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JBS Swift & Co. v. Ochoa

Supreme Court of Iowa

December 30, 2016

JBS SWIFT & COMPANY and AMERICAN ZURICH INSURANCE COMPANY, Appellants,
v.
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.

          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 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 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,

[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.

         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 ...


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