While working for Hog Slat, Inc., Howard Kohlhaas’ right foot was crushed by a large concrete block. Kohlhaas and Hog Slat entered into a settlement agreement, establishing a 50% permanent partial disability to Kohlhaas’ right leg. Both before the settlement and after the settlement, Kohlhaas complained of knee, hip, and back pain in addition to his foot problems. A few years later, Kohlhaas filed a review-reopening petition, requesting an increase in compensation as well as reimbursement for a medical evaluation pursuant to Iowa Code section 85.39 (2003). The commissioner denied both requests. Kohlhaas appealed, and the decision was affirmed. He *390 then filed a petition for judicial review, and the district court affirmed the commissioner’s decision. Because the claimant need not prove that the current extent of disability was not contemplated by the commissioner (in the arbitration award) or the parties (in their agreement for settlement), we reverse. However, we affirm the commissioner’s denial of Kohlhaas’ request for reimbursement of his expenses for a section 85.39 medical evaluation because the employer did not obtain a new evaluation of Kohlhaas’ permanent disability in the review-reopening proceeding.
I. Facts and Prior Proceedings.
On October 21, 1999, a 400-pound concrete block fell on Howard Kohlhaas’ right foot while working at Hog Slat. His foot was fractured in several places, and the skin was crushed and torn apart. On July 15, 2002, Kohlhaas and Hog Slat, along with its insurance companies Royal and SunAlliance Insurance Cos., filed an agreement for settlement pursuant to Iowa Code chapter 86 (2002), which was approved by the Iowa workers’ compensation commissioner. The settlement established that the injury proximately caused a 50% permanent partial-disability to Kohlhaas’ right leg. The settlement documents also contained the opinion of Dr. Crane that Kohlhaas’ knee, hip, and back pain was not related to the work injury.
Kohlhaas continued to suffer from foot, knee, hip, and back pain in varying degrees. On July 14, 2005, Kohlhaas filed a review-reopening petition, requesting an increase in compensation, seeking compensation for a 95% industrial disability, as well as reimbursement for an independent medical evaluation by Dr. Kuhnlein. Kohl-haas presented evidence from his chiropractor, Dr. Mueller, who asserted Kohl-haas’ knee, hip, and back problems were a direct result of his injury. Dr. Kuhnlein, who performed a medical evaluation, opined Kohlhaas had a 34% impairment of his right leg, and his knee and hip pain was related to the change in his gait after the injury. The review-reopening decision issued by the deputy commissioner on August 31, 2006 determined that an increase in compensation was not warranted because “the claimant has not proved by a preponderance of the evidence that there has been a change in the condition of the claimant that was not anticipated at the time of the original settlement.” The deputy commissioner also denied Kohlhaas reimbursement for Dr. Kuhnlein’s medical evaluation. Kohlhaas appealed, and the decision was affirmed by the commissioner.
Kohlhaas then filed a petition for judicial review. The district court affirmed the commissioner’s decision, stating “[i]t is clear that most of the complaints that the petitioner claims supports an increase in his disability were reported and known at the time of the settlement.” Further, the district court determined
[t]he connection between the 1999 injury and the petitioner’s complaints of back, hip, and knee pain (while supported by Drs. Mueller and Kuhnlein) were discounted by Dr. Crane at the time of the original settlement. The agency was well within its rights to side with Dr. Crane’s evaluation of this issue.
Kohlhaas appealed.
II. Scope of Review.
Our scope of review is for the correction of errors at law.
E.N.T. Assocs. v. Collentine,
“Substantial evidence” means the quantity and quality of evidence that would be deemed sufficient by a neutral, detached, and reasonable person, to establish the fact at issue when the consequences resulting from the establishment of that fact are understood to be serious and of great importance.
Iowa Code § 17A.19(10)(/')(1). An abuse of discretion occurs when the commissioner’s exercise of discretion is “clearly erroneous or rests on untenable grounds.”
Waters,
III. Merits.
A. Review-reopening Decision. Under Iowa Code section 86.14(2), the workers’ compensation commissioner is authorized to “reopen an award for payments or agreement for settlement ... [to inquire] into whether or not the condition of the employee warrants an end to, dimin-ishment of, or increase of compensation so awarded or agreed upon.” When an employee seeks an increase in compensation, the employee bears the burden of establishing by a preponderance of the evidence that his or her current condition was “proximately caused by the original injury.”
Simonson v. Snap-On Tools Corp.,
In our case, the commissioner and the district court relied on the holding in
Acuity Insurance v. Foreman,
(1) whether there has been a change in the worker’s condition as a result of the original injury, and (2) whether this change was contemplated by the parties at the time of any settlement ... or whether it was beyond what the commissioner contemplated at the time of the original assessment of industrial disability-
Acuity,
Kohlhaas asserts the district court erred by declaring as a matter of law that review-reopening relief cannot be granted unless the employee has demonstrated a change in his condition not anticipated at the time of the original settlement. He contends the rule from Acuity that the change in condition “must not have been within the contemplation of the decision maker at the time of the original award” is obiter dictum and, therefore, not binding precedent. Id. We agree. The language in Acuity is ambiguous and seems to con *392 done an agency’s consideration of, or speculation about, future changes in condition or earning capacity at the time of the initial award. What we attempted to say in Acuity is that a condition that has already been determined by an award or settlement should not be the subject of a review-reopening petition.
In determining a scheduled or unscheduled award, the commissioner finds the facts as they stand at the time of the hearing and should not speculate about the future course of the claimant’s condition. The functional impairment and disability resulting from a scheduled loss is what it is at the time of the award and is not based on any anticipated deterioration of function that might or might not occur in the future.
See
Iowa Code § 85.34(2);
Second Injury Fund v. Bergeson,
A compensable review-reopening claim filed by an employee requires proof by a preponderance of the evidence that the claimant’s current condition is “proximately caused by the original injury.”
See Simonson,
Therefore, we have held that awards may be adjusted by the commissioner pursuant to section 86.14(2) [then section 86.34] when a temporary disability later develops into a permanent disability,
see Rose v. John Deere Ottumwa Works,
Although we do not require the claimant to demonstrate his current condition was not contemplated at the time of the original settlement, we emphasize the principles of res judicata still apply— that the agency, in a review-reopening petition, should not reevaluate an employee’s level of physical impairment or earning capacity if all of the facts and circumstances were known or knowable at the time of the original action. As this court has explained,
a contrary view would tend to defeat the intention of the legislature[:] ... “The fundamental reason for the enactment of this legislation is to avoid litigation, lessen the expense incident thereto, minimize appeals, and afford an efficient and speedy tribunal to determine and award compensation under the terms of this act.”
Stice,
Although it could be argued there is substantial evidence in the record that Kohlhaas’ current condition does not warrant an increase in compensation, it is fair to conclude the commissioner’s determination may have been influenced by the language in Acuity we have just disavowed. In that we have clarified the requirements for a review-reopening petition, we reverse and remand the case to the commissioner to determine on the record already made whether Kohlhaas has met the burden of proof required for a review-reopening petition under the standard we have set forth today.
B. Reimbursement for Medical Evaluation Pursuant to Iowa Code Section 85.39. Kohlhaas contends that the commissioner incorrectly failed to reimburse him for the fees associated with Dr. Kuhnlein’s medical evaluation. Under Iowa Code section 85.39,
If an evaluation of permanent disability has been made by a physician retained by the employer and the employee believes this evaluation to be too low, the employee shall ... be reimbursed by the employer the reasonable fee for a subsequent examination by a physician of the employee’s own choice....
Kohlhaas argues that Dr. Crane’s evaluation performed as part of the 2002 settlement qualifies as “an evaluation of permanent disability ... made by a physician retained by the employer.” Iowa Code § 85.39.
The commissioner determined Kohlhaas could not be reimbursed for Dr. Kuhnlein’s fees because “there was no prior rating by a doctor who was retained by defendants that claimant claimed was too low.” Af *394 firming the commissioner’s decision, the district court determined “[t]he time for challenging the prior evaluations was in the context of the original proceedings that culminated in the agreement for settlement.” We agree.
In interpreting the Workers’ Compensation Act, we look to the language of the statute in order to determine the intent of the legislature.
United Fire & Cas. Co. v. St. Paul Fire & Marine Ins. Co.,
A medical evaluation pursuant to section 85.39 is a means by which an injured employee can rebut the employer’s evaluation of disability. It is not a way for the employee to initiate proceedings. If we were to allow reimbursement for a section 85.39 medical evaluation without a new evaluation from an employer, then an employee could continually file review-reopening petitions at the expense of the employer. This could hardly be the purpose of the statute.
See McSpadden v. Big Ben Coal Co.,
Even though we have not applied Iowa Code section 85.39 to review-reopening petitions, the industrial commissioner has. In Sheriff v. Intercity Express, 34 Iowa Indus. Comm’r Rpts. 302 (Oct.1978), the employee sought reimbursement for a section 85.39 medical evaluation during his second review-reopening proceeding. The employee asserted that the prior evaluation, which the new medical evaluation challenged, was the physician’s report during the first review-reopening proceeding. Sheriff, 34 Iowa Indus. Comm’r Rpts. at 303. In denying the claim for reimbursement, the commissioner stated
Claimant’s subsequent attempt to obtain an examination pursuant to § 85.39 is either an attempt to get evidence of an evaluation of disability greater than that awarded by the deputy in the first review-reopening proceeding or an attempt to get evidence of a change in condition at the employer’s expense. It is neither contemplated nor proper that § 85.39 be used for these purposes.
Id.
Although we do not defer to the commissioner’s interpretation of the workers’ compensation statute,
Larson Mfg. Co. v. Thorson,
We agree with the commissioner and the district court that Iowa Code section 85.39 does not expose the employer to liability for reimbursement of the cost of a medical evaluation unless the employer has obtained a rating in the same proceeding with which the claimant disagrees. In 2002, Kohlhaas entered into a settlement agreement establishing his disability. Three years later, he seeks reimbursement for a medical evaluation not to rebut a new impairment rating obtained by the employer in the review-reopening proceeding, but rather to cast doubt on an impairment rating obtained by the employer before the agreement for settlement was reached. If *395 Kohlhaas wanted to challenge Dr. Crane’s evaluation at his employer’s expense, he should have done so in the original proceeding establishing his disability in 2002, 2 not during the review-reopening proceeding three years later. The review-reopening proceeding in this case is a new and distinct proceeding apart from the original arbitration action, as the claimant had a burden to prove something different than he proved at the arbitration hearing. See Iowa Code § 86.14(2). As the employer did not obtain a new evaluation of Kohl-haas’ disability in connection with the review-reopening proceeding, Kohlhaas is not entitled to reimbursement for expenses associated with Dr. Kuhnlein’s medical evaluation under section 85.39.
IV. Conclusion.
As a compensable review-reopening claim requires proof that, after the award or settlement, the claimant’s current condition warrants an adjustment in compensation, we reverse and remand the case to determine on the record already made whether Kohlhaas’ disability has increased since the settlement agreement. We affirm the commissioner’s denial of reimbursement for Kohlhaas’ medical evaluation because the employer did not obtain a new rating in the review-reopening proceeding.
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.
Notes
. The language in
Acuity
is akin to the language in divorce modification cases.
See In re Marriage of Pals,
. From the record, it does not appear Kohl-haas challenged the employer's rating through a medical evaluation pursuant to sec-lion 85.39 prior to the 2002 settlement agreement.