* Pursuant to Local Rule 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opinion should not be published and is not precedent except under the limited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 Local Rule 47.5.4. 

UNITED STATES COURT OF APPEALS

FIFTH CIRCUIT

_________________

No. 96-60683

(Summary Calendar)

_________________

CHARLES NEWMAN,

Petitioner,

versus

STRACHAN SHIPPING COMPANY OF TEXAS; LOUISIANA

INSURANCE GUARANTY ASSOCIATION; DIRECTOR,

OFFICE OF WORKER’S COMPENSATION PROGRAMS, U.S.

DEPARTMENT OF LABOR,

Respondents.

On Petition for Review of a Decision and

Order of the Benefits Review Board, United

States Department of Labor

(93-1307)

May 29, 1997

Before DAVIS, EMILIO M. GARZA, and STEWART, Circuit Judges.

PER CURIAM:*

Charles Newman (“Newman”) petitions for review of a decision

and order of the Benefits Review Board of the United States

Department of Labor (“the Board”). We affirm.
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I

Newman sustained an injury to his left leg and lower back on

August 23, 1979, while working as a cargo checker for Strachan

Shipping Company of Texas (“Strachan”) aboard the vessel M/V

DEXTERITY. Newman filed a claim for benefits pursuant to the

Longshore and Harbor Workers’ Compensation Act (“LHWCA”), 33 U.S.C.

§ 901 et seq., which Newman, Strachan and American Mutual Liability

Insurance Company settled on January 6, 1982. The settlement

agreement provided that Strachan and American Mutual “agree to pay

in the future, and indefinitely, any and all additional medical

expenses, including hospital, physician and medication bills,

relating to the reasonable medical treatment for the job injury

sustained by [Newman] on August 23, 1979.”

After recovering from his injuries, Newman returned to work

for Strachan as a light-duty cargo checker. He continued to

receive medical treatment in the form of chiropractic therapy, paid

for by American Mutual, until February 25, 1985. Two days later,

on February 27, 1985, Newman again injured himself at work,

sustaining injuries to his neck and lower back. The parties

settled Newman’s second claim for benefits under the LHWCA and the

Deputy Commissioner for the Seventh Compensation District approved

the settlement on April 25, 1989. The second settlement agreement

discharged Strachan and Employers National Insurance Company of

“all payments of medical expenses, past and future, under Section
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7 of the [LHWCA] as a result of [Newman’s] alleged accident and

injury of February 27, 1985" in exchange for consideration in the

amount of $25,000. In the instant action, Newman seeks medical

benefits he alleges he was promised in the first settlement

agreement.

On February 26, 1993, an administrative law judge (“ALJ”)

granted Respondents’ motion for summary judgment on Newman’s claim

and denied his claim for medical benefits. On August 12, 1996, the

Benefits Review Board (“the Board”) affirmed the ALJ’s decision.

Newman petitions for review of the Board’s decision and order.

II

Newman argues that the ALJ’s decision, and the Board’s

affirmance of it, are contrary to Fifth Circuit precedent. He also

argues that the ALJ erred in applying the “Aggravation Rule” rather

than the “Last Employer Rule” because the “Aggravation Rule”

renders inconsistent results as applied to this case. 

However, as Newman forthrightly admits, he did not raise

either of these arguments before the ALJ or the Board. As a

general principle of appellate review, we will not consider a legal

issue or theory that was not presented to the trial court. Payne

v. McLemore’s Wholesale & Retail Stores, 654 F.2d 1130, 1144 (5th

Cir. 1981), cert. denied, 455 U.S. 1000, 102 S. Ct. 1630, 71 L. Ed.

2d 866 (1982). Although this general principle will not bar

consideration of a new issue when a pure question of law is
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involved and a refusal to consider it would result in a miscarriage

of justice, id., we have previously stated that consideration of a

new issue for the first time on appeal requires the existence of

“exceptional circumstances.” City of Waco, Tex. v. Bridges, 710

F.2d 220, 228 (5th Cir. 1983), cert. denied, 465 U.S. 1066, 104 S.

Ct. 1414, 79 L. Ed. 2d 741 (1984). The burden of establishing

exceptional circumstances rests on the party asserting the new

issue. Id.

In this case, Newman has not carried this burden. Without

further explanation, he “suggests that failure to consider the

issues presented in [his] petition . . . will result in a

miscarriage of justice.” Moreover, he offers no reason why he did

not previously present his new arguments. Under these

circumstances, we will not consider Newman’s new arguments. See

id. (holding that United States did not show exceptional

circumstances warranting consideration of new argument on appeal

where “it offered no reason why the theory it offers [to appellate

court] was not presented below”). The decision and order of the

Benefits Review Board are AFFIRMED.