Case Explained: EXTRA ENERGY, INCORPORATED v. DIRECTOR, OFFICE OF WORKERS’ COMPENSATION PROGRAMS UNITED STATES DEPARTMENT OF LABOR; THOMAS R. CULBERTSON

Court: United States Court of Appeals for the Fourth Circuit Filed: 2026-06-23 The Fourth Circuit denied the petition for review filed by Extra Energy, Incorporated against an order of the Benefits Review Board affirming a grant of Black Lung Benefits Act benefits to Thomas R. Culbertson. The court held that Extra Energy forfeited its challenge to the validity of 20 C.F.R. § 718.305(b)(2) because it failed to raise the argument before the Administrative Law Judge or the Board, thereby violating the administrative exhaustion requirement. The court applied the standard rule that parties must raise all issues before the ALJ and the Board to preserve them for judicial review, noting that exceptions exist only for futility or intervening changes in law. The court rejected Extra Energy’s contention that the Supreme Court’s decision in *Loper Bright Enterprises v. Raimondo* created an intervening change of law that excused this failure, reasoning that challenges based on an agency exceeding its statutory authority were always available under prior precedent such as *Chevron*. Furthermore, the court found the futility exception inapplicable because its prior decision in *West Virginia CWP Fund v. Bender* did not foreclose a challenge to the specific “substantially similar” regulation at issue. The court also affirmed that substantial evidence supported the ALJ’s finding that Extra Energy failed to rebut the statutory presumption of total disability due to pneumoconiosis. As a practical consequence, the petition is denied, leaving the Benefits Review Board’s order affirming Culbertson’s benefits award in full force and effect. Do It For The Case Law is a news reporting service. Nothing in this episode constitutes legal advice.