42 F3d 1386 Robinson v. Director Office of Workers' Compensation Programs

42 F.3d 1386

Harold D. ROBINSON, Petitioner,
States Department of Labor; West Virginia Coal
Workers' Pneumoconiosis Fund,
Incorporated; Longbranch
Energy, Respondents.

No. 94-1602.

United States Court of Appeals, Fourth Circuit.

Submitted Oct. 25, 1994.
Decided Dec. 20, 1994.

NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit.

On Petition for Review of an Order of the Benefits Review Board. (93-1473-BLA)

George A. Mills, III, Huntington, WV, for petitioner. Darrell V. McGraw, Jr., Attorney General, Konstantine K. Weld, Assistant Attorney General, Charleston, WV, for respondents.



Before RUSSELL, WILKINSON, and WILLIAMS, Circuit Judges.



view counter

Harold Robinson seeks review of a decision of the Benefits Review Board (Board) affirming the administrative law judge's (ALJ) decision to deny his application for black lung benefits. In his brief, Robinson contends generally that the ALJ erred by failing to find that he established a material change in conditions pursuant to 20 C.F.R. Sec. 725.309(d) (1993), and total disability due to pneumoconiosis. He also appears to contend that the ALJ erred by finding the modification provisions of 20 C.F.R. Sec. 725.310 (1993) inapplicable to this claim. Finally, he implies that the ALJ improperly pressured him into waiving his right to an oral hearing on his claim.


It is well established that where a party fails to properly raise an issue before the Board, he fails to preserve that issue for consideration by the federal court of appeals. See Big Horn Coal Co. v. Director, Office of Workers' Compensation Programs, 897 F.2d 1052, 1054 (10th Cir.1990); South Carolina v. United States Dep't of Labor, 795 F.2d 375, 378 (4th Cir.1986); Cox v. Benefits Review Bd., 791 F.2d 445, 446-47 (6th Cir.1986). The record discloses that Robinson made no allegation of error whatsoever relating to modification and the waiver of his right to a hearing before the Board. Moreover, the record supports the Board's determination that Robinson's contentions relating to the ALJ's findings of no material change in conditions and no total disability due to pneumoconiosis were only general in nature, failing to identify any specific error committed by the ALJ as is required to invoke Board review under 20 C.F.R. Sec. 802.211(b) (1993). Robinson therefore failed to properly preserve these issues for our consideration.


Moreover, our review of the record discloses that the ALJ's decision is, in any event, supported by substantial evidence. See Zbosnik v. Badger Coal Co., 759 F.2d 1187 (4th Cir.1985). The decision of the Board is therefore affirmed. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.