Court of Appeals Affirms Overlapping Award of PPD, PTD Benefits

The passage of HF 2581 in 2004 eliminated the provision that overlapping streams of benefits were impermissible under section 85.36(9)(c) of the Code.   In Drake University v. Davis, 769 N.W.2d 176 (Iowa 2009), the Supreme Court held that in a situation where a claimant had a PPD award followed by a subsequent award of PTD benefits, both benefits could be received simultaneously, because the language of section 85.34(7) of the Code, which addressed issues of apportionment, did not reference awards under section 85.34(3) of the Code, only awards under section 85.34(2).

In JBS Swift v. Ochoa, No. 15-0840 (Iowa App. May 25, 2016), the Court of Appeals followed Davis and affirmed the commissioner's award of an overlapping 70% industrial disability and a subsequent PTD award.  The court noted that the awards were both supported by substantial evidence and indicated, in discussing Davis, that "we are not at liberty to overrule controlling supreme court precedent."  Although noting that the employer had made several "compelling public policy arguments," the court nonetheless rejected the employer's contentions.  The court also noted that the employer had failed to raise its objections, which were based on section 85.34(b)(3) of the Code, until the district court level and thus error had not been preserved.  The commissioner's award was affirmed.

Claimant Rosalva Ochoa was represented by Jamie Byrne of Neifert, Byrne & Ozga.