No. 13-1124 

UNITED STA TES OF AMERICA 

OCCUPATION AL SAFETY AND HEALTH REVIEW COMMISSION 

SECRETARY OF LABOR, 

UNITED STATES DEPARTMENT OF LABOR, 

Complainant, 

v. 

INTEGRA HEALTH MANAGEMENT, INC., 

Respondent. 

BRIEF FOR THE SECRETARY OF LABOR 

M. PATRICIA SMITH 

Solicitor of Labor 

ANN ROSENTHAL 

Associate Solicitor of Labor for 

Occupational Safety and Health 

CHARLES F. JAMES 

Counsel for Appellate Litigation 

LEE GRABEL 

Attorney 

U.S. Department of Labor 

200 Constitution Ave., N.W. 

Washington, D.C. 20210 

(202) 693-5445 

FILED ELECTRONICALLY ON DECEMBER 18, 2015 
TABLE OF CONTENTS 

TABLE OF AUTHORITIES ................................................................................................................. ii 

STATEMENT OF ISSUES ................................................................................................................. . 

STATEMENT OF FACTS .................................................................................................................. . 

I. Integra 's Service Coordinator Program .................................................................... . 

II. Integra 's Workplace Violence Safety Program .......................................................... 3 

III. 's Interactions with ........... .................................... ........ 5 

IV. OSHA 's Citation and the AL.J's Decision................................................................... 7 

SUMMARY OF ARGUMENT ............................................................................................................ 8 

ARGUMENT ....................................................................................................................... 9 

I. The General Duty Clause Applies to All Recognized, Serious Hazards in the 

Workplace; There is No Per Se Exclusion for Physical Assault on Employees 

by Persons with a History of Violent Behavior ............................................................ 9 

II. The Secretary Established that the Hazard was Recognized and That Feasible 

Means Existed to Materially Reduce It ....................................................................... 16 

A. Integra and It's Industry Recognized the Hazard .......................................... 16 

B. Feasible Means Existed to Eliminate or Materially Reduce the Hazard ....... 22 

III. Integra Had Fair Notice of its Obligation to Comply With the General Duty 

Clause ....................................................................................................................... 25 

IV. Integra 's Remaining Arguments are Without Merit ................................................... 26 

CONCLUSION .................................................................................................................................... 28 

CERTIFICATE OF SERVICE 

(b)(6) (b)(6)
TABLE OF AUTHORITIES 

CASES: 

Animal Legal Defense Fund v. U.S. Department of Agriculture, 

789 F.3d 1206 (11th Cir. 2015) ....................................................................................................... 10 

Anthony Crane Rental, Inc. v. Reich, 

70 F.3d 1298 (D.C. Cir. 1995) ....................................................................................................... 15 

Arcadian Cmp., 

20 BNA OSHC 2001 (No. 93-0628, 2004) ......................................................................... 14-15, 20 

Armstrong Cork Company, 

8 BNA OSHC 1070 (No. 76-2777, 1980) ...................................................................................... 18 

Beverly Enterprises, Inc., 

19BNAOSHC 1161 (Nos.91-3144,92-238,92-819,92-1257,93-724,2000) .............. 17, 18,24 

Cerro Metal Prods. Div., Marmon Group, Inc., 

12 BNA OSHC 1821 (No. 78-5159, 1986) ............................................................................. 23, 24 

Chevron U.S.A. Inc. v. Natural Res. Def Council, Inc., 

467 U.S. 837 (1984) ............................................................................................................. 9, 10, 16 

Gen. Dynamics Land Sys. Div., Inc., 

15 BNA OSHC 1275 (No. 83-1293, 1991) ................................................................................... 21 

Georgia Elec. Co. v. Marshall, 

595 F.2d 309 (51h Cir. 1979) ........................................................................................................... 27 

Kansas City Power & Light Co., 

10 BNA OSHC 1417 (No. 76-5255, 1982) .............................................................................. 16, 21 

Kelly Springfield, 

10 BNA OSHC 1970 (No. 78-4555, 1982) .................................................................................... 20 

Kokosing Constr. Co .. Inc., 

17 BNA OSHC 1869 (No. 92-2596, 1996) .................................................................................. 21 

Martin v. OSHRC, 

499 us 144 (1991) ......................................................................................................................... 10 

11 
Megawest Financial, Inc., 

17 BNA OSHC 1337, 1995 WL 383233 (No. 93-2879, 1995) ...................................................... 22 

Nat'! Realty & Construction Co. v. OSHRC, 

489 F.2d 1257 (D.C. Cir. 1973) ..................................................................................................... 10 

Pegasus Tower, 

21 BNA OSHC 1190 (No. 01-0547, 2005) .................................................................................... 9 

Petron Corp., 

12 BNA OSHC 1833 (No. 82~388, 1986) ..................................................................................... 15 

Pepperidge Farm, Inc., 

17 BNA OSHC 1993 (No. 89-0265, 1997) .................................................................................... 16 

Ramsey Winch Inc. v. Henry, 

555 F.3d 1199 (l01

h Cir. 2009) ..................................................................................... 11, 12, 15, 22 

Sea World of Florida, LLC v. Perez, 

748 F.3d 1202 (D.C. Cir. 2013) ................................... : .......................................................... passim 

Skidmore v. Swift & Co., 

323 U.S. 134 (1944) ....................................................................................................................... 16 

Waste Mgmt. of Palm Beach, Div. of Waste Management, Inc. of Florida, 

17 BNA OSHC 1308 (No. 93-128, 1995) .......................................................................... 18, 20, 27 

STATUTES AND REGULATIONS: 

Occupational Safety and Health Act of 1970("0SH Act"), 

§ 2(a), 29 U.S.C. § 651(a) ................................................................................................. 12 

§ 5(a)(l), 29 U.S.C. § 654(a)(l) .......................................................................... l, 9, 10, 18 

§ 10, 29 U.S.C. § 659 ............................................................................ : ........................... 21 

§ 11, 29 U.S.C. § 660 ........................................................................................................ 21 

§ 12,29U.S.C. § 661 ........................................................................................................ 21 

111 
MISCELLANEOUS: 

Directive on Enforcement Procedures for Investigating or Inspecting Workplace Violence 

Incidents, CPL 02-01-052 (Sept. 8, 2011) ....................................................... 15-16, 20, 23 

OSHA Standard Interpretations Letter, December 10, 1992 ................................................... 12, 22 

North Suffolk Mental Health Association (OSHRC No. 11-2132) ................................................ 12 

Brookdale University Hospital and Medical Center (OSHRC No. 14-1350) ................................ 12 

Corizon Health, Inc. (OSHRC No. 14-1346) ................................................................................. 12 

Guidelines for Preventing Workplace Violence for Healthcare and Social Service Workers, 

OSHA 3148-1 lR (2004) ...................................................................................... 20, 21, 23 

http:/ /www.bis.gov/ooh/community-and-social-service/home.htm ................................................ 19 

https://www .osha.gov/Publications/osha3 l 48.pdf ............................................................................. 21 

lV 
STATEMENT OF ISSUES 

This case arose from the fatal stabbing of an Integra Health Management, 

Inc. (lntegra) employee, by an Integra client (or member) with a history of violent behavior. After 

the stabbing, OSHA issued Integra a citation alleging a serious violation under§ 5(a)(l) of the 

Occupational Safety and Health Act of 1970 (the OSH Act), 29 U.S.C. § 654(a)(l), the general duty 

clause. Integra contested, and in a June 11, 2015 Decision and Order (D&O), Commission 

Administrative Law Judge Dennis L. Phillips affirmed the citation. The Commission subsequently 

directed review. The issues on review are: 

l. Whether the general duty clause applies to the workplace violence hazard of employees 

being physically assaulted by persons with a history of violent behavior. 

2. If so, whether the Secretary established that Integra or its industry recognized the hazard, 

and that a feasible means of abatement existed to eliminate or materially reduce the hazard. 

3. Whether the general duty clause provided constitutionally adequate notice as applied to 

Integra in this case. 

STATEMENT OF FACTS 

I. Integra 's Service Coordinator Program. 

Integra, which is based in Owings Mills, Maryland, contracts with insurance companies to 

perform mental and physical health assessments and coordinate case management on individuals (called 

clients or members) referred by the companies. Tr. 270; Joint Prehearing Statement, p. 8. These 

assessments are performed by employees known as community service coordinators (service coordinators 

or SCs). Joint Prehearing Statement, p. 8. 

The SCs' job is to help the members with medical and mental health issues receive appropriate 

medical care. Tr. 250, 369; Joint Prehearing Statement, p. 8. The goal is to get members connected with 

doctors and prevent the members from over-utilizing hospital emergency rooms for their treatment. Tr. 

250. Insurance companies, such as Amerigroup, which contracted with Integra in Florida, referred 

(b)(6)
members to Integra due to chronic difficulties in contacting them. Tr. 270-71; Joint Prehearing 

Statement, p. 8. The members included drug users, persons involved in criminal activity, persons with 

mental health issues and some persons with histories of violence who were volatile. Tr. 252-53, 417-18, 

436, 451, 469-70. Some members were chronically admitted to crisis destabilization units because they 

did not have access to their medications. Tr. 451. SCs are assigned a caseload of members and are 

responsible for conducting face-to-face meetings during which the members are assessed and encouraged 

or persuaded to register for services. Joint Prehearing Statement, p. 8. SCs attempt to build a rapport 

with members to get them to consent to receive services from Integra. Tr. 250. SCs are required to make 

at least two face-to-face contacts with members each month to determine their needs. Tr. 255, 369, 439, 

462. They also have a caseload of up to 50 to 60 members each. Tr. 260, 454. 

There are no company offices in Florida; SCs work from their homes or in the field. Joint 

Prehearing Statement, p. 8. SCs primarily work alone and communicate with their supervisors by 

telephone and email. Tr. 269, 288. Weekly meetings are conducted by telephone. Tr. 269. As of 2012, 

Integra supervisors did not know where SCs were at any given time. Tr. 375. There were no sign in/sign 

out procedures for SCs. Tr. 259. SCs did not have panic buttons or alarms. Tr. 258. 

In 2012, Integra did not require its SCs to have any specialized education or certification; only a 

bachelor's degree was required. Tr. 104; Ex. C-9, C-10. SCs were not required to have any previous 

experience or training as clinicians or social workers. Tr. 1099-1100. Experience visiting the homes of 

clients was not a requirement. Tr. 249, 

SCs were required to perform tasks that clinical social workers would normally provide. Tr. 

1103-1104. SCs were required to perform 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. Tr. 459-60. While service coordinators were hired to 

coordinate medical and mental services, not to provide counseling, SC supervisor Laurie Rochelle stated 

that SCs were doing assessments of the client's needs, i.e., whether they should receive counseling and 

the extent of any substance abuse. Tr. 252, 265. 

2 
Consistent with this, the initial assessment form 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 GAF (global assessment of functioning). Tr. 590-593, 1097-1098; Ex. C34. SCs do not have the experience or knowledge necessary to accurately apply the clinical tools 

described in the assessment form. Tr. 1099-1100. These tools are used by trained clinicians to diagnose a 

patient for mental illness and to assess that patient's level of functioning. Tr. 590-593, 1097-1098; Ex. C34. 

SCs meet with members alone in areas off the beaten path and in areas where the general public 

could not see them, for example, in trailer parks, government housing projects, and high crime areas. Tr. 

134, 135. SCs would usually attempt to locate clients by going to their homes first. Tr. 259, 369. 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. SCs 

would also visit hospitals, homeless shelters, "abandoned looking buildings that looked like they should 

be condemned," and unfavorable parts of the city. Tr. 374, 436-437, 451. Some SCs worked at night to 

locate members for the face-to-face contact. Tr. 374. They worked in areas that were unsafe and that 

made them nervous. Tr. 374-75. 

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. Tr. 417, 452-453, 809. It was mandatory 

for SCs to drive members in the SCs' personal vehicles to psychiatric appointments. Tr. 430. Employees 

did not feel safe driving certain mentally ill members in their personal vehicles because these members 

were not always taking their medications. Tr. 418-19. 

IL Integra 's Workplace Violence Safety Program. 

Integra used an on-line training program for its new service coordinators, which it referred to as 

the "Neumann Training." Tr. 105-106. The Neumann Training was developed by Integra Vice President 

Melissa Amott and Integra medical director Dr. Thomas Krajewski. Tr. 106, 1023-26. Session 8 of the 

Neumann Training (of 15 Sessions), was entitled "In-Home & Community Safety," and included two 

3 
power point presentations entitled "Safety in the Community" and "Screening the Dangerous Member." 

Tr. 108, 345; Ex. C-15, C-16, C-17. The "Screening the Dangerous Member" power point identifies that 

service coordinators may encounter"dangerous" members and "dangerous situation(s)." Ex. C-16. 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." Tr. 114-15, 349; Ex. C-17. 

Integra had no system in place for identifying members with high-risk behaviors. Integra did not 

perform criminal background checks on members and did not provide SCs with information about a 

member's previous unsafe behavior. Tr. 109, 346. Integra also did not require SCs to perform 

background checks or obtain this information prior to meeting with members. Integra relied on members 

to self-report their criminal behavior, mental state, and history of violence. Tr. 3 50, 617. Integra also 

expected SCs to identify threatening situations and high risk behaviors during their assessments of 

members. Tr. 344, 349-350. Integra relied on the principle of"universal precautions," under which SCs 

should "get out" of or leave any situation in which they felt endangered. Tr. 1029-31, 1034. 

Integra's safety program also included no instruction in practical skills and techniques. The 

Secretary's expert, Janet Nelson, described the portion of the Neumann training addressing workplace 

safety as vague and lacking depth. Tr. 609, 614. Ms. Rochelle described the Neumann training as "a 

joke" and basic, and stated that it did not teach SCs to be "savvy," or about real life safety skills and 

situations related to the job. Tr. 262. For example, the training did not teach SCs how to get members to 

come outside their doorways, or teach SCs not to go into a member's home in certain situations. Tr. 262. 

Prior to Ms. death, Integra did not teach its SCs any de-escalation techniques. Tr. 505-06, 613; Ex. 

C-31, p. 1. SC Schneider testified that he did not receive safety training prior to Ms. death. Tr. 

456. SC Daniel stated, "I wouldn't consider anything I received safety training." Tr. 435-36. 

SCs learned their jobs largely through "trial and error." Tr. 435. SCs had to figure out a lot of 

their duties "as they went along," and they depended upon each other to figure things out. Tr. 455, 487. 

SC Schneider stated that whenever he asked his supervisors clinical questions, he "never really got 

4 

(b)(6) (b)(6)
answers." Tr. 455-56. Integra also did not require its leads, like Ms. Rochelle, to prepare incident report 

of significant events. Tr. 298-99. 

Some SCs would shadow other more experienced SCs for a day or a few days when they began 

working for the company, but such shadowing was not uniformly required for all new SCs. Tr. 122-23, 

373, 434-435, 488. Integra did not require SCs to take a partner or buddy with them to meet members; 

rather, Integra told service coordinators to "consider" taking another service coordinator with them if 

they, in their subjective opinions, believed it would be useful. Tr. 111, 382; Ex. C-16, C-19. Integra had 

a voluntary "buddy system," but it was very difficult to implement because SCs often did not have the 

time to partner up with one another. Tr. 266, 347-48, 439-440. Integra also left it up to the SCs to 

determine if they needed a buddy for safety reasons. Tr. 353. 

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. Tr. 272. Ms. Rochelle reviewed and approved the SCs' progress note reports. 

Tr. 272. Sometimes, progress note reports entered in the Integra database system would disappear. Tr. 

297. Ms. Rochelle made several complaints to her supervisors about the database. Tr. 298. 

III. 's Interactions with 

was.an Integra SC in Florida. Ms. had her Bachelor's degree, but 

did not have any previous experience working with the mentally ill or previous experience or 

certifications in social work. Tr. 105. 

was a member assigned to Ms. When Integra made the assignment, 

Amerigroup provided Ms. with Mr. diagnosis (schizophrenia and cardiovascular 

disease), his date of birth, and his home address. Amerigroup did not provide Integra or Ms. 

with any information about Mr. history of violent behavior. Tr. 357; Ex. C-7, p. 1. Mr. 

had been incarcerated for aggravated battery with a deadly weapon, aggravated assault 

with a weapon, and battery against a police officer or first responder. Tr. 136-39; Ex. 25. Integra 

did not assign an employee to go with Ms. to visit Mr. at any time, nor did Integra 

5 

(b)(6) (b)(6) (b)(6) (b)(6) (b)(6) (b)(6) (b)(6)(b)(6) (b)(6) (b)(6) (b)(6) (b)(6) (b)(6) (b)(6)
discipline Ms. for failing to bring another SC with her on her visits to Mr. Tr. 278, 

285-286. 

Ms. had three face-to-face interactions with Mr. at his home prior to the fatal 

stabbing attack. Tr. 139-140; Ex. C-7. After her first visit with Mr. on October 12, 2012, 

Ms. reported in her progress note that Mr. "said a few things that made SC 

uncomfortable, so SC asked member to be respectful 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. C-7, p. 5. After her 

second visit with Mr. on October 15, 2012, Ms. reported that "member showed SC a 

print of the Last Supper, crediting it to Michelangelo. 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. C-7, p. 6. Finally, after her third visit with Mr. on November 14, 2012, Ms. 

reported that "[m]ember answered the door and pretended to be his own twin brother" and 

"[ m ]ember also told SC to get a cowboy hat and go to a rodeo." Ex. C-7, p. 7. Integra 

management was aware of Ms. reports prior to her death. Tr. 143, 148, 150, 292-94, 356-

61, 364-65; Ex. C-7, p. 6, Ex. C-19. 

On December 10, 2012, Ms. went to Mr. house to complete her assessment. 

Joint Prehearing Statement, p. 8. During this visit, Mr. attacked Ms. with a knife, 

stabbing her nine times while chasing her across his front lawn. Tr. 83, 152, 366; Exs. C-5 at p. 

1, C-6 at p. 3. Mr. then went back inside his house, leaving Ms. lying on the ground. 

Ex. C-5 at p. 1. A passerby saw Ms. and drove her to the local hospital. Ex. C-5 at p. 1. 

She died of her wounds later that day. Tr. 366. Mr. was charged with murder, but was 

6 

(b)(6) (b)(6) (b)(6) (b)(6) (b)(6) (b)(6)(b)(6) (b)(6) (b)(6) (b)(6) (b)(6) (b)(6) (b)(6) (b)(6) (b)(6) (b)(6) (b)(6) (b)(6) (b)(6) (b)(6)
found mentally/physically unable to stand trial before the Florida state criminal court. Exs. R-P, . 

R-T. 

After Ms. death, Integra implemented new safety protocols. These included: 

performing background checks and "red-flagging" certain members in the Integra system; 

"rolling off' members whose criminal backgrounds indicate a history of violent behavior; 

discussing safety concerns with Dr. Krajewski at rounds meetings; implementing a written 

workplace violence prevention program; and providing de-escalation training to its SCs. Tr. 160, 

166-67, 389, 484, 521-522, 525, 676. 

IV. OSHA 's Citation and the ALJ's Decision. 

After the fatality, OSHA conducted an inspection and issued Integra a citation alleging a 

serious violation of the general duty clause. Ex. C-1. OSHA alleged in the citation that Integra 

failed to adequately protect its employees against the "hazard of being physically assaulted by 

members with a history of violent behavior." Id. 

Integra contested, and in a June 11, 2015 Decision and Order (D&O ), Commission 

Administrative Law Judge Dennis L. Phillips affirmed, the citation. The judge found that Integra 

recognized the hazard, in part, because "Integra used precautions, inadequate as they were, against 

violence and also was aware of specific incidents of violence before Ms. death" and "Integra's 

own training, handbook, and existing policies establish that it recognized that its SCs were exposed 

to the hazard of workplace violence by members with a history of violent behavior." D&O at 70-71 

(citing Tr. 110, 114-17; Ex. C-17). While the judge found it unnecessary to make a finding as to 

whether Integra's industry recognized the hazard, he found that the opinion of the Secretary's expert, 

Janet Nelson, "that the SC's face-to-face interaction with an Integra member with a history of violent 

behavior was recognized, could also establish recognition of the hazard." D&O at 76 n. 110 (citing 

Tr. 679). Finally, again relying primarily on the opinion of Ms. Nelson, the judge found that Integra 

failed to take adequate measures to protect against, and the measures the Secretary proposed in the 

citation would materially reduce, the hazard. D&O at 76-90. 

7 

(b)(6) (b)(6)
SUMMARY OF ARGUMENT 

The Commission should affirm the citation against Integra as a serious violation of the general 

duty clause. First, the general duty clause applies to the workplace violence hazard of employees being 

physically assaulted by persons with a history of violent behavior. By its plain terms, section 5( a )(1) of 

the Act defines the hazards to which the general duty clause applies as those that are "recognized" and 

"causing or likely to cause death or serious physical harm to employees." Had Congress intended that all 

instances of physical assault by a third party to be beyond the scope of employee protection,· it would 

have expressly stated such an exemption in the Act. 

Second, the Secretary established that Integra and its industry recognized the hazard, and that a 

feasible means of abatement existed to eliminate or materially reduce the hazard. Integra's awareness of 

the hazard is shown by its adoption of a safety program designed to protect employees from assaults by 

"high risk" members, including those with a history of violent behavior, and because "prior to the fatal 

attack on Ms. lntegra managers were aware of several instances of violence or aggression by 

members against other SCs." D&O at 72. Further, the testimony of Janet Nelson, the Secretary's expert, 

OSHA's directive on workplace violence (Ex. C-33) and related guidelines for healthcare and social 

service workers (Ex. C-32), as well as the numerous publications and studies within the social services 

and healthcare industry addressing the hazard of workplace violence in that industry, establish that 

Integra's industry recognized the hazard. Finally, Integra failed to take adequate and feasible measures to 

materially reduce the workplace violence hazard. Knowledgeable persons familiar with Integra 's industry 

- again, Ms. Nelson and the authors of the numerous publications within the social services and 

healthcare industry - would regard the measures proposed by the Secretary in the citation as necessary 

and valuable for a sound safety program in the particular circumstances existing at Integra's worksite. 

Finally, the general duty clause provided constitutionally adequate notice as applied to Integra in 

this case. Integra 's facial challenge to the Act should be rejected because the hazard of physical assaults 

8 

(b)(6)
on SCs by members with a history of violent behavior was preventable and a reasonably prudent 

employer in Integra's industry would have recognized the proposed abatement measures were required. 

ARGUMENT 

I. The General Duty Clause Applies to All Recognized, Serious Hazards in the Workplace; 

There is No Per Se Exclusion for Physical Assault on Employees by Persons with a History 

of Violent Behavior. 

The general duty clause requires "[ e ]ach employer" to "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)(l). To 

prove a violation of the general duty clause, the Secretary must demonstrate 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 likely to cause death or serious physical harm, and (4) a feasible and effective 

means existed to eliminate or materially reduce the hazard." Pegasus Tower, 21 BNA OSHC 1190, 

1191 (No. 01-0547, 2005). The Commission directed the parties to briefthe question of the 

application of the general duty clause to the hazard of employees being physically assaulted by 

persons with a history of violent behavior separately from questions concerning the statutory 

elements of proof of a general duty clause violation - here elements 2 and 4. To preserve an analytic 

distinction between these separately listed issues, the Secretary reads the first question as asking, in 

effect, whether the general duty clause applies to the hazard at issue assuming (at least for this initial 

analysis) that the hazard was recognized by Integra or its industry and that feasible means existed to 

materially reduce it. In other words, is the hazard of being physically assaulted by persons with a 

history of violent behavior per se excluded from the ambit of the general duty clause? That question 

is answered by the OSH Act itself, for no such exclusion is either stated or implied in the statutory 

text. 

The analysis begins - and should end - at step one of the two-step framework applicable to an 

agency's interpretation of its organic statute. Chevron U.S.A. Inc. v. Natural Res. Def Council, Inc .. 467 

U.S. 83 7, 842-43 (1984 ). Under this framework, the Commission must first determine, using the 

9 
traditional tools of statutory construction, whether Congress has expressed its intent on the interpretive 

question. Id. If, in light of these tools, "the intent of Congress is clear, that is the end of the matter; for 

the [agency] must give effect to the unambiguously expressed intent of Congress." Id. In determining 

whether the intent of Congress is clear, the text, structure, and stated purpose of the statue must be 

examined. Animal Legal Defense Fund v. U.S .. Department of Agriculture, 789 F.3d 1206, 1215 (l l th Cir. 

2015). As to the statutory text, the Eleventh Circuit has said, ''we presume that Congress said what it 

meant and meant what it said." Id. If, however, the Commission determines that the statute is 

ambiguous, the Secretary's interpretation must be upheld so long as it is reasonable, i.e., sensibly 

conforms to the statute's wording and purpose. Chevron, 467 U.S. at 843-44; Martin v. OSHRC, 499 US 

144, 150-51 (1991). 

The plain language of section 5(a)(l) of the Act defines the hazards to which the general 

duty clause applies as those that are "recognized" and "causing or likely to cause death or serious 

physical harm to employees." A hazard can be deemed "recognized". under the Act only if it is 

preventable by demonstrably feasible means, but, insofar as this requirement is satisfied (see 

Argument II, pp. 16-25) there is no further limitation on the scope of hazards that employers must 

address under section 5(a)(l). Nat'! Realty & Constr. Co. v. OSHRC, 489 F.2d 1257, 1265-67 (D.C. 

Cir. 1973). "All preventable forms and instances of hazardous conduct must ... be entirely 

excluded from the workplace." Id. at 1266-67; Sea World of Florida, LLC v. Perez, 748 F.3d 1202, 

1207 (D. C. Cir. 2013) (quoting Nat 'l Realty and collecting cases). 

lntegra and amicus curiae the Chamber of Commerce (the Chamber) assert that the general 

duty clause does not encompass the hazard of physical assaults by third parties. The reasons they 

advance for this interpretation are entirely unconvincing. lntegra first asserts that the OSH Act's 

legislative history supports such an exclusion. (Br. at 12-15). However, resort to legislative history 

is unnecessary where the intent of Congress is clear, and should certainly not be done to undermine 

the plain meaning of the statutory language. Animal Legal Defense Fund, 789 F.3d at 1218. In any 

event, nothing in the legislative history cited by lntegra addresses physical assaults on employees or 

10 
suggests, even remotely, a Congressional intent to exclude preventable instances of such conduct 

from coverage. 1 Had Congress intended that all instances of physical assault by a third party to be 

beyond the scope of employee protection, it would have expressly stated such an exemption in the 

Act. Cf Sea World, 748 F.3d at 1213-14 (nothing in the Act exempts theme-park performances 

involving employee interaction with dangerous killer whales from the scope of the general duty 

clause). Congress did not expressly state such an exemption in the Act, and that should end the 

enquiry. 

Integra next argues that the absence of any cases in which workplace violence has been 

found to be within the scope of the general duty clause is indicative of Congressional intent to 

exclude such cases from coverage. (lntegra Br. at 14-15). However, the D.C. Circuit's decision in 

Sea World that the hazard of killer whales biting or pulling trainers into deep water was within the 

scope of the general duty clause is a close parallel to the case at bar. There seems little substantive 

distinction for purposes of coverage under the Act, between workplace violence perpetrated by 

animals and workplace violence perpetrated by third persons. Moreover, while it is true that no case 

has expressly found a violation predicated upon the hazard of physical assault on employees by third 

persons, the possibility of such a violation in circumstances analogous to those at bar has been 

recognized. In Ramsey Winch, Inc. v. Henry, 553 F.3d 1199 (l01

h Cir. 2009), the Tenth Circuit 

rejected the district court's holding that gun-related workplace violence was a recognized hazard 

under the general duty clause and that the clause therefore preempted state law authorizing 

employees to store guns in locked cars on company property. However, the court noted that OSHA 

had issued a citation to Psychiatric Hospital in Chicago under the general duty clause for failing to 

protect its employees from patients' violent behavior. Id. at 1207, n.8. The court stated that the 

1 Integra argues that the scope of the general duty clause was narrowed during the legislative process from 

requiring that workplaces be "safe and healthful" to requiring that workplaces be free from "recognized 

hazards." Integra Br. at 13. It then suggests that this narrowing was intended to encourage adoption of 

specific standards. Id. To the extent Integra's argument is that the Secretary could only regulate the 

hazard of assaults upon employees by third parties through rulemaking, it is entirely unsupported. The 

Act vests the Secretary with discretion to determine which hazards to address through standards, and in 

the absence of any standard, the general duty clause applies by its terms. 

11 
conduct in Psychiatric Hospital involved injuries "arising out of work situations" because the 

primary function of a psychiatric hospital's work is to manage unstable and often violent behavior. 

Id. (quoting 29 U.S.C.§ 65l(a)). In contrast, the court noted, nothing in the state provision 

authorizing the storing of firearms in locked cars on company premises implicated the "fact-specific 

circumstances present in Psychiatric Hospital that are required by OSHA to constitute a general duty 

clause violation." Id. (citing OSHA Standard Interpretations Letter, December l 0, 1992). 

It is also relevant in this context that OSHA has issued other general duty clause citations to 

facilities and social service agencies similar to Integra for failing to protect their employees from 

assaults by third parties, and that at least three of these citations have resulted in settlements 

incorporated into Commission final orders. In North Suffolk Mental Health Association (OSHRC 

No. 11-2132), the operator of a group home was cited for failing to protect employees from assaults 

by clients confronting emotional difficulties, mental illness, and developmental difficulties. In 

Brookdale University Hospital and Medical Center (OSHRC No. 14-1350), the hospital was cited 

for failing to protect employees from violent assaults by patients and visitors. In Corizon Health, 

Inc. (OSHRC No. 14-1346), the provider of medical, dental and psychiatric services in prison clinics 

was cited for failing to protect employees from assaults during interactions with inmates. These 

citations and corresponding settlement agreements are contained in the attached Appendix. Thus, 

the Secretary's position that Integra violated the general duty clause by failing to abate the hazard of 

criminal assaults on its employees is not "entirely without precedent." (Integra Br. at 15). 

Finally, Integra contends that applying the general duty clause in cases of physical assault on 

employees by third parties would be entirely impractical and contrary to public policy. (Integra Br. 

at 15-20). As a basis for this argument, Integra cites potential problems with two of the abatement 

steps proposed by the Secretary: (i) conducting criminal background checks on members with 

whom Integra employees will be required to interact; and (ii) removing from the program ("rolling 

off') those members with a history of violent behavior. However, these two measures were 

implemented by Integra itself following Ms. death in December 2012. D&O at 87 (Integra 

12 

(b)(6)
now regularly performs background checks on all members before assigning them to an SC and 

typically "rolls off' members with a criminal history); see also Tr. 126, 160, 166-67, 377, 389, 410, 

521-22, 525, 676, 810; Ex. R-R. Integra presented no evidence that conducting criminal background 

checks on new members and "rolling off' members with a criminal history have, in practice, proved 

unworkable or problematic. The company's claim (Br. at 17) that requiring criminal background 

checks might be problematic for other industries that interact with members of the public in their 

homes is irrelevant, for no legal principle requires the Commission to reach beyond the facts of the 

instant case and decide the hypothetical application of the statute to another industry. Sea World, 748 

F.3d at 2013. Lastly, Integra's criticism of the suggestion that severe mental illness is a risk factor 

for violent behavior (Br. 19-20) is contrary to the company's own training, which identifies 

"paranoia/suspiciousness, psychosis/confusion" as "high-risk behaviors."2 Tr. 114-15, 349; Ex. C17. 

The Chamber's arguments that the hazard of assaults on employees by third parties is not 

cognizable under the general duty clause are equally unpersuasive. According to the Chamber, 

application of the general duty clause is precluded on three separate grounds: (1) face-to-face 

interactions between employees and Integra's members is a core-activity oflntegra's business and 

eliminating such interactions eliminates the business; (2) the actions of third party members are 

outside oflntegra's control and the hazard is therefore unpreventable; and (3) the Secretary's 

definition of the hazard fails to inform employers of the conditions or practices they must prevent. 

(Chamber Br. at 3-14). We address these claims in order below. 

As to the first point, nothing in the abatement proposed by the Secretary eliminates all faceto-face interactions between employees and members. Rather, the Secretary's abatement measures, 

which consist largely of steps Integra itself implemented following Ms. s death, are primarily 

designed to make such face-to-face interactions safer. As the judge explained, measures such as a 

2 The Secretary is not arguing that mental illness, per se, is a risk factor, but that certain conditions may 

be linked with violent behavior. 

13 

(b)(6)
written workplace violence program, criminal background checks, "red flagging" potential violent 

members, and mandatory reporti~g of violent incidents, reduce the likelihood of physical assaults by 

enabling employees to identify and prevent, or escape from if necessary, violent scenarios. D&O at 

89. None of these measures prevents employees from continuing to provide services through faceto-face interactions or otherwise impacts Integra's business model. 3 

The Chamber's claim that the hazard is unpreventable because the actions of the members 

are outside Integra's control is equally unfounded. (Chamber Br. at 6-11). Integra may not be able 

to control the behavior of its members, but it can control the knowledge and training employees 

receive to protect themselves from potential assaults during interactions with members, and it can 

eliminate employee contact with the most dangerous members. The Chamber's assertion that no 

amount of training would have protected Ms. from Mr. knife attack may (or may not) 

be true, but Mr. extensive criminal record, including multiple assaults with a weapon, 

coupled with his severe mental illness, should have resulted in his removal from membership. 

Clearly, Integra can control critical elements of the working environment in a way that eliminates or 

materially reduces the risk of harm to employees from assaults by members, even ifit cannot directly 

control members' behavior. The Chamber's position that the general duty clause is inapplicable 

because Ms. death resulted from the "wild card" of human behavior should be rejected. 

(Chamber Br. at 8). 

Finally, there is nothing to the Chamber's claim that the hazard in this case was not 

adequately defined. (Chamber Br. 12-13). "A hazard must be defined in a way that apprises the 

employer of its obligations, and identifies conditions or practices over which the employer can 

reasonably be expected to exercise control." Arcadian Corp., 20 BNA OSHC 2001, 2007 (No. 93-

3 "Rolling off' of members with histories of criminal violence will eliminate face-to-face interactions 

with these members; however there is no evidence that this will affect Integra's business model. The 

evidence shows that Integra service coordinators are assigned approximately 35 to 38 members each. 

Integra began rolling off members with criminal histories following Ms. s death, but as of the 

hearing, had removed only 8 members. D&O at 13, 18. See also discussion offeasibility of"rolling off' 

members, infra, at 22-25. 

14 

(b)(6) (b)(6) (b)(6) (b)(6) (b)(6)
0628, 2004). The judge defined the hazard in the instant case as "the hazard of an Integra SC being 

physically assaulted by a member with a history of violent behavior during a face-to-face 

interaction." D&O at 69. The Chamber asserts that this definition does not provide Integra with 

notice of the precise risks against which it must protect its employees. (Chamber Br. at 12). But the 

precise risk at issue is clearly stated: the risk of physical harm to employees from assaults by 

members with a history of violent behavior. And the conditions or practices over which Integra can 

exercise control are also clearly stated: face-to-face interactions between employees and members 

with a history of violent behavior. Contrary to the Chamber's assertion, face-to-face interactions 

with members are conditions or practices of the workplace because such interactions form the core 

oflntegra's business - they are the primary means by which SCs provide their services to members. 

Accordingly, wherever such face-to-face interactions occur is a workplace. Anthony Crane Rental, 

Inc. v. Reich, 70 F.3d 1298, 1303 (D.C. Cir. 1995) (wherever employees perform work tasks is a 

"place of employment"). And employee injuries that occur in connection with face-to-face 

interactions "arise out of work situations." Ramsey Winch, 555 F.3d at 1207, n.8.4 

Lastly, the Chamber's concerns about the potential implications of applying the general 

duty clause to face-to-face interactions are rather dramatically overstated. (Chamber Br. at 10-14). 

To comply with the general duty clause, Integra need only continue to implement the measures that 

Integra itself adopted after Ms. death, together with additional undisputedly feasible measures 

such as those proposed by the Secretary. The Secretary recognizes that the general duty clause does 

not apply to every instance of violence that might occur in the workplace. To this end, the agency's 

Directive on Enforcement Procedures for Investigating or Inspecting Workplace Violence Incidents, 

4 The Chamber's reliance on Pelron Corp., 12 BNA OSHC 1833 (No. 82-388, 1986), for the 

proposition that the general duty clause does not apply to the normal activities of a business is 

misplaced. (Chamber Br. at 5, 12). As the D.C. Circuit held, "[n]othing the Commission said in 

Petron immunizes a workplace's dangerous 'nonnal activities' from oversight; the Commission 

simply applied well-established law that only 'preventable' hazards can be considered as 

recognized." Sea World, 748 F.3d at 1211. As we have discussed, the hazard of assaults on SCs by 

members with a history of violent behavior "arises out of work situations" and involves conditions 

over which Integra can exercise control. The hazard is therefore preventable. 

15 

(b)(6)
CPL 02-01-052 (Sept. 8, 2011) (Ex. C-33, the "workplace violence directive" or the "directive") 

authorizes regional staff to issue citations under the general duty clause for the hazard of violence 

directed at employees by customers, clients and others to whom the employer provides a service 

only if the hazard could result in serious harm, the employer or its industry recognized the hazard, 

and feasible abatement methods are available to address the hazard. CPL 02-01-052 at 5, 15-18. 

The Directive further informs staff on how to determine whether the above conditions are met by, for 

example: assessing the presence of known factors that increase the risk of violence, including, of 

' relevance here, "working with the public or volatile, unstable people," "[w]orking alone or in 

isolated areas," "providing services and care," and "working late at night or in areas with high crime 

rates;" and examining whether there is "[e]vidence of employer and/or industry recognition of the 

potential for workplace violence in OSHA identified high risk industries, such as healthcare and 

social service settings." Id. at 3, 8-12. For these reasons, Integra's and the Chamber's arguments 

that the hazard is per se outside the scope of the general duty clause should be rejected. 5 

II. The Secretary Established that the Hazard was Recognized and That Feasible Means 

Existed to Materially Reduce It. 

A. lntegra and Its Industry Recognized the Hazard. 

The Secretary establishes recognition of the hazard either by proving that an employer had 

actual knowledge that a condition is hazardous, or that the hazardous condition is generally known 

to be hazardous in the industry. Pepperidge Farm, Inc., 17 BNA OSHC 1993, 2003 (No. 89-0265, 

1997); Kansas City Power & Light Co., 10 BNA OSHC 1417, 1422 (No. 76-5255, 1982). As the 

ALJ correctly found, the Secretary proved that both Integra and its industry recognized the hazard of 

5 Even ifthe statute is viewed as ambiguous as to whether the hazard of assault on an employee by a third 

party is per se excluded from coverage under the general duty clause, the citation in the case at bar 

reflects the Secretary's interpretation that the clause applies where, as demonstrated in Argument II infra, 

the hazard is recognized by the employer or its industry and feasible means exist to materially reduce it. 

That the Secretary's interpretation is facially reasonable is further supported by the agency's workplace 

violence Directive, Ex. C-33. See Skidmore v. Swift & Co. 323 U.S. 134, 140 (1944) (agency rulings, 

interpretations and opinions, while not controlling, do constitute a body of experience and informed 

judgment to which courts and litigants can properly resort for guidance). The Secretary's reasonable 

interpretation embodied in the citation and Directive is controlling under step 2 of Chevron. 

16 
employees being physically assaulted by members with a history of violent behavior. (D&O at 70-

76). 

Integra' s awareness of the hazard was shown by its adoption of a safety program designed to 

protect employees from assaults by "high risk" members, including those with a history of violent 

behavior. Sea World, 748 F.3d at 1208-09 (SeaWorld's safety protocols and training established 

employer's awareness that trainer interaction with killer whales was hazardous); see also Beverly 

Ente1prises, Inc., 19 BNA OSHC 1161, 1186 (Nos. 91-3144, 92-238, 92-819, 92-1257, 93-724, 

2000) (precautions taken by an employer can be used to establish hazard recognition in conjunction 

with other evidence). 

Integra taught its SCs to use "universal precautions" and to "[a]ssume everybody you deal 

with could have the potential for harm." Tr. 1030. Integra also used an on-line training program for 

its new service coordinators, which it referred to as the "Neumann Training." Tr. 105-106. Session 

8 of the Neumann Training (of 15 Sessions) was entitled "In-Home & Community Safety," and 

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

Dangerous Member." Tr. 108, 345; Ex. C-15, C-16, C-17. The "Screening the Dangerous Member" 

power point stated that service coordinators may encounter "dangerous" members and "dangerous 

situation(s)." Ex. C-16. In the "Safety in the Community" power point, Integra identified 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."6 Tr. 114-

15, 349; Ex. C-17. 

6 The judge determined that while Integra's safety program recognized the hazard posed by members with 

a history of violent behavior, it was inadequate to control the hazard prior to Ms. death. D&O at 

74, 77-86. For example, he found that Integra's reliance on "universal precautions" improperly placed the 

duty to assure safety on the employee because it made the SCs responsible for determining when a 

dangerous situation existed and how to remove themselves from it. Id. at 77, 84-85 (citing Tr. 700, 924, 

1030-31; Exs. C-16, C-27, C-34, at p. 3); see also Tr. 104, 109-110, 247-49, 255-58, 344, 346, 350, 376, 

436, 617, 825, 1099-1100; Ex. C-9, C-10. As another example, the judge found Integra's online training 

(the Neumann training) lacked content; it listed high risk behaviors without providing the knowledge and 

skills necessary for SCs to identify these behaviors and deal effectively with them in practice. Id. at 78-

79 (citing Ex. C-27, at 5-10). Thus, the SCs' ability to assess and identify potentially dangerous 

17 

(b)(6)
·In addition, the judge found that "prior to the fatal attack on Ms. Integra managers 

were aw~re of several instances of violence or aggression by members against other SCs." D&O at 

72. This finding is supported by a wealth of evidence. Tr. 268, 376-77, 395, 417-20, 458, 470-72, 

495-96, 507-15, 830-32, 1010; Ex. 29, C-31. For example, SC conducted several 

face-to-face meetings with a member who had burned down his home. Tr. 830-31. She transported 

the member to provider appointments. During one appointment, the member's therapist asked the 

member if he had homicidal thoughts. The member pointed to Ms. and told the therapist 

that he had thoughts of wanting to kill Ms. Tr. 831. Ms. told her supervisor, Ms. 

Rochelle, that this member admitted to having thoughts of killing her. Tr. 268. Integra required Ms. 

to continue .servicing this member after the incident. Tr. 832. The record therefore contains 

persuasive evidence that Integra recognized the hazard. 7 

Integra's industry likewise recognized the hazard of physical assault on employees by persons 

with a history of violent behavior. The "test for determining industry recognition of a hazard is the 

knowledge or understanding of safety experts familiar with the workplace conditions or the hazard in 

question." Beverly Ente1prises, Inc., 19 BNA OSHC at 1187 (citing Waste Mgmt. of Palm Beach, Div. of 

Waste Management, Inc. o.fFlorida, 17 BNA OSHC 1308, 1310-11 (No. 93-128, 1995)). Here, Janet 

Nelson, the Secretary's expert, testified that "the social service worker industry recognize[s] the risk of 

workplace violence when working under conditions that the [SCs] worked under." Tr. 679. Ms. Nelson 

also testified that, in the past ten years, several high profile murders of social service workers raised 

awareness of the hazards faced by social service workers. Tr. 555-57. Ms. Nelson's expert testimony 

established industry recognition of the assault hazard at issue. Integra's SCs worked in the healthcare and 

situations was "dependent on experience, situation, and even naivete." Id. at 74, 84. See Armstrong Cork 

Company, 8 BNA OSHC 1070, 1074 (No. 76-2777, 1980) ("employer cannot shift" duty to comply with 

section 5(a)(l) "to its employees by relying on them to, in effect, determine whether the conditions under 

which they are working are unsafe"). Integra does not challenge the judge's findings concerning the 

inadequacy of its safety program. 

7 As the judge also found, "Mr. exhibited some of the high risk behaviors ... before he killed Ms. 

and "Integra recognized that Mr. presented a specific threat to Ms. D&O at 71-72 

(citing Tr. 139-43, 148, 278, 285-86, 356-65, Exs. C-7, C-19). 

18 

(b)(6) (b)(6) (b)(6) (b)(6) (b)(6) (b)(6) (b)(6) (b)(6) (b)(6) (b)(6)
social service industry. While SCs were hired to coordinate medical and mental services, not to provide 

counseling, as the judge found, "community health workers" (i.e., SCs, by Integra's own admission, Br. at 

5) and social workers "are considered types of 'community and social service occupations"' by the 

Bureau of Labor Statistics ("BLS"). D&O at 76 n. 110; Tr. 252, 265. See 

http://www.bls.gov/ooh/community-and-social-service/home.htm. Indeed, SCs were required to perform 

tasks that clinical social workers would normally provide. Tr. 252, 265, 459-460, 1103-1104. SCs were 

required to perform 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. Tr. 459-60. The initial assessment form 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 GAF (global assessment of functioning). Tr. 349, 590-593, 1097-

1098; Ex. C-34. These tools are used by trained clinicians to diagnose a patient for mental illness and to 

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

Integra argues that SCs are not social workers in the traditional sense. 8 But even if this is true, 

Ms. Nelson's testimony established industry recognition of the hazard. As the jud&e found, "Ms. Nelson 

is a safety expert familiar with the general workplace conditions experienced by Integra SCs" because 

she: "was qualified in the areas of clinical social work, personal safety awareness, and personal safety 

skills and safety programs for health and human service workers;" has "a background in field work, 

which supported her qualification as an expert in this case in health and human service worker safety;" is 

"an expert in personal safety, which ... is a basic principle not 'confined to any one industry;"' and was 

"familiar with interacting with people in the field." D&O at 76 n. 110 (citing Tr. 584). See also D&O at 

56 n.86 (describing Ms. Nelson's qualifications) (citing Tr. 529-61, 567, 570-72, 575; Ex. C-26). As 

8 Integra asserts that SCs "are neither healthcare workers nor social service workers in the traditional 

sense" because they "do not provide medical care, nor do they perform the functions of social workers." 

Br. 21 n.5 (emphasis added). As explained above, this is not correct. Moreover, without citing to any 

source, Integra seems to imply that community health workers should be treated as separate from social 

workers because community health workers have a "distinct [BLS] occupation code." Br. 5. This ignores 

BLS's description of community health workers and social workers as types of"community and social 

service occupations." See http://www.bls.gov/ooh/community-and-social-service/home.htm. 

19 

... ' .. ~. 
such, Ms. Nelson's testimony was based on the knowledge of a safety expert familiar with the workplace 

conditions in question, and was therefore an appropriate basis for finding industry recognition of the 

hazard. Kelly Springfield, 10 BNA OSHC 1970, 1973 (No. 78-4555, 1982) (finding industry recognition, 

·. 

over employer's objection that expert had no specific experience in employer's industry, based on 

expert's testimony about "general principle" that "is not confined to any one industry"); Arcadian Corp., 

20 BNA OSHC 2001, 2009 (No. 93-0628, 2004) ("[w]here a practice is plainly recognized as hazardous 

in one industry, the Commission may infer recognition ih the industry in question"); Waste Mgmt._, 17-

BNA OSHC at 1310-11 (industry recognition established by expert who was "familiar with the general 

workplace condition"). 

That Integra' s industry recognized the hazard is further bolstered by OSHA' s directive on 

workplace violence (Ex. C-33, discussed supra pp. 15-16) and related guidelines for healthcare and 

social service workers (Ex. C-32, Guidelines for Preventing Workplace Violence for Healthcare and 

Social Service Workers, OSHA 3148-1 lR (2004)), as well as the numerous publications and studies 

within the social services and healthcare industry addressing the hazard of workplace violence in that 

industry. OSHA based its directive and guidelines on a number of these studies, which are referenced in 

the directive or the guidelines. Ex. C-33, at 36-38 (App. C, studies examining the effectiveness of 

workplace violence controls for healthcare and social services); Ex. C-32, at 44-46 (App. C, Suggested 

Readings). OSHA stated that the guidelines "provide the agency's recommendations for reducing 

workplace violence, developed following a careful review of workplace violence studies, public and 

private violence prevention programs and input from stakeholders." Id. at 7. In addition, the Guidelines 

for Social Worker Safety in the Workplace, published by the National Association of Social Workers, 

address the hazard of workplace violence specifically for social workers. Tr. 723-730. The OSHA 

directive and guidelines and the publications within the social services and healthcare industries (along 

with Ms. Nelson's testimony) all establish that Integra's industry recognizes the hazard. 

20 
Integra (Br. 20-21) and the Chamber (Br. 16-18) assert that the Secretary may not rely on 

the OSHA guidelines for healthcare and so~ial service workers, Ex. C-32, to establish recognition 

of the hazard or feasibility of abatement. Their main argument appears to be that the Secretary 

should have adopted a workplace violence standard, and absent a' showing that such a standard 

was inappropriate, should not enforce the general duty clause. There is no authority whatsoever 

for the proposition that the Secretary is required to make a "showing" that "workplace violence 

issues are inappropriate for specific standards" to establish a violation of the general duty clause. 

(Chamber Br. at 16). Moreover, the Secretary did not need to follow· ~lemaking procedures, 

such as those that require giving the public notice and an opportunity to comment, before relying 

on the guidelines (or, indeed, any other evidence of a violation) because, as Integra and the 

Chamber point out, the guidelines are not standards or regulations. Any concerns Integra and the 

Chamber have about due process are resolved by the Commission's statutorily granted authority 

fo weigh evidence, such as the guidelines and studies on which the guidelines were based, and 

determine whether the Secretary established a violation. 29 U.S.C. § 659, 660, 661. See also cf 

Kokosing Constr. Co., Inc., 17 BNA OSHC 1869, 1874 (No. 92-2596, 1996) (proposed OSHA 

standard, "which advocated protection for all employees [], is evidence that safety officials and 

other individuals familiar with the industry recognized the hazard"); Gen. Dynamics Land Sys. 

Div., Inc., 15 BNA OSHC 1275, 1281-82 (No. 83-1293, 1991) (while employer itself"cannot be 

charged with knowledge" of draft standard, draft standard is "instructive in determining the 

general consensus of what constitutes a confined space"); Kansas City Power & Light Co., 10 

BNA OSHC at 1422 ("industry standards establish industry recognition of[] hazard"). 9 

9 The Chamber is wrong that the guidelines do not focus on risks outside of"hospitals, clinics, and the 

like." Br. 18. The guidelines specifically advise employers to "[e]ncourage home health care providers, 

social service workers and others to avoid threatening situations." Ex. C-32, at 19. Similarly, the 

Commission should reject Integra's speculation that the guidelines are outdated. OSHA updated the 

guidelines in 2015. See https://www.osha.gov/Publications/osha3148.pdf The updated guidelines 

continue to show that Integra's industry recognized the hazard and that knowledgeable persons familiar 

with Integra's industry would regard the measures proposed by the Secretary as necessary and valuable 

for a sound safety program in the particular circumstances existing at Integra's worksite. Id. at 40-45. 

21 
Integra argues that the decision in Megawest Financial, Inc., 17 BNA OSHC 133 7, 1995 · 

W~ 383233 (No. 93-2879, 1995), an unreviewed and nonprecedential ALJ decision, precludes a 

finding of hazard recognition in the case at bar. Integra's reliance on Megawest is misplaced, 

however, for the judge in that case simply found that the hazard of random physical assaults upon 

apartment complex staff by tenants upset by management policies was not recognized by the 

employer or its industry on the specific, facts presented. Id. at 1340-41. Critically, the judge found 

that the Secretary did not prove that the employer was actually aware of the hazard based primarily 

on evidence that a supervisory employee feared for his safety. Id. at 1341. In the instant case, by 

contrast, the evidence of hazard recognition includes the precautions, albeit inadequate, taken by 

Integra to reduce the risk of assaults by members on SCs during mandatory face-to-face interactions, 

an9 the company's awareness of specific incidents of such violence. Nothing in the Megawest 

decision precludes the judge's finding that Integra and its industry recognized the hazard of assaults 

on employees by members with a history of violent behavior during face-to-face interactions. See 

Ramsey Winch, 555 F.3d at 1207, n.8 (general duty clause violations for incidents involving 

workplace violence "are entirely dependent upon the specific facts, which will be unique in each 

situation") (quoting OSHA Standard Interpretations Letter, December 10, 1992). 

B. Feasible Means Existed to Eliminate or Materially Reduce the Hazard. 

In the citation, the Secretary proposed that Integra could abate the hazard of workplace violence 

through: (1) implementing a written workplace violence prevention program containing specified 

elements; Io (2) determining the behavioral history of new/transferred members and establishing 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 

Indeed, the updated guidelines give specific guidance on measures to take to materially reduce workplace 

violence associated with the field work of social service workers who make home visits. Id. at I, 5-22. 

Io These elements are set forth in the Citation, Ex. C-1. 

22 
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 re_liable way to rapidly summon assistance when needed; and (7) establishing a 

liaison with law enforcement representatives. Ex. C-1, pp. 6-8. The Secretary established these 

measures were feasible means of materially reducing the hazard by showing that "knowledgeable 

persons familiar with the industry would regard the steps as necessary and valuable for a sound safety 

program in the particular circumstance_s existing at the employer's worksite." Cerro Metal Prods. Div:, 

Marmon Group, Inc., 12 BNA OSHC 1821, 1822-23 (No. 78-5159, 1986). 

First, as explained supra, OSHA based the means of abatement contained in the citation on 

those contained in the OSHA directive and related guidelines for healthcare and social service workers, 

which were in tum based on numerous publications within the social services and healthcare industry 

addressing the hazard of workplace violence in that industry. Ex. C-33, at 36-38 (App. C, studies 

examining the effectiveness of workplace violence controls for healthcare and social services); Ex. C32, at 44-46 (App. C, Suggested Readings). Second, as the judge found, based on Ms. Nelson's 

testimony, "performing background checks, implementing certain administrative and engineering 

controls, including assigning member/caseloads considering member risk, 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 the workplace violence." D&O at 87 (citing Tr. 617, 644-66, 672-

75, 1094-95; Exs. C-1, at pp. 6-8, C-27, at p. 12). Moreover, a "written workplace violence prevention 

program decreases the risk of assault by helping prepare the SC for the possibility of a violent situation" 

because: "l) a written document is an established resource for trainees, preventing experienced workers 

from taking all of their knowledge with them if they leave the company; 2) the safety program also 

provides 'scenarios' to make trainees aware of possible safety situations like a member with a weapon, 

dogs, trespassing signs, and other people in the member's house; and 3) the safety program will then list 

ways to identify, prevent, and escape from those scenarios." D&O at 89 (citing Tr. 646-49); see also 

Ex. C-27, at p. 9. Further, the use of a background check "decreases the risk of assault because it allows 

23 
the SCs to know who may have a propensity for violence so that they may prepare themselves or 

alternatively assign the member to a SC based on client risk, rather than geographic ~r. S\:heduling 

.. concerns." D&O at 89 (citing Tr. 618-19); see also Tr. 722, ~x. C-27, at p. 11. Finally, "'rolling qff·a 

member with a history of violent behavior decreases the risk of assault because the SC would not be 

required by Integra to meet with that member," and "mandatory reporting requirements decrease the risk 

of assault because: 1) by making it mandatory, it decreases the chance that Integra SCs will not report it 

for fear of looking like they are not doing their job, and 2) it allows all the SCs to know what.is going on 

so that they can all help and prepare for the possibility of a violent situation with a particular member." 

D&O at 89-90 (citing Tr. 661-62). Thus, there is ample evidence in the record demonstrating that 

feasible means existed to eliminate or materially reduce the hazard. 

Integra and the Chamber question the efficacy of the proposed abatement measures. 

Integra notes that Ms. Nelson offered no statistical or other evidence to support her conclusions. 

(Br. at 26-28). However, the Secretary need only show that "knowledgeable persons familiar 

with [Integra's] industry" - i.e., Ms. Nelson and the authors of the numerous publications within 

the social services and healthcare industry on which OSHA relied in the directive and related 

guidelines - "would regard the [measures proposed by the Secretary] as necessary and valuable 

for a sound safety program in the particular circumstances existing at [Integra's] worksite." 

Cerro Metal Prods., 12 BNA OSHC at 1822-23. 11 As the judge found, Ms. Nelson testified in 

detail why the measures proposed by the Secretary were necessary and valuable components of a 

safety program designed to protect Integra's SCs from physical assaults by members. D&O at 

87-89. Moreover, the fact that Integra adopted a number of these measures following Ms. 

death is strong evidence of their efficacy. Sea World, 748 F.3d at 1215 (employer's post-citation 

11 Moreover, notwithstanding Integra's assertion (Br. 28 n.7) that Ms. Nelson was "unable to provide 

testimony concerning the extent to which the proposed abatement measures had been adopted in the 

industry," the Secretary must show that the proposed abatement measure is technologically and 

economically feasible, not that the precaution has gained general acceptance in the industry. Beverly 

Enters., Inc., 19 BNA OSHC at 1191. 

24 

(b)(6)
implementation of abatement measures "support the finding that these changes were feasible and 

would not fundamentally alter the nature of' employer's business). 

The Chamber argues that refusing to provide services to persons with a history of violent 

behavior is the only measure that would reduce the hazard and is infeasible because it would have 

a substantial negative impact on Integra's business model. (Chamber Br. at 15). However, the 

record does not establish that all members. with a history of violence must be eliminated from the 

program in order to materially reduce the ha.z;:ird of assaults on SCs. Not all members with a 

history of violence present the same degree of risk. Abatement measures that effectively prepare 

SCs for the possibility of violence, such as training on de-escalation and non-harming selfdefense techniques, providing "scenarios" to make trainees aware of possible safety situations and 

how to avoid or escape them, and administrative practices, such as assigning caseloads based on 

member risk rather than purely geographic factors, may be adequate to reduce the risk of physical 

assault by some members with violent histories: And even if"rolling off' all members with a 

history of violent behavior would be required to materially reduce the risk, there is no evidence 

that it would be infeasible. For Integra could still provide services to all other members, 

including those with non-violent mental illnesses or other cognitive impairments. Integra 

provided no evidence of the number or proportion of its members with violent histories, and made 

no argument below that rolling off all such members would affect its economic viability. 

III. Integra Had Fair Notice of its Obligation to Comply With the General Duty Clause. 

Integra argues that the general duty clause is unconstitutionally vague as applied to it in 

this case because it could not have known that it was required to implement the Secretary's 

proposed abatement measures. (lntegra Br. at 29-31 ). This facial challenge to the Act should be 

rejected because the hazard of physical assaults on SCs by members with a history of violent 

behavior was preventable and a reasonably prudent employer in Integra's industry would have 

recognized that additional abatement measures were required. Sea World, 748 F.3d at 1216. As 

discussed, supra, Integra was aware that SCs faced a risk of physical assault by members with 

25 
certain risk factors, including a history of violence and severe mental illness, and specified some 

. measures to abate that risk. Thus, Integra knew that Mr. in particular, and other members 

wJ.th similar backgrounds, posed a workplace violence hazard. Integra also knew or should have 

known that its safety program prior to Ms. death was inadequate, as it relied primarily 

upon SCs to assess the degree of risk and to "get out" of or leave any situation if they felt 

threatened. D&O at 74, 84-86. This approach was "plainly inadequate when, as here, the SC was 

inexperienced, qaive, untrained, and already face-to-face with a member with a history of violent 

behavior." Id. at 84. See also discussion of inadequacy oflntegra' s approach, supra, footnote 6. 

As to the proposed abatement, Ms. Nelson's expert testimony establishes that a 

reasonably prudent employer in Integra's position would have recognized that it was required to 

implement measures such as a written workplace violence program, training SCs on methods to 

de-fuse, or escape from, potentially violent interactions, background checks, flagging members 

with violent behaviors, and rolling off those members with violent criminal records. Moreover, 

Integra itself adopted a number of measures after the fact that would, if adopted earlier, have 

prevented Ms. death at the hands of Mr. Accordingly, the hazard was preventable 

by demonstrably feasible means and the application of the general duty clause in no way deprived 

Integra of fair notice. 

IV. Integra 's Remaining Arguments are Without Merit. 

Integra asserts that the Commission should remand the case for a new hearing because, in 

a footnote to the portion of the decision summarizing Dr. Arnott's testimony, the judge stated that 

he was "crediting Dr. Arnott's Doctorate degree in counseling education with weight less than that 

accorded a similar degree awarded following completion of a full-time, resident study program 

taken over the course of several years at a traditional university with a suitable accredited 

program." D&O at 22 n.36. Even ifthe judge had committed error here (he did not), such error 

26 

(b)(6) (b)(6) (b)(6) (b)(6)
was harmless. 12 Integra does not rely on any of Dr. Arnott' s testimony to assert that the Secretary 

did not establish his case, nor does Integra point to any substantive findings made by the judge 

that were affected by the credibility determination concerning Dr. Arnott. In any event, the 

Commission reviews the ALJ's factual findings de nova, except on matters of credibility that are 

particularly observable by the hearing judge (like demeanor). Waste Mgmt., 17 BNA OSHC at 

1309-10. The credibility finding to which Integra objects was not based on a matter peculiarly 

within the judge's purview. 13 Therefore, the Commission may make its own independent factual 

finding, without regard to the judge's credibility finding, if it so chooses. 

Finally, the Commission should reject Integra's argument that it did not commit a serious 

violation because it "did not know (and could not reasonably be expected to know) that it was in 

violation of the Act." (Integra Br. at 34-35). As the judge found, Integra' s argument relates to 

the knowledge element of the Secretary's primafacie case. The relevant question is whether the 

employer knew or with reasonable diligence could have known of the violative condition, not 

whether the employer knew that the condition violated the Act. Georgia Elec. Co. v. Marshall, 

595 F.2d 309, 318-319 (51h Cir. 1979). Integra knew that its workplace was not free of the hazard 

of assaults on SCs by members with a history of violent behavior. 

12 The judge relied upon Dr. Arnott's own resume in concluding that she did not complete a full-time 

resident study program. "Dr. Arnott's resume shows that she worked in Pennsylvania from the time she 

was awarded her Master's degree in 1995 through 2004, the year she was awarded her Doctorate degree in 

Florida, suggesting most of the work for her Doctorate degree was done off campus." D&O at 22 n.36 

(citing Ex. R-TT). Moreover, Integra does not dispute the factual underpinnings of the court documents 

and administrative case on which the judge relied to conclude that the University of Sarasota was in 

bankruptcy around the time that Dr. Arnott received her doctoral degree, or that "[i]n at least one instance, 

the University of Sarasota has been seen as a 'non-traditional' university and had its doctorate programs 

called into question." Id. 

13 In contrast, the judge credited the testimony of witnesses Integra sought to discredit, Laurie Rochelle, 

Ellen Elaine Rentz, and Andrew Macaluso, based on their demeanor. D&O at 38, 40 n.69, 51 n.80. 

27 

· .. 
CONCLUSION 

For the above reasons, the Secretary respectfully requests that the Commission affirm the 

citation as a serious violation of the general duty clause. 

Respectfully submitted. 

M. PATRICIA SMITH 

Solicitor of Labor 

ANN ROSENTHAL 

Associate Solicitor of Labor for 

Occupational Safety and Health 

CHARLES F. JAMES 

Counsel for Appellate Litigation 

/s/ Lee Grabel 

LEE GRABEL 

Attorney 

U.S. Department of Labor 

200 Constitution Ave., N.W. 

Washington, D.C. 20210 

(202) 693-5445 

28 
CERTIFICATE OF SERVICE 

I certify that Respon_dent _Inte~ra He~lth M.anagement, Inc. has consented that all papers required 

to be served may be served and filed electronically. I further certify that a copy of the Secretary of 

Labor's Brief and Appendix was served on December 18, 2015 on the following counsel for Integra 

Health Management, Inc. via electronic mail and United Parcel Service: 

Kevin C. McCormick, Esq. 

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

7 Saint Paul Street, Suite 1800 

Baltimore, MD 21202 

email: kmccormick@wtplaw.com 

I further certify that a copy of the Secretary of Labor's Brief and Appendix was served on 

December 18, 2015 on the following amici curiae, if unrepresented, or their counsel, ifrepresented, via 

United Parcel Service: 

Sky Westerlund, LMSW 

Executive Director 

Kansas Chapter, National Association of Social Workers 

700 SW Jackson, Ste. 1109 

Topeka, Kansas 66603 

Counsel for Chamber of Commerce 

Steven P. Lehotsky 

Warren Postman 

U.S. Chamber Litigation Center, Inc. 

1615 H St., NW 

Washington, DC 20062 

Jacqueline M. Holmes 

JONES DAY 

51 Louisiana Avenue, N.W. 

Washington, D.C. 20001-2113 

Counsel for United Steel, Paper and Foresfly, Rubber, Manufacturing, Energy, Allied-Industrial and 

Service Workers International Union, AFL-CIOICLC 

Antonia Domingo 

Assistant General Counsel 

United Steelworkers 

60 Boulevard of the Allies, 81

h Floor 

Pittsburgh, PA 15222 

/s/ Lee Grabel 

Lee Grabel 

Attorney