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General Motors Corp. v. Tome

Superior Court of Delaware, New Castle

July 25, 2013

REBECCA TOME, Claimant-Below/Appellee.

Submitted: March 17, 2013

Appeal from the Industrial Accident Board – AFFIRMED

Linda L. Wilson, Esquire. Marshall, Dennehey, Warner, Coleman & Goggin, Attorney for Appellant.

Robert P. LoBue, Esquire. Law Office of Robert P. LoBue, Attorney for Appellee.


William C. Carpenter, Jr., Judge

General Motors Corporation ("GM") seeks a reversal of the Industrial Accident Board's ("IAB") June 6, 2012 decision, which awarded Rebecca Tome ("Tome") partial disability benefits as well as attorney's and witness fees. On appeal, GM alleges the IAB erred as a matter of fact and law. Specifically, GM claims: 1) the IAB's finding was not supported by substantial evidence and, therefore, Tome should not have been awarded partial disability benefits; and 2) even if Tome was entitled to partial disability benefits, the IAB erred in determining her average weekly wage.

For the reasons discussed below, the decision of the IAB is hereby AFFIRMED.


Tome suffered a non work-related injury in 1996 that required her to seek treatment with Dr. Rudin and ultimately undergo lower back surgery in October 1997. Specifically, Dr. Rudin performed an anterior lumbar interbody fusion and nerve root decompression in 1997, which allowed Tome to return to work on the assembly line in a restricted capacity. Tome, however, experienced worsening back pain over time and, as a result, was moved to a different position within GM. In this new position, Tome was responsible for driving defective cars off the assembly line and, while she was performing her job in 1999, she was t-boned by another employee. Although Tome initially returned to work, she saw Dr. Rudin periodically. Eventually, Tome required surgery to relieve her lower back discomfort. On January 30, 2003, Dr. Rudin performed an exterior fusion of the L4-L5 and L5-S1, including pedicle screw fixations. Following the 2003 surgery, Tome received total disability benefits for an eleven-month period beginning January 30, 2003.

Tome had a functional capacity exam ("FCE") nine (9) months after the 2003 surgery and was cleared to return to light duty work, provided she was not standing for long periods of time, bending, or lifting. In November 2003, Tome returned to work at GM re-routing shifter cables. Tome performed this job for four (4) to six (6) months before transferring to a new position as a job coordinator. In this new role, Tome filled in for other workers when they were out but did not perform any tasks that involved bending.

Even though Dr. Rudin remained concerned about Tome lifting anything greater than ten (10) pounds or performing repetitive bending, Tome would have been unable to return to work as a union worker with such restrictions. As a result, Dr. Rudin provided Tome with subsequent notes, indicating that Tome could return to work full duty with no restrictions. Fortunately, because Tome had worked at GM since June 15, 1978, she had seniority and could typically secure lighter duty positions, even though the notes technically stated that she had no work restrictions.

Tome continued to work at GM, but by 2009, the economic climate began to affect GM at the local assembly plant; employees were either laid off or reduced to working every other week. While Tome was not laid off, she worked every other week until the plant closed on July 31, 2009. Believing she would not be accepted with her physical limitations, or that she would not have had similar seniority to maneuver to light duty at a different plant, Tome did not request to transfer to another GM facility and retired from GM on August 1, 2009.

After retiring from her thirty-one and one half (31.5) years of employment with GM, Tome began applying for a new job. Approximately one (1) year later on August 10, 2010, Tome secured a sedentary job at W.L. Gore ("Gore") as a temporary employee ("temp") prepping cable wires. Although Tome previously earned between $22-23 per hour and typically worked around 50-60 hours per week at GM, she earned $11 per hour and typically worked 40 hours per week at Gore. However, because Tome was only hired as a temp, she was laid off at Gore on September 30, 2011.

On November 23, 2011, Dr. Rudin removed Tome from work because she was having difficulty performing even sedentary tasks. On December 7, 2011, Dr. Rudin saw Tome again and suggested additional surgery to alleviate her adjacent segment deterioration at L3-L4. However, because Tome was rehired by Gore on April 9, 2012, earning $12 per hour and working 40 hours per week, the surgery was not performed. During Tome's employment with Gore, she did not secure approval from Dr. Rudin nor did she provide Gore with a note regarding her restrictions. Tome has applied for ...

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