Walker v. Director, Office of Workers' Compensation Programs, U.S. Dept. of Labor

4 F.3d 988, 1993 U.S. App. LEXIS 38012, 1993 WL 321603

• Court: Court of Appeals for the Fourth Circuit
• Decided: August 24, 1993
• Docket: 93-1191
• Status: Unpublished

Opinion

4 F.3d 988

NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit.
Hobert L. WALKER, Petitioner,
v.
DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, UNITED
STATES DEPARTMENT OF LABOR; Industrial
Contracting of Fairmont, Incorporated,
Respondents.

No. 93-1191.

United States Court of Appeals,
Fourth Circuit.

Submitted: August 6, 1993.
Decided: August 24, 1993.

On Petition for Review of an Order of the Benefits Review Board. (89-3619-BLA)

S. F. Raymond Smith, Rundle & Cooper, L.C., Pineville, West Virginia, for Petitioner.

William H. Howe, Patricia T. Gonsalves, Howe, Anderson & Steyer, P.C., Washington, D.C., for Respondents.

Ben.Rev.Bd.

AFFIRMED.

Before MURNAGHAN and WILLIAMS, Circuit Judges, and SPROUSE, Senior Circuit Judge.

OPINION

PER CURIAM:

Hobert Walker filed an appeal against Industrial Contracting of Fairmont, Inc. (ICF) seeking black lung benefits under 30 U.S.C. Secs. 901-45 (1985 & Supp. 1992). His only contention on appeal is that the administrative law judge (ALJ) erred in weighing the medical evidence supporting his finding of rebuttal pursuant to 20 C.F.R. Sec. 727.203(b)(3) (1991). In affirming the ALJ's finding of rebuttal, the Benefits Review Board (Board) specifically found that Walker, who was represented by counsel, did not challenge the ALJ's weighing of the evidence under subsection (b)(3). Walker has not disputed this finding on appeal.

We hold that Walker's failure to challenge the ALJ's subsection (b)(3) findings before the Board's precludes review of that issue on appeal. See Freeman United Coal Mining Co. v. Director, Office of Workers' Compensation Programs, 957 F.2d 302 (7th Cir. 1992); Big Horn Coal Co. v. Director, Office of Workers' Compensation Programs, 897 F.2d 1052 (10th Cir. 1990); South Carolina v. United States Dep't of Labor, 795 F.2d 375 (4th Cir. 1986); Cox v. Benefits Review Board, 791 F.2d 445 (6th Cir. 1986). 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.

AFFIRMED