UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 20-2115

ISLAND CREEK COAL COMPANY,

Petitioner,

v.

JAMES L. FIELDS; DIRECTOR, OFFICE OF WORKERS’ COMPENSATION 

PROGRAMS, UNITED STATES DEPARTMENT OF LABOR,

Respondents.

On Petition for Review of an Order of the Benefits Review Board. (19-0316 BLA)

Submitted: April 28, 2023 Decided: June 22, 2023

Before WILKINSON, KING, and RICHARDSON, Circuit Judges.

Petition denied by unpublished per curiam opinion.

ON BRIEF: Catherine A. Karczmarczyk, John R. Sigmond, PENN, STUART & 

ESKRIDGE, Bristol, Tennessee, for Petitioner. Brad A. Austin, WOLFE WILLIAMS & 

REYNOLDS, Norton, Virginia, for Respondent, James L. Fields. 

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:

Island Creek Coal Company (Employer) petitions for review of the Benefits Review 

Board’s (BRB) decision and order affirming the Administrative Law Judge’s (ALJ) award 

of benefits to former miner James L. Fields under 30 U.S.C. §§ 901-944. On appeal, 

Employer disputes the ALJ’s finding that the evidence of record, particularly the arterial 

blood gas tests (ABGs) and medical opinion evidence, preponderated in favor of a totally 

disabling pulmonary or respiratory impairment. We deny the petition for review. 

Our review is limited to determining “whether substantial evidence supports the 

factual findings of the ALJ and whether the legal conclusions of the [BRB] and ALJ are 

rational and consistent with applicable law.” Hobet Mining, LLC v. Epling, 783 F.3d 498, 

504 (4th Cir. 2015) (internal quotation marks omitted). We review the legal conclusions 

of the BRB and the ALJ de novo. Edd Potter Coal Co. v. Dir., Office of Workers’ Comp. 

Programs, 39 F.4th 202, 206 (4th Cir. 2022). In doing so, we must “confine our review to 

the grounds upon which the BRB based its decision.” E. Assoc. Coal Co. v. Dir., Office of 

Workers’ Comp. Progs., 805 F.3d 502, 510 (4th Cir. 2015). 

In its filings before this court, Employer specifically argues that the ALJ

impermissibly relied only on the numerical superiority of qualifying ABGs when finding 

that the ABG evidence as a whole supported total disability. Employer also argues that the 

ALJ’s error with respect to the ABG evidence invalidates her analysis of the medical

opinion evidence regarding total disability. 

“It is well established that parties to an agency proceeding must raise at the time 

appropriate under the agency’s practice all issues which it intends to assert on appeal.” 

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South Carolina v. U.S. Dep’t of Labor, 795 F.2d 375, 378 (4th Cir. 1986) (cleaned up). 

This Court recently confirmed that Department of Labor regulations require issue 

exhaustion before the BRB. Edd Potter Coal, 39 F.4th at 205. Any petition for review by

the BRB must “list[] the specific issues to be considered on appeal.” 20 C.F.R. 

§ 802.211(a). The accompanying brief also must “[s]pecifically state[] the issues to be 

considered by the [BRB].” 20 C.F.R. § 802.211(b). “Forfeiture results when a party fails 

to raise an issue at the appropriate time.” Edd Potter Coal, 39 F.4th at 206; see Armco, 

Inc. v. Martin, 277 F.3d 468, 476 (4th Cir. 2002) (deeming issues not raised before BRB 

forfeited on appeal). 

In the analogous context of an appeal from a district court order, we are “obliged on 

appeal to consider any theory plainly encompassed by the submissions in the underlying 

litigation.” De Simone v. VSL Pharms., Inc., 36 F.4th 518, 528 (4th Cir. 2022) (internal 

quotation marks omitted). “[A] party must do more than raise a non-specific objection or 

claim to preserve a more specific argument on appeal. Rather, to preserve an argument for 

appeal, the party must press and not merely intimate the argument during the proceedings 

before the district court.” Wards Corner Beauty Acad. v. Nat’l Accrediting Comm’n of 

Career Arts & Scis., 922 F.3d 568, 578 (4th Cir. 2019) (internal quotation marks omitted). 

“Variations on arguments made below may be pursued, so long as the appealing party 

asked both courts to evaluate the same fundamental question.” De Simone, 36 F.4th at 528 

(cleaned up). Ultimately, “the lower court [must] be fairly put on notice as to the substance 

of the issue,” Wards Corner, 922 F.3d at 578 (internal quotation marks omitted), and “a 

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party may not leave the district court without any signal that it contests a fact or point of 

law,” De Simone, 36 F.4th at 528 (internal quotation marks omitted).

In its petition for review before the BRB, Employer challenged the ALJ’s evaluation 

of the ABG evidence as unsupported by substantial evidence and insufficiently explained. 

As Employer acknowledges, however, the BRB did not construe Employer’s petition for 

review as raising the challenge to the ABG evidence that Employer now presents. Upon 

review of the agency record, we conclude that Employer’s petition for review before the 

BRB did not fairly raise the challenge to the ALJ’s reliance on numerical superiority of 

qualifying ABGs on which Employer now relies or provide the BRB a fair opportunity to 

address that issue in the first instance.

*

 We therefore conclude that Employer has forfeited 

review of its challenge to the ALJ’s evaluation of the ABG evidence. And, because 

Employer’s challenge to the medical opinion evidence is dependent upon its challenge to 

the ABG evidence, we conclude that the forfeiture is dispositive of this appeal.

Accordingly, we deny the petition for review. We dispense with oral argument 

because the facts and legal contentions are adequately presented in the materials before this 

court and argument would not aid the decisional process.

PETITION DENIED

* While Employer expressly challenged the ALJ’s reliance on a purely quantitative 

analysis of ABG evidence when seeking reconsideration en banc by the BRB, we lack 

jurisdiction to review the BRB’s decision to summarily deny reconsideration. Betty B Coal 

Co. v. Dir., Office of Workers’ Comp. Programs, 194 F.3d 491, 496 (4th Cir. 1999). 

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