IN THE SUPREME COURT OF IOWA
No. 15–0840
Filed December 30, 2016
Amended March 17, 2017
JBS SWIFT & COMPANY and AMERICAN ZURICH INSURANCE
COMPANY,
Appellants,
vs.
ROSALVA OCHOA,
Appellee.
On review from the Iowa Court of Appeals.
Appeal from the Iowa District Court for Polk County, Mary Pat
Gunderson, Judge.
An employer seeks further review of a court of appeals decision
affirming a district court judgment upholding a workers’ compensation
commissioner’s award. AFFIRMED.
Mark A. King, James R. Colwell, and Patrick V. Waldron of
Patterson Law Firm, L.L.P., Des Moines, for appellants.
James C. Byrne of Neifert, Byrne & Ozga, P.C., West Des Moines,
for appellee.
2
MANSFIELD, Justice.
This case presents the question whether Iowa workers’
compensation law prohibits an employee from collecting both permanent
partial disability benefits and permanent total disability benefits at the
same time when the employee suffers successive injuries at the same
workplace. We find that the general assembly removed the legal barrier
to this outcome in 2004. Accordingly, we uphold the commissioner’s
award, affirm the district court judgment, and affirm the decision of the
court of appeals.
I. Background Facts and Proceedings.
Rosalva Ochoa began working at JBS Swift & Company (Swift) in
2001. Ochoa had to make boxes, fill them with meat, and place them on
a conveyor belt. Each box weighed approximately fifty pounds, and
Ochoa would lift the boxes onto the conveyor belt hundreds of times a
day. Ochoa was assigned these same job duties for the majority of her
employment at Swift.
In early 2011, Ochoa began to feel pain in her left abdomen, which
gradually became more severe. Ochoa consulted with Dr. Jerry Wille in
February, who referred Ochoa to a second physician, Dr. Stephen Van
Buren. Dr. Van Buren determined that Ochoa had developed a left
inguinal hernia and recommended surgery. Ochoa underwent the
surgery in March.
Following the hernia surgery, Ochoa returned to work. However,
she continued to experience pain. Some months later, in November,
Ochoa began to develop pain in her neck and right shoulder in addition
to her abdomen. She saw Dr. Wille for these problems as well. Dr. Wille
diagnosed her with cervicalgia and cervical radiculopathy in her neck
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and tendonitis in her right rotator cuff. Ochoa’s last day of work was
December 15. Swift terminated her for absenteeism in January 2012.
On June 25, Ochoa filed two workers’ compensation petitions
against Swift and its workers’ compensation insurance carrier, American
Zurich Insurance Company. The first petition alleged an unscheduled
cumulative left groin injury occurring on or about February 24, 2011.
The second petition alleged an unscheduled cumulative injury to the
neck and right shoulder, occurring on or about December 15, 2011.
Ochoa was examined by two independent physicians, one (Dr.
Sunil Bansal) at the direction of her counsel and the other (Dr. Scott
Neff) at the direction of Swift. Dr. Bansal found that Ochoa’s hernia had
caused a four percent impairment of the body as a whole, and her
shoulder injury had caused a six percent impairment of the body as a
whole. Dr. Bansal also recommended that Ochoa should be restricted
from lifting above certain levels and should avoid frequent lifting,
pushing, or pulling more than five pounds. Dr. Neff, on the other hand,
concluded that Ochoa had no permanent functional impairment and was
demonstrating symptom magnification and inconsistent effort.
An arbitration hearing on both claims was held before a workers’
compensation deputy commissioner on June 25, 2013. The deputy
found that Ochoa’s injuries to her hernia, neck, and right shoulder arose
out of her employment with Swift. The deputy found that Ochoa had
sustained the hernia injury on February 24, 2011, resulting in a seventy
percent permanent partial disability and 350 weeks of benefits. He
ordered Swift to pay Ochoa healing period benefits of $477.18 per week
from March 17, 2011 through June 13, 2011, and permanent partial
disability benefits of $477.18 per week commencing June 14, 2011. The
deputy further found that Ochoa sustained the neck and shoulder injury
4
on December 15, 2011, resulting in permanent total disability. The
arbitration decision explained, “The combination of restrictions for the
right shoulder injury and hernia injury has resulted in permanent total
disability. . . . She is not likely to ever return to the workforce with her
current physical limitations.” Thus, the deputy ordered Swift to pay
Ochoa permanent disability benefits of $478.44 per week commencing
December 15. However, the deputy indicated that “[t]he permanent
partial disability benefits . . . for the February 24, 2011 injury end at the
commencement of this permanent total disability award.” Hence, the
deputy’s award eliminated what would otherwise amount to overlapping
partial disability benefits and total disability benefits.
Swift appealed the deputy’s decision, and Ochoa cross-appealed.
Swift urged the deputy had erred in finding Ochoa had sustained work
injuries in February 2011 and December 2011, and also erred in the
extent of the two awards of permanent disability benefits. Ochoa’s cross-
appeal was confined to one point. She asked that the awards “be allowed
to run concurrently . . . to the extent the two awards overlap.” Ochoa
maintained that permanent total disability benefits are not subject to
apportionment under Iowa Code section 85.34(7), and that effectively,
the deputy’s order had done just that.
Swift filed a six-page brief in resistance to Ochoa’s cross-appeal.
Swift argued therein that the deputy commissioner had not apportioned
the awards pursuant to section 85.34(7). Instead, in Swift’s view, the
deputy had “simply recognized that at the point [Ochoa] became
permanently totally disabled, she was necessarily no longer permanently
partially disabled.” Swift insisted that this was “an appropriate and
reasonable application of the law,” adding,
5
[T]here is no statutory provision allowing for such a double
recovery as Claimant proposes. Nor do the applicable Code
sections provide for any such double recovery. . . . The
legislature provided that employees who are permanently
totally disabled shall be compensated with permanent total
disability benefits and persons with permanent partial
disability shall be compensated with permanent partial
disability benefits. There is obviously no indication by the
legislature that a person who is no longer permanently
partially disabled[,] because they are now permanently
totally disabled, shall continue to receive PPD and PTD
benefits. It is indeed absurd to suggest that a claimant can
be permanently totally disabled and permanently partially
disabled at the same time!
The commissioner overruled Swift’s appeal but upheld Ochoa’s
cross-appeal. Thus, the commissioner affirmed the deputy’s findings of
two separate injuries and his determinations of industrial disability.
However, the commissioner concluded that Ochoa’s permanent partial
disability payments should not have terminated as of the date when her
permanent total disability payments commenced. The commissioner
noted,
In this case claimant has sustained successive disabilities
with the same employer, JBS Swift & Company, with a first
date of injury on February [24], 2011 resulting in permanent
disability and a second date of injury of December 15, 2011
also resulting in permanent disability. Therefore the
provisions of Iowa Code section 85.34(7) are clearly
applicable. The provision[s] of Iowa Code section 85.34(7)
were enacted following passage of H.F. 2581, at which time
the legislature also amended Iowa Code section 85.34(2)(u)
and struck Iowa Code section 85.36(9)(c).
When successive disabilities occurred prior to the
passage of the new statutory framework, overlapping of
permanent partial disability benefits was not allowed by
operation of Iowa Code section 85.36(9)(c). However, as
noted above, that section of the Code was repealed. There is
no provision in Iowa Code sections 85.34(7) or 85.34(2)(u) to
prohibit the overlapping payment of permanent disability
benefits. Defendants seek to set forth a policy argument that
permanent partial disability must cease with a finding of a
successive disability resulting in permanent and total
disability.
6
The commissioner thus ordered Swift to pay a full 350 weeks of
permanent partial disability benefits at the weekly rate of $477.18,
commencing June 14, 2011, and permanent total disability benefits at
the weekly rate of $478.44, commencing December 15, 2011. This
means that Ochoa would receive over six years of overlapping weekly
benefits—i.e., $477.18 plus $478.44—substantially in excess of the $680
per week she was earning when she stopped working for Swift.
Swift filed a petition for judicial review. In its brief to the district
court, Swift specifically argued for the first time that Iowa Code section
85.34(3)(b) barred the simultaneous benefits. Following a hearing, the
district court affirmed the entire ruling of the workers’ compensation
commissioner. That court addressed Swift’s double recovery argument
and rejected it on the ground that a permanent partial disability award
and a permanent total disability award could not be apportioned under
section 85.34(7). See Drake Univ. v. Davis, 769 N.W.2d 176, 185 (Iowa
2009).
Swift then appealed from the district court, and we transferred the
case to the court of appeals. That court also upheld the commissioner’s
ruling in its entirety. It found sufficient evidence to sustain each of the
two awards and also rejected Swift’s argument that the concurrent
permanent partial disability and permanent total disability awards are
prohibited by Iowa Code section 85.34.
We granted Swift’s application for further review.
II. Scope and Standard of Review.
“When this court grants an application for further review, we retain
discretion to review all the issues raised on appeal or in the application
for further review, or only a portion thereof.” Ramirez-Trujillo v. Quality
Egg, L.L.C., 878 N.W.2d 759, 768 (Iowa 2016). Here, we elect to allow the
7
court of appeals decision to stand as the final decision on whether each
award of benefits was supported by substantial evidence. We will limit
our opinion to the legal question whether Iowa law permits simultaneous
receipt of permanent partial disability benefits and permanent total
disability benefits for successive injuries with the same employer.
We review the workers’ compensation commissioner’s
interpretation of Iowa Code chapter 85 for errors at law. Evenson v.
Winnebago Indus., Inc., 881 N.W.2d 360, 366 (Iowa 2016). “In recent
years, we have repeatedly declined to give deference to the
commissioner’s interpretations of various provisions in chapter 85.”
Iowa Ins. Inst. v. Core Grp. of Iowa Ass’n for Justice, 867 N.W.2d 58, 65
(Iowa 2015) (citing numerous cases); see also Warren Props. v. Stewart,
864 N.W.2d 307, 311 (Iowa 2015) (recognizing that the legislature “has
not vested the commissioner with the authority to interpret Iowa Code
section 85.34(2)(u) and (7)(a)”). We do not believe the terms of the
workers’ compensation statute at issue here are “uniquely within the
subject matter expertise of the agency.” Renda v. Iowa Civil Rights
Comm’n, 784 N.W.2d 8, 14 (Iowa 2010).
III. Analysis.
A. Preservation of Error. Before reaching the merits, we must
address a question of error preservation. Ochoa contends that Swift
failed to preserve error on its contention that section 85.34(3)(b) prohibits
simultaneous receipt of permanent partial and permanent total disability
payments. As Ochoa puts it, Swift “did not reference, cite to, and/or
argue before the Agency that Iowa Code Section 85.34(3)(b) negates
concurrent payment[s].”
We find that error has been preserved. We note first the
procedural history of this case. The deputy’s arbitration decision did not
8
allow concurrent benefits. Therefore, there was no reason for Swift to
raise the issue. After Swift appealed the deputy’s disability findings to
the commissioner, Ochoa cross-appealed and argued that apportionment
of permanent total disability benefits was not authorized by Iowa Code
section 84.34(7). At that point, Swift filed a responsive brief on the
cross-appeal. Therein, Swift disputed that the matter was one of
apportionment under Iowa Code section 84.34(7) while also disputing
that the “applicable Code sections provide for any such double recovery.”
Swift argued the law does not permit concurrent receipt of permanent
partial disability benefits and permanent total disability benefits and a
person cannot legally be partially disabled and totally disabled at the
same time.
It is true that Swift’s responsive brief did not specifically refer to
Iowa Code section 84.34(3)(b). However, the issue of whether section
84.34 taken as a whole authorizes concurrent awards of permanent
partial disability and permanent total disability benefits was certainly
briefed by both sides and raised before the agency. We think it is more
accurate to characterize Swift’s present discussion of 84.34(3)(b) as
additional ammunition for the same argument Swift made below—not a
new argument advanced on appeal. See Schneider v. State, 789 N.W.2d
138, 147 (Iowa 2010) (finding that, despite not citing chapter 455B in the
district court, the party “preserved th[e] subject for appellate review”);
Summy v. City of Des Moines, 708 N.W.2d 333, 338 (Iowa 2006)
(concluding that error was preserved even though the city failed to
provide the trial court “with the same legal authorities in support of its
position that it has brought to the attention of this court on appeal”),
overruled on other grounds by Alcala v. Marriott Int’l, Inc., 880 N.W.2d
9
699, 708 n.3 (Iowa 2016). Our view is reinforced by the fact that Ochoa,
not Swift, was the party seeking interagency review on this point.
B. Double Recovery Under Section 85.34. We now turn to the
merits of Swift’s legal contention that concurrent awards for permanent
partial and permanent total disability benefits amount to a double
recovery prohibited by Iowa Code section 85.34.
Ochoa argues that our decision in Drake University v. Davis
controls the outcome here. See 769 N.W.2d at 183–85. In that case, we
interpreted section 85.34(7) and concluded that permanent total
disability benefits may not be apportioned under that section. Id. at 185.
Section 85.34(7) is entitled “Successive disabilities” and provides in part,
b. (1) If an injured employee has a preexisting
disability that was caused by a prior injury arising out of
and in the course of employment with the same employer,
and the preexisting disability was compensable under the
same paragraph of subsection 2 as the employee’s present
injury, the employer is liable for the combined disability that
is caused by the injuries, measured in relation to the
employee’s condition immediately prior to the first injury. In
this instance, the employer’s liability for the combined
disability shall be considered to be already partially satisfied
to the extent of the percentage of disability for which the
employee was previously compensated by the employer.
(2) If, however, an employer is liable to an employee
for a combined disability that is payable under subsection 2,
paragraph “u”, and the employee has a preexisting disability
that causes the employee’s earnings to be less at the time of
the present injury than if the prior injury had not occurred,
the employer’s liability for the combined disability shall be
considered to be already partially satisfied to the extent of
the percentage of disability for which the employee was
previously compensated by the employer minus the
percentage that the employee’s earnings are less at the time
of the present injury than if the prior injury had not
occurred.
Iowa Code § 85.34(7)(b) (2015).
In Davis, the claimant had suffered three injuries during the
course of her employment. 769 N.W.2d at 178–79. Following a
10
combined arbitration hearing, the claimant’s first injury was found to
have caused a fifteen percent permanent partial disability; the second
injury was found to have caused a thirty percent permanent partial
disability; and the third injury was found to have caused a one hundred
percent loss of earning capacity, entitling the claimant to permanent
total disability benefits. Id. at 180. The claimant’s benefits were
apportioned between the first and second injuries, but not between the
second and third injuries. Id. at 180–81. In other words, the benefits for
the permanent total disability award were not offset by the percentage of
disability for which the claimant had already been awarded permanent
partial disability. The employer appealed the disability award and
claimed the permanent total disability benefits from the third injury
should have been apportioned with the benefits from the second injury.
See id. at 183.
We recognized that we “generally do not apportion the benefits
from two successive work-related injuries without a statute allowing us
to do so.” Id. at 184 (citing Mycogen Seeds v. Sands, 686 N.W.2d 457,
465 (Iowa 2004)). We observed that the plain language of section
85.34(7)(b) allowed apportionment of benefits for successive injuries in
two situations: if “the preexisting disability was compensable under the
same paragraph of section 85.34, subsection 2, as the employee’s
present injury,” or if “an employer is liable to an employee for a combined
disability that is payable under section 85.34, subsection 2, paragraph
‘u.’ ” Id. at 184 (emphasis omitted) (quoting Iowa Code § 85.34(7)(b)
(2005)). Hence, those provisions would sustain apportionment when an
employee like Davis suffered an industrial injury causing a fifteen
percent permanent partial disability followed by an injury causing a
thirty percent permanent partial disability at the same employer. See id.
11
at 184. The employee would be treated as having suffered only an
additional fifteen percent disability due to the second injury. See id.
Yet both of these provisions in Iowa Code section 85.34(7) cross-
referenced only section 85.34(2), relating to permanent partial
disabilities. See Iowa Code § 85.34(7)(b). Hence, we concluded they did
not justify apportionment between Davis’s second and third injuries:
The plain and unambiguous language of section
85.34(7)(b) indicates the only benefits subject to
apportionment are those awarded under section
85.34(2). . . . The agency awarded Davis permanent total
disability benefits under section 85.34(3). Permanent total
disability benefits are not subject to apportionment under
section 85.34(7).
. . . Without an apportionment statute that applies to
an award of permanent total disability benefits, there is no
basis for the agency to apportion the award. Therefore, the
agency was correct when it refused to apportion Davis’s
permanent total disability benefits.
Davis, 769 N.W.2d at 184–85 (citation omitted).
We see no reason to revisit our conclusion in Davis that permanent
total disability benefits are not subject to apportionment under section
85.34(7). The plain language of the statute supports this conclusion.
Nonetheless, Swift argues that Davis is not dispositive because
Swift is not contending that Ochoa’s permanent disability benefits should
be apportioned under section 85.34(7). Swift instead asks us to interpret
and apply section 85.34 as a bar to concurrent permanent partial and
total disability awards. This contention at least arguably was not raised
or considered in Davis.
Swift maintains that once an employee is permanently totally
disabled, such an employee can no longer be partially disabled in the
eyes of the law and can no longer receive permanent partial disability
benefits. Notably, the commissioner’s decision here results in Ochoa
12
receiving $955.62 weekly in disability benefits for over six years, at which
point the permanent partial disability benefits would stop and she would
receive only the permanent total disability benefits. During that six-year-
plus period of time, Ochoa would receive considerably more in disability
benefits than the $680 per week she had previously been paid for
working.
More particularly, Swift contends that section 85.34(3)(b) prohibits
Ochoa from receiving overlapping benefits for a permanent partial and
permanent total disability. This subsection, which relates to permanent
total disability, provides,
Such compensation shall be in addition to the benefits
provided in sections 85.27 and 85.28. No compensation
shall be payable under this subsection for any injury for
which compensation is payable under subsection 2 of this
section. In the event compensation has been paid to any
person under any provision of this chapter, chapter 85A or
chapter 85B for the same injury producing a total permanent
disability, any such amounts so paid shall be deducted from
the total amount of compensation payable for such
permanent total disability.
Iowa Code § 85.34(3)(b) (2015).
Swift insists the last two sentences in the quoted paragraph mean
a claimant cannot be compensated for more than a one hundred percent
permanent disability at any given time. According to Swift, the
commissioner’s award in this case violates this provision because it
effectively treats Ochoa as more than one hundred percent permanently
disabled from December 15, 2011, the date when compensation began
for Ochoa’s permanent total disability, to February 27, 2018, the date
when compensation will end for Ochoa’s permanent partial disability.
Swift contends this duplication of benefits is both illogical and prohibited
by the statute.
13
Ochoa, on the other hand, argues that the language of section
85.34(3)(b) only prohibits overlapping permanent partial and permanent
total disability benefits relating to the “same injury.” Because the
commissioner found that Ochoa had sustained two separate and distinct
cumulative injuries—nearly ten months apart—the statute is
inapplicable in her view.
As we have recently recognized,
When interpreting the statutory provisions contained
in chapter 85 of the Iowa Code, our goal is to determine and
effectuate the legislature’s intent. To determine legislative
intent, we look to the language chosen by the legislature and
not what the legislature might have said. Absent a statutory
definition, we consider statutory terms in the context in
which they appear and give each its ordinary and common
meaning.
Ramirez-Trujillo, 878 N.W.2d at 770 (citations omitted). “We also
consider the legislative history of a statute, including prior enactments,
when ascertaining legislative intent.” Evenson, 881 N.W.2d at 367
(quoting Branstad v. State ex rel. Nat. Res. Comm’n, 871 N.W.2d 291, 295
(Iowa 2015)). Finally, we may consider “the statute’s ‘subject matter, the
object sought to be accomplished, the purpose to be served, underlying
policies, remedies provided, and the consequences of the various
interpretations.’ ” Id. (quoting Branstad, 871 N.W.2d at 295).
Section 85.34(3)(b) prohibits permanent total disability
compensation for “any injury for which compensation is payable” as a
permanent partial disability. Iowa Code § 85.34(3)(b). Thus, the statute
allows an employer to deduct compensation payable to any person under
chapter 85 “for the same injury producing a total permanent disability.”
Id.
We agree with Ochoa that an employee’s injury limits the scope of
this subsection. “Injury” is a familiar term in workers’ compensation.
14
See Almquist v. Shenandoah Nurseries, Inc., 218 Iowa 724, 730, 254 N.W.
35, 38 (1934). An “injury” may occur because of a “traumatic or other
hurt or damage to the health or body of an employee.” Id. at 732, 254
N.W. at 39. An injury may also occur gradually under the “cumulative
injury rule” “when the claimant, as a reasonable person, would be plainly
aware . . . that he or she suffers from a condition or injury.” Herrera v.
IBP, Inc., 633 N.W.2d 284, 288 (Iowa 2001); see also McKeever Custom
Cabinets v. Smith, 379 N.W.2d 368, 373–74 (Iowa 1985). In either case,
our precedents make relatively clear when a discrete “injury” occurs.
Thus, the use of the singular “injury” in section 85.34(3)(b)
becomes important. So worded, this section prohibits an overlapping
award of permanent total disability benefits for an injury only if that
injury is already the basis for permanent partial disability benefits. In
the event that “same injury” produces a permanent total disability, the
employer is entitled to offset any permanent partial disability benefits.
It is true that the second sentence of Iowa Code section 85.34(3),
which refers to “any injury” without using the term “same injury,” might
be ambiguous if the third sentence didn’t exist. But there is a third
sentence. That sentence elaborates on the second sentence by
explaining how the bar on double compensation is to be carried out. And
it allows the deduction of benefits only when the “same injury” is
involved. See Ramirez-Trujillo, 878 N.W.2d at 770 (recognizing that “[w]e
assess the statute in its entirety rather than isolated words or phrases”).
The historical origin of this language also supports an
interpretation limiting it to same-injury situations. When the legislature
established our system of workers’ compensation law over 100 years ago,
it placed provisions related to permanent partial and permanent total
disability within the same section. See Iowa Code § 2477-m9(i)–(j) (Supp.
15
1913); see generally Warren Props., 864 N.W.2d at 311–14 (discussing
thoroughly the history of Iowa workers’ compensation law). However, the
subsection governing permanent total disability made no reference to
permanent partial disabilities, and vice versa. See Iowa Code § 2477-
m9(i)–(j). Significantly, apportionment was covered in a separate
subsection, which said,
In computing the compensation to be paid to any employe[e]
who, before the accident for which he claims compensation,
was disabled and drawing compensation under the terms of
this act, the compensation for each subsequent injury shall
be apportioned according to the proportion of incapacity and
disability caused by the respective injuries which he may
have suffered.
Id. § 2477-m15(h).
In 1924, the general assembly split the provisions related to
permanent partial and permanent total disability into separate sections.
See 1924 Iowa Acts Ex.-Unpub. ch. 28, §§ 33–34 (codified at Iowa Code
§§ 1395–1396 (1924), later renumbered at §§ 85.34–.35 (1946)). The
foregoing provision on apportionment remained unchanged. Id. § 35
(codified at Iowa Code § 1397(8) (1924)).
In 1959, the legislature again revised the law. See 1959 Iowa Acts
ch. 103. The existing section 85.34 relating to permanent partial
disabilities and section 85.35 relating to permanent total disability were
repealed and replaced with a single section, adopting a format similar to
the original 1913 approach. Id. § 6. An accompanying bill explanation
distilled the reasoning behind the move: “Clarification of the law is
accomplished by placing total permanent disabilities and partial
permanent disabilities in the same section where they belong.” H.F. 690,
58th G.A., 1st Sess. Explanation (Iowa 1959). Once again, the legislature
16
did not alter the law relating to apportionment. See 1959 Iowa Acts ch.
103; see also Iowa Code § 85.36(8) (1962).
However, in 1959, the legislature did add language allowing
reduction of benefits in the following instance:
In the event compensation has been paid to any person
under any provision of this chapter . . . of the Code, for the
same injury producing a total permanent disability, any
such amounts so paid shall be deducted from the total
amount of compensation payable for such permanent total
disability.
1959 Iowa Acts ch. 103, § 6 (codified at Iowa Code § 85.34(3)). This
language has not changed significantly since.
Accordingly, in the wake of the 1959 amendment, there were two
provisions addressing the problem of overlapping benefits. One provision
in Iowa Code section 85.34(3) required offset of benefits for the same
injury, and the other in section 85.36 required apportionment of benefits
for successive injuries where benefits for the prior injury were still being
paid.
There is no reason to believe that section 85.34(3) was ever
designed to avoid overlapping benefits for separate injuries. In fact, the
legislature in 1959 left untouched section 85.36, which already governed
the topic of successive or subsequent injuries. See Warren Props., 864
N.W.2d at 317; see also Iowa Code § 4.6 (2015) (providing that we may
consider “[t]he circumstances under which the statute was enacted”);
Rhoades v. State, 880 N.W.2d 431, 446 (Iowa 2016) (stating that “we
ordinarily assume when a legislature enacts statutes it is aware of the
state of the law”).
17
Our caselaw has discussed what is known as the “full-
responsibility rule.” 1 We first used this term in a 1978 case. See
Anderson v. Second Injury Fund, 262 N.W.2d 789, 791 (Iowa 1978). We
discussed the rule in more depth in Celotex Corp. v. Auten, 541 N.W.2d
252, 254–56 (Iowa 1995). The full-responsibility rule provides, “Apart
from statute, in a situation of two successive work-related injuries, ‘the
employer is generally held liable for the entire disability resulting from
the combination of the prior disability and the present injury.’ ” Id. at
254 (quoting 2 Arthur Larson, The Law of Workmen’s Compensation
§ 59.00, at 10-492.329 (1994)). We have recognized that the rule is
“actually another way of describing our general rule governing
apportionment of disability in workers’ compensation proceedings.
Absent a statute, we generally do not apportion the disability of two
successive work-related injuries.” Excel Corp. v. Smithart, 654 N.W.2d
891, 897 (Iowa 2002) (citation omitted), superseded by statute, 2004
Iowa Acts 1st Extraordinary Sess. ch. 1001, § 12, as recognized in
Warren Props., 864 N.W.2d at 320. Again: “[I]f two separate injuries are
established or if two separate cumulative injuries are established,
compensation is based on the existence of the two separate disabilities,
both of which are recoverable under the full-responsibility rule, unless
otherwise provided by statute.” Id. at 898.
As we have already noted, beginning in 1959, the Iowa Code
recognized two kinds of exceptions to the full-responsibility rule. One
required apportionment of benefits when the employee was already
“disabled and drawing compensation under the provisions of this
1Our recent decision in Roberts Dairy v. Billick contains a detailed discussion of
this rule and the pre-2004 law. See 861 N.W.2d 814, 818–19 (Iowa 2015). We
commend it to the reader.
18
chapter” for another injury. See Iowa Code § 85.36(9)(c) (2003) (originally
codified at Iowa Code § 2477-m15(h) (Supp. 1913)). This apportionment
statute reflected “the apparent judgment of our legislature that the
worker loses his or her entitlement to two separate compensable
disabilities and may only recover compensation of the total disability as a
result of both injuries.” Excel Corp., 654 N.W.2d at 899; see Mycogen
Seeds, 686 N.W.2d at 466 (recognizing that the intent of section
85.36(9)(c) was to “prevent overlapping or stacking of disabilities”). And
it came into effect whether the second injury had resulted in partial or in
total disability. Thus, in Mycogen Seeds, we concluded that this
apportionment statute applied when a worker sustained a permanent
partial disability of forty percent caused by one injury, and then during
the period of benefits sustained a permanent total disability caused by a
second injury. Id. at 467.
The other exception to full responsibility was the situation covered
by Iowa Code section 85.34(3)(b), as enacted in 1959. See Iowa Code
§ 85.34(3) (2003) (originally codified at Iowa Code § 85.34(3) (1962)).
When an employee had already received permanent partial disability
benefits for an injury, and then qualified for permanent total disability
benefits for the same injury, a deduction was required.
Then came the special session of the Iowa legislature in 2004. In
that session, the general assembly repealed Iowa Code section
85.36(9)(c). See 2004 Iowa Acts 1st Extraordinary Sess. ch. 1001, § 12.
Although it appears from our precedents that this former provision likely
would have required apportionment here, the legislature replaced it with
section 85.34(7)(b). See id. § 11; see also Roberts Dairy, 861 N.W.2d at
819 n.1 (discussing apportionment of disability from successive injuries
under section 85.36(9)(c)). And as noted, section 85.34(7)(b) does not
19
apply to permanent total disability benefits. See Davis, 769 N.W.2d at
185 (“Permanent total disability benefits are not subject to
apportionment under section 85.34(7).”).
Swift argues that section 85.34(3)(b) should fill in the gap and
allow an offset here. But apart from the difficulties presented by the
actual text of section 85.34(3)(b), this argument requires us to assume
that a provision the legislature opted not to change in 2004 should take
on a different role than it had before 2004. See Celotex Corp., 541
N.W.2d at 256 (characterizing section 85.34(3) as providing that the
“employer [is] entitled to credit for permanent partial disability payments
made where employee sustains permanent partial disability and
permanent total disability arising from same injury”). Normally, we
follow the opposite presumption—namely, that when the legislature
amends a statute and leaves some of it unchanged, the unchanged
provision retains its prior meaning. See Jenkins v. Furgeson, 212 Iowa
640, 644–45, 233 N.W. 741, 743 (1930) (“The Legislature having
exercised the right of substitution in certain instances, the inference
must be that, on other questions not specified, no substitution was
intended.”).
Here, the commissioner found that Ochoa suffered two cumulative
injuries—one on February 24, 2011, and another on December 15, 2011.
The commissioner determined that Ochoa’s first injury resulted in
permanent partial disability and the second in permanent total disability.
Thus, although Ochoa was already entitled to compensation for a
permanent partial disability at the time of her permanent total disability,
the disabilities were caused by separate and successive injuries. Cf.
Excel Corp., 654 N.W.2d at 899 (noting that “compensation awards are
made retroactive to the date of injury”). Section 85.34(3)(b), on its face,
20
does not prohibit Ochoa from drawing compensation for permanent
partial disability and permanent total disability concurrently, so long as
the benefit awards do not arise from the same injury.
Thus, at the end of the day, Swift’s argument is simply that the
legislature would not have intended an employee who sustains
successive injuries while working for the same employer to receive
simultaneous benefits for both partial disability and permanent
disability. Swift adds that it is incongruous for someone to be both
partially disabled and totally disabled in the eyes of the law at the same
time. And even Ochoa’s counsel at oral argument could not explain why
the legislature in 2004 would have wanted apportionment of benefits to
occur for two partial disabilities but not for a partial disability followed
by a total disability. The same logic seems to apply in both cases.
But our job is to follow what the legislature actually drafted in
2004, not what it might have wanted to draft. As the commissioner
correctly observed, Swift’s position is at best a “policy argument,”
because the legislature in 2004 removed the provision that could have
prevented this double recovery from happening and replaced it with a
provision that does not apply to permanent total disability.
Swift notes that the legislature incorporated the following
statement of legislative intent into the 2004 amendment: “The general
assembly intends that an employer shall fully compensate all of an
injured employee’s disability that is caused by work-related injuries with
the employer without compensating the same disability more than once.”
2004 Iowa Acts 1st Extraordinary Sess. ch. 1001, § 20. Yet the
legislature also said that “[t]his division does not alter . . . benefits for
permanent total disability under section 85.34, subsection 3 . . . or
change existing law in any way that is not expressly provided in this
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division.” Id. And the legislature added, “It is the intent of the general
assembly that this division of this Act will prevent all double recoveries
and all double reductions in workers’ compensation benefits for
permanent partial disability.” Id. (emphasis added). These swirling
cross-breezes in a statement of intent cannot steer us in a different
direction from the prevailing current of actual statutory language.
IV. Conclusion.
For the reasons stated, we affirm the decision of the court of
appeals and the judgment of the district court.
AFFIRMED.
All justices concur except Cady, C.J., who takes no part.