UHS of Centennial Peaks LLC, dba Centennial Peaks Hospital

Read the official release (oshrc.gov)

Plain-English summary

UHS of Centennial Peaks operated an inpatient psychiatric hospital where direct-care employees faced threats and assaults by patients. The judge found that the hospital recognized workplace violence as an endemic hazard but relied too heavily on clinical patient care rather than a comprehensive workplace violence prevention program. Deficiencies included fragmented injury data, unclear reporting and response procedures, limited direct-care staff participation, staffing and communication gaps, incomplete program-wide training, and inadequate incident investigations and debriefings. The judge found that a coordinated, data-driven program and related measures were technologically and economically feasible and would materially reduce the hazard. The serious general duty clause citation was affirmed with a $10,229 penalty.

Decision snapshot

• Cited standard(s): 29 U.S.C. § 654(a)(1)
• Outcome: The serious workplace violence citation was affirmed with a $10,229 penalty.
• Key point: A psychiatric hospital's clinical safety practices do not replace the need for a comprehensive workplace violence program that links reporting, data analysis, staffing, communication, training, and post-incident review.

Full text (OSHRC public release)


Document

Some personal identifiers have been redacted for privacy purposes.

United States of America

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR,   

Complainant,   

v.

UHS OF CENTENNIAL PEAKS LLC, dba CENTENNIAL PEAKS HOSPITAL

Respondent.   

OSHRC Docket No.:
19-1579

A ppearances:

Alicia A. Truman , Esq.
and Beau Ellis, Esq. , Department of Labor, Office of the Solicitor, D enver ,
CO

For Complainant

Melanie Paul, Esq. and Dion
K ohler , Esq.,
Jackson Lewis, P.C.,
Atlanta, GA

For Respondent

Before: First Judge Patrick B. Augustine – U. S. Administrative Law Judge

I. Introduction

Workplace violence
is a unique hazard in the
occupational safety and health
arena. It is not governed by a specific standard,
and many businesses do not have occasion to address it, or only need do so in the most cursory terms.
But,
in some industries,
it is one of the most significant threats to the safety and health
of employees covered by the Occupational Safety and Health Act, 29 U.S.C. §
651
et seq.
(Act).
The hazard is particularly acute in the healthcare industry, where, according to the Bureau of Labor Statistics,
U.S. healthcare workers suffered 15,000 to 20,000 workplace-violence-related injuries every year from 2011-2013
and accounted
“for nearly as many
injuries as all other industries combined.” 1
(Ex. C-13 at 3; C-12
at 2-3).
The particular threat of violence faced by a healthcare facility
depends on
the type of services it provides,
the patients it sees,
and
whether it is open to the public.
(Ex. C-12)

Inpatient psychiatric hospitals, such as the one
Respondent operates
in
Louisville, Colorado ,
deal almost exclusively with
what is known as Type
2
violence , or “ violence committed by patients upon staff members.” (Ex. C-14).
This is due, in no small part, to the population Respondent serves . According to Respondent,
many of the patients it admits come
involuntarily
from
local
e mergency
d epartments . 2
These patients are typically at a low point
in their psychiatric health and need assistance for any number of psychiatric or behavioral conditions, including depression, bipolar disorder, schizophrenia and other
schizo -affective disorders .
A lthough
data and Respondent’s own experience show
many of the se
patients
are not a threat to
the safety and health of its employees,
some patients , especially those with a history of violen t behavior ,
will perpetrate violence on staff members responsible for providing
them with care .
In light of this hazard, which Respondent admits is endemic to its workplace
and the industry generally ,
the operative issues in this case are
whether
( i ) Respondent
adequately addressed the hazard
of workplace violence ; and ( ii ) Complainant established the
feasibility of its proposed
abatement measures.

Complainant cited
Respondent
for
failing to provide
employment and a place of employment free f rom
the recognized hazard of
workplace violence
under the general duty
clause, 29
U.S.C. § 654(a)(1) .
Complainant
identifies multiple
aspects of Respondent’s current
workplace violence protection plan
( WVPP )
that are deficient
and makes an equivalent number of proposals
to abate
the
workplace violence
hazard .
While the case is complex in its particulars , at bottom
Complainant
is
alleg ing
Respondent
failed to
address the hazard of workplace violence in a comprehensive
and
effective
way .
Respondent, on the other hand, contends Complainant has
not
shown
Respondent’s methods for addressing the
workplace violence
hazard were inadequate, nor has
he
provided any competent evidence
the abatement methods he proposes would materially reduce the
workplace violence
hazard .
In particular, Respondent contends
the source of
workplace violence
hazard itself presents multiple difficulties , such as
predicting who will perpetrate violence and when , as well as
assessing the effectiveness of
particular abatement methods . As such, Respondent places significant emphasis on its clinical approach to workplace violence,
which it contends is outside the reach of
the Occupational Safety and Health Administration ( OSHA ) .

Respondent ’s task is a difficult one. It
must
account for
the difficulties inherent to
provid ing
a safe environment for psychologically and behaviorally
compromised
patients
to heal
while simultaneously
ensuring its employees
are provided with the most effective means to
mitigate
potential
workplace
violence .
While
this is no doubt a difficult task
in an environment where workplace violence is endemic ,
Respondent
is nonetheless obliged to
take
all
necessary and appropriate steps to ensure its employees are provided with “employment and a place of employment
which are free from recognized hazards . . . .” 29 U.S.C. § 654(a)(1) .
Ultimately, the Court finds Complainant
has
established
that
Respondent failed to adequately address the hazard of workplace violence in multiple areas and ,
simultaneously ,
prov ed
many of its abatement proposals
“ would be effective in
reducing the
hazard .”
Arcadian Corp. ,
20 BNA OSHC
2001 , 2011
(No.
93-0628,
2004).
Respondent’s
failures
can be resolved through the intentional implementation of a comprehensive
WVPP ,
which
implements
Complainant’s abatement proposals insofar as the Court determines they are feasible.

II. Jurisdiction & Stipulations

A.
Stipulations

The parties reached multiple stipulations, which they submitted to the Court prior to the trial in this matter.
Those stipulation s , which the Court has accepted,
provide as follows:

i. Respondent UHS of Centennial Peaks LLC dba Centennial Peaks Hospital (“Centennial Peaks”) is an employer engaged in a business affecting commerce within the meaning of Section 3(5) of the Occupational Safety and Health Act of 1970, 29 U.S.C. § 652(5).

ii. Centennial Peaks is an in-patient psychiatric hospital.

iii. Centennial Peaks has 5 units with a total of 104 beds.

iv. The Citation and Notification of Penalty underlying this proceeding was issued on May 31, 2019.

v. Respondent timely filed its Notice of Contest on June 4, 2019.

vi. Employees at the worksite are exposed to the hazard of workplace violence, defined in this case as physical threats and assaults by patients toward staff.

vii. The hazard of workplace violence as defined in this case was recognized by Centennial Peaks at the time of the alleged violation.

viii. The hazard of workplace violence is recognized in the industry.

ix. Staff injuries from patient violence and/or assaults by patients against staff could result in serious injuries.

x. The Occupational Safety and Health Review Commission has jurisdiction in this proceeding pursuant to § 10(c) of the Occupational Safety and Health Act (“OSH Act”).

xi. Nurse Manager/House Supervisor Shift Reports were produced by Respondent during discovery for 13 days in 2017, 65 days in 2018, and 57 days in 2019. (J-4)

See
Joint Stipulations at 1-2. 3

[Remainder of the page intentionally left blank]

B. Jurisdiction

Based on the stipulations 4 , the Court finds
Respondent is an employer
engaged in interstate commerce and
subject to the jurisdiction of the Act .
United States v. Lopez , 514 U.S. 549, 558 (1995).
See also
Slingluff
v.
OSHRC , 425 F.3d 861 (10th Cir. 2005).
The Court also finds
the
Commission has jurisdiction over the matter pursuant to § 10(c) of the Act .
(JS No. 1) .
See
Joel Yandel , 18 BNA OSHC 1623, 1628 n.8 (No. 94-3080, 1999).

III. Procedural History

Th is case began when one of Respondent’s employees filed an anonymous complaint with
OSHA ’s
Denver Area Office , alleging employees were
routinel y exposed to physical assaults by patients
and Respondent did not have a n
effective
WVPP
in place
to address those assaults . On receipt of the complaint, Complainant designated Compliance Safety and Health Officer (CSHO)
Brian
O b erbeck
to perform
an
inspection
into the allegations , which began
on December 7, 2018 .
Based on the results of his inspection, CSHO
Oberbeck
recommended, and Complainant issued, a single-item Citation and Notification of Penalty , which all eged a violation of
the general duty clause ( §
5(a)(1) of the Act )
and proposed a penalty of $10,229.
Complainant filed a timely Notice of Contest,
bringing the matter before the Commission.

The parties engaged in extensive motions practice during the pendency of this litigation.
Of particular importance to this case are
two orders issued by the Court
during the course of
discovery : (1)
Order on Motion to Amend Citation and Complaint, d a t e d
Sept. 1, 2020; and (2)
Order on Complainant’s Motion for Sanctions and Entry of Sanctions, d a t e d
April 19, 2021.

Regarding
Complainant’s Motion to Amend the Citation and Complaint , Complainant sought to amend the
Citation and
Complaint to add UHS - Delaware as a
party, based on Complainant’s assertion that UHS-Centennial Peaks and UHS-Delaware were a single entity for the purposes of
establishing liability for the violation. Ultimately, the Court determined Complainant failed to properly
and timely amend the Citation and Complaint pursuant to F ed eral
R ule of
C iv il
P rocedure
15( c)(1)(C) and UHS-Delaware would be prejudiced by an
amendment at that stage in the proceedings.
See
Order on Complainant’s Motion
to Amend Citatio n
and Complaint ,
Docket No. 19-1579 ( September 1, 2020 ) . 5

As to
Complainant’s Motion for Sanctions and Entry of Sanctions ,
the Court found Respondent failed to comply with its duty to preserve evidence
once it was placed on notice of
pending litigation.
T he Court
imposed
adverse inference s
that the unproduced evidence would have shown : ( i ) a hazard of workplace violence was present in the work place ; (ii) Respondent recognized the presence of the workplace violence hazard; (iii)
Respondent
had
actual
knowledge of the workplace violence hazard and
was aware its
employees were exposed to the recognized hazard of workplace violence ;
and
(iv)
such exposure could result in seriously bodily harm or death.
See
Order on Motion for Sanctions and Entry of Sanctions , Docket No. 19-1579 (April 19, 2021).

T he only remaining issue for trial
wa s whether Complainant established a feasible means of abatement.
On that topic, however, the parties were limited to a defined time period
and were
precluded from
inquiring into clinical/medical decisions, such as
medication levels. (Tr. 194, 1774).
At trial, the Court ruled on a motion to establish the timeframe for the admission of relevant evidence. The Court established the period of
December 17, 2017 ,
through May 30, 2020 ,
as the relevant period.
Id .

After
a period of delays owing to the COVID-19 pandemic, a trial in this matter was held
over the course of
nine
days, starting
on
September 13 , 2021, in Denver, Colorado.
Both parties submitted post-trial briefs
for the Court’s consideration.
In addition, on June 13, 2022, the Court ordered supplemental briefing to address the Commission’s March 3, 2022 , Decision and Order in
UHS of Westwood Pembroke, Inc. and UHS of Delaware, Inc. , No. 17-0727, 2022 WL 774272 (O . S . H . R . C . ,
Mar. 3, 2022)
appeal docketed , No.
22-1845 (3d Cir. May 2, 2022) . The Commission’s decision
was issued after the trial
in this matter
had concluded and
post-trial
briefs had been filed with the Court but before this Decision and Order was issued. The parties submitted their Supplemental Briefs on this issue certified to the parties 6 .
Based on the
evidence
presented at trial, the Court issues the following
findings of fact and conclusions of law .

IV. Factual Background

A. The Facility and Staff

Respondent runs a stand-alone , behavioral health facility, which provides acute , inpatient
psychiatric treatment for
adults and adolescents. As noted earlier, p sychiatric patients come to
Respondent’s facility, often involuntarily, 7
for treatment and management of conditions such as
depression, anxiety, psychosis, schizophrenia, bipolar disorder, and suicidal thoughts. (Tr. 349).
According to Respondent, it admits nearly 4 , 000 patients each year , which are treated and cared for by a staff of
approximately 250 staff members . (T r. 1786, 2379).
Of particular interest to this case are the
members of the hospital’s direct care staff,
which includes
doctors, nurses, mental health technicians (MHTs),
social workers, and therapists. (Tr.
94).

The doctors, nurses, therapists, and
social workers make up the treatment team , which is responsible for the clinical treatment of patients . (Tr. 1713-1714).
The
treatment
team generates a n
assessment of each patient and is responsible for the ir
medical treatment
and care
during
their stay at Centennial Peaks. (Tr. 233).
MHT s work alongside the nurses and
conduct
patient observation on a set schedule ( observation
rounds) ;
observing and managing
the milieu ; 8
transporting patients to
meals, recreation, and group sessions; and
facilitating group and recreational therapy. (Tr. 434).
Although doctors have
occasional,
direct contact with patients,
nurses and MHTs
work with and around patients throughout their entire 8-hour work shift.

The hospital
facility contains 104
beds that are split into five
in patient care units : Castle, Torrey’s, Sunlight, Pike’s
Peak , and Crestone
Peak . 9
( JS No. 3).
Castle
treats
patients for chemical dependency ,
Torrey’s treats adult patients with severe anxiety or
depression
and represent potential suicide risks , and
Sunlight
treats adolescent patients. (Tr.
1830, 2090, 2301). The remaining two units, Crestone
(female)
and Pike
(male) ,
are
known as intensive treatment units, or ITUs, where
patients with more severe mental disorders were treated . (Tr. 94, 1119).
The ITUs became a
principal focus of CSHO
Oberbeck’s
inspection
because most of the workplace violence incidents occurred
in those units or involved patients from those units. (Tr.
2093 ).

All
five
units
each
have
patient rooms,
a
nursing station, common areas, a medication room, and a seclusion/quiet room
for patients. (Tr. 96).
Administrators and executives
are
located throughout the building, adjacent to and within the units. (Tr.
1766, 1770 , 2120-2121; Ex.
C-6 ).
According to Respondent, e ach
nurs es ’
station is
centrally
located
on the unit
to
provide a clear line of
sight
and
was designed to permit
easy communication between staff and patients.
(Tr. 2123; Ex. C-5) .
Patients come to the nurses ’
station for
many
reasons
other than medical care, including mundane, day-to-day concerns
like
cups of coffee and telephone calls . (Tr.
269,
377 ; Ex. C-5). As the photographs and testimony illustrate, the nurse’s station
is not enclosed,
has relatively short, narrow countertops,
and does not have
a door to prevent access , which Respondent contends is by design . (Tr . 9 7 ;
Ex. C-5).
M ultiple employees identified the nurse’s station a s the
location
for a
cluster of violent incidents, in cluding jumping over the counter, grabbing/ripping the computer monitor from the desktop behind the counter,
and physical attacks
by patients on staff. ( Tr. 129, 583-85, 601-604 1634-36; Ex. C-7 at 12, C-19 at 13-16, Ex. C-72 ).

B. Intake and Admissions

As noted above,
many of the patients that come to Respondent’s facility are brought the re
involuntarily through a referral from a
local emergency department (ED) or from the police.
Under ideal circumstances,
a patient is referred from a n
ED , and a nurse from Centennial Peaks will communicate with the referring ED nurse
prior to the patient’s arrival. (Tr.
1710 ).
This discussion includes information about the patient’s situation, background, treatment, and recommendations, which the nurses referred to as an SBAR. (Tr.
17 10 -17 1 2).

Upon arriving at Centennial Peaks,
the prospective patient is separated from their personal belongings to ensure contraband is not brought onto the premises , including drugs, weapons, or other items the patient could use to harm his/herself or others. (Tr.
2398; Ex. R-10).
After the patient is screened for contraband, he/she meets with
intake staff, who are trained social workers, in one of the four designated
intake rooms . (Tr.
95-96 ).
An intake staff member , often by themselves,
typically performs a n initial assessment of the patient to determine
whether they meet the admission criteria and whether Respondent
can provide
care that meets the patient’s needs. 10
(Tr.
96,
1703-1711; Ex.
R-87 ).
The assessment includes a review of a patient’s legal history, previous hospitalizations,
diagnoses,
medications,
and other pertinent medical history, as well as an assessment of the patient’s
risk of self-harm or harming others. ( Id. ).
If a determination is made
a particular patient is high risk for assaultive behavior, a
High-Risk
Notification form is supposed to be placed in the patient’s file ; however, as will be discussed later, this did not always happen . (Tr.
597, 660, 1654 ; Ex.
C-19, C- 23, C-20 , R-79 ).
The
assessment and other information contained in the fil e
is transmitted to the treatment team
and to other treating staff members on subsequent shifts.
(Tr.
95-96 ; Ex.
R-87 ).
Though this is the typical process, administrators and staff testified there are occasions when a patient will be directly admitted to the unit
to
provide immediate medical care. (Tr. 1059, 1719).

C. Day-to-Day Operations

The workday at Centennial Peaks is split into three shifts of eight hours per shift.
Daytime shift runs from 7 :00
a . m .
until
3:30 p.m.; night shift runs from 3:00 p.m. until 11:30 p.m. ; and overnight shift runs from 11:00 p.m. until 7:30 a.m.
(Tr. 1731).
The shifts are designed with a 30 - minute overlap, which permits the preceding shift to conduct a handoff
report with the oncoming shift. (Tr.
167-68 , 717 , 1731 ). During the handoff, the oncoming and outgoing MHTs perform rounds t ogether and discuss
the status of each patient,
incidents of aggression, and unit acuity. 11
(Tr.
1731-32 ). According to Respondent, the information contained in the handoff report is consolidated into the House
Supervisor/Nurse Manager report, which
take s
a broader view of the events occurring at the hospital as a whole , including patient census, staffing, discharge/admission , and whether a Code had to be called . ( Ex. R-54; JS No. 4).

During a shift,
direct care staff have multiple duties, including performing
rounds, handing out medicine, taking patients to group meetings, facilitating recreational therapy, and taking part in
meetings. Typically, MHTs perform rounds every 15 minutes to
observe patients ; however, doctors can issue special orders which increase the frequency of the rounds down to
constant supervision , also known as one-to-ones. 12
(Tr.
1728-1730 ; Ex.
C-20,
R-82 ). According to Respondent,
special orders are typically issued for patients
at
suicide risk. ( Ex. R-82 ).
As for recreational therapy and lunch, a
single
MHT is typically assigned to transfer
the patients in their unit to lunch, the gym, or outside
courtyard.
(Tr. 435-436). 13

In addition to
work performed directly with patients, some direct care staff
participate in
daily and weekly meetings to discuss patient care .
Specifically, nurses, doctors, and social workers take part in daily treatment team meetings to discuss the status of each patient ,
their progress , as well as problems or issue s , including those related to aggression . (Tr.
681-682 ).
MHTs
do
not
participate in treatment team meetings,
nor, for that matter, were they required or expected to review patient case files.
(Tr.
542,
1615 , 1825 ).

Administrators also held meetings to discuss
various matters impacting patients and staff , these included the Performance Improvement Committee
(PIC) , Patient Safety Council
(PSC) , flash meetings, and leadership meetings.
According to Respondent, flash meetings occur every weekday, during which the
Chief Executive Officer ( CEO ) ,
Chief Nursing Officer ( CNO ) , nurse managers, milieu managers, 14
and Risk Manager sit down to discuss
acts of patient aggression, as well as patients who, themselves, may pose a risk of assault. (Tr. 1748).
According to Respondent’s WVPP,
t he PIC
oversees
the development and review of
“several different
[active]
performance improvement initiatives , all with a focus on patient care.” (Ex. C- 14 at 2).
One example of the PIC
development and review process was the Seclusion and Restraint Reduction
Team , which developed plans
to reduce
patient restraints
as part of the “Be Free” initiative instituted
in 2018 .
(Tr.
2110-2112 ).
The P SC ,
which meets monthly ,
consists of a much larger group of administrators, including the CEO,
Chief Management Office r
( CMO ) , CNO , Director of Clinical Services, Director of Risk Management, milieu specialists , patient advocate s , and nurse managers. (Tr.
2150 ; Ex. C-47 ).
The PSC
is used as a method for tracki ng risk trends through the review of various reports
and action plans
developed in response. Respondent states the PSC is used for review of both patient and staff injuries.
(Tr. 1699-1700 ; Ex. C-47 )

Although
they
were invited to PI C and PSC meetings,
virtually no non-managerial direct care staff
attended. Respondent contends they were encouraged to attend meetings and provide input; however, according to the staff,
the primary obstacle to attendance was the
lack of adequate
staffing in the units to permit them to attend in the first place.
(Tr.
544,
1145-46 ).
Some s taff also
indicated they were unaware meetings were taking place at all. (Tr.
396, 528, 1145, 1172).
Respondent
also
attempted to
hold
town hall meetings, but they were also sparsely attended due, in part,
to staff either being at work in the units or
on their day off. (Tr.
529 ,
1146, 1807 -1808).
CNO Forster recommended replacing the town hall meetings with unit-based meetings; however, according to
[redacted] , these meetings
did
not
tak e
place.
(Tr. 567-68; Ex. C-25).

D. Staffing

According to Respondent, staffing decisions are made based on t he needs of each of the hospital’s five units.
As noted above, each unit serves a different population of patient s , which have different care needs depending on the number of patients and the
severity of their symptoms. Respondent uses a
staffing matrix, which sets staffing levels according to three factors: unit, shift, and number of patients.
Based on those factors, the matrix supplies a base level number of staff to be allocated. 15
Respondent states it
adjusts
the base number
up or down depending on
additional factors, including admits/discharges,
adult/ adolescent, and acuity. Acuity, as mentioned above, is
a metric
for individuals, for units, and for the hospital as a whole. At bottom, acuity
is a measure of the severity of an
individual patient’s
affliction
or the
collective severity of
the unit or hospital as a whole.

All staffing decisions start with the matrix.
Kevin
Smith, Respondent’s staffing coordinator and CPI trainer,
testified
he sets the
initial schedule according to the matrix a few weeks in advance. (Tr.
2355 ). From there, Smith testified he
adjusts
the schedule based on anticipated admits/discharges,
skill/experience of staff, acuity of both individuals and units, and the medical
needs of any individual patient .
(Tr.
2355-2357 ).
Staffing meetings are held daily, and Smith and the House Supervisors assess staffing levels
periodically to assess whether staff should be called in or moved between units . (Tr.
2354 ).
Smith testified if
a staff member
ask ed
for additional staff , he would discuss
it
with
the staff member, make his own observations to determine whether additional staff was needed, and seek approval from CNO Forster . (Tr.
2262-2263 ). Smith and Forster testified requests for additional staff were granted if sufficient
grounds were identified for adding staff and staff was available to fill in.
(Tr.
1744 ).
However, as discussed below ,
staff was not always available.

Other than the matrix itself, there is no policy or
set of standards to determine
how adjustments are made, how acuity is taken into account, or
how skill/experience is allocated across the units.
With respect to acuity, the Court notes
the matrices ’ allocations of staff
are the
same regardless
of the unit, number of patients, or shift. (Ex. C-74, C-75, R-55). Th e matrices
do not account for baseline acuity differences between the units, notwithstanding Respondent
squarely recognizes differences in acuity between the units . Respondent contends
the matrix
accounts for
differences — other than acuity — between the units, such as the
high volume of admits/discha r ges from Torreys, the
additional hands needed to
deal with a more active patient population in the adolescent unit,
and the importance of MHT support
i n the ITUs. (Tr.
1850-1858).

Notwithstanding Respondent’s claims regarding
how it allocated staff, Respondent’s employees repeatedly identified
insufficient staffing as a
recurring and significant problem. (Tr. 504, 573, 1031 ).
This included the employees who testified at trial, as well as numerous and repeated complaints about staffing in staff emails, surveys , and reports. (Tr.
569-572,
1607-16 13 , 1830-1832 ;
Ex.
C-24,
C-25,
C-41, C-41,
C-65 ,
R-72 ).
[redacted]
and Ashley Ma ncha
testified staff shortages —fewer staff than provided for in the matrix—o ccurred
daily .
According to
[redacted] ,
her requests for additional staff went un heeded approximately 75% of the time, whereas Mancha testified her success rate was about 50%.
(Tr.
504,
509, 560,
573).
According to Mancha,
staff shortages impacted the available staff’s ability to
properly and timely medicate their patients and initiate
individual support plans,
both
of which
are important elements o f maintaining a healthy milieu. (Tr.
573-574 ).
In addition to having less staff than provided for in the matrix, a review of the matrices themselves illustrates Respondent reduced the number of staff available
at certain census levels after the inspection occurred. (Ex. C-74, C-75, R- 55).

The problems experienced during the daytime
are
compounded
during the overnight and weekend shifts.
T he presumption is that
most of the patients are sleeping
during the overnight shift , so the matrix
allocates one fewer staff member during the
11:00 p.m. to 7:30 a.m. shift. (Tr.
1031 ; Ex.
C-74 ).
T his presumption does not always hold, as patients in the ITUs
can and do stay awake , and, in some cases, can
escalate and agitate other patients. (Tr.
1611).
Further, patients can still be admitted to the hospital during the overnight shift, which can further affect
the staff-patient ratio.
The overnight
and weekend
shift s are
also burdened by two additional considerations. First,
the weekday and daytime shifts have an abundance of managerial
and administrative staff who are trained in both direct care of patients
and in methods to
de-escalate and restrain patients
should the need arise. Those
staff members are not included in the matrix and yet are available to assist. The weekend and overnight shifts do not have the same level of backup available to them, because most of the administration and managerial staff have gone home . (Tr.
448, 507, 1094 ).
On weekends and overnights, the only
person
usually available to fill in
is the house supervisor , who is not included on the matrix .
(Tr.
572, 1030 ).
According to
Erin
Ekholm ,
who served as
an
overnight house supervisor,
staff shortages and a lack of
back-up personnel resulted in the house
supervisor serving as a
de facto
float staffer between the units. (Tr.
1025-1027,
1031-1033 ). This
caused staff to miss
breaks,
and, in some cases,
they were left
alone on the unit . (Tr.
849-50 , 1037 ).

According to Respondent, it addressed staffing issues in
several
different ways. In addition to the
procedure for staffing described above, Respondent identified staff members who were not included on the matrix but were nevertheless available to provide care and to assist in emergencies.
This
set of
outside-the -matrix
employees
included milieu managers, nurse managers, and house supervisors. 16
When
Forster
started as CNO,
Centennial Peaks had two milieu managers , whose job was to
monitoring unit acuity, patient precautions, and Individual Support Plans .
At some point in 2018, Forster eliminated the milieu managers and replaced them with one nurse manager, which he believed would better
address patient care from a clinical perspective . (Tr. 1602, 1746-1747).
T hough Respondent asserts these resources were available as
outside-the -matrix staff resources,
the
milieu manager was not a relevant addition to the units until
2020, long after the inspection occurred.
(Tr.
1601, 1602,
1748 ).
N either Mancha nor
Eckholm
recalled having
milieu
managers
or resource nurses
available to them
as additional resources beyond the matrix.
(Tr. 573, 1 030).

Respondent also had other methods to address staffing shortages . According to Forster, employees would regularly call out sick , which placed additional pressure on the scheduling staff to fill in the gaps in coverage. Kevin Smith, the staffing coordinator, testified he
sent out text and email blasts
to
find
additional coverage and, if the need was particularly acute,
was able to offer bonuses and other incentives to entice employees to come to work. (Tr.
2460-2461 ). In addition,
Smith
testified employees could be “mandated” to stay past th e ir
originally scheduled hours in order to account for missing staff or late-admitted patients .
These additional measures, in the Court’s experience, underscore the point that staffing was inadequate from the start to account for
these situations.
The Court also observes having staff work back-to-back multiple shifts or being called in results in employee’s not being well - rested ,
which ,
in turn ,
impacts not only patient care but the alertness and stamina needed for staff to properly observed situations which could escalate as well as respond
to those circumstances .

T he staff
claimed
shortages
impacted their ability to
adequately address the acuity of a unit , including one-to-ones, five-minute checks, and patients on assault precautions. (Tr.
1600). Further, staffing shortages also increased the likelihood an employee would be left alone
to perform their regular duties .
E mployees testified
safety was impacted by
short staffing , including
insufficient staff to participate in patient restraints or de-escalation
and
insufficient staff to even respond to a code during overnight shifts .
In at least one instance,
patients had to step in to
help a staff member who se head was being repeatedly smashed against the ground
even though a Code Green (emergency call) had been called over the PA system. (Tr.
449 ).
These concerns were reported to Respondent’s Risk Manager, Kara
McArtor , and CNO Forster .

E. Workplace
Violence
Data and
Employee Narratives

Th e inspection
i n thi s matter
was commenced
because
of an anonymous employee complaint
that
employees at Centennial Peaks were subjected to physical
assaults
from patients
due, in part, to low staff-to-patient ratios in the
ITUs . (Ex. C-2).
Through his review of Respondent’s OSHA 300 logs, Employee Accident Reports (EARs),
and employee interviews,
CSHO
Oberbeck
confirmed
Respondent’s employees were exposed to
workplace violence .
A ccording to the data CSHO
Oberbeck
reviewed,
Respondent experienced a substantial spike in workplace violence injuries in 2018 . (Tr. 103-104; Ex. C-6 ). The OSHA 300 log, alone, indicated
Respondent’s employees suffered
two
injuries ,
forty-four
(44)
days of
job transfer/restricted duty , and 0 days away from work
in 2017
as a result of
patient-on-employee violence.

(Ex. C-6).
Comparatively, Respondent’s employees suffered
twelve ( 12 )
“reportable”
injuries ,
two hundred eighty-seven ( 2 87 )
days of job transfer/restricted duty, and
twelve ( 12 )
days away from work
in 2018
for the same reason.
(Ex. C-6). 17
The OSHA 300 logs, however, only tell a portion of the story.

According to CSHO
Oberbeck’s
research, he found
many of the injuries reported in the EARs did not find their way into the OSHA 300 log. (Tr. 108 , 123-125; Ex. C-11) . In fact, based on his review, CSHO
Oberbeck
identified 46
reports of
employee injuries
that occurred
in 2018. 18
(Ex. C-11).
The predominant number of these injuries involved a nurse or MHT
and,
typically
occurred
in the ITUs, Pike and Crestone. (Ex. C-11) .
Of the assaults that led to employee injuries,
twenty-five
involved police intervention ,
and
most of those involved
arrest , though it should be noted the injuries/assaults resulting in arrest
may implicate the same
patient
multiple times. (Ex. C-11). In addition to the documented assaults and injuries in the EAR and OSHA 300
log, employees testified they were regularly exposed to violent, assaultive behaviors
that resulted in
minor (or no) injurie s — such as being slapped, kicked, or spit on — but did not report such incidents because they accepted it as
“ part of the job ” . (Tr. 496-497).
As noted above, employee
acceptance of
minor violent behavior as “part of the job”
is well documented in the health care profession
and
in
the inpatient mental health
arena, in particular . ( Ex.
C-12, C-13 ) .

As noted by Respondent, s ome of the injuries occurred in clusters . (Ex. C-11). For example, MC , who had a lengthy history of violent behavior was responsible for
multiple
assaults over
a few
days . ( Tr.
353-356, 498,
16 54 -1681 ;
Ex.
C-7,
C-20 , C-72 ).
The same behaviors were also
exhibited by
RB
and
RS , who both assaulted multiple staff members during the course of their stay at Centennial Peaks hospital. (Tr.
471- 481,
478-482,
599-608, 634-37 ; Ex.
C-18, C-19 ).

Respondent’s employees testified to several violent incidents to which they have been exposed during their tenure as employees at the Centennial Peaks Hospital.
F or the purposes of discussing the
types of hazards to which Respondent’s employees were exposed and identifying feasible means of abatement to address those hazards, the Court finds the following examples illustrative:

· [redacted]
was an MHC at Centennial Peaks from March 2016 to June 2021.
During his testimony,
[redacted]
identified three separate incidents where he was
injured. On one occasion,
[redacted]
was unexpectedly punched in the face by a patient, which resulted in a trip to the emergency room
and injuries that
kept him out of work for three months.
(Tr. 1117-1127).

· [redacted]
was also injured at least three times she could recall during her testimony . In all three instances, a physical restraint was either being initiated or in progress . Respondent contends the injuries were largely avoidable because
[redacted]
attempted to restrain when there were either not enough staff to init i ate a hold or because
neither the patient nor staff were in immediate danger when
[redacted]
initiated the intervention.
In at least one incident
where Respondent questioned
[redacted] ’s decision-making,
[redacted]
testified the patient in question had been involved in
three prior restraints on the same day and no additional precautions were taken to address the patient’s violent behavior. (Tr.
471-482; Ex. C-18).

· One patient, RB, went behind the nurse’s station eight times
over the course of just under a month, during which he
assaulted multiple employees and smashed multiple computer monitors. (Tr. 599-608, 634-637; Ex. C-19) .

· Another patient, MC, was restrained
multiple
times over the course of three days, during which time he was responsible for
no fewer than five EARs and multiple
verbal threats toward staff members. (Tr. 353, 356, 498; Ex.
C-7, C-20).

The foregoing i ncidents are archetypal examples of
the types of injuries to which Respondent’s employees were exposed, the situations during which employees were injured, the locations where injuries were likely to occur, and
the source
of the hazard, i.e., whether such events
were isolated and unpredictable or
whether
other information, such as
a patient’s immediate and long-term medical history ,
indicate d
a propensity for violence.

F. Respondent’s
Methods to Address Workplace Violence

Ultimately, this case is about abatement.
Complainant has alleged Respondent failed to address workplace violence in a comprehensive and effective manner and proposed
several methods by which Respondent can
abate the hazard more effectively.
Respondent contends it s
policies and programs were
as
effective as possible
in
addressing workplace violence
in the context of an inpatient psychiatric hospital .
The following
is a recap of the relevant policies and procedures .

i. Workplace Violence Prevention Plan

While
Complainant has proposed the develop ment and implementation of a WVPP as one of the proposed abatement methods, in reality a comprehensive WVPP will
include or touch upon all of the
policies and procedures
the parties have
discussed during the course of this trial . 19
For example,
staffing is not, itself, a
WVPP program or policy
per se ; however,
the policy must consider
factors such as acuity, propensity for violence, special orders,
who is designated to respond to codes, and
experience of available staff,
all of which
impact Respondent’s ability to address , deter, prevent
and respond to workplace violence.
That
“adequate staffing”
and other
complementary issues are
discussed in the
workplace violence
guidance documents issued by OSHA ,
The Joint Commission
(TJC) , and Respondent’s own
W VP P
indicates the scope of a properly implemented WVPP
extends beyond
administrative and engineering controls designed to prevent a particular type of
violent interaction .
(Ex. C-12, C-13, C- 62).

The initial
element to note in Respondent’s WVPP is the
definition of workplace violence . According to Complainant’s expert, Dr. Jane Lipscomb,
the definition of “workplace violence” is the touchstone upon which a successful WVPP is built, because it guides
what needs to be reported, tracked, and
ultimately how to address the hazard . ( Ex. C-58
at 15 -16 ).
Respondent’s WVPP
document
defines workplace violence
quite broadly as Type II, or
“violence committed by patients on staff members.” (Ex. C-14 at 1).
The specific behaviors that would qualify as workplace violence are not described in the
WVPP
itsel f; however, Respondent
contends its employees are provided with
a clear er
definition of
workplace violence
through
training
modules, including a PowerPoint presentation , which provides a more precise definition of workplace violence:
( i ) “ WPV is any physical assault, threatening behavior or verbal abuse occurring in the work
setting ” and ( ii ) “ Physical assault is any attack ranging from slapping, hitting, biting, use of a weapon
which results in any degree of injury from no injury to fatal injury .” (Ex. C-58 at 15-16).
For the purposes of this case, the parties stipulated the
definition of workplace violence is “ physical threats and assaults by patients toward staff .” (JS No.
6).

Beyond the initial definition
of workplace violence , the WVPP is broken down into
five main elements, as well as
two
additional sections
allocating
responsibilities and mandating annual evaluation of the plan.
The
WVPP
itself, at least in format and title, mimic s
the basic elements of a WVPP as described in the OSHA and
TJC guidance, which include: ( i )
Management Commitment; ( ii ) Employee Participation; ( iii ) Aggression Analysis & Surveillance; ( iv ) Hazard Identification and Control; and ( v )
Staff Education, Training & Competency.

According to the section entitled, “ Management Commitment ”,
the
WVPP
states generally that senior management will
commit
sufficient capital an d resources to ensure the
WVPP
is appropriately implemented and continuously updated. (Ex. C- 14). Respondent then identifies a
series of initiatives , which it contends are supportive of that
commitment, including: ( i ) a
15% reduction in staff injuries resulting from patient
aggression in 2018; ( ii )
monitoring aggression through the use of reports and committees; ( iii ) encouraging staff to report injuries;
( iv ) providing
post-incident access to medical and psychological care ; and ( v )
additional shows of support, including management commitment to participating in
emergency codes alongside staff. (Ex. C-14).

The
“ Employee
P articipation ”
section
identifies some
of the
strategic
committee’s
staff are encouraged to participate in
but are not necessarily
members of. O therwise , instead of a list of opportunities for employee engagement in the process, this section
reads like a series of
patient-based obligations . For example,
the section states front line staff will be provided with “opportunities to
participate in initiatives designed to minimize events of patient-to-staff aggression”,
including
conducting thorough observation rounds, completing skin checks of patients ,
and
searching patient belongings . (Ex. C-14 at 2-3).
While these
so-called
initiatives
are certainly important aspects of a violence prevention program , they have little to do with employee participation and input into the development of a WVPP
and instead have the appearance of a job description.

The remaining
elements
of Respondent’s WVP P
address how Respondent
will track and trend acts of aggression , identify and respond to specific hazards, and the training it will provide to staff members
to execute the
elements of the plan.
(Ex. C-14).
T he Court notes, as did Dr. Lipscomb, Respondent’s WVPP
focuses
on patient-centered interventions , only
some of which have an ancillary impact on staff safety.
This tendency to
focus on the patient side of the equation makes some degree of sense given Respondent’s
contemporaneous,
yet occasionally conflicting, responsibility to ensure the safety of
both
its patients
and its employees; however,
this
tension
between patient and staff safety
highlights
some of
the systemic problems with Respondent’s WVPP . Principal among those problems is
the lack of a targeted definition of workplace violence, which, in turn, impacts Respondent’s ability to
effectively
develop and implement the
WVPP
itself.

Finally, the program requires
the designated responsible persons to perform an evaluation of the WVPP on an annual basis
to ensure
it remains effective. (Ex. C-14).
The only copy of the WVPP introduced into evidence was neither dated nor signed.
CSHO
Oberbeck
testified there was no evidence
Respondent performed an
annual
evaluation of the WVPP, and
neither
CNO Forster
nor Kara
McArtor , who
were both
designated “responsible
persons” under the WVPP, could recall whether
t he y
had participated in an evaluation of the
WVPP .

ii. Responding to Act s
of Aggression

When patients become agitated and start acting out, Respondent has a series of codes its employees can call over the intercom system to ask for help.
The two codes discussed extensively at trial were
Code Lavender and Code Green.
Depending on how agitated the patient has become, staff
will
request
a Code Green or Code Lavender
either by calling out loud
or , now that walkie-talkies are carried
by staff
at all times, by calling over the radio. (Tr.
1348 ).
Once the code is called for, the call is repeated three times to ensure it is heard and
designated staff respond. (Tr.
2345 ).

a. Code Lavender

According to Respondent, the Lavender team was created by
non-managerial MHT “managers”, 20
Kevin Smith and Jordan Larson. (Tr. 2294) .
The basic idea behind the Lavender team was to
create
a team of
employees ,
who were particularly skilled at verbal de-escalation ,
to
intervene
prior to
the point where physical intervention was necessary.
The goal was to reduce the number of restraints , which was part of a mandate
from
PIC
called “Be Free” . (Tr.
2295-2298 ).

The Lavender team is made up of
MHTs and nurses
and is designated in advance of scheduling .
When a Code Lavender is called, the designated members of the team are supposed to respond ; however, there are instances where immediate response may be delayed
because members of the team may have patient care duties
which they cannot leave. (T r. 326). In order to address this
problem, which is equally applicable to Code Green
calls , Respondent has designated a Patient Management Leader, or PML. (Tr.
1761 ).
The PML , though not a manager/supervisor
per se ,
is charged with leading the response to a code , which includes
interacting with the agitated patient and ensuring continuity of care for the
remaining patients on the unit , including observation rounds and special orders . (Tr.
1761 , 2315 ). At any given time, there may b e multiple trained PMLs on the schedule; however, only one is designated per shift.
(Tr.
2318-2320 ).
According to some employees, the
overabundance of PMLs sometimes led to confusion and disagreement as to who was in charge during the calling of a code. (Tr.
518, 1083).

Respondent tracked the Lavender team’s efforts
over the course of a year (approximately April 2017 to mid-2018)
and determined the initiative showed “significant effectiveness”. (Tr.
1209-1211; Ex. C-36, C-37).
In particular, Respondent noted the Lavender team had a 100% success rate
in avoiding restraints over a six-month period in the Intake Department and
reduced the use of restraints overall over a period of months. (Tr.
2297-2299). Notwithstanding the
drop
in the use of restraints
in early 2018, the
number of employee injuries resulting from patient assaults increased dramatically during that period of time . (Tr.
1219-1220 ; Ex.
C-51 ).

b. Code Green

When
a n agitated patient becomes physical, or when it becomes clear the enhanced verbal de-escalation techniques are no longer
effective, staff members can call a Code Green .
A Code Green implies physical management of
the patient may be necessary; however, not every Code Green results in a physical restraint . In some cases, the patient can still be verbally de-escalated .
If they cannot, however,
the Code Green is designed to ensure an adequate number of staff members come to assist
in the physical management of the patient using restraint techniques learned in CPI ( Crisis Prevention Institute) training .

During the relevant
period
for this case,
a staff member would typically call for a Code Green by verbally calling out
to the closest
person available . Ideally, this message would be relayed to someone who had access to the telecom/PA system
at the nurse’s station , who would, in turn,
broadcast
the call for a Code Green three times. 21
Depending on the situation, however, the individual needing the call may have to run to the nurse’s
station to make the call on their own. Once the Code is called, designated responders from each unit
are responsible for going to the unit where the Code originated. As
with Code Lavender,
Code Green responders may have duties which do not permit them to immediately respond, such as one-to-ones , providing medications, or taking patients off-unit .
In that instance ,
PMLs are responsible for ensuring the designated responder’s duties are covered
during the pendency of the Code .
Sometimes, this includes
calling on administrative staff, if available, to fill in; however,
this is less likely on the overnight shift
because administrators are not typically available
at that time.

According to Ashley Mancha,
CPI training required
four people to initiate a hold in order to maintain safety. (Tr.
562). This assessment was fairly consistent across the board.
In some
instances, however, staff testified they found themselves in situations where
there were not enough people to respond to a Code ,
or
multiple Codes were called simultaneously . (Tr.
517,
562,
1036-37 , 1134 ).
Staff testified in those moments
it felt as if the Code response was insufficient in terms of the number of people responding, the amount of time it took
a sufficient number of people to
respond, or both. (Tr.
1036, 1090, 1134 ).
Other than
the staff’s subjective perceptions of how long it took other staff members to respond
on some occasions , however, there is very little evidence to indicate
how long it took for staff to respond , nor is there any indication in the available records that time of response was a problem
or reported to
upper management . (Tr.
2197 ).
W hile staff also expressed concerns about the number of staff responding to a Code event , the documentation of those events indicates a
robust
and timely
response .
(Tr.
1762, 1765, 2342-2343 ).

Once the
response team arrives at the site of the Code, the on-location staff inform the PML of
what has happened to that point. (Tr.
1772,
2153, 2315 ). Under ideal circumstances, the PML will
subsequently debrief each responder
as they arrive . (Tr.
2153, 2315 ). From there,
a nurse will supply any needed medication, and the PML will direct the staff on how to proper ly
restrain the patient . (Tr.
1772, 2315-2317 ).

Once the patient has been restrained or de-escalated,
Respondent says it performs debriefs of
the incident with all involved parties, including staff and the patient. 22
(Tr.
2310 ).
Acc ording to Respondent’s policy, debriefs and camera review of the incident are required after a restraint and/or seclusion ; however, it does not appear this policy was consistently followed . ( Tr. 1204-1205;
Ex.
C-39 ).
M ultiple employees testified th ey did not participate in a debrief or camera review after they were injured
during a restraint or other act of aggression . (Tr.
370,
1082-1090,
1128).
Further, even when a camera review took place, employees testified t he debriefings took the form
of
a critique of employee performance instead of
an opportunity to both discuss what could be done better and to address employee concerns about what precipitated the incident and how it could have been handled differently. (Tr.
578-580 ).
Debriefing and camera review could also result in
retraining or
skills
update in CPI restraint techniques; however, as with the debrief itself, employees testified such follow-up training would not always occur.
(Tr.
485 ).

I n addition to the foregoing, the PML will perform a debrief and maintain a log of the code
and its particulars so the data could be used for future trending, tracking, and response. (Tr.
1780; Ex. R-68).
This information is also used in Respondent’s Good Catch program, which recognizes employees who
are able to manage a potentially dangerous
situation,
and which provides an additional educational opportunity for other staff members to learn from.
(Tr. 2136).

c. Restraint Reduction, “Be Free”, and ITU Expansion

T he
Seclusion and Restraint Reduction Team
(later renamed the Patient Aggressi on
Response Team , aka “PART” )
was a subgroup of PIC
that
was tasked with
reducing restraints and seclusions as compared to the UHS corporate
benchmark. (Tr. 1185; Ex. C-36).
This subgroup was charged with developing risk reduction plans, which, according to Respondent , “focused on reducing the number of staff injuries because of patient restraints.”
( Resp’t ’s . Br .
36 ) .
Ostensibly, this program was
designed to reduce
staff injuries by reducing
the type of incidents Respondent believed to be the most substantial source of staff injury.
Notwithstanding Respondent’s successful efforts to reduce
the number of restraints , the number of
employee
injuries went up.
This phenomenon coincided with
two changes
at Centennial Peaks: (1) an increase in the number of patient beds in the ITUs, and (2)
instituting the “Be Free” initiative.

In 2017, Respondent added 32 beds to its facility ,
which Respondent states
were dedicated to the
ITUs. (Tr. 99).
According to Jason
Offen , of those 32 beds, eight were added to the Pike
ITU. (Tr. 345). Interestingly, both
Respondent and Complainant rely on the exact same passages
to support th ese facts .
G iven that
eight
beds were added to Pike, for a 30% increase in capacity, there was no explanation as to what happened to the remaining 24 beds. For the sake of clarity
and expediency , however, the Court will accept Respondent’s representation that 32 beds were added to the facility, representing a
thirty percent ( 30% )
overall increase in capacity,
and that those beds were exclusively added to the ITUs.
(Tr.
345 ).

Not long after
the expansion,
in mid-2018,
Respondent instituted a new initiative entitled, “Be Free”, as part of its
program to reduce seclusions and restraints. (Tr . 1797).
The
philosophy
statement
of the Be Free initiative was
“that
Centennial Peaks is a place of healing that is committed to delivering restraint-free services to every individual that [they] support.”
(Ex. C-36 at 8).
Notwithstanding the patient-centered philosophy behind “Be Free”, Respondent asserts the focus was still staff safety , which is why it developed a presentation and training sessions to roll out the initiative .
Respondent claims
the initiative
came with several enhancements
to the protocol for responding to patient-on-staff aggression , including: ( i )
post-incident assessments, ( ii )
risk investigation, including debrief and camera review, interviews, and determination of whether additional clinical intervention is needed;
and ( iii ) a second medical opinion for any patient who had multiple restraints. 23
( Tr. 1800; Ex. C-39).
CNO Forster also testified he added staff to the ITUs in order to account for the expansion and
Be Free initiative. (Tr. 1800-1801).

CNO Forster testified he added staff after the expansion of the ITUs; however, the Matrices for 2017 and 2019 tell a different story. (Tr. 1800-1801). According to the Court’s analysis of the 2019 Matrix, as compared to 2017, Respondent reduced the number of required staff by one at the
following census levels in the Pike Unit: 20 patients, 24-27 patients, and 28-30 patients. (Ex. C-74, C-75).
For example, i n 2017, a census of 20 patients required
five
staff during the day and evening shifts and
four
staff during the overnight shift. (Ex. C-74).
I n
2019, the same census required
four
staff during the day and evening shifts and
three
during the overnight. ( Id. ).
Similar changes were imposed in
the
Crestone , Torrey, and Sunlight
units . (Ex.
C-74,
C-75).

As noted above in the discussion regarding Code Lavenders and
PART, Respondent anticipated a reduction in staff injuries
through reducing the number of restraints. Unfortunately, as the data
illustrated , that did not happen.
Employees testified there were a
couple
of explanations for the failure of the Be Free/Restraint Reduction initiatives . First, according to
some employees, it was not clear the program was designed with staff safety in mind; rather, consistent with the philosophy statement, the program
had the appearance of focusing on patient safety with staff injuries being an ancillary consideration.
(Tr. 575, 1099).
This understanding appeared to be
confirmed by meeting minutes
discussing the initiative. Specifically, the data presentations from
a Seclusion and Restraint Committee meeting indicate Respondent was tracking
seclusions, restraints, and special orders, but no data or analysis was presented on the topic of employee injuries resulting from
such incidents. (Tr. 1213-1215; Ex. C-37).
Second, b oth
Mancha
and Wells
testified the Be Free program , as presented,
created confusion ,
and
some staff were reluctant
to
participate in restraints without prior permission from Forster,
McArtor , or Smith .
T his hesitation , they believed,
resulted in more injuries . (Tr.
576-582).

Respondent
identified a couple of reasons for the significant
increase
in
employee injuries in
2018 . First, Respondent claims
the unexpected rise was due, in part, to the
nature of the patients who had to be restrained after enhanced de-escalation efforts were undertaken. Specifically, Respondent contends
these patients were more likely to be physically aggressive and, presumably,
cause more injuries , which is consistent with one of its primary arguments that staff injuries are the result of confrontations with a small population of outliers . (Tr. 1799-1800).
Second, Respondent contends the
increase in injuries was attributable to an increased emphasis on reporting employee injuries during the relevant time period.
Based on those conclusions, Respondent
ended the Be Free initiative
around the same time it was determined the Lavender team was successful
in its mission to reduce restraints—and, thus, stopped data tracking —and instead chose to focus its efforts on clinical management of patient aggression. (Tr. 1228; Ex. C-54).

d. CPI
and WVPP
Training

As part of the new employee orientation,
direct care
staff were required to take CPI training, which was spread out over the course of two days and included training in verbal de-escalation and
physical restraint techniques. 24
(Tr.
412, 2373-237 6 ; Ex.
R-48 ).
Kevin Smith, the CPI coordinator and master trainer , was responsible for providing instruction, certifying
competencies, and tracking and providing follow-up training to ensure staff maintained their CPI certification. (Tr.
2306-2307 ).

The basic gist of CPI training is to utilize
verbal de-escalation and ,
only
if necessary, restraint maneuver s, which are based on the biomechanics of the human body . (Tr.
2318 , 2376 -77 ; Ex.
R-45 ). According to
Smith ,
premising the physical restraints
on biomechanics means
CPI -based
restraint
maneuvers are
not dependent on
the
size or strength
of the person initiating the hold
and should be able to be
performed with as few as two staff members.
(Tr.
2318, 2390 ).
If performed correctly, the principles of CPI should serve to reduce the likelihood of injury for both staff and patients , whether through verbal de-escalation or
using
physical holds . (Tr.
207).

In 201 7 ,
a new curriculum was developed by the Crisis Prevention Institute, entitled Advanced CPI. (Tr.
2381 ).
In June 2018, a UHS Clinical Training Coordinator
recommended implementation of Advanced CPI because Respondent was using a particular hold that was not from an approved curriculum. (Ex. C-46 at 2).
Respondent began implementing the advanced CPI program in September 2018. (Tr.
2380 ). By the time of the inspection, roughly one-half
to three-quarters
of Respondent’s employees had completed this training. (Tr.
2378-79 ).
Although Complainant questions why all of Respondent’s staff had not been trained in Advanced CPI at the time of the inspection , there is no evidence to suggest
the content of
either regular CPI or Advanced CPI is insufficient in terms of pr eventing injury vis-à-vis any other training program designed for the same purpose , nor was there any evidence to suggest the
way
Respondent presented it was insufficient .

To support CPI training, as well as Code Green response s , Respondent instituted
Code Green drills and utilized actual Code Green
drills
as a n avenue for training/retraining the concepts learned in orientation and refresher training.
Kevin Smith
sought to improve upon the Code Green drills, and created a CPI drill , which
was
purportedly more structured, involved actual scenarios, and
was
done more frequently. (Tr.
2115, 2308-2309; Ex. R-56).
Even though Smith testified the drills happened more frequently, there is only documentation of these drills happening in October and November 2018. (Ex. R-56).

Staff members were not as
complimentary
in their assessment of the effectiveness of CPI and the training regime that accompanied it.
[redacted]
testified
she did not believe the CPI techniques were sufficient when
attempting to restrain
a patient of significant strength or size .
(Tr.
457, 521).
Another complaint
levied against the program is the fact that
some staff members could not properly utilize CPI techniques or simply refused to perform those duties. (Tr.
393, 1135).
Finally, employees testified
refresher training was
often mandated but not usually provided .
(Tr. 484-85).

Respondent has a documented WVPP ,
which it says was made available via its intranet site. (Tr.
2262).
None of the employees who testified at trial remembered seeing the WVPP document, nor did they recall ever receiving training specific to the WVPP, itself. (Tr.
1096, 1145.
According to Respondent,
employees were trained on the component pieces discussed in the WVPP; however, neither
McArtor , Smith,
or Forster
could recall whether Respondent ever held a training session discussing the WVPP
and how it
connects the disparate programs targeted towards reducing workplace violence . (Tr.
2300)

e. Incident and Injury Tracking

If an employee
was
injured during an encounter with an aggressive patient, Respondent
had
a policy requiring reporting of all employee injuries, regardless of severity. (Ex. R-43).
The policy
lays out the respective responsibilities of the injured employee,
supervisors, human resources, and loss control and preventi on . (Ex. R-43).
In the event of an accident, the
WV P P
requires the injured employee to call
the Sedgwick hotline to report the injury . 25
( Id. ). Sedgwick is a claims management company, which
provides clinical consultation for the injured employee, including whether the employee should pursue medical care for the injuries . (Tr. 2239, 3842). Sedgwick is also responsible for compiling the
injuries into the OSHA 300 log. (Tr.
2239-2240 ).
Respondent
also
utilized
other methods for compiling information about employee assaults, including EARs,
Healthcare Peer Reviews ( HPRs )
(also referred to as MIDAS reports), and shift handoff
reports.

In addition to reporting the injury to Sedgwick, employees (or their supervisors) are expected to fill out an EAR . ( Tr.
106 ; Ex.
R-43 ).
In many instances, however, these reports were not filled out
because
employees
did not perceive their injuries rose to the level of reporting. In other instances,
EARs
did not get filled out because employees did not receive training on
how, when, or whether to fill out an EAR. (Tr. 126-27, 584-86) .
This was more or less confirmed by Respondent’s
Education Coordinator, Carolyn Walker, in response to a query from the HR Director, Erika Donnellan. ( Tr. 2257;
Ex. C-83).

Respondent also had another series of reports called HPRs, which are also referred to as MIDAS reports . The HPRs are primarily designed for
reporting patient-related incidents ; however ,
McArtor
testified they can also be used to collect data on employee injuries.
(Tr. 1162, 2094 ). The MIDAS system did not have a data
entry point
for employee injuries . (Tr.
1162, 2209 ). Instead, HPRs had a
narrative section where injuries could be described; however, as noted by
McArtor
and Mancha , that
depend ed
on the individual filling out the report
and
was not always done. (Tr.
2209 ; Ex.
C-72 at 32 ). Those individual reports were then
compiled into a
summary log. (Ex. C-72).
While Respondent claims the HPRs were filled out not only for restraints and seclusion, but also for acts and threats of violence, the
data and evidence show otherwise.
In particular , the HPR
summaries show
general categories, such as “patient out of control” or “patient attacked staff ” —for which there was no discernible distinction —but do not necessarily indicate whether a staff member was injured, threatened, or otherwise unless included in the narrative .
As noted by Complainant, in one instance
on July 6, 2018 , four employees were injured during a restraint
of patient SL, but the HPR summary entry does not include any information regarding the injuries. (Ex. 2209-2210; Ex. C- 72 at 32).

According to Respondent, the
HR Director was responsible for tracking and trending all employee injuries, which she shared with
the Risk Manager. This information, in turn, was
discussed at various meetings, including daily flash meetings
and PIC meetings.
See
Resp’t ’s
Br .
35 (citing Tr. 2242-2243).
According to the HR Director, Erika Donnellan , she was responsible for
maintaining employee files and reporting employee injuries
but was not responsible for any portion of the WVPP or policies related to patient-on-employee violence. (Tr. 2260 , 2262).
Instead, she testified she was responsible for
employee-on-employee violence. (Tr.
2263 ).
Kara
McArtor , who is
a designated
responsible person under the WVPP , did not receive EARs (because they were sent to Donnellan) , was
not formally notified of employee injuries, and did not know whether it was mandatory for employees to report all injuries . (Tr. 1179, 1240 ; Ex. C-14 at 5).
Nevertheless,
McArtor
was responsible for data reporting in the PSC meetings , which
she culled from the HPRs, and Donnellan was responsible for EAR reporting at PIC meetings . (Tr. 1179-80,
2262).

CSHO
Oberbeck
found the system of injury/incident reporting lacked consistency and Respondent’s system of review lacked cohesion, which he attributed to a confusing system of managerial responsibility for data collection and reporting, as well as the failure to train staff on accident reporting protocol. (Tr. 126, 158).

V. Analysis

T he
facts of this case illustrate the
hazard
of
workplace violence in an inpatient psychiatric/behavioral facility
is
difficult to assess and
wide-ranging
in terms of the considerations
an employer like Respondent must make to address it .
For this reason, the
guidance from OSHA, T JC , and the relevant scientific community
indicates
the response to the
workplace violence
hazard must be comprehensive in its scope , yet adaptable in its particulars .
(Ex. C- 12 at 11).
This requires
a systematic , process-based
approach
to violence that goes beyond individual,
ad hoc
abatement strategies
and, instead,
establishes
a program through which all
policies and procedures are
developed and implemented .
The
answer, according to
industry guidance , is
a
W VPP . (Ex. C-12 , C-13).

The Court is mindful
that, due to the nature of the problem, complete elimination of the hazard is an admirable, yet perhaps not entirely achievable, goal. 26
Indeed, even Complainant admits it
“is not proposing that employee injuries from patient aggression must be entirely eliminated
in order for Respondent to adequately protect employees from the hazard of workplace violence.”
Compl’t ’s
Br .
54 ,
n.6.
However,
just
because
complete elimination of the hazard is not possible does not
lessen Respondent’s obligation under
the general duty clause.
See
29 U.S.C.

§ 654(a)(1) .

Crafting a response to
a multi-faceted hazard requires a multi-faceted approach . Indeed, for as much as Respondent pounds its fist about the scientific reliability of any individual method of abatement , the science support s
a comprehensive and systematic approach to workplace violence
that is inclusive of
many
of the recommended abatement measures proposed by Complainant .
Notwithstanding this fact,
Respondent , as it reiterated numerous times at trial and in its brief,
focuses primarily on the clinical approach to
patient-on-staff violence .
Based upon these statements , it is not surprising Respondent’s WWVP
places its
focus on patient clinical care .
Unfortunately, as illustrated by this case, the clinical approach is not enough on its own to completely address the hazard, regardless of its importance to preventing patient aggression. 27

The Court finds Respondent’s
policies as well as its
approach to workplace violence
are
insufficient . While Respondent undoubtedly has a policy document entitled
“Workplace Violence Protection Plan” , the following analysis shows
neither the program itself, nor the initiatives purportedly
carried out under its banner,
are effective at abating the
workplace violence
hazard . Accordingly, the Court shall affirm the Citation in the manner discussed below.

A. The General Duty Clause

The general duty clause requires employers to “furnish to each of his
employees’
employment and a place of employment which are free from recognized hazards that are causing or likely to cause death or serious physical harm . . . .” 29 U.S.C. § 654(a)(1)
( also referred to as
§
5(a)(1) ) .
See Austin Bldg. Co. v. Occupational Safety
& Health Review Comm’n,
647 F. 2d 1063, 1069 (10th Cir. 1981).
I n order to prove a violation of
§
5(a)(1) of the Act, Complainant must show: ( i ) there was an activity or condition in the employer’s workplace that constituted a hazard to employees; ( ii ) either the cited employer or its industry recognized that the condition or activity was hazardous; ( iii ) the hazard was causing or was likely to cause death or serious physical harm; and ( iv ) there were feasible means to eliminate the hazard or materially reduce it.
Baroid
Div. of NL Indus., Inc. v. Occupational Safety & Health Review Comm’n . ,
660 F.2d 43 9 , 444 (10th Cir. 1981).
See also
Waldon Health Care Ctr. , 16 BNA OSHC 1052, 1058 (No. 89-3097, 1993). The
evidence must also show the employer knew, or with the exercise of reasonable diligence, could have known of the hazardous condition.
See Otis Elevator Co. , 21 BNA OSHC 2204, 2207 (No. 03- 1344, 2007).

Specifically, Complainant alleges Respondent violated
§
5(a)(1) of the Act as follows:

UHS of Centennial Peaks LLC., dba Centennial Peaks Hospital, at 2255 S 88th Street, Louisville, CO: On and proceeding 12/7/18, the employer did not furnish employment and a place of employment which were free from recognized hazards that were causing or likely cause death or serious physical harm to employees in that employees were exposed to physical threats and assaults by patients. Employees, including nurses and mental health counselors, were exposed to incidents of violent behavior by patients that resulted in serious injuries
including bites, sprains,
lacerations , bruising, scratches, concussion, and
injuries
to the head, torso and legs from punches, kicks, forceful grabs, pushes, and tripping. Employees were exposed to the hazard of physical threats and assaults during routine interactions with patients who had known histories of violent behavior. The employer had not established or implemented effective measures to protect employees from
assaults or
other physical violence in the workplace.

See
Citation and Notification of Penalty, Citation 1, Item 1.

As stated above, due to Respondent destroying videos which the Court found Respondent had an obligation to preserve as relevant evidence,
the Court
issued
sanction s
against
Respondent and imposed
adverse inference s
that
the destroyed videos would have established all
elements of the
prima facie
case
including knowledge
except for
the feasibility prong of the general duty clause analysis .
Based on the adverse
inferences,
Complainant
only has
to prove
Respondent’s policies did not adequately address the hazard of workplace violence and
whether there were feasible means to eliminate the hazard or materially reduce it.

Complainant must establish
this
element
by preponderance of the evidence.
See Hartford Roofing Co. , 17 BNA OSHC 1361 (No. 92-3855, 1995). “Preponderance of the evidence” has been defined as:

The greater weight of the evidence, not necessarily established by the greater number of witnesses testifying to a fact but by evidence that has the most convincing force; superior evidentiary weight that, though not sufficient to free the mind wholly from all
reasonable doubt, is still sufficient to incline a
fair and impartial mind to one side of the issue rather than the other.

Preponderance of the Evidence , B LACK’S
L AW
D ICTIONARY
(10th ed. 2014).

i. Respondent Was Aware of the Hazard

Though the parties did not stipulate to the
issue of knowledge, the Court’s adverse inference applies to each element of
Complainant’s
prima facie
case, with the exception of the element of feasibility.
Specifically, the Court’s adverse inference on knowledge found the destroyed videos would have provided Respondent with actual knowledge.
Additionally, the Court finds this element is not
subject to reasonable dispute. Everyone from the
MHTs to the
CNO, COO, and
CEO
(which were supervisors/managers)
of Centennial Peaks
w as
aware of the workplace violence hazard, which is memor ialized in the testimony presented in this case, the reports submitted to
Centennial Peaks administration, the employee surveys,
EARs, HPRs,
and
many other documents recounting the same.
The question in this case is not whether anyone was aware of the hazard
but whether Respondent’s response to the hazard was adequate . Thus, it is unnecessary for the Court to engage in
a lengthy analysis about whether
a particular individual was aware or could have been aware
of the hazard , whether that person was a supervisor, or whether it was foreseeable
the
person in question
would engage in unsafe conduct.
See, e.g.,
Mountain States Tele. & Tele.
v . OSHRC ,
623 F.2d 155 (10th Cir. 1980). 28
Accordingly, the Court finds Respondent had actual knowledge of the hazard
and such knowledge can be imputed to Respondent .
Id .

ii. Feasibility Prong

Prior to
assessing a particular abatement proposal , however, Complainant must show “as a threshold matter, that the methods undertaken by the employer to address the alleged hazard were inadequate.”
Integra Health M gmt. , Inc. ,
No. 13-1124,
2019 WL 1142920 ,
at *12 n.14 ( O . S . H . R . C . , M ar. 4,
2019);
see also Sea World of Fl a. , LLC v. Perez , 748 F.3d 1202 (D.C. Cir. 2014) (holding adequacy of employer’s
precautions
is
measured against precautions taken by “a reasonably prudent employer familiar with the circumstances of the industry”).
In making the threshold determination that Respondent’s existing abatement regime is insufficient, the Court is guided by the D.C. Circuit’s analysis in
BHC N w.
Psychiatric Hosp .
LLC , 951 F.3d 558, 564
(D.C. Cir. 2020). In that case, the employer challenged the ALJ’s conclusion that “ the recommended measures would materially reduce the hazard of patient violence beyond what Brooke Glen’s existing safety program already achieved. ”
BHC , 951 F.3d at 564. In particular, the employer asserted the ALJ should have placed more emphasis on its expert’s testimony, which, for the most part, focused on whether the hospital’s existing abatement measures were consistent with the industry’s response to workplace violence.
Id.
In response, the D.C. Circuit reiterated its prior holdings, which state, “‘[A] safety precaution’ that ‘is recognized by safety experts’
need not
‘ find general usage in an industry ’
or have
‘ become customary ’
for
‘ its absence [to] give[ ] rise to a ’
violation of the General Duty Clause. ”
Id.
(citing
Nat’l
Realty , 489 F.2d
1257,
1266 n.37
(D.C. Cir. 1973).

If Respondent’s existing means of abatement are determined to be inadequate , or plain absent,
as compared to precautions taken by a reasonably prudent employer, Complainant must then show: (1)
its
proposed measures are capable of being put into effect, and (2) those methods would be effective in materially reducing the incidence of the hazard.”
See Integra. , 2019 WL
1142920 ,
at *12 (citing
Beverly Enters., Inc. , 19 BNA OSHC 1161, 1190 (No. 91-3344, 2000) (consolidated)).
Indeed, in many of the recent Commission and circuit court cases discussing the general duty clause, one of the primary considerations was whether OSHA established the effectiveness of the proposed method of abatement. For example, in
BHC , the employer argued the Secretary failed to produce evidence of how the proposed abatement measures would reduce the employer’s “already low rate of patient aggression.”
BHC ,
951 F.3d at 564 . The D.C. Circuit noted two problems with the employer’s argument—one factual and the other legal. First, the circuit court cited with approval the ALJ’s conclusion that Respondent’s reporting process was flawed and thus “diminish[ed] the significance of its recorded rate of patient aggression.”
Id.
Second, the court noted that, even were it to accept the incidence rate documented by the employer, “[A] low rate of workplace accidents cannot alone establish compliance with the General Duty Clause.”
Id. Rather, as it articulated previously in
National Realty ,
“ ‘ [H] azardous
conduct need not actually have occurred, ’
or have occurred at any particular rate, for an employer to be liable. ”
Id.
(quoting
Nat’l
Realty , 489 F.2d at 1267 ) .
Instead, the key question will always be “ whether the Secretary’s measures would appropriately safeguard employees by
‘ materially
reduc [ ing ] the hazard ’
of patient-on-staff violence .”
Id.
at 565 (quoting
SeaWorld , 748 F.3d
1202,
1215
(D.C. Cir. 2014)) .
Ultimately, the court determined the employer’s existing safety protocols were incomplete and/or inconsistently implemented and that a “comprehensively considered and applied program would materially reduce the hazard.”
Id.

The standard for assessing
the effectiveness of a particular abatement proposal
is not necessarily mathematical. In
BHC ,
the D.C. Circuit held:

Contrary to Brooke Glen’s assertions . . . , the Secretary need not quantify the extent to which that program and its component parts “would have materially reduced the likelihood” of patient-on-staff violence,
Nat’l
Realty , 489 F.2d at 1267. Instead, the Secretary satisfied the General Duty Clause’s test by establishing that a
comprehensive workplace safety program would more effectively and consistently apply measures designed to reduce patient-on-staff violence than Brooke Glen’s present system did.

BHC , 951 F.3d at 565. In that respect, the
Commission
ha s
found expert testimony, insofar as it is reliable, is sufficient to establish a particular abatement method would materially reduce the hazard.
S ee Integra ,
2019 WL 1142920 ,
at *13-14 (finding expert testimony regarding material reduction of hazard of workplace violence sufficient without requiring expert to quantify extent of reduction).
The e ffectiveness of a particular abatement proposal can also be established through
the identification of the
successful use of a similar approach elsewhere and compliance with
industry standards. 29
See Pepperidge Farm Inc. , 17 BNA OSHC 1993 (No. 89-265, 1997).

iii. Abatement as Process
vs. Alternative Abatement Proposals

One
final
issue
the Court
must
dispose of before addressing the details of
Complainant’s abatement proposals is the manner in which Complainant has
proposed them.
Relying on the Commission’s recent decision in
A.H. Sturgill
Roofing , Respondent contends
Complainant
has couched these abatement proposals as alternative forms of abatement .
See A.H. Sturgill Roofing , Inc. ,
No. 13-0224, 2019 WL 1099857 (O . S . H . R . C . ,
Feb. 28, 2019) . Specifically, Respondent
suggests
it need not implement every proposed abatement
measure ,
because just
one of Complainant’s proposals would be sufficient to
materially reduce the hazard.
Complainant, on the other hand, argues the abatement measures proposed in the Citation are
elements of a process-based approach to abatement.
Compl’t ’s
Br.
61. The Court agrees with Complainant.

According to the Commission,
“[W]here actual injury is present and substantial causation has been shown, the Secretary may require [an employer] to engage in an abatement process, the
goal of which is to determine what action or combination of actions will eliminate or materially reduce the hazard.”
Pepperidge Farm Inc. ,
17 BNA OSHC 1993,
2034 (No. 89-0265, 1997) .
This approach has been recognized in recent cases addressing the same subject matter as the present case.
See , e.g.,
UHS of Westwood
Pembroke , Inc. ,

No.
17 -0737,
2022 WL 774272 ,
at
8
( “ The Secretary’s approach in this regard aligns with the nature of workplace violence, which as alleged here arises in different contexts and conditions at Pembroke, necessitating different abatement measures. ”) ;
but see Sturgill ,
2019 WL 1099857 ,
at
9 ( finding abatement measures to be alternatives where “any one of them would constitute abatement of the alleged violation” ).
On the flip side
of this coin, if abatement measures are proposed as alternatives , then proof
Respondent implemented any
of
the
individual
abatement
proposal s
constitutes abatement of the violation .
See id.

Complainant made clear
he
propose d
the suggested abatement measures
as a process by
which Respondent could achieve a material reduction in the hazard of workplace violence.
In fact,
much of Complainant’s case was premised on the concept of a thoroughgoing and comprehensive
workplace violence prevention plan that incorporated most, if not all, of the proposed measures . The primary thrust
of Dr.
Lipscomb’s
testimony and report , upon which Complainant substantially relied,
was the importance of
a comprehensive, process-based approach to workplace violence prevention . (Tr.
1310-1311 ; Ex.
C-58 ). Although Respondent argues
Complainant’s proposals were alleged as alternatives, the re is no evidence to support this.
This matter was tried by Complainant
as a process by which Respondent could achieve a material reduction in the hazard of workplace violence ,
which Respondent
addressed
through direct -
and cross - examination testimony and exhibits.
Accordingly, the Court finds Complainant has properly proposed the
abatement proposals as a process-based approach to workplace violence.

The characterization of the
abatement
proposals
either
as
alternatives
or as
components of a process of abatement
dictates
Complainant’s burden of proof with respect to this element.
As noted above, if a set of proposals
is couched in the alte rnative, then
Complainant must prove Respondent has implemented none of the measures.
See Sturgill ,
2019 WL 1099857 ,
at 9 .
However,
where Complainant has proposed a series of abatement
measures as a process
or as components of a single means of abatement,
Complainant need only show Respondent failed to
implement one of them .
Id. ;
see also
UHS , No. 17-0737, 2022 WL 774272,
at
8
(“ [T] he Secretary need only prove that at least one of the measures he proposed was not implemented and that the same measure is both effective and feasible in addressing the alleged hazard. ”) ;
BHC N w. , 951 F.3d
at
564 (Secretary proposed “menu” of abatement options to materially reduce workplace violence hazard alleged under general duty clause) .
Thus, in
Pembroke , the
Commission
limited its analysis to two abatement proposals—equipment for summoning assistance and equipment for de-escalation — when it determined UHS Pembroke
violated the general duty clause.
See
UHS , No. 17-0737, 2022 WL 774272,
*9,
n.
11.
Notwithstanding the Commission’s holding, the Court will
address each of the proposed forms of abatement below
in
Section
V.d.

B. Credibility/Persuasiveness of Experts

A substantial
amount of time, roughly
three days, was dedicated to expert testimony in this matter.
A s noted above,
the Commission has held reliable expert testimony is sufficient itself to establish a particular abatement method
would materially reduce the hazard
even if the expert cannot specifically quantify the extent of the reduction.
S ee Integra ,
2019 WL 1142920 ,
at *13-14 .
The Court analyzed the credibility of each expert
based on
their demeanor, motivation, clarity, and reliability . Although each
was properly qualified as an expert in this matter, the Court finds their opinions are not entitled to equal weight .
See
i4i Ltd. Partnership v. Microsoft Corp. , 598
F.3d 831, 852 ( Fed. Cir. 2010) (“When the methodology is sound, and the evidence relied upon sufficiently related to the case at hand, disputes about the degree of relevance or accuracy
(above this minimum threshold) may go to the testimony’s weight, but not its admissibility.”) ,
aff’d
564 U.S. 91 (2011) .

i. Dr. Jane Lipscomb , PhD

Dr. Lipscomb
was qualified as an expert
in
workplace violence in healthcare and behavioral health settings.
She
has been
studying workplace violence
for over
thirty ( 30 )
years, including independent research, publications, and
consultation with both government and private entities. (Ex. C-57).
Her career started
when she worked as a staff nurse at University Hospital in Boston from 1976-78 , which she followed up with a stint a s an Epidemic Intelligence Service Officer and Nurse Epidemiologist
with
the National Institute
of Safety and Health (NIOSH)
from 1981-1984 .
(Tr. 1288).
Dr. Lipscomb earned her
Ph.D.
in epidemiology
from
the University of California, Berkeley , during which time she also taught epidemiology at the
University of California, San Francisco
(UCSF) . (Tr. 1290).
After her stint at UCSF , she returned to NIOSH , where she advised the
D irector on a host of issues, including workplace violence, which she had
written about during her time in California. (Tr. 1291).
After NIOSH, Dr. Lipscomb went back to teaching at
the University of Maryland, where she stayed for
twenty ( 20 )
years, during which time she
spent the better part of
ten
years studying workplace violence full time and even developed a course entitled “Violence as a Public Health Problem”. (Tr. 1292).

According to her
Curriculum
V itae , Dr. Lipscomb has published
over
twenty-five ( 25 )
articles addressing the issue of workplace violence
in the healthcare setting ,
including a handful
dealing specifically with
violence in a behavioral healthcare context. (Ex. C-57).
In addition, Dr. Lipscomb has
served as principal investigator , co-investigator, or consultant
for
seven
different
research and evaluation studies
of workplace violence ;
presented
papers/speeches
on workplace violence at
ten
conferences/seminars;
and has been honored multiple times for her work in that area. (Ex. C-57). Dr. Lipscomb’s research was also instrumental in developing the OSHA Guidelines for Workplace Violence
and
subsequent publications related thereto. (Ex.
C-12, C-13).

In this Court’s opinion, Dr. Lipscomb’s testimony credibly and directly addressed the sufficiency of
Respondent’s abatement methods and the feasibility of Complainant’s proposed measures.
Further, with perhaps one exception, Dr. Lipscomb’s testimony went
largely
unrebutted by
fact witnesses or
Respondent’s expert, Dr. Marc Cohen , whose testimony was largely based on personal experience and
research he found for the purposes of this
case,
but which is not related to his primary field of study , forensics .
Dr. Lipscomb’s opinions, on the other hand, are not only based on studies she personally performed but also upon
studies that are within her field of expertise. This, above all, sets her apart from Dr. Cohen
and Dr.
Argumedo , whose testimony
wa s largely dependent upon
their individual,
personal experience s
and studies they found
but do not
relate specifically to their field of study.
Dr. Lipscomb’s testimony
was based on an intimate understanding of the problem of workplace violence due to a career spent studying it. As such the Court has relied extensively on her conclusions in this matter.
Accordingly, the Court assigned the testimony of Dr. Lipscomb controlling weight except for the one instance noted below.

ii. Dr. Monica
Argumedo

Dr.
Argumedo
was qualified as an expert in
evaluating and clinical management of psychiatric patients and in the efficacy of abatement measures
to address workplace violence. (Tr. 777-779). She
has been practicing psychiatry for over
seventeen ( 17 )
years , including receiving board certification in general psychiatry in 2010 and
forensic psychiatry in 2011. (Tr. 758-59; Ex. C-27).
Dr.
Argumedo
received her medical degree from the Illinois College of Medicine in 2004
and completed a four-year residency program at Georgetown University Medical Center , during which time she became chief resident in charge of the hospital’s inpatient psychiatry unit.
(Tr. 755-56).
Since that time , Dr.
Argumedo
has
primarily
worked in the field of forensic psychiatry , performing assessments
of those charged with crimes to determine whether they are fit to stand trial, as well as serving as an expert witness . (Tr. 761-62; Ex. C-27).
However , in addition to her forensic practice, Dr.
Argumedo
has intermittently served
at inpatient psychiatric facilities, in which she has
served as director of intake
and provided general psychiatric services.
(Tr. 763-69; Ex. C-27).

For the most part, Dr.
Argumedo’s
testimony was
based on her personal experiences as a psychiatrist in inpatient facilities; she has not
engaged in
independent
research on the topic of workplace violence
other than studies she found for the purposes of this case.
That said, to the extent Dr.
Argumedo’s
opinions — whether based on research or her own experience — align with Dr. Lipscomb’s, the Court finds such agreement
should be due
substantial , but not
controlling, weight .

iii. Dr.
Marc Cohen

Dr. Cohen
was qualified as an expert
in the field of psychiatry . (Tr.
1895 ).
He received his medical degree from the University of Southern California in 2003
and did his residency at
the UCLA /San Fernando
Valley Psychiatry Residency Program, during which time he became chief resident from 2006 to 2007. (Ex. R-1).
He also took part in the UCLA/VA Forensic Psychiatry Fellowship program.
Like Dr.
Argumedo ,
Dr. Cohen is board certified in general psychiatry and
forensic psychiatry. (Ex. R-1).
During his career, Dr. Cohen has
served as
an Associate Clinical Professor at the UCLA
School of Medicine in the Department of Psychiatry and Biobehavioral Sciences ;
staff psychiatrist for the
Twin Towers Correctional Facility, the
VA ,
and
Olive View- UCLA Medical Center ;
psychiatry expert in mental health court; and as a forensic psychiatrist. (Ex. R-1).
He has also given two presentations on workplace violence
to the Employment Law Institute and
Practicing
Law Institute ; however, neither
addressed the specific issue of workplace violence in an inpatient psychiatric unit .
(Ex. R-1).

Like Dr.
Argumedo , Dr. Cohen’s testimony was premised, in large part, on his personal experiences and on
studies he found specifically for the purposes of this litigation.
On those bases, Dr. Cohen
opined that the
efficacy of the
proposed abatements, taken individually,
were not supported by peer-reviewed studies .
A s will be shown in more detail below,
many of
the studies Dr. Cohen relies on
( i )
are either
limited in their scope, such as the nurse’s station
“ study ” , which
focused on
a
single nurse’s station in a single inpatient unit ;
(ii)
are
anecdotal, such as
the Due article, which
consisted of 34 total hours of the researchers’ recorded observations;
or
(iii)
are
dependent
on
limited
self-reporting , like the Shannon article, which
looked at only 19 reports over the course of 4 years
and based its conclusion about the counter-therapeutic effect of security presence on a single anecdote .
(Tr. 2028 , 2047-20 60 ; Ex.
R-2 ).
This stands in stark contrast to the peer-reviewed studies Dr. Lipscomb relied upon, which showed that a comprehensive WVPP, consisting of many of Complainant’s proposed measures,
would be materially effective at reducing the hazard by up to
sixty percent ( 60% ) . ( Ex. C-58 ).
Further undermining Dr. Cohen’s opinion is the fact that he admitted
he neither reviewed, nor was he
charged with offering
opinions on, the elements of Respondent’s WVPP.
(Tr. 2074-75). To the extent he offered an opinion on such matters,
it was
limited to a
conclusory statement
that the existing regime was consistent with his understanding of industry practice
and was based on his review of deposition testimony . (Tr.
1895 ).
In some cases, however, Dr. Cohen readily admitted
certain proposals would have a positive
effect on
workplace violence, such as personal alarms or walkie-talkies
and
limiting access to nurse’s stations (without fully enclosing
them).
(Tr.
2019 ).

While there are areas where the Court relied on Dr. Cohen’s assessment, particularly
with respect to the question of hazard transference from staff to security, the Court
did not place significant weight on Dr. Cohen’s testimony
with respect to the effectiveness of Respondent’s
policies and procedures or with respect to his assessment of the effectiveness of Complainant’s proposals
for the reasons stated below .

C. The
OSHA Guidelines
& Roadmap
for
Healthcare Facilities

Most, if not all, of Complainant’s proposals can be
found in, or are at least based on,
a set of three publications:
OSHA’s Guidelines for Preventing Workplace Violence
(Guidelines) ; Preventing
Workplace Violence: A Road Map for Healthcare Facilities
(Road
M ap) ; and
The Joint Commission’s Sentinel Event Alert : Physical and Verbal Violence
Against Health Care Workers
(Sentinel Alert) . (Ex. C-12,
C-13,
C-62) .
As noted by the parties, neither of the foregoing documents present mandatory standards , nor do they
create new legal obligations. (Ex. C-12 at 4) .
Nevertheless, r egardless of whether the
G uidelines are mandatory standards or not ,
they
recognize
employers are bound by the
general duty clause
and by its reasonable and prudent employer standard .
(Ex. C-12 at 4 ).

The
Guidelines
were
originally produced in 1996, were updated again in 2004 , and updated most recently in 2018. (Ex. C -12).
They were devised
specifically for health care and social service settings, including
psychiatric facilities. (Ex. C-12 at 7) . According to the Overview, the
G uidelines were developed
based on “industry best practices and feedback from
stakeholders and
provide recommendations for developing policies and
procedures
to eliminate or reduce workplace violence
in a range of healthcare . . . settings .” (Ex. C-12 at 7).
Those recommendations ultimately
form the basis of a
model
workplace violence protection program , which is broken down into its constituent parts
and
shows
how it would apply in various settings using charts and checklists.
(Ex. C-12 at 20, 24).
According to the
G uideline s , the recommendations
“ reflect the variations that exist in different settings and incorporate the latest and most effective ways to reduce the risk of violence in the workplace. ” (Ex. C-12
at 7).
The
Guideline s’
recommendations are informed by
an extensive bibliography of workplace violence studies , including studies by the C enter for
D isease
C ontrol (CDC) , international standards
associations,
state departments of health,
multiple publications from Dr. Lipscomb, and
the
Sentinel Event Alert from
TJC . (Ex. C-12 at
40-45).

The Road Map
essentially provides the same framework as the Guidelines, upon which it is based. (Ex. C-13). The difference, however, is the Road Map uses concrete examples of
how various healthcare facilities, including inpatient psychiatric facilities,
have
successfully
utilized workplace violence policies and procedures ,
like those discussed in the Guidelines and Road Map . (Ex. C-13).
Th e exemplar facilities were selected, in part, from publications; however,
in most cases, OSHA performed site visits , held meetings, and conducted interviews. (Ex. C-13). Of those facilities, they all acknowledged
a WVPP were works in progress subject to continuous improvement. (Ex. C-13
at 4).

The third document is the Sentinel Event Alert
on
workplace violence against healthcare workers , which
is published by
T he Joint Commission (TJC) . T JC
is a
n on-profit
accrediting and
standards-setting body ,
of which Respondent is a member. (Tr.
1315, 1499; Ex.
C-62 ). TJC
produce s
Sentinel Event Alert s, which
“ identifies specific types of
sentinel and adverse events
and
high-risk
conditions,
describes their common
underlying causes, and
recommends steps to reduce
risk and prevent future
occurrences. ” (Ex. C-62).
In response, “ Accredited organizations should
consider information in a
Sentinel Event Alert when
designing or redesigning
processes and
consider
implementing relevant
suggestions contained in the
alert or reasonable alternatives. ” (Ex. C-62).
T he Sentinel Event Alert
does not
explicitly
adopt the five-part breakdown of a WVPP
discussed in the Guidelines and Road Map; however,
a closer inspection of the recommendations reflects a near- identical set of expectations, including :

( i )
management commitment ;
(ii)
employee participation ;
(iii)
tracking and trending of workplace violence data ;
(iv)
identifying source(s) of the hazard
and developing a response ;
and
(v)
providing training
on de-escalation, self-defense, and
responding to emergency codes. (Tr. C-62).
In addition, the Sentinel Event Alert
identifies
factors associated with violence, including, as is relevant to this case :
( i )
understaffing ;
(ii)
inadequate security ;
(iii)
staff working in isolation ;
and
(iv)
lack of emergency communication
devices . (Ex. C-62 at
3).

There is a substantial amount of overlap between these publications, including cross-references to
each within the respective bibliographies or reference pages ,
which shows
the abatement measures proposed by Complainant
(which are based, in significant part, on these publications)
are not merely
ad hoc
responses
to workplace violence but are
industry-recognized methods for addressing a
complex
hazard. The overlap not only includes internal cross-references to the documents themselves, but
the Sentinel Alert, for example ,
includes references to the same exemplar hospital systems
referenced in the
Road Map
that use the WVPP
G uidelines generated by OSHA. (Ex. C-62 at
4).

Respondent
claims
neither the Guidelines nor the Road Map are applicable to
its
facility. This argument is rejected. Not only do the Guidelines specifically reference inpatient psychiatric facilities, but the Road Map uses inpatient psychiatric/behavioral facilities as examples to illustrate the effectiveness of the guidelines. (Ex. C-12, C-13). Further, Respondent has
n o t elucidated any cogent distinction between itself and other in-patient facilities to suggest the engineering and
administrative controls suggested by the
G uidelines, TJC Sentinel Alert, or Roadmap would not be effective. Nor, for that matter, does it explain why it chose to model its WVPP after the
G uidelines’ recommendations.

In addition to the above, the Court
notes Dr. Lipscomb testified the Sentinel Event Alert
introduced into evidence “really very closely follows the OSHA Guidelines”. (Tr. 1316).
Indeed, looking at the Sentinel Event Alert itself, the Court notes it repeatedly references
the OSHA Guidelines, as well as other OSHA publications related to the topic of
workplace violence. (Ex. C-62 at
2- 8) .

D. Evaluation of Individual
Abatement Proposals

In this section, the Court will address the
abatement proposals Complainant included in the
Citation . Although the Court will discuss them individually, as noted above, the entire list constitutes
an abatement process, of which each numbered proposal is a part.
In lieu of addressing these proposals in the order in which Respondent lists them in the Citation, the Court
starts with Complainant’s
WVPP proposal
since, according to expert testimony,
it is the touchstone from which other abatement proposals naturally flow.

1. Respondent’s WVPP.

The Court starts with its evaluation of Complainant’s recommended abatement
by examining Respondent’s WVPP
because
it is linked to nearly every other proposal
at issue in this case
and
is the umbrella under which any
serious attempt to address workplace violence must fall . Indeed,
as noted by Complainant, one of Respondent’s key problems is the failure to
connect its various efforts to address workplace violence under the comprehensive
rubric of a WVPP.
While
Respondent’s WVPP
uses the
terminology
discussed in the Guidelines, Road Map, and Sentine l
Alert, and even provides a list of
connected programming,
neither it, nor many of Respondent’s other efforts , were materially effective at reducing the hazard of workplace violence.

Th e
“effectiveness” of
Respondent’s
approach to workplace
violence , which is
primarily
focus ed
on clinical, patient-based solutions ,
is
indicated
by
a significant
rise in workplace violence events and injuries
in 2018. At or around that time, Respondent : ( i )
increased the capacity of its facility by roughly 30 percent ; (ii)
implemented an initiative to reduce
restraints ;
and
(iii)
at certain census levels, reduced the
number of staff required under the matrix.
While none of these
actions are problematic when viewed individually, the
manner and timing of their implementation
highlights
Respondent’s failure to approach
the problem of workplace violence in a comprehensive manner , which Dr. Lipscomb,
Dr.
Argumedo , the Guidelines, Road Map , and the studies
they
rel y
upon
show i s effective at reducing the
workplace violence
hazard .
Respondent contends the rise in
reported injuries and incidents is likely due to an emphasis on increased reporting 30
and
the patients that had to be restrained tended to be more aggressive .
(Tr.
179 9- 1800 ,
1863 ).
While that may be true at a base level for those injuries actually reported on the OSHA 300 ,
the reporting explanation
does
not
account for
the incident and injury
numbers reported
by CSHO
Oberbeck ,
who
culled
multiple data sources
to find a more accurate picture of accident/injury data
that more closely aligned with the interviews he took.
His findings
highlighted
both the
unreliability of the data collected and relied upon by Respondent and the
lack of a centralized system of
data collection
for employee injuries.

i. Develop and Implement a Comprehensive WVPP

According to Dr. Lipscomb, an effective WVPP starts with a clear definition of workplace violence. (Tr.
1331 ; Ex.
C-58 ).
According to the Guidelines, NIOSH defines workplace violence as
“violent acts (including physical assaults and threats of assaults) directed toward persons at work or on duty.”
(Ex. C- 12 at 8). The parties have stipulated to this definition for the purposes of this case.
In addition, a
WVPP contains five key
building blocks : ( i ) Management Commitment / Employee Participation, ( ii ) Worksite Analysis, ( iii ) Hazard prevention and control, ( iv ) safety and health training, and ( v ) Recordkeeping and program evaluation.
The Guidelines state:

The components are interdependent and require regular reassessment and adjustment to respond to changes occurring within an organization, such as expanding a facility or changes in managers, clients, or procedures. And, as with any occupational safety and health program, it should be evaluated and reassessed on a regular basis.

(Ex. C-12 at 11) .
This interdependency underscores the importance of a comprehensive approach to workplace violence: a failure in one aspect of the program
has
a trickle-down effect on
other elements. For example,
the
definition of “violence” impacts what events are reported and when they should be reported . (Tr.
1332 ).
The events that are reported, in turn,
impacts data collection ,
which impacts employer’s ability to fashion a targeted and effective response .

Complainant characterize d
Respondent’s WVPP as a “paper
exercise ”
that contain ed
some elements of a proper WVPP but
was otherwise incomplete
in both its content and implementation.
Respondent contends it has developed and implemented an effective WVPP and Complainant’s concerns are directed to the form, not the substance, of its WVPP. Specifically, Respondent points out its program is based on the Guidelines and incorporated numerous clinical and non-clinical policies and practices, which address the hazard of workplace violence at least as effectively as Complainant’s proposals.
The Court finds
Complainant established Respondent’s WVPP was
not
effective in some of the
subitems
identified in
A batement
I tem #5 of
the Citation
and, therefore,
needs to be changed consistent with the proposed abatement.
To the extent
Complainant failed to meet its burden with respect the other subitems, the Court has noted those as well.

Subitem 1:
“ E valuation and assessment of WPV incidents or trends, including a worksite-specific hazard analysis that analyzes
the worksite for risks, including but not limited to, potential weapons, potential for employees to be cut off from communication , delays in activating alarm systems, potential for physical entrapment of employees.” (Ex. C-1 at 7).
There are a couple of layers to this subitem
which bear discussion.
First, Respondent’s
WVPP
has policies and procedures related to the collection of incident/injury data , Respondent utilizes a committee system through which it
collects and analyzes the data, and it performs hazard analyses
of the facility
and activities occurring therein. Th us, the question with respect to this subitem is whether Respondent’s system was effective . T he Court finds
it
was a mixed bag.

At the most basic level, the Court finds Respondent’s system of
data collection, upon which its system of evaluation and
assessment
is based,
is flawed. As
noted,
a couple of times above,
Respondent’s injury data
was contained in multiple sources ( OSHA 300 logs,
EARs,
HPRs), each of which were under the purview of a different
manager.
The HR Manager, who is not responsible for patient-on-employee violence, is nonetheless responsible for gathering
employee accident reports and supplying that data to the
Risk Manager, who is responsible for patient-on-employee violence but only reviews HPR s, which are patient-focused
documents .
In the end, as illustrated by the testimony of CSHO
Oberbeck , this led to
inaccurate data and inconsistent reports.

The Court finds there was no central
point of
collection
for
workplace violence data, nor was there a
responsible person
designated
to analyze
it , summarize
it , and disseminate
the conclusions reached
on the basis of that data.
Th is
underscores the lack of a “coordinated approach” required under the Guidelines, the Roadmap, Dr. Lipscomb’s expert testimony and cited publications.

That said, the Cou rt finds Respondent performed environmental
and data-driven
assessments of the
facility for hazards, including
how furniture or other items could become potential weapons.
(Tr.
1492 , 2475, 2477 ). In response to incidents involving furniture
as weapons , Respondent purchased new, weighted furniture
to reduce the possibility
a patient would be able to
pick it up, and in response to an incident where a patient threw computer monitors, Respondent bolted them down. (Tr.
2475-2477 ).
When that barrier was overcome, Respondent
purchased smaller monitors that could fit under the overhang of the station desk . (Tr.
2496 ).
This illustrates Respondent, at least with respect to this issue,
was already implementing the proposed abatement measures.

As to the
potential for employees to be alone, cut off from communication , delays in
code activation, and possible entrapment, the Court finds Respondent had a blind spot .
Whether through
surveys, shift reports, HPRs, EARs, or
even policy , Respondent was
at least constructively
aware
its employees w ould be left to cover a unit alone due to understaffing
and, based on their responsibilities, could be cut off from communication because
portable communications devices were not required
unless off unit .
( Tr.
2127 , 2213-14 ).
At the least , Respondent was aware MHTs were alone when they transferred patients off-unit for recreation or meals and that intake personnel
were often alone, without surveillance, with potentially violent patients during the intake process.
(Tr.
2127-28 ).
Each of these situations, including
when staff had to enter patients’ rooms for rounds or special orders,
presented the possibility of staff entrapment and subsequent delay in
initiating a Code.

Subitem 2:
“Provide clear written procedures for
how employees should respond to patients making threats, showing aggression, and assaults.”
With respect to this item, the Court
recognizes Respondent had policies covering Code Lavender and Code Green and
the use of CPI techniques, all of which are
effective and, to an extent, necessary aspects of a successful WVPP. However, there were three areas in which Respondent’s
procedure s
were not clear:
( i )
when to call police ;
(ii)
when to report an incident of workplace violence ;
and
(iii)
establishing a chain of command
during a Code involving multiple PMLs. As to the procedures for calling police,
staff members on the whole felt as if they were discouraged from calling the police.
(Tr. 482, 712, 1047, 1101 ). Management did not do much to dispel this notion when they second-guessed
an assaulted employee’s decision to press charges ;
chang ed
policy to create additional barriers
to contacting police ;
and
questioned
the wisdom of calling police , despite the extreme danger, because “ encouraging police involvement is not where we need the analysis of the incident to be directed .” (Ex. C-44). Thus,
there was a fair amount of confusion amongst staff members regarding the policy .

Regarding
the question of when to report an incident of workplace violence, the WVPP is
silent.
Indeed, the WVPP talks about encouraging employees to submit EARs and that EARs, HPRs, and other data points will be used to inform policy; however, the re is no discussion about when or under what conditions an employee should report an incident of workplace violence , including those not resulting in injury. 31
This, as mentioned above, has a lot to do with the lack of clear definition of workplace violence. While the parties agreed to a definition of workplace violence which includes threats of violence , the policy’s definition is an overly broad
relational description: “violence committed by patients upon staff members”. (Ex. C- 14 at 1).
Respondent
contends it gives a
more precise definition during training, which is found in
Respondent’s WVPP
PowerPoint presentation . (Ex. C-58). According to Dr. Lipscomb, while the definitions
provided in the PowerPoint
give
a clear er
understanding of workplace violence, her review
of
Respondent’s
Risk Management Worksheets described numerous incidents fitting the
definition
of workplace violence
but no corresponding reports in any of the known data sources , which she believed undermined the assertion these definitions were understood by or known to staff members. 32
(Ex. C-58 at 15-16).
Given the reporting discrepancies noted above, as well as the testimony of employees, who
testified
to accepting some level of violence as “normal ” , the Court finds employees were given little,
or at least inconsistent, guidance on when to report an incident of workplace violence.
This is especially so for incidents of violence not rising to the level of an injury, so-called, for which there appears to be no system of reporting or information gathering.

Finally,
staff members testified the re were
occasions during Code Greens and Lavenders
where conflicts arose amongst responders as to who should lead the code .
(Tr. 518,
1083, 1091 ). Emmett Wells, who worked as a social worker at Centennial Peaks, testified he believed the breakdown in communication in these circumstances led to three of his injuries during responses to codes and, ultimately, caused him to opt out of responding to codes. 33
(Tr. 1083, 1091).
As noted above, PMLs are either nurses or MHTs designated to lead crisis/code response .
According to
Smith ,
there
are
designated
PMLs
for code greens, but , due to their training,
more than one of
the
designated
responders
a re
likely to be trained as
PMLs.
(Tr. 2318-2319).
Considering the PMLs also had
duties
that might prevent prompt response, such as
one-to-ones or other special patient care responsibilities ,
the ground was ripe for conflict based on who responded first.
Respondent
did not present any evidence, nor could the Court find any, to indicate
a pro cedure
to prevent clashes
over
who should lead the code .

Subitem 3 :
“The WVPP must also provide for the participation of direct care staff
such as MHCs and RNs, e.g., through the committees that discuss WPV incidents.”
Complainant
has two
complaint s
about this element : ( i ) the
section of the WVPP entitled “Employee Participation”
primarily consisted of tasks
for staff to complete
that are part of patient care, not
initiatives to participate in; and ( ii ) direct care staff
did not have a standing seat on any
of the committees discussed above—PIC, PSC —or even knew they existed. (Tr. 528, 1145, 1175).
Respondent
argues;
however, its direct care employees have a standing invitation to participate in both PSC and PIC
meeting s .
In addition , Respondent highlighted initiatives , policies, and procedures, which were initiated at the suggestion of direct care staff , including
Patient Management Leads (PMLs) , the Lavender Response Team,
and even the WVPP was developed with the assistance of
Kevin Smith and Jordan Larsen, who were MHTs/non-managerial milieu managers at the time. (Tr. 2099, 2299; Ex. C-14) ;
see
Resp’t ’s
Br .
72 .
Even Mancha and
[redacted]
testified to occasions where their suggestions were adopted.
( Id. ).

While the Court finds Respondent provided its employees with opportunities to participate
in developing initiatives to address workplace violence, the
Employee Participation program of Respondent’s WVPP is , for the most part, a set of responsibilities and duties employees owe to patients.
T his is not just a criticism of form , but the WVPP’s current construction suggests a misunderstanding of the
role
direct care staff have
in
identifying, assessing, and implementing policies and procedures to prevent workplace violence.
(Ex. C-12 at 13 ).
This conclusion is made stronger by the fact that most of the employees who testified stated they had never seen the
document before . (Tr.
394, 1095,
1145).
The WVPP
should be amended to reflect the purpose of employee participation in its
continuing development.

Subitem 4:
“ Implement administrative and engineering controls to reduce or eliminate WPV hazards, including an assessment
of appropriate staffing levels for each unit.” The Court finds
the substance of
this
subitem
is
addressed in multiple other sections, from the modification of the nurse’s station and the use of walkie-talkies or panic alarms to
Respondent’s assessments of proper staffing levels. While Complainant’s criticism as to this item is directed to the
contents of the
physical
plan itself,
the Court finds
these sub-proposals are
ultimately duplicative of other proposals specifically targeted at
engineering controls and administrative procedures, such as staffing levels.
Thus, the Court will
discuss those specific abatement proposals elsewhere.

Subitem 5:
“ Annually review the WVPP and update as necessary . Solicit employee feedback during the process.”
According to CSHO
Oberbeck , there was no evidence the WVPP had been reviewed or updated since its creation.
(Tr. 166).
Neither
Forster nor
McArtor
recalled participating in an annual review of the WVPP , even though both are designated as responsible persons under the plan . (Tr.
1219, 1693 ; Ex. C-14 ) . Respondent contends the policies and procedures set forth in the plan
“were constantly being revised and new mitigation efforts were developed and implemented on a continuous basis.”
Resp’t ’s
Br.
72 (citing Tr. 1340).
While
policies and procedures may have been addressed
on an individual basis, the re is no sense—indeed, no evidence—Respondent reviewed any of those policies
collectively as part of its WVPP . The fact that two of the primary responsible parties under the WVPP had no recollection of participating in a review of the program , even after the need for such a review was identified by UHS Corporate Loss Control in a site visit at the
beginning of 2019,
suggests the
WVPP program
is ultimately a list of
duties and
patient-based
programs
or, as Complainant put it, a “paper
exercise ”.

Through the foregoing discussion, the Court has addressed
many of the
Guidelines’ so-called building blocks of a WVPP,
including Employee Participation /Management Commitment , Hazard Analysis,
Injury Tracking,
and Evaluation . 34
The
Court identified areas where Respondent’s WVPP
complied with the letter and spirit
of
the Guidelines and also where
Respondent’s existing regime was ineffective at addressing the hazard . At bottom, however,
the Court finds Respondent’s WVPP, taken as a collective whole, is ineffective at its primary role.
There is no sense in which the various programs and/or initiatives that purportedly make up the WVPP are
connected to one another . Further, there appears to be a lack of buy-in into the program from either side of the employment coin:
designated
responsible parties in management are not aware
of when or even whether a review of the WVPP took place , and most of the employees who testified are not aware of the existence of an overarching WVPP , let alone their ability to participate in initiatives and programs
created under its guise.
In that way, the Court agrees Respondent’s WVPP, in its current form, is little more than a paper exercise
and is ,
therefore ,
deficient,
and ineffective at preventing workplace violence.

ii. Feasibility
of Complainant’s Proposal
Regarding WVPP
and Analysis of Whether it Would Result in Material Reduction of the Hazard

There
is little debate over the feasibility or effectiveness of this
particular
proposal ;
indeed, Respondent
developed a WVPP with at least a nominal nod to the components discussed in the
G uidelines.
Nor, for that matter, does Respondent contend a WVPP would not be effective. Instead,
Respondent spent significant
time arguing
Complainant could not prove any of the
individual abatements , or specific combination
thereof ,
would be effective at reducing the hazard.
This
approach
is contrary to
the
current state of workplace violence research, which is , in the words of Dr. Lipscomb, a “multi-factorial” problem .
(Tr. 1322-23).
What researchers discovered is that a
multi-factorial problem
requires a multi-factorial , yet adaptable, solution . (Ex.
C-58, C-59 ; C-61 at 2-3 ).

In the
study
relied upon by Dr. Lipscomb,
researchers
conducted a randomized , controlled intervention study (the so-called “gold standard”)
of
implementing a “data-driven, worksite-based intervention based on the OSHA Guidelines. ”
(Ex. C-58 at
12).
The study
found
hospital units, including psychiatric units, that implemented
a comprehensive program based on the Guidelines
and adapted
it
according to the data,
was effective at reducing patient-to-worker violence-related injuries by 60% within 2 years of implementation. ( Tr.
1324 ;
Ex. C-58
at 21).
This conclusion was borne out in
other contexts, including
examples highlighted in both the Road Map and Sentinel Event Alert. (Ex. C -13, C-62).
Dr. Lipscomb highlighted Aria Jefferson hospital, which is referenced in the TJC
publication,
and a trade journal called
Healthcare Executive . (Ex.
C-61,
C-62 at
4) .
According to these sources, Aria Jefferson was able to
use a data-driven, comprehensive approach to workplace violence to reduce
violence related injuries by
70 percent over the course of four years. 35
Indeed, throughout the Road Map, there were multiple examples of
healthcare facilities that experienced success in reducing workplace violence through the
implementation of a comprehensive program to address workplace violence. (Ex. C-13).

Respondent’s attempts to undermine these conclusions are not persuasive. In particular, Respondent
points out the size of the hospital system, perhaps to suggest
its conclusions are not applicable to a small, stand-alone facility like Respondent’s;
however, Respondent has not
identified
anything about the
42 individual units studied within that system
to
highlight a meaningful difference between
them and Respondent. Respondent also points out the
researchers tracked a more broadly defined hazard, which included verbal abuse, bullying, and
harassment ; however, the problem for Respondent is the study may have used a more inclusive definition
of workplace violence, but the ultimate effect was a reduction in patient-to-staff
injuries .
In other words, a more inclusive definition
arguably made the program more successful not in the identification and reduction of workplace violence generally, but
in the reduction of injuries, which data
likely showed was the result of a broad range of violent encounters.
Finally, Respondent
points out the study was not specific “ as to
which interventions were used on which units and it cannot be determined from the study which
interventions improved reducing the rate of workplace violence incidents. ”
Resp’t ’s
Br .
64.

Respondent’s
last
argument misses the point:
what matters
is
th at the approach be based on the data, specific to the worksite, and comprehensive in its scope .
The fact the authors of the study could not specify some magic formula of
interventions culled from the Guidelines makes sense considering the assessment
is data-driven and site-specific.
What t hese studies
show
is the importance of
a
process
driven by the Guidelines.
Respondent’s position, though incorrect, makes sense given its reliance on Dr. Cohen’s
testimony, which focuses
on evidence-based
analyses of individual interventions . This focus also
highlights one of the reasons why the Court placed more weight on Dr. Lipscomb’s testimony : she is more attuned to the state of the science with respect to workplace violence. Dr.
Cohen is clearly a qualified clinical
and forensic psychiatrist,
but he, like Respondent, is focused on clinical interventions
at an individual level , which are more easily controlled
than
changes to administrative or engineering controls impacting a
large population of patients with differing diagnoses and levels of acuity implemented by
healthcare professionals in
different
settings.
Dr. Lipscomb, on the other hand, has made the study of workplace violence a significant part of her life’s work; she is
not only familiar with the state of the research but was also instrumental in
conducting studies supporting the comprehensive approach described above.
The Court finds Complainant, through Dr. Lipscomb’s testimony, established the
proposed comprehensive WVPP would be materially effective at reducing workplace violence in Respondent’s hospital.

Finally, Respondent also attempts to undermine
Complainant’s claim
regarding effectiveness by suggesting many of the incidents of workplace violence were “unpredictable” and, thus, no amount of intervention, comprehensive or otherwise, would be adequate to address the hazard.
Respondent
goes
as far as
to claim
“ [a] ggression
which is caused by mental illness rather than bad intent is by its very nature unpredictable and preventing it is not feasible because it is almost always unforeseeable. ”
Resp’t ’s
Br .
64 (citing
Integra,
2019 WL 1142920, at *24 . (MacDougall, H., concurring) (Workplace violence is a “condition that results from the acts of third parties, engaged in unpredictable human behavior, and outside of an employer’s control; no matter how sound an employer’s safety program might be for the particular circumstances in its workplace, it is possible the employer cannot free the workplace of the hazard.”)
While the Court agrees there were example s of staff being injured by patients without
warning , this made up a small portion of the
cases discussed . Further, the Court finds Respondent overstates the case regarding the
predictability of incidents of aggression.

J ust because
a small universe of
outbursts may be “unpredictable ” , such does not justify the refusal to implement strategies that have been successfully implemented by others and are recommended
based on
joint efforts between OSHA, NIOSH, and the Joint Commission, which itself approves of the Guidelines/Roadmap as a starting point for an effective WVPP. Further,
if
the Court were to accept Respondent’s characterization of workplace violence,
it begs the question as to why Respondent uses tools to assess violence risk
and implement
initiatives to reduce that risk
if they serve no purpos e. 36
The fact is , while
individual acts viewed in isolation may appear unpredictable, the evidence presented at trial
shows there were multiple data points available to Respondent, which would have illustrated
the existence of injury clusters related to a location, activity, or
type of patient.

Respondent lamented the characterization of its facility as a hazardous workplace
because of the presence of mentally ill patients when, it claims, the data shows
a substantial amount of the workplace violence incidents was connected to a
discrete
population of
high acuity patients with a substantial history of prior violent acts.
Looked at another way, however,
Respondent had data available to it indicating a specific subset of patients was responsible for an outsized
number of incidents, which presented an opportunity for assessment and evaluation of
policies and procedures related to this subset of patients, which Respondent did not do . The individual files of MC, RB, and
LJ
illustrate
th is
failure: there was a lack of documentation (or at least a lack of notification/warning) about a patient’s prior history of violence even though the information was available
at intake .
(Ex.
C-19, C-20 , C-23 ).
Further, with respect to Respondent’s claims regarding the efficacy of a clinical approach to violence from this select subset of patients, the Court finds such interventions were insufficient, on their own, to address the hazard, as illustrated by the number of attacks towards staff occurring in close succession
despite clinical interventions occurring in the interim .
( Id. ).
Along similar lines, the Court finds
proper implementation of a
comprehensive program, driven by data, would also have revealed the cluster of incidents occurring at the nurse’s station
and presented opportunities for prophylactic measures to prevent these “unpredictable”
acts of aggression.
H ad Respondent
properly
analyzed its own data,
whether with respect to high acuity patients or the nurse’s station,
the next logical step would have been for
Respondent to take appropriate actions to eliminate or substantially reduce this risk through proper planning and implementation of a comprehensive WWVP
focused
on
such populations
and locations .
Respondent cannot
simply
put its head in the sand, plead a certain class of patients are more prone to such conduct and unpredictable, and then do nothing.

T he Court can rely on expert testimony to determine the feasibility of proposed abatement
as well as whether it would materially reduce the hazard if implemented .
T he
Commission
ha s
found expert testimony, insofar as it is reliable, is sufficient to establish a particular abatement method would materially reduce the hazard.
S ee Integra. ,
2019 WL 1142920 ,
at *13-14 (finding expert testimony regarding material reduction of hazard of workplace violence sufficient without requiring expert to quantify extent of reduction).
T he Court
previously found
Dr. Lipscomb ’s
testimony
was entitled to
controlling weight . Dr. Lipscomb
testified Respondent’s WVPP was flawed and provided reasons for her conclusions as well as studies which supported her testimony that a comprehensive, linked WVPP would result in a
material
reduction of workplace violence instances in R e spondent’s workplace.

Based on the foregoing, the Court finds Complainant established the feasibility of Complainant’s abatement proposal

5 , recommending the implementation of a comprehensive WVPP.

In addition, the
Court also finds the
testimony
supports Dr.
Lipscomb’s conclusion
that implementation of a comprehensive
and coordinated
WVPP would result in a
material reduction
of workplace violence incidents
and,
therefore,
would
materially
reduc e
the
overall
hazard of workplace violence as recognized by both Respondent and
its
industry.

The Court could stop its analysis at this point and end the discussion. As discussed above, t he Court
found
Complainant proposed a series of abatement measures as a process. Thus, Complainant need only show Respondent failed to implement one of them.
See Sturgill ,
2019 WL 1099857 ,
at 9 ;
see also
UHS Pembroke ,
2022 WL 774272
at
8
(“[T] he Secretary need only prove that at least one of the measures he proposed was not implemented and that the same measure is both effective and feasible in addressing the alleged hazard. ”);
BHC N w. , 951 F.3d
at
564 (Secretary proposed “menu” of abatement options to materially reduce workplace violence hazard alleged under general duty clause) . However,
for the purposes of clarity
and completeness,
the Court will continue its analysis on the remaining proposed abatement
measures
in light of the pending appeal of the Commission's decision in UHS Pembroke.

2. Reliable and readily available communications devices

Prior to the inspection ,
Respondent’s employees
only carried communication devices when they transported patients off-unit . When they were on unit, staff only had two radios available , which were kept at the nurse’s station, along with the telephone, which served as the primary device by which
c odes were
broadcasted to the rest of the hospital . (Tr.
97, 389).
Otherwise, while on unit, staff would have to verbally call for a code . At full staffing capacity, this might not be a problem; however, there were numerous examples provided by employees
where they were alone or could not immediately be heard . This included intake personnel, who are typically alone while performing their assessment and are not
usually monitored remotely, even though cameras were available.

The Court finds Respondent’s prior regime , which relied on calling out to other employees in the hopes of getting a
message relayed to the PA system, was ineffective.
Under the best of circumstances ,
response time could be delayed by the logistics of the situation:
the individual calling the code
needs to
be heard by someone physically occupying the nurse’s station (though Respondent apparently frowned on
staff
remaining behind the desk), who could relay the message out to the hospital as a whole.
Any potential delay in response can, and did, result in employees receiving serious injuries . For example,
[redacted]
testified she and a co-worker were repeatedly assaulted during the pendency of a Code Green call
because they could not easily make the call for a
code, which resulted in other patients intervening to prevent further injury. (Tr.
448-49 ).
Respondent’s Corporate Loss Control recognized this shortcoming, at least with respect to the intake process, and recommended the
implementation of panic alarms during the intake process. (Ex. C-51 at 2).

The Court also finds
implementing the use of walkie-talkies and/or personal panic alarms would be feasible and effective.
First, Respondent already had two walkie-talkies present on each unit at the time of the inspection , which its staff used in specific circumstances , indicating its employees were fa miliar with using the walkie-talkies for this purpose.
See Integra
2019 WL 1142920 ,
at *12 .
Second,
after the inspection occurred, Respondent increased the number of radios
on unit to make them available to each employee , which
both Forster and Smith testified improved response time s to Code Greens and had the ancillary effect of allowing codes to be called
at night without disturbing sleeping patients on the unit
and unnecessarily
affecting acuity of the milieu . (T r . 234 7-48) .
See SeaWorld , 748 F.3d
at
1215;
FMC Corp. , 12 BNA OSHC 2008 (No s . 83-488 , 83-489 ,
1986).
Third, each of the experts, including Dr. Cohen, testified
the use of walkie-talkies and/or panic alarms would be effective
in reducing the likelihood or severity of the injury
resulting
from an act of patient aggression. (Tr.
1520,
2019) .
Fourth, the Guidelines refer to using
communication devices, such as panic alarms or cellular phones
to
summon assistance more effectively . (Ex.
C-12 ).

All three experts testified the use of walkie-talkies would result in a material reduction in the
identified
hazard.
S ee Integra ,
2019 WL 1142920 ,
at *13-14 (finding expert testimony regarding material reduction of hazard of workplace violence sufficient without requiring expert to quantify extent of reduction).
Accordingly, the Court finds Complainant proved the use of personal communication devices and/or panic alarms would be
a feasible and effective method to
materially
reduce the hazard. 37

3. Reconfiguring
   the
   Nurses ’
   S tation

According to
the testimony , the
nurses’ station was a
locus for patient aggression .
( Ex. C-72 ).
With
no door to prevent entry, and a fairly low and narrow countertop, the nurse’s station
provided virtually no barrier between direct care staff and patients .
(Ex. C- 5 ).
The incidents described
by employees
include : ( i )
patients reaching over the top of the counter to rip
computer
monitors
off
the desk
even when they were bolted down ; (ii)
patients walking
behind the nurses ’
desk and physically assaulting staff ; (iii)
a patient
attempting to barricade a staff member
behind the station ,
numerous threats ;
and
(iv)
destruction of property in the area of staff . (Tr.
129, 583-85 ,
601-604
1634-36 ; Ex. C-7 at 12 , C-19 at 13-16 , Ex. C-72 ) .
M any of
these incidents
could have been prevented by modest improvements at creating an actual barrier to entry .
If
the behavior of psychiatric patients
is so unpredictable ,
as Respondent has argued,
employees should be afforded
more substantial protection when working behind the desk, during which time their
focus may be on paperwork or other duties which may divert attention from
an unpredictable source of harm.
The recurrence of these types of incidents at the nurse s’
station during the relevant period
indicates
Respondent’s
current layout is not effective , and the Court so finds.

Complainant proposes a performance - oriented
solution to the nurse’s station .
Contrary to Respondent’s characterization of the abatement proposal ,
the Citation
does not
mention a particular solution; instead,
Respondent is expected to reconfigure the station to prevent the types of incidents described above:
( i )
jumping ove r the counter ; (ii)
walking through the door ;
and
(iii)
grabbing items that could be used as weapons.
(Ex. C-1 at 7).
At trial, of course, this idea was fleshed out to include solutions such as a locking door
and
higher and deeper countertops . (Tr. 145).
The employees who were attacked at the nurses ’
station all testified they believed a
more substantial barrier , such as a door or higher counter,
would have prevented the types of attacks described above , a s did the experts, including Dr. Cohen. (Tr.
1352-56 ,
2032 ).
This consensus is reflected in the Guidelines
and Road Map , which
recommend deep counters at the nurses’ stations
up to enclosure
as a means of barrier protection , but also
states employers and workers
must
determine the appropriate balance
between creating a suitable atmosphere for the
services provided at the hospital and the type of barrier being used.
(Ex. C- 12 at 21).

Respondent contends the
number of injuries and incidents at the station is overblown,
citing only two injuries at the station in 2018.
(Tr. 143). Respondent
downplays incidents where patients entered the station without injury, including when one patient
“pulled a monitor from its base” without mentioning what happened to the monitor afterwards ;
or when another patient “grabbed a badge and keys”, which just so happened to be attached to a
staff member ; or when
a patient enter e d the station and “grabbed a bin of pens/paperclips”, which she subsequently used to throw
at staff .
( Ex. C -63, C-72
at 33 ).
Respondent
casts this proposal as a straw man and suggests Complainant is requiring it to fully enclose the station . While the Road Map mentions
enclosure
as an option, Complainant did not
include it among the options it was pursuing.
Respondent
also
argues it previously attempted to modify
a
nurses’ station
but notes it was poorly received by staff , who claimed it interfered with
performing their duties .
This argument is equally unconvincing
because it only suggests th at
particular iteration of the nurses’ station was inconvenient; however,
there was no evidence
Respondent attempted
to address this, and , for that matter, inconvenience is not a defense to the element of feasibility.
See
Tri-State Roofing & Sheet Metal, Inc. v. OSHRC , 685 F.2d 878, 881 (4th Cir. 1982) (“The particular views of workmen are not necessarily, and often times are not, the best determination as to what is safe and what is unsafe. Convenience rather than safety considerations often dictates a worker's perspective.”).

Finally, Respondent
yet again relies on a fatalist perspective on patient-on-staff
violence, when
it argues, “[W] hen dealing with patients with emotional disorders, enclosing the nurses’ station does not prevent an assault; it simply changes its location as the patient will commit the assault elsewhere if not clinically addressed. ”
Resp’t ’s
Br .
68.
Simply because
the possibility of a future assault exists does not
justify failing to respond in a concrete way to an easily identifiable problem.
P reventing an assault in the moment can give the staff member a moment to
prepare and the patient an opportunity to decompress, depending on the nature of the “dispute”.
In this instance, something as simple as a door
or making the counters higher and deeper
would likely have prevented
at least a handful of the encounters described.

All three experts testified that the reconfiguration of the nurse’s station would result in a material reduction of the identified hazard.
S ee Integra ,
2019 WL 1142920 ,
at *13-14 (finding expert testimony regarding material reduction of hazard of workplace violence sufficient without
requiring expert to quantify extent of reduction).

The Court finds the foregoing abatement feasible and effective
at materially reducing the identified hazard.

4. Staffing Issues

In this section, the Court will address two separate, but interrelated abatement proposals:
( i ) designating staff, with no
duties to prevent immediate response to a code, to res pond to
violent incidents; and ( ii ) ensuring staffing adequate for census and acuity, taking into account
patient aggression and history of violence. 38
As the following will show,
the Court finds Respondent has already implemented
Complainant’s proposal to designate a response team for acts of patient aggression.
Complainant failed to show
Respondent’s current
protocol
for Code Green
or Code Lavend e r
response is insufficient
in terms of time or adequacy of response.
In nearly ever y
report of a Code Green, the
treatment records indicate a robust response in terms of
the number of employees responding.
( See e.g.,
Tr. 1762, 1765, 2342-2343 ;
Ex. C-18 at 2 , 8 , 14 ; C-19 at 9 , 23,
31,
38 ; C-20 at
15 , 24,
29 ) .
That said,
the evidence also shows Respondent failed to properly staff
the units, whether at a baseline level or in consideration of
acuity. These two problems go hand-in-hand . In an ideal scenario, Respondent’s designated responder system, inclusive of PMLs , would be able to both respond to a code and account for a reshuffling of required, patient-centered responsibilities . However, given the restraints imposed by a lack of sufficient staff ,
the response may not be as smooth, or, more problematically , leaves staff members alone on a unit.
What the following will show is abatement of the
overarching
staffing problem will, albeit indirectly, solve
Complainant’s
issues with
Respondent’s code response protocol.

i. Designating Staff to Monitor and Respond

Ostensibly, Complainant’s proposal could be effectuated in one of two ways: ( i ) designating
a response team of staff members with no patient care duties
that would prevent
an immediate response; or ( ii ) designating a single security guard for the facility
on per-shift basis, who would respond to codes .
The exact nature of Complainant’s proposal was not made clear until the issue was discussed during Dr. Lipscomb’s testimony. Dr. Lipscomb drafted her report with the understanding the proposed security force would include four additional staff per shift. (Tr. 1554). During a colloquy with the Court, counsel for Complainant clarified Respondent was not expected to have someone on every unit
for every shift . (Tr. 1410). Instead, Complainant stated, “[W] hatever
the employer decides will abate the hazard, just making sure there is either designated staff or a security shift that could respond to it.” (Tr. 1410).
The Court finds Respondent’s
code response system, which designates responders and PMLs in advance of a shift,
achieves this in an effective way, albeit not in the manner Complainant intends.
Thus, Dr. Lipscomb’s report provides no assistance on this issue.

Complainant’s primary concerns appear to be the num ber of people responding to codes and the amount of time it takes them to respond.
Compl’t ’s
Br .
67 . 39
Indeed, some staff testified they believed there were not always enough people to respond to codes , but these were limited in
number,
and, in at least some cases, the problem was not with the protocol for response but with
the availability of staff as a general proposition. For example , Erin
Eckholm
and [redacted]
testified
they
did not believe there was sufficient staff on the overnight shift
to adequately respond
when
staff would rotate out to take breaks , which created temporary staff shortages , and especially when the shift was already short-staffed. (Tr. 1036-37 , 1134 ).
Situations such as this do not necessarily highlight issues with Respondent’s system of designated responders , but with the fallout of not having enough staff to fill in after the responders have left.
Similarly, Complainant also points t o testimony by
Emmett Wells, who attributed his injury to a failure of communication and lack of response; however, even he noted
“a lot” of people responded . He merely expressed his
belief the response was inadequate.
(Tr. 1090-1091).

While the Court agrees with Complainant that
having unfettered staff would likely reduce the response time
and, thus,
preventing injury or minimizing its severity , Complainant has failed to show Respondent’s current system of designated responders
was not effective
to deal with calling of Codes . As to this proposal, we are not discussing the prevention o f incidents leading to Code Greens; instead, the Court is being asked to assess a proposal
the principal goal of which is to minimize response time and maximize response numbers.
In order to reach the question as to the efficacy of Complainant’s proposal, Complainant must show Respondent’s existing methods are inadequate to the task .
See
Integra
2019 WL 1142920 ,
at *12 n.14
( “ [A] s a threshold matter, that the methods undertaken by the employer to address the alleged hazard were inadequate.” ) .
The problem for Complainant, though, is
it has not produced
sufficient
evidence to
prove
Respondent’s
Code Green
response
system
was
insufficient in
terms of the
time
it took to respond
or
the
number
of staff
responding to a Code Green .
In fact, according to
Respondent’s own internal study, its response
to Code Greens was adequate in that there was always a PML and at least 3 to 4 designated code responders for each
incident. (Tr. 2140).
The evidence on that topic, as discussed above, is equivocal at best.

Making matters more confusing is Complainant’s proposal, clarified at trial, that a single, dedicated responder
on each shift would be sufficient to abate the hazard. While the Guidelines, Road Map, and Sentinel Event Alert all recommend
the use of a dedicated response/security force , and former employees as well as the experts testified to the use of security at other places of employment,
such a recommendation is predicated on the existence of a force of security officers present at a
time. (Ex.
C-12, C-13, C-62).
This, of course, explains the assumption made by Dr. Lipscomb in her expert report
that each unit would be covered by a security officer. ( Ex. C-58) .
In this instance, the Court agrees with the assessment of Dr. Cohen, who opined
the use of a single security guard would simply transfer the hazard from direct care staff to the
guard, who would be in no better position than an individual MHT responding to a code. (Tr.
1952 ).
What is unclear, based on Complainant’s proposal, is whether the security guard is expected to respond alone, or whether
he/she is simply a first responder designated to respond more quickly to codes , who would be followed by other staff members either designated or otherwise available to respond .
Also, if the intent of Complainant was to have the security guard respond alone to Codes, the Complainant also failed to address how this proposal would be effective if the security personnel
were
already responding to a Code and another Code was called at the same time.

Because the nature of the proposal, at least with respect to the hiring of professional security is concern ed, is so vague, the Court finds Complainant failed to
establish its proposal
for one dedicated security personnel per shift for the entire hospital
would materially reduce the hazard. 40

ii. Ensuring Adequate Staffing

The Guidelines, Road Map, and Sentinel Alert all refer to adequate staffing as a factor associated with workplace violence, but none of them provide specific guidance as to how to make that assessment. (Ex. C-12, C-13, C-62). For that matter, there is no specific standard or regulation that indicates a minimum staffing threshold. Notwithstanding the lack of any concrete standard for compliance, Complainant contends
the evidence shows
Respondent understaffed the units according to its own
staffing
matrix and further argues the matrix itself, at least in certain circumstances, does not establish a sufficient baseline for staffing. Respondent contends the matrix and subsequent staffing decisions account for changes in acuity, including special orders, to ensure adequate staffing, and accuses Complainant of establishing a “subjective, unquantifiable” standard against which this and all future staffing will be measured by OSHA.

The Court finds the weight of the evidence shows Respondent ( i ) failed to account for acuity in either the matrix itself or in its staffing decisions; ( ii ) failed to consider the consequences
of
staffing at the levels provided in the matrix would have when staff was confronted with Code Greens, or even mundane activities like taking lunch breaks, especially during the overnight shift; and ( iii ) failed to respond to regular, recurrent complaints regarding staffing from the staff itself, which regularly identified hazardous situations created by understaffing.
T he Court also finds Respondent
ultimately confessed feasibility by adding
staff , after the inspection,
who are not counted towards the matrix baseline but are still available to
engage in Code Greens and/or fill in the voids in staffing left behind by designated responders.

a. Respondent’s Program Was Not Effective

Respondent
does not have
a polic y
for assessing and responding to acuity
to ensure adequate staffing .
Forster and Smith both testified it is considered, but
no one testified as to how
staff allocations are made because of it .
Whether due to a failure of policy or simply a failure to consider acuity, there is an
un expect ed similarity between baseline staffing levels in the matrix , irrespective of which unit is under consideration
and the relative acuity of the respective units . To be sure, Respondent discussed how staffing decisions were made in the weeks prior to a given shift and that modifications were made up to and even during the shift itself. Respondent
also presented evidence about how it
address es
unforeseen staff shortages
when staff call out sick, including reassigning staff, utilizing staff (such as the house supervisor) not included in the matrix,
providing financial incentives for filling in, and holding over staff onto the following shift until
a replacement can be found. (Tr. 1978) .
The Court was not convinced by these explanations.

At trial, the Court attempted to
discern why the staffing
levels provided in the
matrix
are
essentially the same across the board, irrespective of
the
unique characteristics
of the unit in question.
(Tr. 1849-1853).
E ach unit is different .
Crestone and Pike units are designated as
intensive treatment units ,
each of
which house s
adult patients with severe psychiatric and behavioral disorders .
In fact, the lion’s share of violent patient-staff encounters
occurs
in these units ; however, their baseline staffing levels are no different than the Torrey’s unit ,
which houses lower acuity adult patients, or the
Sunlight unit, which houses adolescent
patients. (Ex.
C-74, C-75) .
The Court was not convinced by Respondent’s explanation at trial, nor is it any more convinced of Respondent’s argument here.

First,
the Court is not convinced by the explanation given by CNO Forster that
discharges
in Torrey’s and
a more active population in Sunlight justify
staffing th ose
units at virtually the same levels
as the ITUs
across the board.
Dr. Lipscomb
and Dr.
Argumedo
testified t he
similarity did not make sense . (Tr.
1000-1002, 1366).
Second,
the data presented at trial showed Crestone and Pike were the locus for
a highest proportion of the assaults occurring at Centennial Peaks .
Forster and Smith, who
oversaw
staffing, testified they increased the baseline numbers of the matrix
in Crestone and Pike; however, according to the matrices presented at trial, Respondent
actually reduced
the number of staff
in
Crestone, Pike, Torrey, and Sunligh t
in 2019
even
after i t reviewed the data showing a drastic spike in
employee injuries resulting from patient assaults.
( Tr. 1800-1801 , 2357-2359 ;
Ex.
C-74, C-75 ).
Forster testified
he reduced staff numbers in the ITUs because they were overstaffed during the relevant period; however, the
data regarding assaults, coupled with
repeated employee complaints regarding the lack of adequate staff,
indicates
otherwise .

Respondent says it considers a host of factors, from experience to acuity, when making staffing decisions , including the development of the staffing matrix.
It is unclear, however,
how those decisions are made and whether
they have any real effect.
Forster testified he
always considered requests for additional staff and would attempt to fulfill the request if he deemed
there was a need.
According to
testimony from
[redacted]
and Mancha, however, their requests were
usually left unmet about 50% of the time or more , and it was unclear as to why requests were denied .
(Tr.
509, 560 ) .
Not only did Respondent not have a
written
policy or
guidance
for
assigning staff,
but there was also
no sense from either Smith or Forster , other than a vague statement about considering factors impacting acuity,
as to how they
allocated staff when
patients
were
on one-to-ones, five-minute checks, or assault precautions . And, as
recounted
above, all objective indications
suggest Respondent had a hard enough time meeting the minimum requirements under the matrix .

According to staff, u nderstaffing was a chronic problem ; however, this was
particularly acute during the overnight shift.
During the daytime ,
administration and management, many of whom were trained in
C ode
G reen response and CPI, were available to respond to codes or to fill in on the backend
when designated responders went to a code. (Tr.
448, 507,
572, 1030,
1094 ).
In
addition, during the relevant period, Respondent staffed the hospital with additional
staff, who were not counted against the matrix , such as the A dministrator-on-call (AOC) and milieu and nurse managers.
Those extra-matrix staff were not typically available on the overnight shift, where staffing is typically lower due to the assumption that most patients will be sleeping during that time.
(Tr.
1195 ). In fact, according to
Mancha and
Ekholm , they do not recall having
milieu managers
or resources nurses
available to them
on the overnight shift
during the relevant time period. (Tr.
508, 572,
1030). As it turns out, the
milieu manager
position was eliminated in 2018 and was not renewed until 2020 , after the inspection concluded. (Tr.
1601, 1748). Thus, other than the House Supervisor, the overnight shift did not have extra-matrix staff available to fill in when necessary . (Tr. 572, 1030). For that matter, the House Supervisor
was regularly relied upon to fill
in when units were short-staffed due to
callouts
or unexpected admissions. ( Ex. R-54 at 1).
Having non-matrix staff having to fill in when units were short staffed, in and of itself, establishes that staffing ratios were inadequate.

Respondent contends Complainant’s concerns about understaffing, especially on the night shift, are overblown. In particular, Respondent notes Dr. Lipscomb could not assess
how often situations arose where there was not sufficient staff to
both respond to a code and provide adequate staffing of the unit during
the
pendency of the code , and [redacted]
testified codes were only called on overnight shift about once every two weeks . (Tr.
1132,
1478-1479) . While th ere may be no
explicit
data to assess how often a staff member could be left alone
during a code, the Court finds there was ample information available to Respondent
to ascertain it was not a
unique occurrence
with
callouts
being a regular occurrence and
overnight shifts already starting with one less staff member and limited extra-matrix staff .

Staff submitted
m ultiple
reports
to management
describing
the impact of working short-staffed
and the challenges faced during th ose
time s . These challenges included
the
staff’s
inability to take breaks
and
trying to account for
a
patient who is on a one-to-one observation “while awake”
but is awake during a period of time when th e staffing levels assume the patient will be sleeping.
Terry
Bierweiler
submitted multiple reports /emails to management illustrating
how his unit was short-staffed and discussing the potential impacts if
a code was called, which, contrary to
[redacted] ’s
testimony , he believed “were not uncommon ”. (Ex. C-25, C-65). In
one email ,
Bierweiler
noted he
only had
two
nurses and 2 MHTs
in the Pike unit for a 26-patient census. (Ex. C-25) .
According to the matrix, Pike was already short one employee. 41
(Ex. C-74).
To make matters worse, one
MHT was covering
a one-to-one
and another was performing five-minute checks in addition to
the normal 15-minute rounds , which meant
a code or even a scheduled break would result in only two staff members covering a 26-patient unit . (Ex. C-25).
Mancha testified she had experience similar scenarios
when she worked overnight shifts , as did many other staff members . (Tr. 571-72 ,
1031-1033,
1040,
1053,
1139,
1618-1619; Ex.
C-24,
C-40,
C-41, C-42,
C-68, C-70 ).

Respondent contends many of the instances where the unit was left short-staffed was due to staff calling out unexpectedly , which it attempts to
cure through
incentivizing staff who pick up additional shifts or through holding staff over.
The problem, as noted by Forster, is that
callouts
happen “quite frequently” . (Tr. 2457). In one month, alone, Forster noted
seventy-five
employees who called out sick , or a little more than two employees per day . (Tr. 2457).
In other words, while individual call outs might be hard to predict ,
the possibility of
short staffing
resulting from
callouts
appears to be an ever-present concern
and one which Respond ent should account for, but does not, in its staffing decisions.

Based on the foregoing analysis, and the facts described earlier in this opinion, the Court finds Respondent’s staffing protocol was not sufficient to address
the hazard of workplace violence.
Through reports , surveys,
and emails to management, staff repeatedly
identified
short staffing
as a chronic problem that exposed
them to acts of workplace violence or, at the very least, left staff members in situations (such as working alone ) where the possibility of being attacked
was substantially higher.

b. Complainant’s Proposed Abatement is Feasible
and Would Materially Reduce the Hazard

The Court finds Complainant established its proposed abatement is feasible and would materially reduce the hazard.
As to feasibility, the Court finds
Respondent essentially admitted to feasibility , if not effectiveness,
when it added back the
milieu manager position as a non-matrix staff member
and ensure d
one would be available on each shift.
The addition of non-matrix staff members
will not only alleviate the problems with short staffing generally but will also shore up the ancillary problem of having an adequate work force to cover units when designated responders respond to a code. This conclusion is supported by the opinions of both Dr. Lipscomb and Dr.
Argumedo , who
testified
more staff means
quicker response to codes and increased availability to handle the needs of patients . ( Tr.
837-39, 919,
1001,
1369;
Ex. C-58 at 33). As to the latter, Dr. Lipscomb
pointed to a focus group she participated in where patients reported acting out aggressively when they perceive their needs are not being met, which
often accompanies a shortage of staff. (Ex. C-58 at 33).

Respondent
levelled two primary criticisms a t
this form of abatement. First, Respondent contends
Complainant has
proposed an unduly vague requirement
that Respondent “maintain
staffing that is adequate for
census and patient acuity, taking into consideration patient aggression and history of violence . ”
(Ex. C-1).
While Complainant has not proposed a
specific number of staff that would be appropriate based on census and acuity, the Court finds this is not fatal.
Given the differences between unit acuity at a baseline level
within Respondent’s own facility,
the Court finds establishing a specific number
is not achievable in a vacuum . Instead,
Respondent
must, as stated in the Citation, take certain factors into account when making staffing decisions both in terms of the baseline levels established in the matrix and
when setting/revising the staffing schedule for the coming weeks.
Respondent
claims it considers
acuity ,
but, in reality
it
has not elucidated a process by which it makes such decisions and, ultimately,
Respondent
failed in many cases to meet its own minimum level of staffing per the matrix.
The numerous complaints from staff in reports, emails, and surveys over the years solidify this fact .
At a minimum , not only should staffing
be
increase d
to prevent the sort of shortages identified in this case, but Respondent should also be able to articulate how it considered acuity , patient aggression, and history of violence when making staffing decisions.

Second, Respondent tried to question the effectiveness of additional staff through the testimony
of Dr.
Cohen , who cited
studies
written by
Vincent
Staggs , which
he believed stood for the proposition that higher staffing levels do not necessarily equate to a safer workplace. (Tr.
1979-1981; Ex. R-2 at 15.
First, Dr. Cohen admitted the study had self-reported limitations, including
the lack of a conclusion about causation. (Tr. 2064-2066). In other words,
because of the
way
data was collected,
Staggs could not conclude whether
the increase in violent acts he discovered
was
the result of increased staffing levels or whether
the increased staffing levels were imposed in response to an increase in violent behavior.
Second, the Court finds
Complainant’s concern s
go to something more basic ; namely, whether Respondent had a sufficient number of staff to safely
accomplish the duties assigned to them , including code response .
According to Dr. Lipscomb ,
there are studies, such as Staggs, which purport to show a negative relationship between staffing levels and patient violence , and there are also studies which show a positive relationship between staffing levels and patient violence. (Tr. 1477-1478).
Lipscomb
noted
the
Staggs article
should
be read
carefully to understand there is a level
at
which adding staff
results in equivocal findings
as to its effect on patient violence .
(Tr. 1477).
However, a ccording to Lipscomb, “I don’t think any expert or practitioner would agree that having staff levels where one or two people are left alone on a unit with psychiatric patients that are admitted because they’re a danger to themselves or others that that is safe.” (Tr. 1476-1477).

The Court finds the testimony
of Dr. Lipscomb
and Dr.
Argu m edo
are entitled to
controlling
weight for the reasons set forth above.
See Integra ,
2019 WL 1142920 ,
at *13-14 (finding expert testimony regarding material reduction of hazard of workplace violence sufficient without requiring expert to quantify extent of reduction).
The opinion of Dr. Cohen is given little weight since the study he cited and relied upon has been identified as flawed and discounted by Dr. Lipscomb and Dr.
Argumedo .
Based on the foregoing, the Court finds Complainant established the feasibility and effectiveness of this abatement proposal
and that it would material ly
reduce exposure to the hazard of workplace violence.

5. Communication
   to All Affected Staff
   Incidents of Workplace Violence
   and
   Escalating Behavior

Complainant contends Respondent failed to properly communicate vital information about
patients’ previous history of violence and
indications of escalating behavior, which have the potential to lead to violence.
In particular, Complainant contends Respondent’s system of communication failed in
at least four
respects, including
( i ) incomplete information provided by intake department prior to admitting the patient to a unit; ( ii )
inadequate information exchange
during shift change , such as
information about prior violent acts or indicators of violence occurring while at the facility;
( iii ) not
sharing information about a patient responsible for a code being called; and ( iv )
not sharing information with ancillary staff, such as housekeeping, about potentially assaultive patients.
Ultimately, the Court finds Complainant failed to prove Respondent’s existing system was ineffective . Although Complainant identified discrete instances where information was not properly transmitted , on the whole the Court finds Respondent had systems in place to ensure that information
about violent incidents and indicators of violence was communicated , or made available to, direct care staff.

The Court also finds Complainant failed to present evidence which proved
Respondent failed to communicate relevant
warnings to
ancillary staff, such as housekeepers
and cafeteria workers .
Mere statements in the Citation or Complai n ant
are
not acceptable proof
of a violation.

Complainant
asserts
Respondent’s
intake procedures
were insufficient because some employees
expressed
concern,
they did not always receive adequate information from the intake department about new patients
and sometimes they did not have sufficient time to review the information they received. (Tr.
366,
563; Ex. C-24).
While there were occasions when
patients were transferred to units without a complete assessment, the Court finds
this was not a failure of policy or procedure but, instead,
the result of emergent circumstances and/or
discrete failures to include a
High-Risk
Notification for patients assessed to be a violence risk.
A review of the intake assessment form shows Respondent’s intake clinicians typically perform a thorough assessment of incoming patients , which is transferred to the unit when the patient is admitted. (Ex.
R-79 ).
While Dr.
Argumedo
opined the assessment was deficient due to the
manner in which it was collected in the file, the Court finds this was a criticism of
form over substance. There was no indication the information gathered was irrelevant or inaccurate . There were occasions when the
High-Risk Notification form was not included in the assessment; however,
there was no indication the information gathered in the assessment was deficient
or could not be used to assess violence risk.
Further, although there were occasions where intake would do a direct admission to the unit , which made effective transfer of information difficult (if not impossible), both Dr. Lipscomb and Dr.
Argumedo
testified there are times when direct admits
are appropriate to initiate medical interventions
when a recently admitted or transferred patient cannot be de-escalated through other means. (Tr.
1059, 1517).

For similar reasons, the Court finds
Complainant failed to prove Respondent’s system of information at shift change, including information about a patient’s prior act s
of violence,
was ineffective.
Administrators and staff alike testified each shift
overlaps by
20- 30 minutes to permit the exchange of information during observation rounds.
During the rounds, staff discuss
the current state of all patients, including whether
a particular patient has engaged in concerning behavior or has assaulted a staff member. (Tr.
366-67 ). This information is also transmitted to the Treatment Team, which uses that information to inform
treatment decisions. (Tr.
681,
1737 ). Although there may have been occasions where conducting handoff reports at shift change was complicated by extraneous factors, like staffing,
such criticisms are properly leveled at staffing concerns, not the manner of information exchange.
Further, though Complainant criticizes Respondent for not requiring
MHTs to review patient records or attend treatment meetings, the Court finds this does not suggest anything deficient about the program.
Patient files were not off-limits to MHTs , who could review them if they chose to do so.

S ome of Complainant’s suggestions
do not address a significant concern or are otherwise impractical to implement.
First, h ousekeeping and food service workers do not provide direct care , and there was no testimony or other evidence to suggest
supplying these
employees with patient
information would be effective at addressing the workplace violence hazard .
There is no evidence in the record which indicated any acts of violence against the housekeeping or cafeteria staff.
Indeed, without a clinical or patient care background, it is unclear to the Court what housekeeping employees would conceivably do with this information.
Instead, Respondent provides such staff with a modified version of CPI training , which the
Court
finds is a more practical
and effective way to
address the potential for workplace violence. (Tr. 2145).
Second, the Court finds Complainant’s criticism that employees did not have adequate information about a patient prior to responding to a Code Green is largely impractical.
According to Respondent, staff members typically stick to a single unit, which means they are more familiar with the patients they regularly work with.
At Centennial Peaks, there are four inpatient units, which can have more than
one hundred
patients at a time.
It is wholly impractical to provide every staff member with information about each patient
and simultaneously expect them to review such information .
MHTs have patient files available to them, but do not typically review the m . More practical , and just as effective,
is Respondent’s current Code Green regime, which uses a PML to guide the code response
and inform the participants of relevant information.

Based on the foregoin g, the Court finds Complainant failed to prove Respondent’s existing system of information exchange is insufficient to address the hazard of workplace violence. Accordingly, Complainant’s
abatement proposal is rejected.

6. Training on WVPP

Complainant contends Respondent failed to provide adequate training
in all elements of the WVPP
and identified
five
areas
in particular
that should be included in such training . These include:
( i )
how to call for assistance;
(ii)
uniform methods for responding to codes;
(iii)
hands-on code drills;
(iv)
how to contribute to a post-incident debrief/root cause analysis; and
(v)
preventing
badges and/or communication devices from being taken by patients. (Ex. C-1).
Respondent contends Complainant is yet again elevating form over substance
and points to the numerous training modules it requires in order to address the problem of workplace violence, including CPI training, code green drills,
and verbal de-escalation . Respondent oversimplifies what Complainant seeks in this abatement , which is targeted toward the
comprehensive nature of the WVPP.

As much as
any proposal
discussed thus far , training on the WVPP is a
necessary
part of
creating and implementing a comprehensive WVPP . Understanding the plan
and, consequently, how to define and prevent
workplace violence
are crucial
to engaging in an all-encompassing process to prevent workplace violence.
( Ex. C-58 at 37-38).
The important aspect of this abatement proposal is to ensure all training related to acts of aggression or used as abatement measures therefor is connected under a single umbrella :
the WVPP. In other words, employees need to be
instructed in more than CPI techniques
and the lik e; employees
must also be
shown how
each of the
training elements listed in the WVPP are connected to one another and, ultimately, toward the goal of reducing workplace violence.

Complainant’s criticism o f Respondent’s training program is
about ensuring the disparate elements
listed within Respondent’s
WVPP are adequately sewn together as part of a comprehensive whole ,
not
about whether
it has provided training on
individual
elements of
the
program.
The evidence shows
Respondent provides training in numerous areas, including a
rigorous
approach to CPI, de-escalation, and
an on-the-job shadowing program .
However,
the overwhelming weight of the evidence shows Respondent did not provide training on the program itself.
Employees testified they did not recall receiving training about the WVPP, and administration officials could not remember whether such training had ever been provided.
Th e
failure to connect the disparate elements of Respondent’s plan
played out in numerous ways. For
example, employees expressed confusion
over the proper protocol for restraint and seclusion under the Be Free program , which aimed to reduce restraints and rely on
verbal de-escalation techniques. This confusion, in the opinion of many employees, led to injuries
because they were unsure whether and when to institute a restraint.
Confusion spread to other areas of
training that should have been connected through the WVPP, including
chain of command under the PML program
and
understanding when to report a workplace violence injury.
According to Dr. Lipscomb, confusion could be remedied by training not only on
programs under the umbrella of
the WVPP, but
training on the core elements of the WVPP itself, including the Management Commitment and Employee Participation
building blocks , which the Guidelines note are
vital to ensuring
the success of the program. (Tr.
1377-78 ; Ex.
C-58 ). Dr. Cohen
did not opine on the content or sufficiency of the program; rather, he relied on deposition testimony merely to assert such training had taken place. (Tr.
2068-69; Ex. R-2 at 17).
Because Respondent failed to provide training on the plan as a
whole and
considering the confusion that resulted from failing to connect major initiatives to the purpose of the plan, the Court finds
Complainant established Respondent’s existing training regime was ineffective at addressing the hazard of workplace violence.

The Court finds Dr. Lipscomb’s testimony
shows
that implementation of training on Respondent’s comprehensive WVPP is feasible and such training would result in a material reduction of the workplace violence hazard. S ee Integra ,
2019 WL 1142920 ,
at *13-14 (finding expert testimony regarding material reduction of hazard of workplace violence sufficient without requiring expert to quantify extent of reduction).

That said, the Court does not find
all elements of Respondent’s
WVPP,
or its training program were deficient . With respect to Code Green Dri lls recommended by Complainant, the Court finds such drills were occurring based on the testimony of Kevin Smith, who w as responsible
for initiating them. (Tr.
2308 ). Complainant contends the lack of documentation—only three drills in
November 2018 — suggests the drills were not occurring on the schedule suggested by Respondent; however, employees testified they had participated in drills on at least a semi-frequent basis, which the Court finds is sufficient to overcome the dearth of
documentation of those drills.
( Tr. 519-520,
1378;
Ex. R-56)

As for the
argument about Respondent’s failure to ensure its employees were adequately trained in CPI/advanced CPI, the Court finds
the distinction between the two, at least with respect to the relevant time period, is much ado about nothing. All of Respondent’s direct care staff had received
the full two-day training on CPI. Whether the employees felt comfortable utilizing CPI
or questioned its effectiveness under certain circumstances, there was no competent evidence to suggest CPI training was ineffective as a means to de-escalate and/or restrain an aggressive patient , nor did the evidence show
advanced CPI was required because of such deficiency.
Further, as it relates to advanced CPI, the Court finds Respondent was in the process of ensuring its employees received
the training at the time the inspection occurred , and further finds Complainant failed to prove
CPI was ineffective such that additional training was necessary . According to
Smith , nearly 50% of Respondent’s employees had received advanced CPI training
at the ti me of the inspection.
Part of the reason for
this, according to Smith, is that advanced CPI
had only recently been introduced as an alternative to CPI training.
The Court concludes it would be punitive to hold Respondent liable for not implementing advanced CPI training when it had commenced a schedule for such training ,
and there was no discernable evidence to indicate that CPI ,
alone ,
was deficient.

T his proposed abatement method could have been subsumed under abatement item # 5, which addressed the need for a
comprehensive
WVPP. As noted in the Guidelines, Road Map, and Sentinel Alert,
one of the five building blocks for a WVPP is a robust safety and health training
program . (Ex. C-12). At the top of the list of topics
for such training: the workplace violence prevention policy. (Ex. C-12 at 32).
Based on the foregoing, the Court finds
the
Complainant :
( i )
established
significant shortcomings in Respondent’s training regime as it relates to the WVPP ; (ii) has established the feasibility of
training on the WVPP ; and (iii) training in the WVPP would materially reduce the hazard of workplace violence .

7. Conducting Investigations & Debriefings 42

The discussion around this abatement item highlights one of the key principles of a comprehensive WVPP:
failures and/or shortcomings in one area of the plan invariably impacts the other elements of the plan.
That is particularly the case here, where
how you define workplace violence will dictate
what type of events are reported and, subsequently, which events
will be investigated and analyzed.
T he
Guidelines stress the importance of post-incident evaluations
and appear to suggest casting a wide net to include “near misses”, which it defines as
incidents that “could have potentially resulted in death ,
injury, or illness.”
(Ex. C-12 at 30).
This would be consistent with the
parties’ stipulation defining workplace violence as including
not only assaults but also threats , even if it is inconsistent with Respondent’s definition in practice, in the WVPP, and in the events it chooses to analyze and debrief.
The Guidelines state ,
“ I nvestigating incidents of workplace violence thoroughly will provide a roadmap to avoiding fatalities and injuries associated with future incidents.”
(Ex. C-12 at 28).
To get an accurate road map, however, you need good data.

Complainant contends Respondent’s policy, or lack thereof,
regarding post-incident debriefing and camera review did not account
for all
workplace violence injuries.
In support of
this claim, Complainant relies
on the testimony of multiple employee witnesses , who testified they did not typically participate in debriefs or camera reviews, even for incidents involving seclusion and restraint
(S&R) .
(Tr.
370, 1128 ,
1052, 1082-86,
1670-72 ;
Ex.
R-16 ).
Further, though camera reviews are mandated for both S&R and
"all reported staff injuries”, staff testified camera reviews were rare, and, to the extent they occurred,
were focused on evaluating CPI technique
and
served more as
an opportunity for management to critique performance
more
than as a n opportunity to review what happened
and seek input . (Tr.
158,
578-580.
1101 ; Ex.
R-16 ).
Respondent, on the other hand,
argues it performed
debriefings consistent with the WVPP, maintained accurate records of patient assaults on staff,
tracked and trended employee injuries, and
discusses
“near misses” in the context of successful Team Lavender interventions and
Code Greens not resulting in restraint.

Respondent claims both Dr. Lipscomb and CSHO
Oberbeck
reached inaccurate conclusions when it came to issues like maintaining accurate records of assaults, tracking and trending injuries, and whether debriefings were occurring after incidents other than
S&R . The problems for Respondent are
three -fold. First, it failed to put forth convincing, countervailing evidence to suggest it performed debriefs or reviews of incidents other than
S&R . The only documentation of debriefings was found in the S&R packets, and the only evidence employees were debriefed when a
S&R
was not involved is the word of its administrators and management, who could not remember whether they performed training on the WVPP or the results of a root cause analysis of a particularly gruesome incident involving a patient with a knife. (Tr. 2158) .
Smith testified he kept a spreadsheet on codes, indicating information about the code and providing
the name of who led the debrief, but none of this documentation was submitted at trial. 43
(Tr. 2313).
The limited focus of
documented
debriefs and investigations, in turn, limited
the universe of potential incidents subject to review and potentially creat ed
blind spots in any future hazard or trend analysis.

Second, as discussed repeatedly above, Respondent’s record of assaults and injury
are inaccurate . Employees did not report every injury , and Respondent did not have an accurate record of those injuries as illustrated by CSHO
Oberbeck’s
analysis of the
EARs, HPRs, and OSHA 300s.
The same is the case here with respect to debriefs and follow-up investigations.
Dr.
Argumedo
testified her review
of incident reports and patients ’
files revealed no documentation of camera reviews. (Tr. 866).

Dr. Cohen’ s review of case files does not counter this analysis, as he relied on management depositions and
policy to assert debriefing and camera reviews were occurring.
(Tr. 2074; Ex. R-2 at 17-18).
The debriefs performed were limited in scope
and did not always include all parties to the incident , which Dr. Lipscomb testified is vital to
an accurate determination of what occurred
and how to prevent those events going forward . (Tr.
1380 ).
Respondent claims
some
staff
members are
unwilling to participate for various reasons, including
be ing
traumatized by revisiting the incident. There is no way for this to be verified , but the weight of employee testimony suggests they were simply not included, not that they chose not to participate.

Finally,
Complainant argues Respondent should conduct a review and debrief of near-miss incidents in the same manner as it reviews incidents resulting in injury, which is consistent with
the recommendation from the Guidelines
discussed above.
Respondent argues
Complainant never defines “near-miss” , and “ in the context of an in-patient behavioral health facility, when it is not predictable when violence or an assault would happen, this is not even practical. ”
Resp’t ’s
Br .
89.
The Court is confused by this line of argument. Complainant seeks to define “near miss” in the same way as the Guidelines. While a staff member may not be able to assess a near-miss incident
he/she
is not aware of because it never came to fruition, they are all-too-aware of incidents
that could have result ed
in serious injur y, including a
patient who makes physical threats and postures before being verbally de-escalated or patients who throw computer monitors or other items
turned into weapons.
To the extent Respondent is relying on
its documented “success” in the early days of the Lavender Team, the Court notes these documented successes
shows how Respondent’s employees were able to avoid restraint in a particular situation, but there is nothing to suggest
documenting
this limited universe of interactions was effective
at reducing injuries . During this same
period
employee injuries went up substantially .

The testimony of Dr. Lipscomb, Dr.
Argumedo , and the
discussion of post-incident debriefings and investigations, including
near misses , all attest to the effectiveness of
a robust system of review that relies on
accurate recordkeeping of injuries and incidents ,
a clear and consistent definition of workplace violence , and commitment to
providing staff with opportunities to engage in the process in a constructive manner. The foregoing establishes Respondent ’s existing regime was not effective because
it did not have accurate records due to the limited universe of
incidents where it performed documented briefings and review . This
is due to a
lack of clear policy as to what constitutes an act of workplace violence
and, subsequently, what should be documented.
See, e.g.,
UHS of Delaware, Inc. and Premier Behavioral Health Solutions of Florida, Inc. dba Suncoast Behavioral Health Center , 18-0731,

at 101-102
( OSHRC ALJ
2021)
( pending
Commission review on other issues )

(“[I] ncident
investigations and debriefings were [] hampered by their scope
. . . .”);
Accordingly, the Court finds Complainant established : ( i ) significant shortcomings in Respondent’s incident investigations and debriefing regime; (ii) the feasibility of the
proposed
abatement; and (iii)
strengthening
Respondent’s
incident investigation and debriefing policies
would materially reduce the hazard of workplace violence.
S ee Integra. ,
2019 WL 1142920 ,
at *13-14 (finding expert testimony regarding material reduction of hazard of workplace violence sufficient without requiring expert to quantify extent of reduction).

8. Economic Feasibility

In
Beverly Enterprises , the Commission defined “feasible” as economically and technologically
capable of being
done.
Beverly Enter s. , Inc.,
19 BNA OSHC
at
1190 ( citing
Baroid
Div. of NL Indus., Inc. v. OSHRC , 660 F.2d at
447.
The obligation to prove economic feasibility under the general duty clause falls to Complainant.
See
Waldon Health Care Ctr. , 16 BNA OSHC
at 1063 ( finding the Secretary failed to fulfill his burden of establishing that it was economically feasible for the
employer to have made the HBV vaccine available to their employees on a preexposure basis) .
Complainant
presented compelling evidence indicating its proposed abatement measures would be economically feasible.

Specifically, Complainant
pointed to three bases upon which all of the proposed abatements would be feasible: ( i ) many of the proposed abatements only require a change in policy, documentation , or practice, such as implementing a comprehensive WVPP ;
(ii)
communication of incidents of workplace violence;
adequate training, and conducting debriefings; ( ii i )
Respondent implemented, in some form or fashion, some of the proposed abatements
after the inspection occurred , including
purchasing additional radios , redesigning another reception area in the ECT department to be fully enclosed , and adding additional staff (milieu managers), whose
job was to
monitor acuity, patient precautions, and individual support plans ; and ( i v )
Respondent failed to introduce any evidence to suggest the
bottom-line revenue testified to by Respondent’s
acting C hief
F inancial
O fficer
was either inaccurate or insufficient to pay for
additional staff or updates to the nurse’s station, two abatements i t either implemented or performed in other areas (the ECT reception area) after the inspection occurred.
(Tr. 1584-1586; Ex. C-79). Furthermore, as illustrated in
the Road Map, most, if not all, of the foregoing abatement measures have been implemented in facilities
like Respondent’s
thr oughout the country.

Based on the foregoing,
the Court finds Complainant established the economic feasibility of the proposed abatement measures , which the Court has found would be
technolog ically feasible of being implemented and effective at addressing the hazard of workplace violence.

VI. Affirmative Defenses

Respondent advanced
four affirmative defenses in its Answer.
See
Answer, August 9, 2019. At trial, the Respondent indicated it was pursing all of the m . ( Tr .
20 ) .
In Respondent’s Post- trial
B rief, it failed to brief any affirmative defenses as instructed by
the Notice of Receipt of Trial Transcript and Briefing Order dated November 2, 2022. A ccordingly, a ny affirmative defenses raised in Respondent’s Answer are deemed abandoned.
G a.
-Pac .
Corp. , 15 BNA OSHC 1127, 1130 (No. 89-2713, 1991).

VII. Penalty

Under the Act, the Secretary has the authority to propose a penalty according to Section 17 of the Act.
See
29 U.S.C. §§ 659(a), 666. The amount proposed, however, merely becomes
advisory when an employer timely contests the matter.
Brennan v. OSHRC
( Interstate Glass ) , 487 F.2d 438, 441–42 (8th Cir. 1973);
Revoli
Constr. Co. , 19 BNA OSHC 1682, 1686 n. 5 (No. 00-0315, 2001). Ultimately, it is the province of the Commission to “assess all civil penalties provided
in [Section 17]”, which it determines
de novo . 29 U.S.C. § 666(j);
see also
Valdak
Corp. , 17 BNA OSHC 1135 (No. 93-0239, 1995)
aff’d , 73 F.3d 1466 (8 th
Cir. 1996) .

“Regarding penalty, the Act requires that “due consideration” be given to the employer’s size, the gravity of the violation, the good faith of the employer, and any prior history of violations.”
Briones Util. Co. , 26 BNA OSHC 1218, 1222 (No. 10-1372, 2016) ( citing
29 U.S.C. § 666(j).
These factors are not necessarily accorded equal weight.
J.A. Jones Constr. , 15 BNA OSHC 2201, 2216 (No. 87-2059, 1993) ( citation omitted ).
Rather, the Commission assigns the weight that is reasonable under the circumstances.
Eric K. Ho,
20 BNA OSHC 1361, 1379 (No. 98-1645, 2003) ( c onso lidated ),
aff'd sub nom. ,
Chao v. OSHRC , 401 F.3d 355 (5th Cir. 2005) ;
overruled on other grounds ,
E.
Smalis
Painting , 22 BNA OSHC 1553 (No. 94-1979) . It is the Secretary’s burden to introduce evidence bearing on the factors and explain how he arrived at the penalty he proposed.
Valdak
Corp ., 17 BNA OSHC at 1138.
“The gravity of the violation is the ‘principal factor in a penalty determination.
Assessing gravity involves considering: ( i ) the number of employees exposed to the hazard; ( ii ) the duration of exposure; ( iii ) whether any precautions have been taken against injury; ( iv ) the degree of probability that an accident would occur; and ( v ) the likelihood of injury. See, e.g. ,
Capform , Inc. , 19 BNA OSHC 1374, 1378 (No. 99-0322, 2001),
aff’d ,
No. 01-60417, 2002 WL 35650276 (5th Cir. Mar. 20, 2002) .

Complainant proposed a penalty of
$10,229 , which includes in its calculation
a 10% reduction in the original penalty due to Respondent’s size.
The foregoing analysis shows
nearly all of
Respondent’s direct
care staff, and even some of the ancillary staff, are exposed to the hazard of workplace violence
on a daily basis. Respondent has taken some precautions against injury, but as
has been shown, many of those measures were ineffective.
Finally, based on the testimony of
all employee witnesses ,
the likelihood of being injured is substantial. Accordingly, the Court finds the penalty proposed by Complainant is approp riate.

Based on the entirety of the foregoing decision, the Court
finds Complainant met its burden to establish a violation of 29 U.S.C. § 654(a)(1) . Accordingly, Citation 1, Item 1 shall be AFFIRMED and a penalty of $10,229 shall be ASSESSED.

VIII. Conclusion

In the end, the most important takeaway from this case is
the importance of
an all-encompassing, systematic approach to workplace violence.
Consistent with Dr. Cohen’s concern that
interventions should be evidence-based, a comprehensive
workplace violence protection plan
is data-driven , but the program will only be as good as the data collected. This requires a clear definition of
workplace violence that guides what is reported, how it is tracked, and
how to respond.
Management needs to ensure the programs are carried out
and, perhaps most importantly, needs to take seriously the concerns of its staff, who are intimately connected to the problem of workplace violence . While the Court has noted areas where Respondent has been successful and where the existing program has proved deficient,
the foregoing should
nonetheless
serve as a starting point and road map towards developing a
truly comprehensive
workplace violence protection plan .
Areas of success, just as much as areas of failure, should be reviewed and serve as additional data
to shape and form the workplace violence protection plan.

IX. O rder

The foregoing Decision constitutes the Findings of Fact and Conclusions of Law in accordance with Rule 52(a) of the Federal Rules of Civil Procedure. Based upon the foregoing Findings of Fact and Conclusions of Law, it is ORDERED that:

1. Citation 1, Item 1 is AFFIRMED as serious, and
   a
   penalty of $ 10,229
   is ASSESSED.

SO ORDERED

/s/ Patrick B. Augustine          Patrick B. Augustine          Judge, OSHRC

Date:
July 26, 2022

Denver, Colorado            

"

1
According to studies conducted on workplace violence, these numbers drastically underestimate the extent of the problem by a factor of three or more, which the studies attribute to employees’ understanding that violence perpetrated by patients/customers on staff is simply “part of the job.” (Ex. C-62 at 2).

2
Respondent also has patients who self-admit .

3
Subsequent references to the Joint Stipulations will
appear as follows: “(JS No. ___)”.

4 See Armstrong Utils., Inc. , N o . 18-0034, 2021 WL 4592200, at *2 n.2 (O.S.H.R.C .,
Sept. 24, 2021)
(finding it was “plain error” to not accept the parties’ stipulation);
CF & T Available Concrete Pumping, Inc. , 15 BNA OSHC 2195, 2199 (No. 90-329, 1993) (Commission accepted the parties’ stipulation that the alleged violation, if any, was serious).
The Court also notes the parties stipulated to all but
two
element s
of the Complainant’s
prima facie
case.

The parties did not stipulate to the issues of knowledge and feasibility.
In reality, the stipulations as to the elements of Complainant’s case are surplusage, because the Court already sanctioned Respondent for destroying video recordings of the worksite during the relevant period by imposing adverse inference s
and finding the destroyed videos would have established all but the feasibility prong of the general duty clause analysis.
See Order on Complainant’s Motion for Sanctions and Entry of Sanctions , Docket No. 19-1579 (April 19, 2021).
The stipulations were not submitted to the Court until nearly five months after the Court entered sanctions against Respondent.
See
Joint Stipulations , Docket No. 18-1579 (September 3, 2021).

5
Complaint did not request a reconsideration of this Order ,
nor did he raise it in his post-trial brief. As such, it is now the law of the case.
Ariz .
v. Cal . ,
460 U.S. 605 (1983) (law of the case doctrine requires that when a court decides on a rule, it should ordinarily follow that rule during the pendency of the matter).

6
Parties essentially argued the same points they argued in their original post-trial briefs just in more detail. While
Respondent has argued that
Westwood Pembroke
was wrongfully decided by the Commission and the case is currently on appeal to the Third Circuit Court of Appeals, the Commission ’s
Westwood Pembroke
Decision and Order is a Final Order of the Commission
as of this writing . As a Final Order of the Commission, the Court is bound to follow its precedent .   Gulf & W. Food Prods. Co. , 4 BNA OSHC 1436, 1439 (No. 6804, 1976)  (consolidated) (“[T]he orderly administration of [the OSH Act] requires that the Commission's administrative law judges follow precedents established by the Commission.”);  see  McDevitt Street Bovis, Inc. ,
19 BNA OSHC 1108 , 1110 (No. 97-1918 , 2000) (noting that Commission generally applies law of circuit to which appeal is likely, but concluding judge properly applied Commission precedent where pertinent circuit “neither decided nor directly addressed” issue).

7
Involuntary admissions come from area emergency rooms, as well as from local police.
(Tr. 95).

8
The parties repeatedly referred to the “milieu” when discussing the state
of a particular unit in the hospital.
(Ex. R-52) .

9
Respondent also has an Electroconvulsive Therapy unit , which provides services on an outpatient basis and is not a focus of the current matter.
(Tr. 94, 347).

10
Under the Emergency Medical Treatment and Labor
Act
(EMTALA), hospitals like Respondent are required to treat and
stabilize patients under emergency conditions.
See
42 U.S.C. §
1395dd .
H ospitals are only allowed to
reject a patient under very limited circumstances; namely, lack of capacity and
lack of ability to treat.
(Tr. 420, 2149).

11
Acuity is a concept that can refer to
the severity of an individual’s condition, as well as the psychiatric condition of the unit as a whole.

12
The frequency and purpose of the special observation rounds may change
during the overnight shift, during which time most of the patients are sleeping. (Tr.
1481 ).

13
Not all patients travel to lunch, as some do not want to leave the unit and others are restricted to the unit, so the remaining nurses and MHTs remain on unit for the remaining patients and to do charting.

14
As will be discussed in more detail
later
in this decision, the milieu manager was
created back in
2017, removed for a period of time, and then reinstituted
after the inspection. Initially, the milieu manager was charged with monitoring unit acuity, patient precautions, and Individual Support Plans.
(Tr.
1602 ). When the position was brought back, Respondent imbued the milieu manager with manager-level responsibilities. (Tr.
1601, 1747).

15
For example, according to the matrix in place at the time of the inspection, if Pike ’ s Peak had a census of 20 patients, Respondent should allocate 5 staff members (2 nurses and 3 MH T s) to the 3 p . m .
to 11 p . m .
shift. (Ex. C-74).

16
Intake personnel were also trained and available to respond to
emergencies ; however,
they were not required
to do so. (Tr.
1077 ).

17
Both the 2017 and 2018
OSHA
300
logs
include injuries from sources other than patient violence, and the Court was mindful to remove those entries
from the total referenced above.

18
Of further interest is the fact that
the EAR report numbers, which were added to the OSHA 300 log numbers,
only represent the five-month period between July 5, 2018 ,
and November 29, 2018. (Ex. C-11).
Likewise, the police report numbers only represent the calls made in the second half of the year. (Ex. C-11).

19
As discuss ed
in greater detail later in this decision,
one of the key
failures identified by Complainant is th at Respondent’s WVPP is not comprehensive in its scope
but is instead a
paper program and a series of disjointed policies
with no discernible connection.

20
Though they were not managers at the time of the program’s creation, Kevin Smith has become an actual “manager ” due to his promotion to milieu manager. (Tr.
2387 ).

21
During the overnight shift,
the staff member initiating the call would separately call the other nurse’s stations
instead of calling over the PA system
to avoid waking up/agitating the other patients in the hospital .

22
According to Respondent , the debriefs required by its policy are also required by Colorado law.

23
Respondent noted some of these policies were in place prior to the implementation of the Be Free initiative, which might explain why the document it relies on to illustrate the “new” protocol does not have any mention of the Be Free initiative on it , nor does it include an effective date. (Ex. C-39).

24
Staff with no direct care responsibilities, such as cafeteria workers and janitorial staff, received an abbreviated form of the training. (Tr. 2154).

25
Of course, there are instances where the employee cannot self-report
due to the nature of their injuries , in which case the supervisor makes the call to Sedgwick . (Ex. R-43).

26 .
At trial, Complainant placed significant emphasis on
the stated purpose of Respondent’s WVPP, which
“recognizes and establishes a ‘Zero Tolerance Policy’ for all types of workplace violence . . . .”
(Ex. C- 14). This is not entirely surprising —The Joint Commission’s “Sentinel Event Alert”
includes as one of its recommendations that “leadership
should establish a goal of zero harm to patients and staff” . (Ex.
C-62). That Respondent and TJC express a goal of zero
harm is not surprising
given what is at stake . Rather, of bigger concern is the manner in which that goal is sought, which is the subject of the current case.

27 .
At trial, Respondent argued repeatedly that certain proposed abatement measures could not be implemented because it impacted patient care. Respondent argued TJC and state statute prevents implementation of some of the proposed abatement measures, without identifying the activity and providing the specific statutory provision for the Court to analyze. Without specifics, Respondent’s argument cannot stand.
Respondent’s argument is further undermined as it relates to TJC. TJC issued publications in which in-patient psychiatric hospitals, such as Respondent, were encouraged to follow the OSHA Guidelines and Roadmap in charting its course to address workplace violence. (Ex. C-12, C-13, C-62). In fact, the OSHA Guidelines reference TJC publications as a resource relied on the development of the Guidelines and Roadmap. (Ex. C-12). It is highly unlikely TJC would have taken the above position if it concluded that patient care would be significantly impacted or that state statutes were contravened.

28 .
In general, “[w]here it is highly probable that a Commission decision would be appealed to a particular circuit, the Commission has . . . applied the precedent of that circuit in deciding the case—even though it may differ from the Commission’s precedent.”
Kerns Bros. Tree Serv ., 18 BNA OSHC 2064, 2067 (No. 96-1719, 2000) (citation omitted).

29 . It is also important to note that, to the extent an employer has implemented some of the Secretary’s proposed abatement measures, those measures should, at the very least, satisfy the first prong of the feasibility analysis: whether the abatement proposals are capable of being put into effect.
See SeaWorld of Fl a.
LLC v. Perez ,
748 F.3d 1202, 1215 (D.C. Cir. 2014);
FMC Corp . , 12 BNA OSHC 2008 (No. 83-488 et al., 1986) .

30 .
I f the increase in reportable injuries
was due to this factor (which the Court does not find), the Court
would still
conclude that ,
prior to
this drastic increase in reported injuries , the WV P P, its implementation ,
and reporting w ere
ineffective , because ,
prior to
the increase,
injuries were not being reported
accurately .
This illustrates both the primacy of a comprehensive WVPP as an abatement measure
and the impact the failure of any of its individual elements can have on the WVPP as a whole.

31 . The EAR form itself indicates what should be reported , but i t is a general form related to any injury suffered by an employee, not necessarily injuries resulting from workplace violence .
(Ex. R-43).

32 . Dr. Lipscomb also noted the PowerPoint presentation
also had “San Marco Behavioral Health” on the title of the slides,
which calls into question the provenance of the document
and may explain why Respondent’s employees do not recall ever seeing it. ( Ex. C-58 ).

33 . According to Wells, it was optional for social workers to respond to codes. (Tr. 1077).

34 . Because Complainant has identified a separate abatement proposal for training, the Court will address that building block in Section
V.d.vi ,
infra .

35 . The Sentinel Event Alert indicates a 55% reduction by 201 5, which represented year three of the program. (Ex. C-62).

36 .

If the Court were to accept Respondent’s invitation on this point, then the Court must find that any hospital where conduct may be unpredictable is exempt from implementing any policies on workplace violence since such conduct is unforeseeable. The Court must decline Respondent’s invitation. Data has established—and especially Respondent’s data to the extent it can be relied on—the incidents of workplace place violence were not unpredictable or unforeseeable. In fact, the increased frequency of workplace violence incidents which occurred in 2018 after the aforementioned changes at Respondent’s facility shows workplace violence was no longer unforeseeable.

37 . The Court
was not provided with convincing evidence that one method/device would be substantially more effective
than the other under the circumstances presented here. Thus, the Court finds the use of either device, or both, would be materially effective at reducing the hazard.
This is consistent with the wording of the proposed abatement which identified options for Respondent’s consideration. Thus, while there was testimony on the use of panic alarms and bracelets, there is no need to discuss this testimony since Respondent, after the inspection, chose the method it implemented to improve communication and call for Codes. By doing so, Respondent effectively established
such a method could be feasibility implemented and its implementation would materially reduce the hazard.

38 . Abatement Item No. 4
also includes a requirement to train direct care staff in advanced CPI. Since this proposal is
not directly related to staffing, and considering these proposals are being considered as part of a collective process, the Court shall address the question of training in advanced CPI in the section on training.
See
Section
V.d.vi,
infra .

39 .
By all accounts , response time improved after Respondent provided every staff member on a unit per shift with walkie-talkies.
Both
Forster and Smith testified of improved response times to Code Greens. (Tr. 2347-48).
Thus, Complainant’s concern regarding response times has been abated as such method has been found to substantially reduce workplace violence injuries due to improved response times.
See infra
V.D.2 .
Also, each of the experts, including Dr. Cohen, testified the use of walkie-talkies and/or panic alarms would be effective in reducing the likelihood or severity of the injury resulting from an act of patient aggression. (Tr. 1520, 2019).

40
Since the Court has found Respondent’s current response protocol
adequate and ,
given Complainant’s clarification at trial that it is Respondent’s choice
of the method to abate the workplace violence hazard, it is not necessary to further evaluate the use, number ,
and type of security personnel Complainant envisioned but did not adequately communicate to the Court.

41 . Respondent accused
Bierweiler of “catastrophizing”
scenarios like the one described above by looking at worst-case
outcomes . Considering many other staff members expressed similar concerns in reports, emails, and survey responses, the Court finds
Respondent is minimizing a legitimate concern about the hazards of understaffing.

42
The Court notes that debriefing and investigations are also the focus of the
t raining abatement
recommendation
previously
discussed. Much of the analysis in this section is equally applicable to what should be included in WVPP training as it relates to conducting investigations and
debriefing
of impacted
employees .

43
It is well established that when one party has it peculiarly within its power to produce evidence which would elucidate the situation and fails to do so, it gives rise to the presumption that the evidence would be unfavorable to that party or is not available.
Graves v. United States , 150 U.S. 118, 121 (1893). The Commission has also noted when one party has evidence but does not present it, it is reasonable to draw a negative or adverse inference against that party, i.e., that the evidence would not help that party's case.
CCI, Inc.,
9 BNA
OSHC
1169, 1174 (No. 76-1228, 1980),
aff'd , 688 F.2d 88 (10th Cir. 1982). See also
Woolston Constr. Co ., 15 BNA OSHC 1114, 1122 n.9 (No. 88-1877, 1991) (citing
Baxter v. Palmigiano,
425 U.S. 308, 316-18 (1976)),
aff'd , No. 91-1413 , 1992 WL 117669
(D.C. Cir. May 22, 1992)
(unpublished) .