Jbs Swift & Company and American Zurich Insurance Company v. Rosalva Ochoa , 888 N.W.2d 887 ( 2016 )


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  •                 IN THE SUPREME COURT OF IOWA
    No. 15–0840
    Filed December 30, 2016
    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
    3
    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
    184–185 (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 85.39(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
    21
    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.