December 30, 2016
JBS SWIFT & COMPANY and AMERICAN ZURICH INSURANCE COMPANY, Appellants,
ROSALVA OCHOA, Appellee.
review from the Iowa Court of Appeals.
from the Iowa District Court for Polk County, Mary Pat
employer seeks further review of a court of appeals decision
affirming a district court judgment upholding a workers'
compensation commissioner's award. AFFIRMED.
A. King, James R. Colwell, and Patrick V. Waldron of
Patterson Law Firm, L.L.P., Des Moines, for appellants.
C. Byrne of Neifert, Byrne & Ozga, P.C., West Des Moines,
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.
Background Facts and Proceedings.
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.
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.
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 and tendonitis in her
right rotator cuff. Ochoa's last day of work was December
15. Swift terminated her for absenteeism in January 2012.
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.
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
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 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
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.
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,
[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!
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
In this case claimant has sustained successive disabilities
with the same employer, JBS Swift & Company, with a first
date of injury on February , 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.
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.
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).
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.
granted Swift's application for further review.
Scope and Standard of Review.
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 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
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).
Preservation of Error.
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
that error has been preserved. We note first the procedural
history of this case. The deputy's arbitration decision
did not 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.
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 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.
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
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).
Davis, the claimant had suffered three injuries
during the course of her employment. 769 N.W.2d at 178-79.
Following a 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.
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. at
184. The employee would be treated as having suffered only an
additional fifteen percent disability due to the second
injury. See id.
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
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 184-185 (citation omitted).
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.
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.
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 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
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).
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.
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.
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).
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.
agree with Ochoa that an employee's injury
limits the scope of this subsection. "Injury" is a
familiar term in workers' compensation. 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.
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.
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").
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. 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
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
Id. § 2477-m15(h).
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)).
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 did not alter the law relating to
apportionment. See 1959 Iowa Acts ch. 103; see
also Iowa Code § 85.36(8) (1962).
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
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
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").
caselaw has discussed what is known as the
"full-responsibility rule." 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.
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 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.
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.
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 85.39(9)(c)). And as noted,
section 85.34(7)(b) does not 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).").
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
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,
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.
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.
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.
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 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.
reasons stated, we affirm the decision of the court of
appeals and the judgment of the district court.
justices concur except Cady, C.J., who takes no part.
Our 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.