BEFORE THE UNITED STATES OF AMERICA 


OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION 


SECRETARY OF LABOR 	 ) 


) 

Complainant, ) OSHRC DOCKET NO. 13-1124 

v. ) 

) 

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

) ADMINISTRATIVE LAW JUDGE 

Respondent ) 

COMPLAINANT'S REPLY TO RESPONDENT'S POST-HEARING BRIEF 

NOW COMES Complainant Secretary of Labor and files this Reply to Respondent's 

Post-Hearing Brief 

As an initial matter, the Secretary disagrees with several ofRespondent's 

characterizations of the evidence presented at trial, as set forth in the Introduction. 

1. 	 Integra claims that its service coordinators were not providing clinical services to 

members, but were "really just trying to get the individual connected with things just like 

a family member might" (Respondent's Brief, p. 2). This claim is inconsistent with the 

testimony of expert Janet Nelson, who testified that the service coordinators were 

applying clinical tools usually used by licensed and trained clinical social workers. (Tr. 

590-593, 1097-1098; Ex. 34). Laurie Rochelle and Scott Schneider also testified that the 

service coordinators assessed the members' needs, as would a clinician. (Tr. 265, 459­

460). 

2. 	 Integra claims that service coordinators are "community health workers" as defined by 

the Bureau of Labor Statistics ("BLS"), as opposed to social workers. (Respondent's 

Brief, p. 3). Integra provides no citation to the record or expert testimony supporting this 
claim. The Secretary's position is that the BLS classification ofthe service coordinators 

is not particularly relevant. Both social workers and community health workers are 

considered types of "community and social service occupations" by the BLS (See 

http;llwww.bls.gov/oohicommunity-and-social-servicelhome.htm), and it is undisputed 

that service coordinators, like many social workers performing home visits, are subjected 

to similar risk factors contributing to the hazard of workplace violence. Specifically, 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. I 

3. 	 The Secretary disputes Integra's claim that it "mandates that newly hired employees 

complete [the Neumann] training at the outset oftheir employment" and "provides for the 

Service Coordinators to observe face-to-face meetings with Members conducted by more 

senior staff." (Respondent's Brief, p. 4). The testimony at the hearing established that 

several ofthe nine Florida service coordinators did not complete the on-line training or 

perform any "shadowing" of more senior employees before beginning their jobs and 

interacting with members. (Prymmer, Tr. 123-124; Rochelle, Tr. 261; Rentz, Tr. 371, 

373; Daniels, Tr. 434-435; Schneider, Tr. 488). 

4. 	 The Secretary also disputes Integra's claim that it conducted "three two-day training 

programs in the Fall of2012" which "encompassed safety discussions that included role 

playing scenarios and demonstrations." (Respondent's Brief, p. 4). Integra's own 

witness, Annie Hinman, testified that during corporate training in September 2012, 

service coordinators did not engage in role playing. (Hinman, Tr. 817). Service 

I Indeed, Ms. Nelson testified that the service coordinator's lack offormal social work training actually increases 

their 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). 

2 

coordinator Scott Schneider testified that he did not receive any safety training prior to 

__death (Schneider, Tr. 456), and service coordinator Kimber Daniels stated, "I 

wouldn't consider anything I received safety training". (Daniel, Tr. 436). 

5. 	 The Secretary disputes Integra's assertion that "OSHA did not obtain a copy 

criminal record until after the Citation had been issued." (Respondent's Brief, p. 8). 

CSHO Prymmer's testimony makes clear that he did discover history of 

violent criminal behavior early in the course of his investigation, well before the issuance 

of the Citation. (Tr. 138-139). 

The Secretary next addresses each of Respondent's arguments in turn: 

I. 	 Intentional Criminal Acts by Integra's Members Constitute a Workplace 

Hazard, Recognized by Both the Industry and Respondent. 

Respondent's first argument is that "intentional criminal acts by Integra's members do 

not constitute a recognized workplace hazard," because "the violent conduct of a third party is an 

inherently unpredictable act of a different nature than the hazards typically regulated under the 

general duty clause." (Respondent's Brief, p. 8 and 11). In support of this assertion, Respondent 

quotes extensively from and relies exclusively upon the Megawest case, also addressed in the 

Secretary's brief. Megawest Financial Inc., 17 BNA OSHC 1337 (No. 93-2879, 1995). The 

Megawest decision is an un-reviewed ALJ decision from nearly twenty years ago involving 

workplace violence against administrative staff in an apartment leasing office. As such, the 

decision is not binding upon this court and, in any event, it is clearly distinguishable from this 

case. 

In addition, contrary to Respondent's assertion, the Megawest case does not stand for the 

broad proposition that workplace violence cannot be a recognized hazard under the general duty 

3 
clause. To the contrary, Megawest specifically recognizes that certain industries such as liquor 

stores, detective/protective services, and justice/public order establishments have been 

identified by the CDC and NIOSH as having a heightened hazard of "occupational homicide." 

[d. at *IO. ALJ Spies notes that certain risk factors increase the risk of occupational homicide, 

including several of the risk factors relevant to this case, i.e., "working alone or in small 

numbers," "working late night or eady morning hours," "working in high-crime areas," and 

"working in community settings." [d. In fmding that the apartment management industry did 

not recognize a heightened risk of violence against its employees, ALJ Spies relied upon the fact 

that this industry was not identified in "publicized studies, enactment of legislature, industry 

publications, or similarly disseminated information known to an applicable industry" as a "highrisk" employer, and that the previous incidents of violence experienced within this Megawest 

office were not typical of the experiences of "other office staffs ... throughout the national and 

local residential apartment industry." [d. at *10-11. 

In stark contrast to Megawest, the industry at issue in this case - whether defined as 

social service industry or community health industry does recognize workplace violence as a 

hazard for employees working within the community? The Megawest decision clearly 

recognizes that workplace violence may be a recognized workplace hazard within certain 

industries and to certain employers, but merely declined to fmd that such a hazard was 

recognized under the specific facts presented in that limited case. 

2 The Secretary, through the testimony ofCSHO Prymmer, referenced and/or introduced numerous articles and 

industry publications in which the hazard is recognized and potential abatement measures are discussed. (Ex. 32, p. 

8-9; Ex. 33, p. 8). In addition, the Secretary presented 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" (Nelson, Tr. 584), 

establishing that the social services industry recognizes that workplace violence is a known hazard. Ms. 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, Tr. 558-561). 

4 
Respondent also argues that because it had fewer previous incidents ofworkplace 

violence than did the employer in Megawest, it could not have recognized the hazard of 

workplace violence. (Respondent's Brief, p. 11). This argument is without merit. was 

murdered by a member within Integra's first six months of operation in Florida. The evidence 

establishes that within those first six months, service coordinators were exposed to multiple 

incidents ofverbal threats and threatening behavior from the members they served. (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). Integra was clearly aware 

of the danger posed by working within the homes and communities of mentally-ill members in 

high-crime neighborhoods, as evidenced by the warnings and instructions it provided to its 

service coordinators through the Neumann training. (Exh. 16 and 17). The fact thatll. 

death was the first incident involving an "actual workplace injury" due to workplace violence 

does not mean that Integra did not recognize the hazard. Indeed, it is well established that 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., _ O.S.H. Cas. 

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

to serve as a source of consolation for the first victim or his survivors.") 

In any event, the case law in the twenty years since Megawest indicates a broader 

willingness to recognize "unpredictable" or "erratic" behavior ofnon-employees as a recognized 

workplace hazard. In the binding D.C. Circuit opinion ofSea World o/Florida, LLC v. Perez, 

748 F.3d 1202 (D.C. Cir. 2014) (hereinafter Sea World II), the Court recognized that, although 

"all whales behave differently," the "hazard killer whales posed during performances is not 'so 

idiosyncratic and implausible' that it cannot be considered preventable." /d. at 1210. The 

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{ 

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Sea World II Court found that "SeaWorld's safety protocols and training3 [did not make] the 

killer whales safe; rather, they demonstrate SeaWorld's recognition that the killer whales 

interacting with trainers are dangerous and unpredictable and that even senior trainers can make 

mistakes during performances, and the managers repeatedly urged caution in working with the 

killer whales." Id. at 1209. Similarly, although Integra's members' behavior may be 

unpredictable from day-to-day, Integra clearly recognized that the members posed a risk of 

violence to its employees, and instructed them accordingly. 

Sea World II also distinguished the hazard posed by the whales from the alleged hazard in 

the Megawest case, noting that "SeaWorld controls its employees' access to and contact with its 

killer whales, unlike the employer in [Megawest], who could not prevent the potentially criminal, I 

I 

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violent actions ofthird parties residing in the apartment building it managed." Id. Similarly, in 

this case, Integra could control its service coordinators' exposure to the members more than 

Megawest could control the exposure of its employees to the general public. Specifically, 

Integra assigned the members to specific service coordinators and instructed service coordinators 

in how and how often to make a required number of face-to-face interactions with the members. 

Finally, Respondent makes a policy argument, claiming that the finding of a recognized 

hazard in this case would have broad implications "relating to the delivery of any in-home or incommunity services," such as the work of a plumber or HV AC technician. (Respondent's Brief 

at 12-13). This "parade ofhorribles" is simply inapplicable to this case. The court need not 

consider whether a plumbing or HV AC service provider recognizes the risk of violence posed by 

the persons it services; it need only consider whether Integra or its industry recognized that risk. 

3 As with Integra's Neumann training (See Ex. 17, listing alleged "high risk behaviors" of members), SeaWorld 

"also trains its employees who work with killer whales to recognize particular behaviors that it calls 'precursors,' 

which indicate that the killer whales may act aggressively." Sea World II, at 1209. The D.C. Circuit Court found that 

this training did not succeed in making contact with the whales safe, but did establish that the employer recognized 

the hazards posed by the whales. Id. 

6 

Integra does not service the general public; it services a community of predominantly mentally ­

ill individuals that it itself identified as "dangerous" and "high risk." In any event, "no principle 

of law requires a court, when reviewing a citation based on specific facts relating to one [service 

provided] by a single employer, to reach beyond that citation and decide the hypothetical 

application ofthe statute to another industry." Sea World II, at 1213. 

II. The Abatement Proposed By the Secretary Is Feasible and Effective. 

Respondent next argues that the Secretary has not proven that the suggested abatement 

would be effective, because he presented no "statistical or other evidence as to the potential 

efficacy of any ofthe proposed abatement measures beyond [expert Janet Nelson's] conclusory 

statements." (Respondent's Brief, p. 14). Respondent fails to recognize that "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». Here, Ms. Nelson's testimony that the proposed abatement methods are 

appropriate and utilized by the industry when workers make home visits to mentally-ill clients4 is 

sufficient for the Secretary to meet his burden. This portion of Ms. 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. 

In addition, CSHO Prymmer testified that he developed the list of proposed abatement from the 

aSHA directive itself, which lists engineering and administrative controls shown to minimize 

4 Ms. Nelson concedes that the proposed abatement methods are not uniformly applicable in all community-outreach 

or social work settings. For example, where the population to be serviced in-home is elderly or homebound - as 

opposed to mentally-ill and/or recently released from incarceration background checks mayor may not be 

recognized as necessary. (Tr. 719-729). However, Ms. Nelson did clarify that for employers who know they are 

serving "seriously mentally ill people that may have criminal backgrounds, it would be advisable to check on that 

background before you enter their home." (Tr. 722). 

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I 
the risk ofworkplace violence within the healthcare and social services industries. (Prymmer, 

Tr. 165; Ex. 33, p. 33-38). Furthennore, "the Secretary need only show that the abatement 

method would materially reduce the hazard, not that it would eliminate the hazard." MorrisonKnudsen Co., 16 O.S.H. Cas. (BNA) 1105, 1122 (No. 88-572, 1993). 

III. 	 The General Duty Clause as Applied Is Not Unconstitutionally Vague. 

Facial challenges to the general duty clause have been rejected, see Ensign-Bickford Co. 

V. OSHRC, 717 F .2d 1419, 1421 (D.C. Cir. 1983), and although an as-applied challenge would 

be possible, courts have long accommodated possible constitutional problems with fair notice in 

this context by interpreting "recognized hazard" only to include preventable hazards, see id. 

(citing Nat'l Realty & Constr. Co. v. OSHA, 489 F.2d 1257,1265-66 (D.C. Cir. 1973», or 

applying the clause only "when a reasonably prudent employer in the industry would have 

known that the proposed method of abatement was required," Donovan v. Royal Logging Co., 

645 F.2d 822, 831 (9th Cir. 1981). 

Integra contends the general duty clause is unconstitutionally vague as applied because it 

lacked fair notice that the abatement measures would be required. But the record establishes that 

Integra did not lack fair notice because (1) the hazard arising from service coordinators' close 

contact with members with histories of violence may be materially reduced by the proposed 

administrative and engineering controls; (2) the industry has published multiple articles outlining 

proposed abatement measures determined to be effective at preventing or lessening instances of 

workplace violence (See Ex. 6; Ex. 32, p. 25 and 44-46; Ex. 33, p. 36-38); and (3) OSHA has 

published a directive for Enforcement Procedures for Investigating or Inspecting Workplace 

Violence (Ex. 33, effective September 2011), as well as Guidelines for Preventing Workplace 

Violence for Health Care & Social Service Workers (Ex. 32, published in 2004), both ofwhich 

8 
are available to the industry and which specifically address the heighted hazard of workplace 

violence faced by social service workers providing services within the community, and which 

describe effective abatement measures. 

IV. Citation One, Item One is Properly Classified as Serious. 

Respondent argues that because there is no evidence that Integra "knew or should have 

known" that it was in violation ofthe general duty clause, any potential violation should not be 

classified as serious. (Respondent's Brief, p. 18). This argument makes no sense. Under section 

17(k) of the Act, a "serious" violation exists ifthere is a "substantial probability that death or 

serious physical harm could result from a condition which exists ...." See 29 U.S.C. § 666(k). 

There is no "employer knowledge" component to the classification of a violation; the only 

consideration is whether "in the event an accident occurred it could result in bodily harm or 

possibly death." Whiting-Turner Contracting Co., 13 D.S.H. Cas. (BNA) 2155, 2157 (No. 1238, 

1989). As set forth in Complainant's Brief, there is no dispute that on December 10,2012,11 

• 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). 

V. Citation 2, Item 1 should be Affirmed as Issued. 

In its post-hearing brief, Respondent admits that it does not contest Citation 2, Item 1; 

therefore, this Citation should be affirmed as issued. (Respondent's Brief, p. 18). 

Respectfully submitted, this 4th day of August, 2014. 

9 

ADDRESS: 

Office ofthe Solicitor 

U. S. Department ofLabor 

61 Forsyth Street, S.W. 

Room 7TlO 

Atlanta, GA 30303 

Telephone: 

(404) 302-5489 

(404) 302-5438 (FAX) 

chastain.lydia.j@dol.gov 

SOL Case No. 13-00965 

M. PATRICIA SMITH 

Solicitor of Labor 

STANLEY E. KEEN 

Regional Solicitor 

CHRISTOPHER D. HELMS 

Counsel 

By:/s/ Lydia 1. Chastain 

LYDIA J. CHASTAIN 

Senior Trial Attorney 

ROLESIA B. DANCY 

Senior Trial Attorney 

Attorneys for the Secretary of Labor, 

United States Department ofLabor. 

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l 

i 
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 ofthe foregoing 

Complainant's Reply to Respondent's Post-Hearing Brief was filed electronically and a copy 

was served via electronic mail this 4th day ofAugust 2014 on the following counsel for 

Respondent: 

Kevin McCormick, Esq. 

kmccormick@wtplaw.com 

slLydia J Chastain 

LYDIA J. CHASTAIN 

11