Report: Lack of safety a factor in city worker’s death

David Vogel

The city of Gilroy will appeal $21,600 in fines to a state
safety agency in the aftermath of the March 14 death of a veteran
maintenance employee that a Santa Clara County deputy district
attorney now says may have been caused in part by tools left on the
road by city workers.
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Today’s breaking news:
The city of Gilroy will appeal $21,600 in fines to a state safety agency in the aftermath of the March 14 death of a veteran maintenance employee that a Santa Clara County deputy district attorney now says may have been caused in part by tools left on the road by city workers.

The two citations, handed down Monday by the state’s Division of Occupational Safety and Health, claim the city didn’t properly implement it own streetwork safety policies the morning David Vogel, 40, was struck and killed by a van while marking utility lines on Farrell Avenue west of Monterey Road in Gilroy. The city also failed to ensure Vogel and co-worker Tom Gotterba used approved, state-mandated traffic controls while working on a public street, the citations state.

City Administrator Tom Haglund, however, said the city’s roadwork policies are in step with state procedures, outlined in a widely used Manual on Uniform Traffic Control Devices. He said that will be the basis of the city’s appeal.

According to OSHA report obtained by the Dispatch Thursday, the driver of the van heard a noise indicating he may have run over a metal object lying in the roadway. Distracted by the sound, he looked down for approximately three seconds before hitting Vogel, who was standing in the middle of the street, according to the report.

The metal object the driver ran over may have been a manhole cover, crowbar-type tool or other object used by Vogel and Gotterba that morning, said Deputy District Attorney Steve Lowney.

“It’s a plausible argument that not only were they out in the street without what one would consider appropriate safety precautions, but the sound that distracted the driver may have been caused by the people working in the street,” Lowney said.

He added, “You just don’t expect someone to be standing there on the street.”

Lowney added the driver’s explanation to police following the accident would have been difficult to refute.

“He didn’t have time to make up the story. And he’s basically in shock at the time,” Lowney said.

The OSHA report lists a lack of traffic controls, as well as an “insufficient or lack of protective work clothing and equipment” as factors in the accident. The report also states that Vogel and Gotterba parked their city vehicle on Severance Street, a side street that intersects with Farrell Avenue, which did not allow the vehicle to act as a “buffer” by either parking it in front or behind the manhole area on Farrell Avenue where they were working.

About one hour and 15 minutes before Vogel’s death, a coordinator for the city’s Volunteers in Police Service group reported seeing two city workers at the intersection of Farrell Avenue and Severance Street, and “didn’t think they were paying attention to traffic or looking for cars approaching,” according to the report.

“He stated that there was no acknowledgment to the traffic on roadway and that his perception was that it was hazardous to be out on the street and not paying attention to vehicles going by,” the report states.

Lowney said the driver’s name has not been released because he will not be charged with a crime. Cal/OSHA echoed the police report that the accident happened because of an inattentive driver, but the workers’ actions were not the cause of the accident itself.

Lowney said prosecutors first looked at the possibility of vehicular manslaughter charges, but later backed off because it would have been difficult to prove the driver acted without “reasonable care” in the moments before Vogel’s death. The driver wasn’t speeding or using his cell phone, nor was he under the influence of drugs or alcohol, Lowney said.

“Our policies mirror what the state of California puts together in their manual,” Haglund said. “From our perspective, they’re one in the same.”

Vogel and Gotterba, who did not display traffic cones or signs and used a call-and-response method of saying “car” whenever a vehicle approached, followed city procedures the morning of the accident, according to a independent report complied by Fremont firm Du-All, LLC released June 9. The city has until Aug. 16 to either formally appeal the citations or pay.

The Gilroy City Council met in closed session Monday night to discuss a worker’s compensation claim related to the death of the city worker, though city officials did not provide details and LeAnn McPhillips, the city’s human resources and risk management head, is on vacation until Monday.

Beyond the standard, “automatic” worker’s compensation claim, Haglund said he was not aware of any additional claims filed by Vogel’s family against the city. When reached by telephone Wednesday afternoon, Juanita Diaz, who was Vogel’s fiance and is the mother of their 10-year-old daughter, Samantha, said neither she nor Vogel’s family were currently planning litigation against the city.

On June 13, the Council approved a new, two-year service agreement at a cost of $63,000 between the city and San Ramon-based Innovative Claims Solutions to handle worker’s compensation issues, according to city records.

In a call placed to Innovative Claims Solutions Thursday afternoon, an employee who would only identify himself as Dan said worker’s compensation payouts involving deaths are based on the deceased’s earnings, whether they have children and their marital status. When asked if someone’s fiance would be allowed compensation, Dan said, “I know which case you’re talking about,” and declined to give further information, citing “confidentiality aspects.”

It’s unclear still how much money Vogel’s daughter could receive or if his fiance would benefit from Vogel’s worker’s compensation claim. When asked how Vogel’s compensation would be derived, Haglund said Wednesday he’d have to do some research.

“I don’t know all of the specifics of that particular calculation. I’m not able to answer that question immediately,” he said. Vogel’s annual salary was $61,588 according to city records, though he was slated to make approximately $5,500 less the first half of this year because of furloughs, which ended July 1.

The city will take into account Vogel’s full, non-furloughed salary when figuring compensation, said City Finance Director Christina Turner.

Though he wasn’t able to provide amounts, Haglund said the city had made standard, initial payments to cover Vogel’s funeral and other issues immediately following his death.

“I think it’s self-evident there is a claim here where there are payments being made,” Haglund said.

Councilman Bob Dillon said the citations were based on a “shaky foundation” and “didn’t make much sense,” and fellow Councilman Perry Woodward said he believed the city would be vindicated.

“From what I know of, it sounds like the city’s appeal has some merit,” said Woodward, who is also a partner at the San Jose law firm Terra Law, LLP. “I think that OSHA (the agency) is really engaging in some Monday-morning quarterbacking that is probably not entirely fair.”

He pointed to the statement in the OSHA report that neither Vogel nor Gotterba were the cause of the accident as to why city could be in the right.

“All the safety procedures in the world won’t even matter if they (the driver) aren’t looking where they are going,” Woodward said.

Still, Woodward said the city should review its safety policies.

“Safety practices evolve, and what was considered good practice today might not be good practice next year,” Woodward. “I hope the city will go back and look at the policies to make sure we’re as safe as humanly possible.”

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