UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT
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No. 96-60683
(Summary Calendar)
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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.
*
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opinion should not be published and is not precedent except under the limited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.
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.
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