When a Win is Not a Win- Stay Orders


By Jason Weinstock on October 1, 2014

 If an injured worker in Nevada successfully convinces a hearing officer to reverse an adjuster’s action on a claim, the insurer and/or the employer has the right to file an appeal to an appeals officer.  The insurer or employer must file their appeal within 30 days (plus 3 days for mailing of the hearing officer’s decision).  The insurer or employer usually wait until the last possible day to file an appeal.  Whether the insurer has to comply and do what the hearing officer ordered depends on whether the insurer is able to obtain an order from an appeals officer staying the decision of the hearing officer until the next appeal is decided by the appeals officer.  

 A Motion for Stay is the legal document that the insurer or employer files with the appeals office asking the appeals officer to order that the insurer does not have to do what the hearing officer ordered.  The insurer or employer who files an appeal of a hearing officer’s decision almost always files a Motion for Stay when they file an appeal from a hearing officer’s decision.  The insurer usually argues in a Motion for Stay that because the law does not allow an  insurer to recover any benefits it must pay before its appeal is decided by the appeals officer, the decision of the hearing officer should be stayed.

The injured worker should always file an opposition to a Motion for Stay.  Otherwise,  the appeals officer is likely to grant a stay order.  If the injured worker does not already have an attorney, he should immediately request that a NAIW attorney be appointed to oppose the Motion for Stay and to represent the claimant at the upcoming hearing before the appeals officer.   
 
If the insurer files an appeal and a Motion for Stay, the insurer does not have to comply with the hearing officer’s decision until 10 days after the appeals officer rules on the motion.  At this point,  over 45 days will have elapsed since the hearing officer ruled favorably for the injured worker.  If the motion is granted, and a stay order is signed by the appeals officer assigned the case, the insurer will not have to do what the hearing officer ordered.  
 
To further complicate things, even if the appeals officer denies a Motion for Stay, the insurer still may not have to do what the hewing officer ordered until after the appeals officer decides the case.  There is a law that allows the insurer an automatic stay as to payment of large sums of money that are contested. See NRS 616C.380.  For example, if the hearing officer orders that the insurer should not have suspended the claimant’s benefits, and over 3 months of retroactive benefits are due as a result of the favorable decision, the insurer will not have to pay those retroactive benefits all at once.  Instead, the insurer only has to pay one month of benefits each month until the case is decided by the appeals officer or until all of the retroactive benefits have been paid over several months.    Another example is that the insurer does not have to pay a lump sum of a PPD award that is ordered by a hearing officer if the appeals officer denies the insurer’s request for a stay order.  The insurer can instead pay installment benefits on the PPD until the appeals officer decides what percentage PPD should be awarded.  
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