94 F3d 642 Smith v. Eastern Associated Coal Corporation

94 F.3d 642

Eloise Q. SMITH (Widow of Kirby A. Smith), Petitioner,
Workers' Compensation Programs, United States
Department of Labor, Respondents.

No. 95-2821.

United States Court of Appeals, Fourth Circuit.

Submitted June 11, 1996.
Decided Aug. 14, 1996.

NOTICE: Fourth Circuit Local Rule 36(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit.

Frederick K. Muth, HENSLEY, MUTH, GARTON & HAYES, Bluefield, West Virginia, for Petitioner. Mark E. Solomons, Thomas H. Odom, ARTER & HADDEN, Washington, D.C., for Respondents.

Before WIDENER, NIEMEYER, and LUTTIG, Circuit Judges.

Affirmed by unpublished per curiam opinion.


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Eloise Smith petitions for review of a decision of the Benefits Review Board (Board) affirming an administrative law judge's (ALJ) decision to deny her request for black lung benefits pursuant to 30 U.S.C.A. § 901-45 (West 1986 & Supp.1996). In his final decision, the ALJ found the evidence of record sufficient to establish invocation of the interim presumption of entitlement pursuant to 20 C.F.R. § 727.203(a)(2) (1996), but also sufficient to establish rebuttal pursuant to § 727.203(b)(3) and (4). The Board affirmed the ALJ's finding of rebuttal under subsection (b)(4) as unchallenged on appeal, and found it unnecessary to address subsection (b)(3), as the ALJ's finding under subsection (b)(4) precluded entitlement on both Smith's survivor's claim and a miner's claim previously filed by Smith's deceased husband.


Smith's failure to challenge the ALJ's finding of subsection (b)(4) rebuttal before the Board results in waiver of her right to review of that issue by this Court. 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). Because the ALJ's finding of subsection (b)(4) rebuttal precludes entitlement, we affirm the decision of the Board. 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.