Itmann Coal Company v. Director, Office of Workers’ Compensation Programs, United States Department of Labor

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 24-1738
ITMANN COAL COMPANY,
Petitioner,
v.
DIRECTOR, OFFICE OF WORKERS’ COMPENSATION PROGRAMS,
UNITED STATES DEPARTMENT OF LABOR; ZED JEFFERSON
THORNTON, executor of Shirley Ann Thornton’s estate,
Respondents.
On Petition for Review of an Order of the Benefits Review Board. (23-0283 BLA)
Submitted: April 1, 2026 Decided: June 17, 2026
Before QUATTLEBAUM and HEYTENS, Circuit Judges, and FLOYD, Senior Circuit
Judge.
Petition denied by unpublished per curiam opinion.
ON BRIEF: John R. Sigmond, PENN, STUART & ESKRIDGE, Bristol, Tennessee, for
Petitioner. Wes Addington, APPALACHIAN CITIZENS’ LAW CENTER, Whitesburg,
Kentucky, for Respondent Thornton.
Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Itmann Coal Company petitions for review of the Benefits Review Board’s decision
and order affirming the Administrative Law Judge’s award of black lung benefits pursuant
to 30 U.S.C. §§ 901-944. “It is firmly established that, before an agency, parties must raise
all issues they seek to maintain on appeal at the time appropriate under its practice.” Edd
Potter Coal Co. v. Dir., Off. of Workers’ Comp. Programs, 39 F.4th 202, 206 (4th Cir.
2022) (internal quotation marks omitted). Here, Itmann only raises arguments that have
previously been waived or are being raised for the first time on appeal. Therefore, Itmann
has waived appellate review on all the issues it seeks to present in this court.∗ 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
∗ It’s a closer call whether Itmann has waived its challenge to the Administrative
Law Judge’s finding that the 2012 pulmonary function test was reliable based on Dr.
Kenneth Gallup’s opinion. But even if this argument isn’t waived, we see no error in the
Administrative Law Judge’s decision.

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