dissenting:
The majority opinion recognizes that when Mr. Langman “accepted his lump sum payment for PPD in 1990, he did so with the understanding that he would be able to reopen his claim in accordance with the provisions of NRS 616.545 then in force,” that is to say, reopen his claim by presenting a physician’s certificate “showing a change of circumstances which would warrant an increase or rearrangement of compensation.” The majority opinion changes the rules on Mr. Langman and requires that Mr. Langman sustain a much greater burden of proof in order to reopen his claim. Mr. Langman rightly complains that he is being treated unfairly by being required now to establish that his current problems were “primarily” caused by his original, work-related injury and not by any other cause. The big change in the rules in effect at the time Mr. Langman accepted his settlement, as compared to the rules now enforced by this court, is that the new rules leave it open to the insurer to prevent a claim-reopening *211and to bring in its own doctor to say that the “primary cause” of physical complaints of a claimant seeking reopening of a claim is some factor other than the initial industrial accident. It is much easier for a self-insured employer to avoid reopening a claim under the newly-imposed burden of proof faced by Mr. Langman; and the new procedure is vastly different from the former procedure, under which a claimant merely had to present a physician’s certificate “showing a change of circumstances that would warrant an increase or rearrangement of compensation.”
I see no reason why Mr. Langman should not be given the benefit of the simpler and less burdensome procedural rules that were in effect when he accepted the settlement. I think that the “physician’s certificate” manner of proceeding was part of his agreement to accept the lump sum settlement and that it is unfair and in violation of the contract to change the rules and make reopening his claim more difficult for him than it was at the time of the settlement. Even if it were the intention of the Legislature1 to change the rules in the stated manner (as claimed by the majority), Mr. Langman’s procedural and substantive rights should not be subject to being retroactively diminished.
If the appeals officer had applied the correct burden of proof in this case, there is no doubt about the outcome of Mr. Langman’s request to reopen his claim. He would simply have presented his “physician’s certificate” and gone ahead with his claim of eligibility to be compensated for the consequences of his back not having been properly fused after his industrial accident. This court’s unconvincing and torturous rationalization of the insurer’s denial, based upon a prejudicial, ex post facto change in burden of proof, does not justify denial of benefits to this injured worker.
As I have said, Mr. Langman would not have been denied his right to reopen his claim had the rules not been changed; however, as I see this case, it is clear that Mr. Langman’s claim to reopen should not have been denied even under the new rules.
The facts of this case are quite simple. Mr. Langman was operated on for a work-related back injury. The back surgery involved removal of a spinal disc and a bone graft of two of his vertebrae. After the surgery, Mr. Langman fell and injured his *212back at the site where his previous surgery had failed. He went to his doctor, Dr. Frances D’Ambrosio, who saw immediately that the work-related surgery had not resulted in a proper fusion of the two vertebrae and that it would be necessary to reoperate in order to correct the defective fusion. Dr. D’Ambrosio concluded, as would be expected, that the primary cause of Mr. Langman’s back problems was not the intervening fall but, rather, the failed vertebral fusion. The opinion of the treating physician, Dr. D’Ambrosio, was later confirmed by another orthopedist, Dr. James Thomas, Jr., who examined the medical records and also concluded that the original fusion had not been successful and had not completely healed. According to Dr. Thomas, the segment of Mr. Langman’s spine that had been operated remained vulnerable, and there was a “definite relationship” between the work-related surgery and the need for ameliorative surgery.
What makes this case so tragic, both to Mr. Langman and to these kinds of injured workers as a class, is that, upon examining the facts of this case, it is very difficult to see how, under any circumstances, Mr. Langman could have been properly denied his request to reopen his claim. Mr. Langman injured his back on the job; he had unsuccessful surgery to treat this injury; his vulnerable spinal fusion was aggravated by a subsequent trauma, but he most certainly would not be suffering his present complaint had it not been for the unhealed, work-related surgery. The “primary cause” of his present symptoms is, quite clearly, the failed surgery that was necessitated by his work-related injury. Mr. Langman is entitled to have his unsuccessful, work-related vertebral fusion surgically revised at the expense of the self-insured Horseshoe.
One would think that this claim would have been routinely reopened, given the report of Mr. Langman’s treating physician, which clearly established not only the relationship of the work-related surgery to Mr. Langman’s present complaints, but expressly advised the insurer that the surgery was the “primary cause” of the complaints. How then could such a rightful claim possibly be defeated? The answer is simple: the insurer just hired its own physician, who obligingly incanted the magic words prescribed by the new statute, namely, that subsequent trauma “and not the industrial accident on May 13, 1988, was the primary cause of Claimant’s new injury.” (My emphasis.)
I wonder if I am the only one who sees the danger here. From now on, whenever a claimant suffers a “new,” non-industrial injury which has any effect at all upon a work-related condition, all the insurer has to do is bring in its own “expert” to say that the later injury is the primary cause of the claimant’s physical disabilities. This case is a perfect sample of the dangers that *213concern me. The Horseshoe doctor merely had to come in and say that the unhealed fusion, in need of repair, was not “primary” (whatever that might mean). That statement alone put an end to Mr. Langman’s claim.
In the present case, the appeals officer concluded that it was only the Horseshoe doctor who was “credible” and that, necessarily, Mr. Langman’s treating physician and Dr. Thomas were not credible. It is this entirely unsupported and arbitrary conclusion on the part of the appeals officer that is being upheld by both the trial court and this court.
This court is not known for its leaning toward the interests of workers and against the interests of employers, but the present case may be the most prejudicial to the interests of injured workers that can be found in this court’s entire catalogue of industrial accident cases. It appears to me that all a self-insured employer has to do now is to have its doctor pronounce that any “new” injury is “primary” and that the industrial accident is therefore secondary to the claimant’s physical complaints. It is possible, in any case in which an injured worker seeks to reopen a claim, for an appeals officer to issue a baseless ruling that the insurer’s doctor is accepted as credible and the injured claimant’s doctor is rejected as not being credible.
I would reverse the ruling of the appeals officer and the district court on both of the grounds asserted by Mr. Langman. Mr. Langman should not have been faced with new rules and a new burden of proof; and Mr. Langman’s failed spinal fusion is without doubt the primary cause of his present complaints. Mr. Langman is entitled to reopen his claim. The present injustice is troublesome, but not so troublesome as the prospect of similar unfair treatment of industrial claimants in the future based on the opinion that is issued today.
The majority points out that NRS 616C.390(10) provides that the section applies to any application to reopen “regardless of the date of injury or accident . . . .” It is not the “date of injury” that is important here; it is the date of acceptance of the lump sum payment that matters. On the date that Mr. Langman accepted the lump sum settlement, there was one set of rules in effect; but when he sought to reopen his claim, he was faced with another set of rules. The Legislature’s speaking to the date of injury or the date of accident does not affect Mr. Langman’s entitlement to have the same burden of proof for reopening as was in effect when he accepted a settlement.