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 ...