CALIFORNIA COMPENSATION CASES
Vol. 88, No. 5 May 2023
A Report of En Banc and Significant Panel Decisions of the WCAB and Selected Court Opinions of Related Interest, With a Digest of WCAB Decisions...
By Hon. Susan V. Hamilton, Former Assistant Secretary and Deputy Commissioner, California Workers’ Compensation Appeals Board
In 2022 there were 7,490 wildfires in California. They burned 362,455 acres...
By Christopher Mahon
Should temporary workers be treated separately under workers’ compensation law due to additional employment and income risks they may incur after workplace injuries? A new study...
Here's a noteworthy panel decision where a family member conveyed essential information to the AME on behalf of the injured employee. The Lexis headnote is below.
CA - NOTEWORTHY PANEL DECISIONS...
Oakland, CA – Part II of a California Workers’ Compensation Institute (CWCI) research series on low- volume/high-cost drugs used to treat California injured workers identifies three Dermatological drugs...
Conducting Impartial Assessments and Making Tough Decisions in a Politicized World
By Karen C. Yotis, Esq.
When we go to work each day, we don’t expect to be attacked. Nor do we anticipate suffering serious bodily harm. And we can hardly imagine being killed somewhere between our morning coffee and a lunchtime salad. Yet OSHA calculates the number of workers who suffer workplace violence each year at more than 2 million. And although overall crime and homicide rates in the general population are going down, the industry is seeing an uptick in violence—including homicide rates—occurring in workplaces.
Consider too these alarming developments:
> One third of women who die at work are killed by a partner or relative;
> From 2003 to 2013, homicides of government employees that work in government positions increased almost 30 percent, while homicides in the private sector workplace decreased 30 percent;
> During the same period, fully half of the occupational fatalities in the retail sales industry were homicides.
These are just a handful of the hard-nosed stats that kicked off last week’s incredibly well-spent lunch period with Mark Walls and Kimberly George, the no-nonsense pair that drives the Outfront Ideas webinar series. For its program Workplace Violence: Assessment and Response, Outfront featured Bob Durand, the practice leader of medical group support services for Kaiser Permanente Medical Group in northern California (who focuses on preventing violence in emergency departments) and George Vergolias, PsyD, a forensic psychologist and vice president and medical director at R3 Continuum, (which helps organizations with risk assessment for the management of violent threats). Outfront invited other experts to participate, but they were unable to discuss the topic of workplace violence in public because of political concerns.
A Whale of a Problem
Workplace violence is a common problem across many industries. However, it is particularly challenging in nearly every school district, in hospitals and urgent care settings, and in retail sales environments. Since April 2017, Kaiser has cataloged more than 750 violent incidents in its northern California hospitals alone. The highest point of volume occurs in Kaiser’s inpatient care settings and is directed at nursing staff. These figures are almost two to one against the volume in emergency departments and almost 20 to 1 for other care settings in the organization. And oddly enough, the most reliable identifier of perpetrators (at least in terms of patients) are those with cognitive challenges arising out of delirium from surgery and intoxication or withdrawal from alcohol and drugs.
One of the largest school districts in the country that was unable to contribute to the discussion because of political reasons nevertheless shared with Outfront that their K through 12 school setting has experienced over 3,000 reported workplace violence claims in the last 5 years, with 64 percent of those claims on the workers’ comp side, and 35 percent on the general liability side. Frequency of workplace violence claims is up 10 percent over the last 5 years.
Even more alarming is that these claims are a mere fraction of what people are seeing. According to Durand, “what is reported to OSHA and what is happening on the ground may not be the same thing.” Events involving “mere” threats and harassment often go unreported, or the violent event does not result in an injury claim that would affect the statistics. The culture in high risk healthcare departments (and in schools) where accepting the risk of disruptive behavior is considered “part of the job” may also carry part of the blame.
Gazing Through a Proactive Lens
Over the course of his work, Vergolias has found that corporate employers have a great deal of influence promoting cultures of well-being and safety. Unfortunately, this comes with a corresponding lack of guidance and help in creating and implementing preventive measures. He believes that a deeper knowledge about the different types of violent behaviors and greater awareness about the more available legal and administrative recourse are important first steps towards identifying (and accepting) the true magnitude of the workplace violence problem.
Identification of violent threats in the workplace must also occur with a clear recognition of social media’s dark side. The relative anonymity of social media is empowering individuals to act in ways they might not repeat in a face-to-face scenario, and this empowerment is beginning to spill over into real-world interactions. This ability to say whatever you think on social media without repercussions may be part of the reason for the uptick in violent behavior that we haven’t seen in previous generations.
A realistic approach to workplace violence also requires a pragmatic look at the many ways that domestic violence can spill over into the workplace. To maintain balance between safety and confidentiality, clear behavior assessment is key. For example, if an alleged perpetrator (who will be male in most instances) is threatening an ex-partner, the employer may not need to reveal more beyond a generic reminder about access badges and awareness of surroundings. However, if the perpetrator is stalking a woman who continually rebuffs him or perhaps is aware of a group of supportive friends to whom he can transfer blame, it may be necessary inform the entire workforce to successfully navigate the nuances of that scenario.
A shrewd and unsentimental approach to workplace violence can often involve concepts that are politically incorrect. Take for example the idea that past behavior can become an identifier of future violence. The panelists were loath to point out that male gender and past patterns of aggressive behavior are the two most accurate predictors of violence and hesitated to rely on either factor because neither encompasses sufficient specificity. Instead, they recommended asking what a perpetrator may be feeling that compels him to resort to aggression to get his needs met, followed by an effort to connect with the aggressor to have them consider trying more adaptable and sociable methods.
The Animal in All of Us
Different types of workplace violence require different approaches. One useful way to categorize workplace violence is to talk about the physio-biological basis of violence. The two primary modes of biological violence are affective/emotional and predatory/targeted. Both have different neuro-anatomical and neuro-chemical substrates that operate when these types of violence are in action, and an individual can only operate in one mode at a time.
The divergence between affective/emotional and predatory/targeted types of violence is best understood by comparing the first to a cat tethered to a leash while being confronted by a Rottweiler and the second to a cat quietly stalking prey in a distant bird feeder. The first situation can occur on a schoolyard, where boys with clenched fists are enticing each other to take the first punch; here it’s critical to realize that the parties really want the threat to walk away in a manner that allows both to save face. But the second situation involves a very different behavioral profile in which there is no emotionality, no displacement of the target, and no imminent threat to the attacker. This is the profile of an army sniper or a mass shooter, which requires a different understanding of the behavior to be targeted. When developing strategies, it is important to identify the type of violence you’re trying to stop and to build programs around them.
It's the Corporate Culture, Stupid
It’s also important to recognize that security and safety are two different animals. Walls called out a piece by Rick Phillips, founder of the non-profit group Community Matters titled “Security is not Safety,” that hones on the stark differences between these two concepts. Building on this dichotomy, Durand pointed out that the key thing to understand when it comes to physical security is that it is not absolute and that all barriers can be defeated with the correct tools and time. So, the discussion around physical security necessarily revolves around protecting property and giving responding law enforcement time to respond should an attack begin. Safety on the other hand is more about culture and the daily practices we engage in to prevent injury and liability. As an example, he pointed to workplace smokers who may tape over the lock of a building’s side door for reentry, thereby putting convenience ahead of security. Thus, the culture by which your organization operates might make you safer. If you have a strong culture of safety, chances are you will be safer. If safety is an afterthought, the entire organization will be less safe.
Uber Assessment in California
SB 1299, a relatively new California law that addresses workplace violence in healthcare, and a corresponding provision in Section 3342 of Title 8, require comprehensive risk assessments for the various work areas in which healthcare providers operate. Durand reviewed how his organization is complying with this new California law by supplementing the traditional security professional’s assessment of facility grounds for physical security with assessments that pinpoint high risk areas such as emergency departments.
When conducting ER risk assessments, Vergolias looks at:
> safety and physical security practices
> engineering controls as they apply to violence, such as resistant glass or glazing that may protect a check-in window, badge readers for access, cameras, or the positioning of a security officer
> administrative work practice controls that can readily identify personnel and confirm awareness of existing security measures
> emergency department’s physical layout as it applies to the safety of that environment.
Assessments also encompass standard departments like the more open medical/surgical unit as well as remote care provided by hospice and other workers in a patient’s home, where the risks that the environment poses are completely unknown. Staff are instructed to ask critical questions like “Do you have firearms in your home?” before they enter a house to properly gauge and adjust the risk level.
Yearning for Better Learning
The workplace violence policies that employers put in place are only as good as their implementation. The panelists warned employers to avoid the pitfall of the one-size-fits-all mentality as priorities and dynamics can change between different employers, or with the same employer among different locations. It’s important to train to those differences in dynamics, location, and even work sector. The panelists also recommended that companies get clear on their policies and protocols before they engage in annual employee training to avoid putting the proverbial cart before the horse. Training should also include competence testing to allow applied learning to take place. Problems can occur when a company has a good policy that sits on the shelf or when someone comes forward to report a violation of the policy and no one takes any action in response.
Additional dilemmas in the context of training for workplace violence response occur when staff has an unclear expectation of what security officers must do. When workers—especially healthcare workers—don’t fully understand their organization’s workplace violence policy, it increases their risk of becoming a victim of violence. Another issue is the constant effort to balance training objectives while managing costs, as well as training in theory rather than in practice. Lack of training in practical applications is also a major drawback to most training programs. Finally, the panelists believed that organizations do a huge disservice to employees if they are not adequately taught to use defense tactics in response to workplace violence. After all, it is far better “to cry in the dojo than bleed on the battlefield.”
Any information or opinions contained in this commentary are not necessarily endorsed by LexisNexis® or its affiliates.
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