Holcim v. DOWCP

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this
opinion should not be published and is not precedent except under the limited
circumstances set forth in 5TH CIR. R. 47.5.4.
United States Court of Appeals
Fifth Circuit
F I L E D
August 17, 2006
Charles R. Fulbruge III
Clerk
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________________
No. 05-60836
Summary Calendar
_______________________
HOLCIM (US), INC.,
Petitioner,
versus
DIRECTOR, OFFICE OF WORKER’S COMPENSATION PROGRAMS,
US DEPARTMENT OF LABOR,
Respondent.
Petition for Review of an Order
of the Benefits Review Board
No. 2:07-168295
Before JONES, Chief Judge, and JOLLY and OWEN, Circuit Judges.
PER CURIAM:*
Petitioner Holcim (US), Inc. (“Holcim”) argues that the
Benefits Review Board (“Board”) erroneously denied its motion for
a stay of an award pending appeal. Holcim contends that, because
it does not have a legal remedy to recoup benefits paid in the
event the award is later overturned on appeal, see Lennon v.
Waterfront Transp., 20 F.3d 658, 661-62 (5th Cir. 1994), it will
suffer irreparable injury. Holcim’s contention is foreclosed by
Rivere v. Offshore Painting Contractors, 872 F.2d 1187 (5th Cir.

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1989). “Irreparable injury is demonstrated only when the compensa-
tion award may be too heavy for the employer [or insurer] to pay
without practically taking all his property or rendering him
incapable of carrying on his business, or . . . by reason of age,
sickness, or other circumstances [of the payer], a condition is
created which would amount to irreparable injury.” Id. (citation
and quotation marks omitted). Additionally, “[t]hat payment of
compensation might pose a problem, or even cause serious difficulty
is not enough to support a stay. Neither is the fact that the
amount paid might be lost if the award is reversed on appeal.” Id.
Realizing that under the current caselaw, it cannot
prevail, Holcim asks this court to overturn Rivere, or
alternatively to overturn our precedent and allow recoupment of
benefits in the event the award is later overturned on appeal. We
find no merit in Holcim’s requests; accordingly, the decision of
the Board denying a stay pending appeal is AFFIRMED.

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