rochelle, Tr. 252) 

60. Rochelle assigned SC Annie Hinman to a member who had served prison time for 

burning down his mobile home. Hinman visited the member four or five times before 

she found out on her own about his criminal history. (Rochelle, Tr. 258). 

Hiring and Qnalifications of Service Coordinators 

61. As part of her duties, Rochelle interviewed prospective SCs and made hiring 

recommendations to Melissa Amott. (Rochelle, Tr. 247). 

62. In 2012, Integra did not require its service coordinators to have any specialized 

education or certification; only a bachelor's degree was required. (See Ex. 9 and 10) 

(Prymmer, Tr. 104:5-105:13). 

63. Because the starting salary for SCs was "very low," Integra encouraged Rochelle to 

hire people with only a bachelor's degree who were just getting out of college. 

(Rochelle, Tr. 247-248). 

64. Experience visiting the homes of clients should have been a job qualification for the 

SC position, but was not a requirement. (Rochelle, Tr. 249). Rochelle would have 

preferred to hire SCs with at least six months experience visiting the homes of clients. 

(Rochelle, Tr. 249). 

65._had her Bachelor's degr~e when s~e was hire~ by I~tegra. (Prymme:, Tr. 

i05:T4-i6). had no prevIOUS expenence working WIth the mentally III or 

any previous expenence or certifications in social work. (Prymmer, Tr. 105: 17-22). 

Integra's Inadequate Safety Policies and Procedures and Training 

66. SCs did not have panic buttons or alarms. (Rochelle, Tr. 258) 

67. There was no sign inlsign out procedures for SCs. (Rochelle, Tr. 259). Integra 

supervisors did not know where SCs were at any given time. (Rentz, Tr. 375). 

8 

68. SCs attempted to schedule appointments with members prior to face to face visits, but 

if a member did not have a phone, Integra required SCs to go the member's house 

unannounced and knock on the door. (Rochelle, Tr. 259). 

69. Integra did not require SCs to perfonn their own background checks on members. 

(Prymmer, Tr. 109:18-20); (Hinman, Tr. 825). 

70. In practice, SCs did not regularly perfonn background checks on members. 

(Prymmer, Tr. 109:21-110:2). 

71. Integra did not require SCs to take a partner or buddy with them; rather, Integra told 

service coordinators to "consider" taking another service coordinator with them if 

they, in their subjective opinions, believed it would be useful. (Prymmer, Tr. Ill: 11­

20); Ex. 16; Ex. 19). 

72. Integra had a voluntary "buddy system," but it was very difficult to implement 

because employees often did not have the time to partner up with another SC because 

ofthe heavy case loads. (Rochelle, Tr. 266). 

73. Integra assigned members to SCs through the computer system. (Rentz, Tr. 372). 

Integra provided very little infonnation to the SCs about the members. (Rentz, Tr. 

373). SCs received the telephone number and address of the member. (Rentz, Tr. 

373). Sometimes they received medical diagnosis and mental health diagnosis. 

(Daniel, Tr. 437). 

74. Integra provided SCs with little infonnation about the members so SCs had to be 

"detectives and hunt them down by any means". (Schnieder, Tr. 451). 

75. Some SCs worked at night to locate members for the face to face contact. (Rentz, Tr. 

374). They worked in areas that were unsafe and that made them nervous. (Rentz, Tr. 

374-75). 

76. SCs did not know ifthe members they were visiting had a history of violence because 

Integra provided so little infonnation about the members. (Rentz, Tr. 376). 

77. Integra developed an on-line training program for its new service coordinators, 

referred to as the "Neumann Training." (Prymmer, Tr. 105:23-106:2). 

78. The Neumann Training was developed by Integra's Vice President ofBehavioral 

Health, Melissa Arnott. (Prymmer, Tr. 106:1-2). 

79. The Neumann Training was intended to be 40 hours long and consisted of power 

point slides, reading assignments, and on-line discussion board posts. (Prymmer, Tr. 

106:3-6). 

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80. Session Eight of the Neumann Training, entitled "In-Home & Community Safety," 

included two power point presentations entitled "Safety in the Community" and 

"Screening the Dangerous Member." (Prymmer, Tr. 108:1-3); Ex. 15, 16, and 17. 

81. The "Screening the Dangerous Member" power point identifies that service 

coordinators may encounter "dangerous" members and "dangerous situation(s)". Ex. 

16. 

82. In the "Safety in the Community" power point, Integra identifies certain "high risk 

behaviors" a member may exhibit, including "history of violence or self-harm, 

substance abuse, verbal threats, criminal behavior, paranoia, suspiciousness, 

psychosis, confusion." (Prymmer, Tr. 114:17-25; 115:1-9); Ex. 17. 

83. Integra expected SCs to identify these "high risk behaviors" while interacting face-toface with the members; Integra did not take steps to identify whether members 

exhibited these behaviors before assigning a SC to their file. (Prymmer, Tr. 114:20­

25; 115:20-23; 116:6-8; Arnott, Tr. 350-351). 

84. These power points demonstrate that Integra recognized that the member posed a 

hazard of workplace violence against the SCs. (Prymmer, Tr. 110:4-8; 116:21-25; 

117:1-5). 

85. Rochelle worked at Integra for 5 112 months before she took the Neumann training. 

(Rochelle, Tr. 261). 

86. The Neumann training was inadequate. (Rochelle, Tr. 262). It was "a joke" and basic, 

it did not teach SCs to be "savvy", or about real life safety skills and situations related 

to the job. (Rochelle, Tr. 262). For example, the training did not teach how to get 

members to come outside their doorways, or teach SCs not to go into a member's 

home in certain situations. (Rochelle, Tr. 262). 

87. It took Rochelle two days to complete the Neumann Training. (Rochelle, Tr. 264). 

88. Annie Hinman, a service coordinator, completed the Neumann Training in only eight 

hours. (Prymmer, Tr. 119:16-25; 120:1-2). 

89. Ellen Elaine Rentz, a service coordinator, did not complete the Neumann Training 

before being assigned a caseload and going out into the field to do face-to-face visits 

with members. (Prymmer, Tr. 123:22-25; 124:1-7). (Rentz, Tr. 371). She contacted 

her supervisor, Rochelle, about the lack of training. (Rentz, Tr. 371). Rochelle told 

Rentz to call Scott Schneider, one of the other team members. (Rentz, Tr. 371). 

90. Rochelle stated in a letter to COO Dee Brown dated December 3,2012, that "the 

Neumann training [] was embarrassingly a cut and paste of the SAMSA website and 

not what service coordinators really need to do their job 'the Integra way." 

(Prymmer, Tr. 118:11-21; Ex. 14). 

10 

I 
91. Rochelle knew that the service coordinators had safety concerns regarding potential 

violence from members and/or the communities they serviced. (Prymmer, Tr. 

133:12-21). 

92. Integra provided an employee handbook to service coordinators. (Prymmer, Tr. 

120:7-9; Ex. 18). 

93. This employee handbook contains one page entitled "Workplace Violence" which 

generally states that violence by an employer or anyone else against an employee, 

supervisor or member of management will not be tolerated. (Prymmer, Tr. 122: 1-7; 

Ex. 18, p. 96 of 107). 

94. The "Workplace Violence" page of the employee handbook does not identify the 

specific types of workplace violence to which service coordinators were most likely 

to be exposed, i.e., violence from a mentally ill member with a history of violent 

behavior. (Prymrner, Tr. 122:11-14). 

95. Some SCs would shadow other more experienced SCs for a day or a few days, but 

such shadowing was not uniformly required for all new SCs. (Prymmer, Tr. 122:15­

25; 123:1-24). 

96. Integra did not have a policy regarding the preparation of incident reports. (Rochelle, 

Tr. 299). Rochelle was not required to prepare an incident report of significant 

events. (Rochelle, Tr. 299). 

97. SCs learned their jobs through "trial and error". (Daniel, Tr. 435). SCs had to figure 

out a lot of their duties "as they went along". (Schneider, Tr. 455). One SC (Scott 

Schneider) stated that whenever he asked his supervisors questions, he "never really 

got an answer." (Schneider, Tr. 456). 

98. Neumann training did not cover much, it was basic. It did not help employees do their 

jobs. (Daniel, Tr. 435) 

99. SC Schneider testified that he did not receive safety training prior to 

death. (Schneider, Tr. 456). SC Daniels stated, "I wouldn't consider >I"'"Jn11n 

received safety training". (Daniel, Tr. 436). 

100. Integra did not provide safety training to its employees. (Rochelle, Tr. 261). 

101. 	 Integra did not provide much information about safety to its employees. (Rentz, 

Tr. 371). Some computerized safety training, the Neumann Training, was given to 

SCs online. (Rentz, Tr. 370). It took about 6-9 hours for employees to do the training. 

There was not a lot of information given to employees about workplace violence. 

(Rentz, Tr. 370). 

11 

102. 	 At the end ofthe Neumann training, SCs were asked questions that were "totally 

irrelevant" to the actual instruction modules. (Schneider, Tr. 454). 

103. 	 The weekly telephone rounds with Integra medical director Dr. Krajewski ("Dr. 

K") were not a forum to discuss safety issues. The purpose of the rounds was to get 

services for the members. They discussed getting members food, housing and 

medical attention. (Rentz, Tr. 394). 

104. 	 There was no support from management in terms of training new employees; the 

SCs depended upon each other to figure things out. (Schneider, Tr. 487). 

105. 	 It was "up in the air" whether Integra would remove a member from the service 

list if a SC expressed a safety concern about interacting with the client. (Schneider, 

Tr.460). 

106. 	 During corporate training in September 2012, SCs did not engage in role playing. 

(Hinman, Tr. 817). 

107. 	 There was no real buddy system or partnering for safety reasons. (Rentz, Tr. 

382). Kimber Daniel requested a buddy for a home visit and her request was denied 

because no one was available because everyone was too busy with his or her own 

caseload. (Daniel, Tr. 439-440) 

108. 	 Integra claims it had a "shadowing" program, however, some employees (Rentz 

and Daniels) were not "shadowed" or partnered with a supervisor or experienced 

employee when they began working for the company. (Daniels, Tr. 434-435) (Rentz, 

Tr. 373). Schneider also did not shadow a more experienced SC. (Schneider, Tr. 488). 

109. 	 The portion of the Neumann training regarding workplace safety was vague and 

lacked depth; it offered no "how-tos" or experiential process. (Nelson, Tr. 609). 

110. 	 The "shadowing" practiced by Integra, to the extent SCs participated in it, was 

on-the-job training of the most minimal kind. (Nelson, Tr. 613). 

111. 	 The "workplace violence" page in the employee handbook was a general 

statement which did not adequately prepare SCs to prevent workplace violence. 

(Nelson, Tr. 608). 

112. 	 Integra's failure to provide adequate safety training contributed to the risk of 

workplace violence. (Nelson, Tr. 614). 

113. 	 Integra provided SCs with laptop computers with GPS, but Integra did not use this 

GPS function for realtime check-in or tracking of the SCs; the intended use ofthe 

GPS function was to locate a SC if he went missing. (Amott, Tr. 1013). 

12 
114. 	 On October 16,2012, SC Andy Macaluso asked Integra ifit would provide takedown training and "hands on crisis de-escalation training" because he has had "to 

transport or visit more than one member who has a history of violence towards others 

resulting in severe bodily injury." (Macaluso Tr. 505-506, Exhibit 31, p. 1). 

115. 	 Prior to_death, Integra did not teach its SCs any de-escalation 

techniques. ~r. 613). 

116. 	 SC Schneider complained to supervisors Melissa Amott and Laurie Rochelle 

about the safety issues he encountered when interacting with members. (Schneider, 

Tr.491). 

117. 	 SC Schneider told Melissa Amott about one member on his case list who was 

violent and aggressive. (Schneider, Tr. 491; Exhibit 29, p. 24). Integra would not 

remove the member from the case list and he was required to continue to make face to 

face contact. (Schneider, Tr. 491-492). 

118. 	 Integra would not "roll off', i.e., remove from the program, too many members 

because it would cause the company to lose money. (Schneider, Tr. 492). 

119. 	 was exposed to a heightened risk ofworkplace violence due to her 

inexpenence and the fact that she was expected to apply clinical tools she was not 

qualified to apply. (Nelson, Tr. 601). 

120. 	 SCs often worked alone, traveling by car to do home visits with members, which 

contributes to the risk ofworkplace violence. (Nelson, Tr. 602). 

121. 	 It is particularly dangerous for a SC to do an unscheduled visit to a member's 

home. (Nelson, Tr. 619). 

122. 	 Integra's employees wrongly believed Integra was doing what was necessary to 

ensure their safety - such as pre-screening members and was not sending them into 

a dangerous work environment. (Rentz, Tr. 380 "I didn't say anything to anybody 

about safety because I assumed we were safe. We were working for a company. I felt 

I was safe to go out there. They had already done the legwork necessary to make sure 

they were not sending me into harm's way.") (Schnieder, Tr. 457 "I think I was really 

naIve, and I believed that the company had my best interest at heart, they properly 

screened these people, and I never really thought about it, you know."). 

the member who fatally stabbed Integra service coordinator 

was previously incarcerated for aggravated battery with a deadly 

weapon, aggravated assault with a weapon, and battery against a police officer or first 

responder. See Ex. 25; (Prymmer, Tr. 136:22-25; 137:1-4; 139:6-21). 

13 

124. 	 When case was assigned to_ Amerigroup provided. 

.. . diagnosis (schizophr~ardiovascu1ar diEi,;date 

~rrth, address' Amerigroup did not provide Integra or with 

any information about_III history of violent behavior. (Amott, Tr. 357; Ex. 

7, p. 1). 

125. _ had three face-to-face interactions . at his home prior to 

his ~kof her on December 10,2012. (See VULl.'''',l. Tr. 139-140). 

126. 	 After her ftrst visit . on October 12, 2012,_ reported in her 

Progress Note Report . a few things that ~uncomfortable, 

so SC asked member to be reS;De~:::tnll or she would not be able to work with him. 

Because of this situation, SC is not comfortable being inside alone with member and 

will either sit outside to complete assessment or ask another SC to accompany her." 

Ex. 7, p. 5. 

127. 	 Integra COO Dee Brown, Integra Vice President Melissa Amott, and Integra 

manager Laurie Rochelle all read and were aware comments regarding 

her interaction with_ on October 12, 2012. .143,148. Ex. 19). 

(Amott, Tr. 356-35~ 

128. 	 Integra did not assign an employee to go to visit at any 

time. (Rochelle, Tr. 278). 

129. 	 Referring to this Progress Note Report from October 12, 2012, CSHO Prymmer 

asked COO Brown _didto ensure that "staffing resources would be made 

available to address concerns";IIBrown responded that "we do not 

make certain people are omg t eir jobs. There IS an entire team available to 

accompany someone and if staff feel they are in need of a buddy visit, they arrange it 

or report to their supervisor so that the supervisor can intervene to assist if they 

cannot arrange it. Staff are trained not to go alone ifthey feel they need another 

person with them." Ex. 19, p. 3-4. 

130. 	 After reading_ progress note report from October 12, 2012, Amott never 

asked_what ~eel . Amott did not fOlpj,gf with 

Roche~.to determine how intended to service in the future. 

(Amott, Tr. 358-359). 

131. 	 Integra did not conduct a safety assessment described feeling 

uncomfortable (Rochelle, Tr. 278). 

132. 	 Integra knew that_ had been prescribed injectablAchOtiC medication. 

(Amott, Tr. 360). Int~id not have confrrmation from psychiatrist 

whether. was properly monitored and medicated for s sc zophrenia. (Amott, 

Tr.360). 

14 

133. 	 On October 15 2012,_ had a second face-to-face visit with_ at 

his home; IiiiiiiiIii not:-=thls visit do not indicate that she had a~ice coordinat~or that she stayed outside of the home during the visit. Ex. 7, p. 

6. (Prymmer, Tr. 149:21-25; 150:1-4). 

134. 	 During the October 15,2012 visit 

showed SC a print of the Last Supper, He pointed to the 

depiction of Jesus and said, 'This is my father.' He pointed to someone else in the 

picture and said, 'This is me.' He then pointed to a few others in the picture and 

described them as people in the community, such as the waitress who works down the 

street, etc. This was also interwoven with conversation about his trespassing charges, 

people who owe him money, and how he will behave in his upcoming court date." 

Ex. 7, p. 6. 

135. 	 The October 15,2012 Progress Note Report was reviewed by Integra manager 

Laurie Rochelle on October 15,2012. Ex. 7, p. 6. (Prymmer, Tr. 150:5-6). 

136. 	 _ told Dr. K aboutll strange comments concerning the Lord's 

Sup~elle saw the strange comments as a red flag. (Rochelle, Tr. 292-93). 

137. 	 Rochelle approved the progress notes involving the encounter. (Rochelle, Tr. 293­

94). 

138. 	 Amott did not know whether. took another SC with her when she visited 

..on October 15,2012. Amott never inquired as to whether. was following 

fueP1'an she outlined in her October 12,2012 progress note report. (Amott, Tr. 360­

61). 

139. 	 discipline _ for failing to bring another SC with her on her 

(Rochell~-286). 

140. 	 Amott admitted that_ comments about the Lord's Supper could indicate 

delusional or paranoid b~(Amott, Tr. 362). Delusions and paranoia are 

identified in Integra's training as "high risk" behaviors. (Amott, Tr. 362). 

141. 	 On November 14 2012,_ had a third face-to-face visit with_ at 

his ho,me; IiiiiiiiIiII notes fro:thisvisit do not in~icate that she had a~ice coordmato~Ex. 7, p. 7. (Prymmer, Tr. 151.17-20). 

142. 	 During the November 14,2012 visit . _ notes that 

"Member answered the door and pretended to own~ther" and "Member 

also told SC to get a cowboy hat and go to a rodeo." Ex. 7, p. 7. 

143. Arnott reviewed the November 1

1112, progress note repoiiPared byll 

• Integra did not follow-up with to determine whether was following 

15 

the plan she outlined in her October 12, 2012 progress note report. (Arnott, Tr. 364­

365). 

144. 	 Arnott claimed to believe that 

twin brother indicated that he did 

145. 	 According to Integra's policy," had 30 days from receiving signed consent 

from" in which to he':':itial assessment ofhim. (Arnott, Tr. 366). 

After~ace to face still had not completed an initial assessment and 

had no information about history of violent behavior. (Arnott, Tr. 366). 

146. During these three face-to-face visits, did not perform her "initial 

assessment" (Prymmer, Tr. 6). Ex. 7, p. 9. 

147. After three face-to-face visits,_ was still unaware 0_ history 

of violent behavior. (Arnott, Tr. 3~ 

deal with' 

.was "kind ofplaying" with her. (Arnott, Tr. 365). 

pre:tenldl11lg to be his 

hat day and that 

-face visit to._home, on December 10, 

and stab~~eath with a knife. (Arnott, Tr. 

Previous Incidents of Workplace Violence and/or "Close Calls" 

149. 	 Yahaydra Stevens described two incidents in which she was in the car with 

mentally ill patients who were not taking their medications. She was in the car, along 

with supervisor Whitney Ferguson, for two hours with a mentally ill member who 

made her feel uncomfortable. The member was fidgety during the drive. (Stevens, 

Tr. 419-20). She also recalled driving another member with Ferguson who stated that 

he was uncomfortable driving with her because of her ethnicity. (Stevens, Tr. 420). 

150. 	 Prior to. death, SC Ellen Rentz visited a member's home to get the 

member's SIgnature for lbe 1DtN'0nsent fonn. The member was agitated about lbe 

timing of the visit. Later, after death, Rentz learned that the member had a 

criminal background that invo ve a weapons charge. (Rentz, Tr. 376-77, 395). 

151. 	 Prior to" death, a schizophrenic client threatened to assault SC Scott 

Schneider whireSchneider met with him to perform an initial assessment. (Schneider, 

Tr. 458; Ex. 29, p. 6). 

152. 	 Prior to" death, SC Schneider met with a member whose personality 

appeared to~e quickly. At some point during the meeting, the member grabbed a 

kitchen knife and began twirling it. (Schneider, Tr. 470; Ex. 29, p. 18). This incident 

occurred in the member's home. After this meeting, Schneider continued to meet with 

the member, but conducted the meetings outside the home. (Schneider, Tr. 470). 

I 


I 

I 	 16 

1 

1 

1 
153. 	 Prior to_death, Schneider reported in his progress notes that one of his 

members h~ysically assaulted" her boyfriend; this member "has a serious 

addiction to meth and becomes violent and thins she is God." (Schneider, Tr. 471­

472; Ex. 29, p. 24). Schneider reported to his supervisor, Laurie Rochelle, that this 

member "scared the bejesus out of me" and he would only meet her in public places; 

he would not meet her at her home. (Schneider, Tr. 472). 

154. 	 Prior to death, SC Scott Schneider was chased by dogs while 

attempting to contact a member for a face to face visit. (Rochelle, Tr. 267). Rochelle 

told him not to risk his life. (Rochelle, Tr. 267) 

155. 	 Prior to_death, Schneider attempted to visit a member who resided in a 

broken dow~where there were vicious dogs tied up near the front door. 

(Schneider, Tr. 495-96). Schneider was concerned about being bitten by the dogs. 

He reported the situation during round calls to his supervisors. His supervisors told 

him to continue to go to the home. (Schneider, Tr. 496). 

156. 	 Prior to_ death, SC Annie Hinman conducted several face to face meetings 

with a mem~ho had burned down his home. (Hinman, Tr. 830-31). She 

transported the member to provider appointments. During one appointment, the 

member's therapist asked him ifhe had homicidal thoughts. The member pointed to 

Hinman and told the therapist that he had thoughts of wanting to kill Hinman. 

(Hinman, Tr. 831). Annie Hinman told her supervisor, Laurie Rochelle, that this 

member admitted to having thoughts of killing her. (Rochelle, Tr. 268). Integra 

required Hinman to continue servicing this member after the incident. (Hinman, Tr. 

832). 

157. 	 Prior to_death, Andy Macaluso told his supervisor, Rochelle, that he 

was uncom~ing alone with a member who had expressed homicidal 

ideations and had access to a fIrearm. (Macaluso, Tr. 507, Ex 31, p. 3). Later, the 

member threatened to kick Macaluso's ass. (Macaluso, Tr. 51-15; Exhibit 31, p. 2). 

Macaluso informed Integra Vice President Melissa Arnott and supervisor Whitney 

Ferguson about this incident. (Macaluso, Tr. 515, Ex. 31, p. 2). 

158. 	 Arnott admits she was aware that a member verbally threatened Andy Macaluso, 

but she did not create an incident report on this instance of workplace violence. 

(Arnott, Tr. 1010). 

Employer Recoe;nition of Bazard of Workplace Violence 

159. 	 Dr. Melissa Arnott is the Vice-President of Community programs for Integra 

Health Management. (Arnott, Tr. 340). 

160. Arnott supervised the team lead in each location. (Arnott, Tr. 340). 

17 

161. 	 Integra defmed threatening communications as a type of workplace violence. 

(Amott, Tr. 341). 

162. 	 Integra's members would say threatening things to SCs "every once in a while." 

(Amott, Tr. 343). People do curse. (Amott, Tr. 343). 

163. 	 Amott stated, "I don't think it's workplace violence if a member is saying, you 

know, get the F out of here, or I don't F'king like you ... That's the nonnal talk that 

we ... hear sometimes from certain members ... " (Amott, Tr. 343). 

164. 	 Amott admits that "if another SC made the same comments to another SC, [she] 

would consider that to be a threatening communication or instance of workplace 

violence." (Amott, Tr. 343). 

165. 	 According to Amott, SCs decide if they feel threatened by a member's conduct 

and need to call their supervisors. (Amott, Tr. 344). It is up to the SC to identify a 

threatening situation. (Tr. 344). 

166. 	 The Neumann training contained a Power Point slide entitled, "Screening the 

Dangerous Member". (Exhibit 16; Amott, Tr. 345). 

167. 	 Integra recognized that certain members might be dangerous and could present a 

threat to an Sc. (Amott, Tr. 345). 

168. 	 Integra felt it was necessary to instruct SCs on how to identify and assess 

dangerous members because SCs would be working directly with mentally ill 

members. (Amott, Tr. 346). 

169. 	 Integra did not provide SCs with infonnation about a member's previous unsafe 

behavior. (Amott, Tr. 346). Integra did not require SCs to obtain this infonnation. 

(Amott, Tr. 346). 

170. 	 Integra did not make the buddy system mandatory; it only "suggested" the use of 

the buddy system. (Amott, Tr. 347-48). 

171. 	 The Neumann Training included infonnation about certain high risk behaviors 

that a Service Coordinator should be looking for in its members. (Amott, Tr. 349). 

The training listed the high risk behaviors as a history of violence or self-hann, 

paranoia, suspiciousness, psychosis, confusion, substance abuse, hopelessness, verbal 

threats, lack of future plans, and criminal behavior. (Amott, Tr. 349; Exhibit 17). 

172. 	 SCs were required to identify these behaviors while doing their initial assessment 

of the member. (Amott, Tr. 349). These behaviors are included on Integra's official 

assessment fonn. (Amott, Tr. 349). 

18 

\ 


I 

1 
177. 

173. 	 Integra relied on members to self-report their criminal behavior, mental state, and 

history of violence. (Arnott, Tr. 350). 

174. 	 Integra required SCs to correctly identify high risk behaviors of the members they 

serviced. SCs were expected to find out about issues like antisocial personality, head 

injury, family history of violence, history of impulsive behavior, noncompliance, loud 

manic behavior, and possession ofweapons. (Arnott, Tr. 350). 

175. 	 Integra recognized that members might have criminal histories, including felony 

convictions. (Arnott, Tr. 352). 

176. 	 Integra left it up to the SCs to determine ifthey needed a buddy for safety 

reasons. (Arnott, Tr. 353). Integra did not routinely assign buddies to SCs and had no 

written procedure for requesting a buddy. (Arnott, Tr. 354). 

death, Integra in Pennsylvania had a policy of partnering two 

Tr. 354-55). 

178. 	 Arnott supervised the team leads and reviewed and approved progress notes. 

(Arnott, Tr. 356). 

Industry Recognition of Hazard of Workplace Violence 

179. 	 Integra is a part ofthe social serviceslhealthcare industry. (Prymmer, Tr. 160; 

Nelson, Tr. 1103-1104). 

180. 	 Workplace violence is a recognized hazard in the social serviceslhealthcare 

industry. (Prymmer, Tr. 161; Nelson, Tr.555-557, 575, 605; Ex. 32 and 33). 

181. 	 Violence against social service workers and home healthcare providers is a wellrecognized problem in this industry. (Prymmer, Tr. 362; see Ex. 32, p. 44-46). 

182. 	 Social service workers, such as Integra's service coordinators, are particularly at 

risk of violence because they work with volatile, unstable people; they work alone or 

in isolated areas; they provide in-home care and services; and they may work at night 

and in areas with high crime rates. (Ex. 33, p. 8; Nelson, Tr. 605-606). 

183. 	 OSHA recognizes "healthcare and social service settings" as an industry in which 

workers are at high risk ofworkplace violence. Ex. 32 and 33, p. 10. 

Feasible Abatement 

184. 	 OSHA has published a directive regarding workplace violence listing a series of 

potential methods to abate workplace violence, both generally and in the social 

services industry. (Prymmer, Tr. 164; Ex. 33, p. 29-34). 

19 
185. 	 The abatement methods listed in OSHA's directive are based on studies indicating 

that using any combination of listed abatement methods may materially reduce or 

eliminate the hazard of workplace violence. (Prymmer, Tr. 164; Ex. 33, p. 29, 36­

38). 

186. 	 The proposed abatement found in Citation 1, Item I, was gleaned from the OSHA 

directive and lists effective methods for abating the hazard of workplace violence that 

are applicable to Integra. (Prymmer, Tr. 165, Ex. 33, p. 33-38; Nelson, Tr. 672-673). 

187. 	 If an employer is serving seriously mentally ill individuals that may have criminal 

backgrounds, it is advisable to conduct background checks before allowing 

employees to enter their home. (Nelson, Tr. 722). 

188. 	 Lost cost methods of abatement for preventing workplace violence to SCs 

include: establishing a safety committee; assigning the committee to write field safety 

procedures; developing safety plans and practice them; assigning clients/caseloads 

considering client risk, race, gender, language and culture; having home visit 

itineraries and call-in requirements to monitor location of employees; establishing a 

system to communicate to employees all incidents of threats or violence; developing 

code words to indicate when there is a problem; supplying employee training in deescalation and self-defense. (Nelson, Tr. 644-666; Ex. 27, p. 12). 

189. 	 Integra could have feasibly implemented any or all of the safety measures 

outlined above prior to December 10, 2012. (Nelson, Tr. 666). 

190. 	 Criminal background checks are often available on-line; in Florida, the 

Department of Corrections has a free on-line database that can be searched by name. 

(Nelson, Tr. 617). 

191. 	 Social service workers may partner with local law enforcement to discover 

relevant criminal background of members before interacting directly with the 

members. (Nelson, Tr. 617). 

192. 	 Knowing a member's criminal history may reduce the risk of violence. (Nelson, 

Tr.675) 

193. 	 Training in self-defense - including de-escalation and non-hanning escape 

techniques - is an effective method of abating the hazard of workplace violence 

against social service workers. (Nelson, Tr. 675, 1094-1095). 

194. 	 Integra begin perfonning background checks and "red-flagging" certain members 

in the system after. death. (Rentz, Tr. 389) (Prymmer, Tr. 160, 166). 

195. 	 Integra now "rolls off' members whose criminal backgrounds indicate a history 

of violent behavior. (Prymmer, Tr. 160, 166-167). 

20 

196. 	 Integra has "rolled off' at least eight members because their criminal histories 

indicated that they were too dangerous to service. (Prymmer, Tr. 160). 

197. 	 After. death, Integra updated the safety training it provides to SCs. 

198. 	 After. death, SCs discussed safety concerns with Dr. K at rounds meeting. 

(Schneider, Tr. 484). 

199. 	 After. death, Integra created a written workplace violence prevention 

program. (Prymmer, Tr. 166). 

200. 	 On or about May 1,2013, Integra provided de-escalation training called "CPI" to 

its service coordinators. (Macaluso, Tr. 521-522,525; Nelson, Tr. 676). 

V. 	 ARGUMENT 

Congress enacted the Occupational Safety and Health Act (the Act), 29 U.S.c. § 651 et 

~, in response to millions of workplace accidents and occupational illnesses, which it found 

excessively costly, in terms of both dollars and of human suffering. National Realty and Constr. 

Co. v. OSHRC and Secretary, 489 F.2d 1257, 1260-61 & n. 7 (D.C. Cir. 1973). The goal of the 

Act is to prevent the first injury that might result from unsafe conditions. Mineral Indus. & 

Heavy Constr. Co. v. OSHRC, 639 F.2d 1289, 1294 (5th Cir. 1981). 

A. 	 The Secretary has established each element of Citation 1, Item 1, which alleges a 

Section 5(a)(1) violation. 

In Citation 1, the Secretary cites Integra for violating Section 5(a)(1) of the Occupational 

Safety and Health Act of 1970, as amended (the "Act"), which provides: 

(a) Each employer­

(1) 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; 

21 

29 US.c. § 654(a)(l). Under Commission precedent, a citation alleging a violation ofSection 

5(a)(1) - "the general duty clause" is appropriate only when a specific OSHA standard does 

not apply to the facts. Waldon Health Care Center, 16 BNA OSHC 1052, 1060, 1993 WL 

119662 (No. 89-2804, 1993). There is no dispute here that no specific OSHA standard applies to 

the facts of this case. 

To establish a violation of Section 5( a)( 1), the Secretary must prove that (1) a condition 

or activity in the employer's workplace presented a hazard to employees, (2) the cited employer 

or the employer's industry recognized the hazard, (3) the hazard was causing or likely to cause 

death or serious physical harm, and (4) feasible means existed to eliminate or materially reduce 

the hazard. Id. at 1058 (citing Kastalon, Inc., 12 BNA OSHC 1928, 1931 (Nos. 79-3561,1986) 

(consolidated); Pelron Corp., 12 BNA OSHC 1833, 1835 (No. 82-388, 1986». 

1. Existence of a hazard 

"A 'hazard' is defmed in terms of conditions or practices deemed unsafe over which an 

employer can reasonably be expected to exercise control." Valley Interior Systems, Inc., 21 

BNA OSHC 2224,2007 WL 2127305 at *3 (No. 06-1395,2007) (citing MorrisonKnudsenCo.lYonkers Contacting Co., A Joint Venture, 16 BNA OSHC 1105, 1121 (No. 88-572, 

1993». "There is no requirement that there be a 'significant risk' ofthe hazard coming to 

I fruition, only that if the hazardous event occurs, it would create a 'significant risk' to 

i employees." !d. "A 'hazard' has been defined to mean 'a condition or practice in the 

! workplace' which introduces an element of danger into the work environment." Foseco, Inc., 10 

I BNA OSHC 1949, 1982 WL 22452 at *13 (No. 81-944, 1982) (citing Empire-Detroit Steel Div., 

! 

Detroit Steel Corp. v. OSHRC, 579 F.2d 387 (6th Cir. 1978». I 

I 

The Secretary must show that the cited condition actually poses a hazard to employees, J 

i 

I but "[t]here is no mathematical test to determine whether employees are exposed to a hazard 

I, 22 I 

1 

! 
under the general duty clause." Waldon Healthcare Center, 1993 WL 119662 at *II (citing 

National Realty & Constr. Co. v. OSHRC, 489 F.2d 1257, 1265 n. 33 (D.C. Cir. 1973)). "Rather, 

the existence of a hazard is established ifthe hazardous incident can occur under other than a 

freakish or utterly implausible concurrence ofcircumstances." Waldon Healthcare Center, 1993 

WL 119662 at *II. In establishing that a hazard presents a significant risk to employees, the 

Secretary is not required to show that previous injuries or deaths from the hazard occurred; the 

goal ofthe Act is to prevent the first accident. See American Phoenix, Inc., _ BNA OSHC _ 

(No. 11-2969, Mar. 13,2014) ("The goal ofthe Act is to prevent the first accident, not to serve 

as a source of consolation for the first victim or his survivors.") (citing Mineral Industr. & Heavy 

Constr. Group, 639 F.2d at 1294 (which also stated that "no proof of specific instances where 

employees were exposed to the hazardous condition is necessary to support the fmding of a 

violation")); Waldon Healthcare Center, 1993 WL 119662 at *10 ("Since the goal ofthe Act is 

to prevent the first accident, [] the absence of any recorded case ofHBV transmission from 

nursing home resident to nursing home employee is not dispositive.") (citation omitted). 

In this case, the cited condition is the hazard of a service coordinator being physically 

assaulted by a member with a history of violent behavior. The evidence amply establishes the 

existence ofthis hazard. First, the evidence establishes that Integra's operations in Florida were 

geared towards members who suffered from chronic mental illness, and that many of these 

members possessed criminal records and histories of substance abuse. (Prymmer, Tr. 89, 133; 

Rochelle, Tr. 247, 252; Stevens, Tr. 417-18; Snyder, Tr. 451). Many members were not 

compliant with their doctor's orders or their prescriptions. (Daniel, Tr. 437-38; Stevens, Tr. 416). 

In addition, the evidence establishes that many members, including the member who attacked 

and fatally stabbed had histories of violent behavior which included physical assaults, 

23 

batteries, and anned robbery. (Ex. 25; Prymmer, Tr. 136-137, 139; Rochelle, Tr. 258; Daniel, 

Tr. 436). Integra required employees in the service coordinator position to conduct face-to-face 

visits at these members' homes, and to transport members to hospitals and other appointments in 

their personal vehicles. (Rochelle, Tr. 255; Rentz, Tr. 369; Schneider, Tr. 452, 462; Stevens, Tr. 

417; Hinman, Tr. 809). Often, visiting members meant traveling into dangerous neighborhoods 

or homeless shelters. (Rentz, Tr. 374; Daniel, Tr. 436-437; Rochelle, Tr. 251). The fact that 

most members suffered from mental illness does not necessarily mean that all members 

possessed violent tendencies, but service coordinators had reported to management that certain 

members made them uncomfortable. (Amott, Tr. 1010). Several "close calls" had occurred, 

during which members behaved belligerently or aggressively towards service coordinators. 

(Schneider, Tr. 458; Ex. 29, p. 6; Schneider, Tr. 470; Ex. 29, p. 18; Schneider, Tr. 471-472; Ex. 

29, p. 24; Hinman, Tr. 831; Rochelle, Tr. 268; Macaluso, Tr. 507, Ex 31, p. 3). The company's 

own training concedes that employees may occasionally deal with "dangerous" members and 

dangerous situations. (Prymmer, Tr. lO8:1-3; Ex. 15, 16, and 17). Furthennore, the evidence 

establishes that service coordinators themselves were inexperienced and did not possess the skills 

necessary to accurately assess a member's propensity for violence. (Nelson, Tr. 590-593, 1097­

1100; Ex. 34). Under these circumstances, violence resulting in serious injury to a service 

coordinator would not require "a freakish or utterly implausible concurrence of circumstances." 

See Waldon at *11. 

In Megawest Financial, Inc., the only previously litigated case alleging a violation of the 

general duty clause on the basis of workplace violence, the Court found that the hazard of 

violence against the staff of an apartment complex by one of its tenants was present "[b ]ecause 

the responsibilities of the office staff led to adversarial relationships with the tenants, the staff 

24 

was not trained to diffuse anger, the residents often directed intimidating threats or conduct 

J towards the staff, that conduct was not sanctioned, and [] there were no positive measures in 

I effect to discourage attacks."l Megawest Financial Inc., 17 BNA OSHC 1337 (No. 93-2879, 

1995). Based on this evidence, the Court held that "a future violent incident leading to serious

1 

! 	

physical harm was neither freakish nor implausible." Id. Similarly, the evidence in this case 

establishes that service coordinators' work regularly placed them alone in crime-prone 

neighborhoods, that members were known to behave erratically and had previously been actively 

hostile towards the service coordinators, that many members were mentally ill and had histories 

of violent and/or criminal behavior, and that service coordinators were not adequately trained or 

experienced to prevent or anticipate acts of violence. Accordingly, the Secretary has established 

that the hazard existed as cited. 

(hi 1(' II hi I h I Indeed, on December 10, 2012, Integra service coordinator 	 was attacked 

and stabbed to death by a schizophrenic member with a criminal history 

including aggravated battery with a deadly weapon and aggravated assault with a weapon, while 

she was performing a visit to his home. Clearly, the evidence establishes was 

exposed to the hazard of being physically assaulted by a member with a history of violent 

behavior, as alleged in Citation 1, Item 1. 

2. Recognition of the hazard 

A hazard is deemed "recognized" when the potential danger of a condition or practice is 

either actually known to the particular employer or generally known in the industry. Pepperidge 

Farm, Inc., 17 BNA OSHC 1993,2003 (No. 89-0265, 1997); Kansas City Power & Light Co., 

I Although she found that the hazard of workplace violence did exist in Megawest, Judge Spies ultimately decided 

that the hazard of workplace violence was not recognized by either the employer or the relevant industry (i.e., 

apartment leasing offices), and that therefore a violation of the general duty clause had not been established. As set 

forth in Section 2, infra, the facts of Megawest relevant to recognition of the hazard are clearly distinguishable from 

the facts of this case. Moreover, Megawest is an unreviewed ALJ decision with no precedential value for the 

Commission. 

25 
10 BNA OSHC 1417 (No. 76-5255, 1982). In this case, both Integra and the general industry of 

social service and healthcare workers recognize the risk of workplace violence. 

a. Integra's Recognition ofthe Hazard 

J 

I 

t 

The evidence establishes that Integra recognized the hazard of violence against service 

coordinators from the members they served. Integra's own training and handbook identified the 

hazard and Integra's managers knew that many members suffered from mental illness and 

substance abuse issues, that many members had criminal histories, and that members had 

previously behaved aggressively or violently towards service coordinators. 

Employer recognition of a hazard can be established by evidence of safety precautions 

taken by the employer in conjunction with other evidence, such as warnings by or to company 

personnel regarding existence of a hazard. See Ted Wilkerson inc., 9 BNA OSHC 2012, 2016, 

1981 CCH OSHD ,-r 25,551, p. 31,856 (No. 13390, 1981 ) (employer's work rule establishes 

recognition of hazard under general duty clause); St. Joe Minerals Corp. v. OSHRC, 647 F.2d 

840 (8th Cir. 1981) (actual knowledge of a hazard may be gained by means of prior accidents, 

prior injuries, employee complaints, and warnings communicated to the employer by an 

employee.) As the Commission stated in Beverly Enterprises, inc., 19 BNA OSHC 1161,2000 

WL 34012177 at *28 (No. 91-3144,2000): 

While an employer's safety precautions alone do not establish that the employer 

believed that those precautions were necessary for compliance with the Act, 

Wheeling-Pittsburgh Steel Corp., 16 BNA OSHC 1218, 1221-22, 1993-95 CCH 

OSHD,-r 30,050, p. 41,291 (No. 89-3389, 1993), precautions taken by an 

employer can be used to establish hazard recognition in conjunction with other 

evidence. Waldon, 16 BNA OSHC at 1061-1062, 1993-95 CCH OSHD at p. 41, 

154-55 and cases cited therein. Moreover, as the Commission observed in 

Pepperidge Farm, 17 BNA OSHC at 2007, 1995-97 CCH OSHD at p. 44,018, 

warnings by or to company personnel regarding the existence of a hazard are 

more persuasive on the issue of recognition than purely voluntary safety 

precautions.. 

26 

Integra clearly recognized that members could pose a threat of violence to the service 

coordinators. Section 8 of the Neumann Training provided to new service coordinators outlines 

the risks ofworking with "dangerous members" (Ex. 16); the assessment form used by service 

coordinators asks members to assess the members for traits and behaviors identified as creating a 

"high risk" for violence (Ex. 17 and Ex. 34); the employee handbook identifies "workplace 

violence" as a potential hazard (Ex. 18, p. 96); and Integra instructed its service coordinators to 

consider bringing a "buddy" with them if they "suspect that there is potential danger," (Ex. 16, p. 

4), despite the fact that the service coordinators categorically did not have the training or 

experience to make such determinations. As such, Integra's own training, handbook, and 

existing policies establish that it recognized that its service coordinators were exposed to the 

hazard ofworkplace violence. (Prymmer, Tr. 11 0:4-8; 116:21-25; 117: 1-5). 

Moreover, the evidence establishes that, prior to the fatal attack Integra 

managers were aware of several instances of violence or aggression by members against service 

coordinators. In particular, service coordinators Andy Macaluso, Scott Schneider, and Annie 

Hinman had all reported to their supervisors particular instances in which members acted 

aggressively, threateningly, or so strangely as to raise safety concerns. (Schneider, Tr. 458; Ex. 

29, p. 6; Schneider, Tr. 470; Ex. 29, p. 18; Schneider, Tr. 471-472; Ex. 29, p. 24; Hinman, Tr. 

831; Rochelle, Tr. 268; Macaluso, Tr. 507, Ex 31, p. 3). This prior history of workplace 

violence clearly put Integra on notice that its employees were exposed to the hazard of 

workplace violence. 

A reasonable inference from the evidence also establishes that Integra indeed recognized 

presented a specific threat to the victim, Integra performed no 

27 

background check to detennine if he possessed violent tendencies,2 and took no 

action when the victim's progress note reports described her discomfort and his alanning, 

delusional behavior. (Rochelle, Tr. 278). The victim noted that the member made her so 

"uncomfortable" that she did not want to be alone in his house with him. (Ex. 7, p. 5). She stated 

that she planned to bring another individual with her on the next visit or to remain outside the 

member's home. (Id.) Although Integra managers admit to reading this note, Integra took no 

steps to assess the risk posed and made no follow-up to ensure that took 

either measure she outlined to protect her safety. (Prymmer, Tr. 143, 148; Ex. 19; Amott, Tr. 

356-359; Rochelle, Tr. 278). Integra also did not discipline for failing to bring a partner 

on her subsequent visits to and/or for failing to remain outside his home. (Rochelle, 

Tr. 285-286). Integra made no inquiries into whether the victim's interactions with the assailant 

had improved or changed since her initial visit. (Amott, Tr. 358-359, 364-365). Thereafter,1II 

• (See Ex. 7; Prymmer, Tr. 

139-140). During these visits, exhibited behaviors that 

perfonned three additional face-to-face visits 

notes indicate that 

could indicate delusional or paranoid behavior. (Amott, Tr. 362). Delusions and paranoia are 

identified in Integra's training as "high risk" behaviors. (Amott, Tr. 362). progress 

note reports, accordingly, would have caused Integra to recognize that she was exposed to the 

hazard ofworkplace violence. On her fourth face-to-face visittolll home, on 

December 10,2012, and stabbed her to death with a knife. (Amott, 

Tr.366). 

Respondent may contend that working in close contact with persons with mental illness, 

substance abuse issues, and/or histories of violent behavior does not necessarily present a 

2 A simple search name on the Florida Department of Corrections website would have 

shown that he had an history including aggravated battery with a deadly weapon and 

aggravated assault. (Ex. 25; Prymmer, Tr. 136-137, 139). 

28 
recognized hazard to its employees, because ofthe difficulty ofpredicting the criminal behavior 

of non-employees. Respondent may seek to rely upon Megawest Financial Inc., 17 BNA OSHC 

1337 (No. 93-2879, 1995), in support of its position. Megawest is an unreviewed ALJ decision 

with no precedential value for the Commission. In that case, Judge Spies vacated a § 5(a)(I) 

citation where the alleged recognized hazard was workplace violence inflicted on apartment 

complex management personnel by tenants of the apartment complex. In vacating the citation, 

Judge Spies states: 

In the past, employers have been required to reduce hazards they could anticipate 

and reduce or eliminate. The problem with predicting workplace violence is the 

unpredictability ofhuman behavior. In this case, the Secretary is asking 

Megawest to predict the criminal behavior of non-employees. Additionally, the 

anger and fiustration that drives a resident to become violent may be fueled by a 

variety of factors. 

Id. at 1341. 

Megawest is distinguishable from this case for several reasons. First, unlike the employer 

in Megawest, the evidence establishes that Integra did actually recognize the hazard of violence 

by one of its members against its employees. As part ofthe training for new service coordinators 

(called "the Neumann training"), Integra identified certain dangers that employees might face in 

the execution oftheir duties, including "Screening the Dangerous Member," "Risk Factors," and 

"High Risk Behaviors." Second, several employees - including the victim had 

informed management that certain clients' behavior made them feel uncomfortable or unsafe. 

Furthermore, unlike the leasing-office workers in Megawest who interacted in an office setting 

with residents similar to members of the general public, the service coordinators interacted daily 

with a population known by Integra to be mentally ill and substance abusers, and many of which 

had a violent criminal record. In addition, service coordinators traveled, usually alone, to these 

members' homes and communities to meet with them; they were not meeting them in the 

29 

relatively secure and stable environment of an office. While the behavior of such members is 

still "unpredictable" in a specific sense, Integra clearly recognized that violence by one ofthese 

individuals was a hazard and cannot credibly deny having such recognition. See Sea World of 

Florida, LLC v. Perez, 748, F.3d 1202, 1209 (D.C. Cir. 2014) (dismissing SeaWorld's argument 

that close contact with whales "was not a recognized hazard because all whales behave 

differently", explaining that "even though Sea World had not recorded incident reports on all of 

its killer whales, a substantial portion ofSea World's killer whale population had at least one 

reported incident" and that "SeaWorld management personnel, including corpomte cumtors of 

animal training, [] described the need for caution around killer whales generally, not only around 

certain killer whales"). 

b. Industry Recognition ofthe Hazard 

Integra's industry recognizes the hazard ofworkplace violence against employees. The 

Commission and courts have held that expert testimony and other sources such as industry 

publications and standards can demonstmte that the hazard is recognized in the employer's 

industry. American Phoenix, supra (citing decisions that recognize ANSI standards reflect 

industry consensus). 

A relevant expert's testimony is sufficient evidence in and of itself to establish that a 

particular industry recognizes a hazard. See Kelly Springfield Tire Co., Inc. v. Donovan, 729 F.2d 

317,322 (5th Cir. 1984) (holding that expert testimony established recognition ofhazard); 

National Realty, 489 F.2d at 1265 n.32 (holding that recognition standard centers on "the 

common knowledge ofsafety experts who are familiar with the circumstances ofthe industry or 

activity in question."). In this case, the testimony of Janet Nelson, recognized by the Court as an 

expert in "personal safety skills and safety programs for health and human service workers" 

30 

(Nelson, Ir. 584), establishes that the social services industry recognizes that workplace violence 

is a known hazard. III Nelson testified that, in the past ten years, several high profile murders 

of social service workers have raised awareness within the industry of the hazards faced by 

social service workers. (Nelson, Ir. 555-556). III Nelson has dedicated the majority ofher 

career to teaching self-defense and safety skills to social service and other community outreach 

workers, and has been hired by multiple chapters of the National Association of Social Workers 

across the nation to teach these skills. (Nelson, Ir. 558-561). 

In addition toll Nelson's testimony, the Secretary presented evidence ofmultiple 

industry publications recognizing the hazard of workplace violence in the social services and 

home healthcare industry. Specifically, the OSHA directive on workplace violence (Exhibit 33), 

and the OSHA publication offering Guidelines for Preventing Workplace Violence for 

Healthcare and Social Service Workers (Exhibit 32), both list multiple publications within the 

social services and healthcare industry addressing the recognized hazard of workplace violence. 3 

3 OSHA, in its Violation Worksheet entered as Exhibit 6, also identified the following publications as 

evidence of the industry's recognition of the hazard of workplace violence: 

• 	 OSHA Publication 3148-IlR 2004 Guidelines for Preventing Workplace Violence for 

Healthcare and Social Service Workers 

• 	 OSHA Workplace Violence Factsheet 

• 	 NlOSH Publication No. 2001-101, Violence: Occupational Hazards in Hospitals 

• 	 NlOSH Publication No. 2006-144, Workplace Violence Prevention Strategies and Research 

Needs 

• 	 NlOSH Publication No. 2004-100D (DVD), Violence on the Job 

• 	 NlOSH Publication No. 2002-101, Violence Occupational Hazards in Hospitals 

• 	 NIOSH Publication No. 96-100, Violence in the Workplace 

• 	 NIOSH Publication No. 93-109, Preventing Homicide in the Workplace 

• 	 NIOSH Publication No. 92-103, Homicide in U.S. Workplaces: A Strategy for Prevention 

and Research 

• 	 FBI Workplace Violence: Issues In Response 

• 	 Journal of Teaching Social Work (2000) "Encountering Violence in Field Work: A Risk 

Reduction Model" 

• 	 The Journal of Baccalaureate Social Work (2001) "The Power of Collaboration: Developing 

a safety training program for student interns" 

31 
(See Ex. 32, p. 25 and 44-46; Ex. 33, p. 36-38). Both of these documents explain that social 

service workers are particularly susceptible to the hazard of workplace violence because they 

work with volatile, unstable people; work alone or in isolated areas; provide in-home services 

and care; and work late at night or in areas with high crime rates. (Ex. 32, p. 8-9; Ex. 33, p. 8). 

Courts and the Commission have also looked to industry standards and guidelines to 

determine whether a particular industry recognizes the hazard cited. See Bethlehem Steel Corp. v. 

OSHRC & Marshall, 607 F.2d 871 (3d Cir. 1979) (safety officer admitted that advisory ANSI 

standard represented industry consensus); Betten Processing Corp., 2 BNA OSHC 1724 (No. 

2648, 1975) (holding judge erred in failing to consider ANSI standard as evidence ofindustry 

recognition). "Where a practice is plainly recognized as hazardous in one industry, the 

Commission may infer recognition in the industry in question." Arcadian Corp., 20 BNA OSHC 

2001,2997,2004-2009 CCH OSHD ~ 32,756, p. 52,074 (No. 93-0628, 2004) (citing Kelly 

Springfield, 729 F.2d at 317). The evidence establishes that the National Association of Social 

Workers has published a set of "Guidelines for Social Worker Safety in the Workplace.',4 These 

Guidelines address the hazard of workplace violence specifically for social workers, and set forth 

• 	 Journal of Social Work Education (2008) "Developing Student Knowledge and Skills for 

Home Visiting" 

• 	 The New Social Worker (2011) "Tips for Making Home Visits" 

• 	 The Clinical Supervisor (2007) "Home Visits in a Violent World" 

• 	 Social Work (2005) Conflict in the workplace: Social workers as victims and 

perpetrators" 

• 	 Social Work (2003) "Client Violence Toward Social Workers: The role of management 

in community mental health programs" 

• The Provider (2008) The need to make safety a priority" 

• Archives of General Psychiatry (2009) "The Intricate link between violence and mental 

disorder" 

See Exhibit 6, p. 8. 

4 The Secretary's expert, Janet Nelson, contributed to the creation of these industry guidelines. (Nelson, 

Tr. 588, 723). 

32 
suggested methods of abatement, many of which were also recommended in this case by OSHA 

I 


I 


I 


1 


I 

1 


I 


I

1 


andll Nelson. (Nelson, Tr. 723-730). 

Respondent may argue that service coordinators are not trained social workers and, 

therefore, the NASW guidelines and other industry publications relevant to social service 

workers do not establish recognition of the hazard by Integra's industry. The evidence 

establishes, however, that Integra's service coordinators, despite their lack of formal training, 

perform the work of social workers. (Nelson, Tr. 590-593,599, 1097-1100, 1103-1104; Ex. 34). 

Furthermore, it is beyond dispute that the service coordinators work under conditions recognized 

by the social service industry as creating a higher risk of workplace violence; namely, the service 

coordinators, like many social service workers, work with volatile, unstable people; work alone 

or in isolated areas; provide in-home services and care; and work late at night or in areas with 

high crime rates. 5 Accordingly, regardless ofwhich "industry" Integra claims to belong to, 

because the conditions of the service coordinators' work are plainly recognized by the social 

work industry as creating the hazard of workplace violence, the Court should "infer recognition 

[of the hazard] in the industry in question." Arcadian Corp., 20 BNA OSHC 2001 at *11. 

3. The hazard is causing or likely to cause death or serious physical harm 

To prove a 5(a)(1) violation, the Secretary must show that the alleged hazard was causing 

or likely to cause death or serious physical harm. In determining whether employee exposure 

exists, the Commission has held that the Secretary must prove that "employees either while in 

the course of their assigned working duties, their personal comfort activities while on the job, or 

their normal means of ingress-egress to their assigned workplaces, will be, are or have been in a 

zone of danger." Fabricated Metal Products, Inc., 18 O.S.H. Cas. (BNA) 1072 (No. 93-1853, 

5 Indeed, III Nelson testified that the service coordinator's lack of formal social work training actually 

increases thetr risk of workplace violence, because they lack the experience and clinical knowledge 

necessary to adequately assess a member's propensity towards violence. (Nelson, Tr. 1100). 

I 

1 33 

1 

I 

l 

1 
1997) (citing Gilles & Cotting, Inc., 3 BNA aSHC 2002 (No. 504, 1976». See also Con Agra 

Flour Milling Co., 16 a.S.H. Cas. (BNA) 1137 (No. 88-1250, 1993) ("[t]he Commission's test 

for determining access is whether in the course of the employee's duties, it is 'reasonably 

predictable' that they will be, are or have been in a 'zone of danger"') (citations omitted). 

This case involves the violent killing ofone oflntegra's employees, bya 

member with a history of violent behavior. This tragic event establishes that the hazard of work 

place violence caused the threat of serious physical harm or death. 

4. 	 The Secretary's proposed abatement is feasible and will eliminate or 

materially reduce the cited hazard. 

The fmal element in establishing a general duty clause violation is the Secretary's 

showing that the proposed abatement will "eliminate or materially reduce the hazard." Cardinal 

Operating Company, 11 BNA aSHC 1675 (No. 80-1500, 1983). "The proposed method of 

abatement is judged by what a reasonable person familiar with the conditions of the industry 

would have instituted." Valley Interior Systems, Inc., 2007 WL 2127305 at *7. "Feasible means 

of abatement are established if 'conscientious experts, familiar with the industry' would 

prescribe those means and methods to eliminate or materially reduce the recognized hazard." 

Arcadian, 20 BNA aSHC 2001 at * 13 (quoting Pepperidge Farm, Inc., 17 BNA aSHC 1993, 

2032 (No. 89-0265, 1997». "[T]he Secretary need only show that the abatement method would 

materially reduce the hazard, not that it would eliminate the hazard." Morrison-Knudsen, 16 

BNA aSHC at 1122. 

In the Citation item, the Secretary proposes that Respondent could abate the hazard of 

workplace violence through (1) implementing a written workplace violence prevention program 

34 

containing specified elements6

; (2) determining the behavioral history ofnew/transferred 

members and establish a system - such as a chart, log book, or report - to identify members with 

assaultive behavior problems and to communicate such information to all potentially exposed 

employees; (3) establishing procedures for communicating any incident of workplace violence to 

all staff; (4) updating and overhauling the safety training; (5) implementing a buddy system as 

appropriate based upon a complete hazard assessment which includes procedures for all staff to 

request and obtain double coverage when necessary; (6) providing all staff with a reliable way to 

rapidly summon assistance when needed; and (7) establishing a liaison with law enforcement 

representatives. (Ex. I, p. 6-8). CSHO Prymmer testified that he developed the list ofproposed 

abatement from the OSHA directive itself, which lists engineering and administrative controls 

shown to minimize the risk of workplace violence within the healthcare and social services 

industries. (Prymmer, Tr. 165; Ex. 33, p. 33-38). He further explained that "the more robust 

[workplace violence prevention] program you have, a written comprehensive program, the lower 

incidence of workplace violence you're exposed to." (Prymmer, Tr. 164).111 Nelson, 

recognized by the Court as an expert in "personal safety skills and safety programs for health and 

human service workers", testified that performing background checks, implementing certain 

administrative and engineering controls/ and providing employee training in de-escalation and 

non-harming self-defense techniques, would be low-cost to Integra and would materially reduce 

the risk of workplace violence. (Nelson, Tr. 617, 644-666,675, 1094-1095; Ex. 27, p. 12). She 

also testified that the abatement recommended by OSHA was feasible and would materially 

6 These elements are set forth in the Citation itself. 

7 Examples of such controls include establishing a safety committee; assigning the committee to write 

field safety procedures; developing safety plans and practice them; assigning clients/caseloads 

considering client risk, race, gender, language and culture; having home visit itineraries and call-in 

requirements to monitor location of employees; establishing a system to communicate to employees all 

incidents ofthreats or violence; and developing code words to indicate when there is a problem. 

35 


1, 

l 

I, 
reduce instances of workplace violence. (Nelson, Tr. 672-673). This portion otJI Nelson's 

testimony was unchallenged by Integra, which provided neither lay nor expert opinion testimony 

claiming that these abatement measures were infeasible or would not reduce the hazard of 

workplace violence. 

Indeed, since the death Integra has implemented several of the abatement 

methods proposed by OSHA. For example, Integra has created a written workplace violence 

prevention program which includes some of the above-referenced administrative and engineering 

controls. (Prymmer, Tr. 166-167). Integra began performing background checks and "redflagging" certain members in the system after. death. (Rentz, Tr. 389; Prymmer, Tr. 160, 

166). Integra now "rolls off' members whose criminal backgrounds indicate a history of violent 

behavior, and has "rolled off' at least eight members because their criminal histories indicated 

that they were too dangerous to service. (Prymmer, Tr. 160, 166-167). On or about May 1, 

2013, Integra provided de-escalation training called "CPI" to its service coordinators. (Macaluso, 

Tr. 521-522, 525; Nelson, Tr. 676). Accordingly, the evidence establishes that many of the 

measures outlined by OSHA, including background checks of new clients and more robust 

training, are reasonable to implement, are economically and technologically feasible, and 

materially reduce the instances of workplace violence. 

Integra may claim that its existing policies and procedures were sufficient to address the 

hazard of workplace violence. See Waldon, 16 BNA OSHC atl063 ("[T]he employer may 

defend against a general duty clause citation by demonstrating that it was using an abatement 

method that is as effective as the one suggested by the Secretary."). However, the evidence 

established that Integra's safety training program was inadequate and it did not have or enforce a 

workplace violence prevention program. Prior to death, Integra's policies establish 

36 

that it was aware of the hazard of workplace violence, but they fail to provide enforceable work 

rules or administrative or engineering controls which could adequately prevent workplace 

violence. The evidence establishes that, b death, Integra attempted to shift its 

own responsibilities for safety to its employees by instructing its service coordinators to leave a 

situation "if [they] feel there is any risk" or to bring a "buddy" if they "suspect that there is 

potential danger." (Ex. 16, p. 2 and 4). Integra may claim that this instruction which was part 

ofthe on-line Neumann training power points - sufficiently protected its employees from 

exposure to workplace violence. This argument, however, must fail because Integra's entire 

"safety program" was dependent upon the service coordinator's accurate assessment and 

identification ofpotential danger. (Prymmer, Tr. 111). Further, service coordinators testified 

that they felt pressured by management to complete the goals of making face to face contact with 

members in unrealistic time frames, regardless ofthe workplace conditions. (Schnieder, Tr. 494; 

Daniel, Tr. 436; Rochelle, Tr. 269).11 Nelson also testified that service coordinators, because 

they were not clinically trained or experienced in working with mentally ill patients, were illequipped to make the type of "assessment" of a member that would reasonably predict his 

propensity towards violence. (Nelson, Tr. 1099-1100). Integra's reliance on its service 

coordinators to recognize potential danger and thereby prevent violent behavior by the members 

runs counter to the requirements of the Act. See Sea World ofFlorida, LLC, 24 O.S.H. (Cas.) 

BNA 1303 (2012), affirmed by Sea World ofFlorida, LLC, 748, F.3d 1202 (stating that 

employer's reliance on employees to recognize precursors and prevent unpredictable behavior is 

inconsistent with the requirements of the Act). "The duty to comply with section 5(a)(I), 

however, rests with the employer. An employer cannot shift this responsibility to its employees 

37 

by relying on them to, in effect, determine whether the conditions under which they are working 

are unsafe." Armstrong Cork Company, 8 BNA OSHC 1070, 1074 (No. 76-2777, 1980). 

B. 	 The Secretary has established each element of Citation 2, Item 1, which alleges a 

violation of 29 C.F.R. § 1904.39(a). 

The regulation at Section 1904.39(a) provides that "within eight (8) hours after the 

death of any employee from a work-related incident ..., you must orally report the fatality [] 

by telephone or in person to the Area Office ofthe Occupational Safety and Health 

Administration (OSHA), U.S. Department of Labor, that is nearest to the site ofthe 

incident." It is undisputed that an employee of Respondent, was fatally injured 

from a work-related incident on December 10,2012. It is also undisputed that Respondent 

did not report the fatality to OSHA at all. (Prymmer, Tr. 82, 86). Accordingly, the 

undisputed facts establish a violation of29 C.F.R. § 1904.39(a). 

C. 	 The Secretary has established that violation in Citation 1, Item 1 was "serious" 

in nature, and that the violation in Citation 2, Item 1 was "other-than-serious". 

Under section 17(k) of the Act, a "serious" violation exists if there is a "substantial 

probability that death or serious physical harm could result from a condition which exists ...." 

See 29 U.S.C. § 666(k). Whether a violation is serious is determined not by whether an accident 

would likely occur, but whether in the event an accident occurred it could result in bodily harm 

or possibly death. Whiting-Turner Contracting Co., 13 BNA OSHC 2155, 2157 (No. 1238, 

1989). There is no dispute that on December 10, 2012 was fatally injured as a result 

of workplace violence. Therefore, the "serious" classification for Citation 1, item 1, should be 

upheld. See Trinity Yachts, LLC, 2001 WL 1682627, *24 (Feb. 22, 2011) (noting, "as 

demonstrated by the fatality here", the violation was properly characterized as serious). 

38 

Similarly, there is no dispute that Integra's failure to report the death in 

violation of OSHA's regulations, did not create a substantial probability ofdeath or serious 

physical harm. Accordingly, the Secretary appropriately classified Citation 2, Item 1, as "otherthan-serious. " 

D. 	 The proposed penalty for each Citation item is appropriate in light of the gravity of 

the violations established and any mitigating factors. 

Section 17(j) of the Act, 29 U.S.c. 666(j) requires the Secretary to consider four factors 

in proposing penalties: the gravity of the violation and the employer's good faith, history, and 

size. The Act does not prescribe how or what weight to apply to the factors. Atlas Roofing Co. 

v. OSHRC, 518 F.2d 990, 1001 (5th Cir. 1975), aff'd, 430 U.S. 442 (1977) (OSHA penalties are 

meant to "inflict pocket-book deterrence"). Penalty assessment requires application of 

administrative discretion. D.S. Grading Co., Inc. v. Secretary ofLabor, 899 F.3d 1145, 1148 

(11 th Cir. 1990). Usually, the gravity of the violation is the factor of greater significance. 

Caterpillar, Inc., 15 BNA OSHC 2153, 2178 (No. 97-922, 1993). "The Commission is the final 

arbiter of penalties in all contested cases. In determining an appropriate penalty, the 

Commission is required to consider the size of the employer's business, history of previous 

violations, the employer's good faith, and the gravity of the violation. Gravity is generally the 

principal factor to be considered." Reynolds Packaging Kama, Inc., 22 BNA OSHC 1952, 1960 

(No. 08-1554, 2009). 

The final total penalty of $10,500.00 should be upheld. CSHO Prymmer appropriately 

recommended an initial penalty of $7,000.00 for the "Serious" violation and appropriately did 

not make any reductions based on Respondent's size and history of violations within last 3 years. 

He did not further adjust the penalty for "good faith" based on his finding that the violation was 

39 

of "high" severity and "greater" probability, which was also appropriate in light of the nature of 

the hazards and severity of the injuries sustained. (See Prymmer Tr. 168-170). The evidence 

developed at trial supports CSHO Prymmer's recommendation to award no reduction for good 

faith. Respondent ignored a clear and obvious hazard, in the face ofmultiple reports regarding 

and other potentially violent members - that service coordinators faced a serious 

hazard of workplace violence from the members they served. Its failure to provide even minimal 

administrative controls to protect its employees establishes bad faith for which no reduction 

should be granted. CSHO Prymmer also appropriately recommended a penalty of $3,500 for the 

"Other-than-Serious" violation, based on a reduction for size, and no reduction for history or 

good faith. Therefore, the [mal, adjusted penalty should also be affirmed. 

VI. TABLE OF AUTHORITIES 

29 U.S.c. § 654(a)(I). 


29 U.S.C. § 666(k). 


29 C.F.R. § 1904.39(a). 


American Phoenix, Inc., BNA OSHC (No. 11-2969, Mar. 13,2014). 


Arcadian Corp., 20 BNA OSHC 2001, 2997, 2004-2009 CCH OSHD ~ 32,756, p. 52,074 (No. 


93-0628,2004). 


Armstrong Cork Company, 8 BNA OSHC 1070, 1074 (No. 76-2777, 1980). 


Atlas Roofing Co. v. OSHRC, 518 F.2d 990, 1001 (5th Cir. 1975), affd, 430 U.S. 442 (1977). 


Bethlehem Steel Corp. v. OSHRC & Marshall, 607 F.2d 871 (3d Cir. 1979). 


Betten Processing Corp., 2 BNA OSHC 1724 (No. 2648,1975). 


Beverly Enterprises, Inc., 19 BNA OSHC 1161,2000 WL 34012177 at *28 (No. 91-3144,2000). 


Cardinal Operating Company, 11 BNA OSHC 1675 (No. 80-1500, 1983). 


40 

Caterpillar, Inc., 15 BNA OSHC 2153, 2178 (No. 97-922, 1993). 


Con Agra Flour Milling Co., 16 O.S.H. Cas. (BNA) 1137 (No. 88-1250,1993). 


D.S. Grading Co., Inc. v. Secretary ofLabor, 899 F.3d 1145, 1148 (11 th Cir. 1990). 


Empire-Detroit Steel Div., Detroit Steel Corp. v. OSHRC, 579 F.2d 387 (6th Cir. 1978). 


Fabricated Metal Products, Inc., 18 O.S.H. Cas. (BNA) 1072 (No. 93-1853, 1997). 


Foseco, Inc., 10 BNA OSHC 1949, 1982 WL 22452 at *13 (No. 81-944, 1982). 


Gilles & Cotting, Inc., 3 BNA OSHC 2002 (No. 504, 1976). 


Kansas City Power & Light Co., 10 BNA OSHC 1417 (No. 76-5255, 1982). 


Kastalon, Inc., 12 BNA OSHC 1928, 1931 (Nos. 79-3561, 1986). 


Kelly Springfield Tire Co., Inc. v. Donovan, 729 F.2d 317,322 (5th Cir. 1984). 


Megawest Financial Inc., 17 BNA OSHC 1337 (No. 93-2879,1995). 


MineralIndus. & Heavy Constr. Co. v. OSHRC, 639 F.2d 1289, 1294 (5th Cir. 1981). 


Morrison-KnudsenCo.lYonkers Contacting Co., A Joint Venture, 16 BNA OSHC 1105, 1121 


(No. 88-572, 1993). 


National Realty and Constr. Co. v. OSHRC and Secretary, 489 F.2d 1257, 1260-61 & n. 7 (D.C. 


Cir. 1973). 


Pelron Corp., 12 BNA OSHC 1833, 1835 (No. 82-388, 1986). 


Pepperidge Farm, Inc., 17 BNA OSHC 1993,2003 (No. 89-0265, 1997). 


Reynolds Packaging Kama, Inc., 22 BNA OSHC 1952, 1960 (No. 08-1554, 2009). 


Sea World ofFlorida, LLC, 24 O.S.H. (Cas.) BNA 1303 (2012). 


Sea World ofFlorida, LLC v. Perez, 748, F.3d 1202, 1209 (D.C. Cir. 2014). 


St. Joe Minerals Corp. v. OSHRC, 647 F.2d 840 (8th Cir. 1981) 


Ted Wilkerson Inc., 9 BNA OSHC 2012,2016, 1981 CCH OSHD ~ 25,551, p. 31,856 (No. 


13390, 1981). 


Trinity Yachts, LLC, 2001 WL 1682627, *24 (Feb. 22, 2011). 


41 

Valley Interior Systems, Inc., 21 BNA OSHC 2224, 2007 WL 2127305 at *3 (No. 06-1395, 

2007). 

Waldon Health Care Center, 16 BNA OSHC 1052, 1060, 1993 WL 119662 (No. 89-2804, 

1993). 

Wheeling-Pittsburgh Steel Corp., 16 BNA OSHC 1218, 1221-22, 1993-95 CCH OSHD ~ 

30,050, p. 41,291 (No. 89-3389,1993). 

Whiting-Turner Contracting Co., 13 BNA OSHC 2155,2157 (No. 1238, 1989). 

VII. CONCLUSION 

The Secretary submits that, for all of the above reasons, he has met his burden of proving 

by preponderant evidence that the Citations should be affirmed, with the associated proposed 

penalties and classifications. 

Respectfully submitted, this 21 st day ofJuly, 2014. 

ADDRESS: 

Office ofthe Solicitor 

U. S. Department ofLabor 

61 Forsyth Street, S.W. 

Room 7T1O 

Atlanta, GA 30303 

Telephone: 

(404) 302-5489 

(404) 302-5438 (FAX) 

chastain.lydia.j@do1.gov 

SOL Case No. 13-00965 

M. PATRICIA SMITH 

Solicitor ofLabor 

STANLEY E. KEEN 

Regional Solicitor 

CHRISTOPHER D. HELMS 

Counsel 

By:/s/ Lydia J. Chastain 

LYDIA J. CHASTAIN 

Senior Trial Attorney 

ROLESIA B. DANCY 

Senior Trial Attorney 

Attorneys for the Secretary ofLabor, 

United States Department of Labor. 

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CERTIFICATE OF SERVICE 


I certify that all parties have consented that all papers required to be served in this action 

may be served and filed electronically. I further certify that a copy of the foregoing Secretary's 

Post-Hearing Brief was filed electronically and a copy was served via electronic mail this 21 sl 

day ofJuly 2014 on the following counsel for Respondent: 

Kevin McCormick, Esq. 

kmccormick@wtplaw.com 

slLvdia J Chastain 

LYDIA J. CHASTAIN 

43