United States Department of Labor

Employees’ Compensation Appeals Board

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M.H., JR., Appellant

and

DEPARTMENT OF HOMELAND SECURITY, 

CUSTOMS & BORDER PROTECTION, 

Calexico, CA, Employer

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Docket No. 22-0452

Issued: June 14, 2022

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

ALEC J. KOROMILAS, Chief Judge

JANICE B. ASKIN, Judge

JAMES D. McGINLEY, Alternate Judge

JURISDICTION

On February 2, 2022 appellant filed a timely appeal from a September 28, 2021 nonmerit

decision of the Office of Workers’ Compensation Programs (OWCP). As more than 180 days has

elapsed from OWCP’s last merit decision, dated November 16, 2020, to the filing of this appeal,

pursuant to the Federal Employees’ Compensation Act1(FECA) and 20 C.F.R. §§ 501.2(c) and

501.3, the Board lacks jurisdiction over the merits of this case.

ISSUE

The issue is whether OWCP properly denied appellant’s request for reconsideration of the 

merits of his claim pursuant to 5 U.S.C. § 8128(a).

1

5 U.S.C. § 8101 et seq.
2

FACTUAL HISTORY

On September 30, 2020 appellant, then a 54-year-old border patrol agent, filed an 

occupational disease claim (Form CA-2) alleging that he developed pigmented squamous cell 

carcinoma on his right upper buttock due to factors of his federal employment. He indicated that 

he carried a Buster K910G Density Meter (K910B) on his duty belt for several years and noticed 

a spot on his right superior buttock area. Appellant noted that he first became aware of his

condition on August 26, 2019 and realized its relationship to his federal employment on 

September 16, 2020. He did not stop work.

In an undated statement, appellant indicated that he was assigned a K910B with a live 

barium-133 source on September 25, 2017, which he carried for eight hours per day, six days per 

week. After approximately four months, he discontinued using the device because it was leaking 

radiation. Appellant first noticed a black spot on his right upper buttock area in the late summer 

of 2018 and sought medical treatment. He denied any prior history of skin cancer. 

In a medical report dated August 26, 2019, Dr. Natasha Carter, a Board-certified 

dermatologist, noted that appellant presented for evaluation of a black spot on his back, which had 

been there for a year. She performed an examination, which revealed actinic damage on the left 

superior central malar cheek. Dr. Carter diagnosed benign seborrheic keratosis on the right buttock 

and facial actinic damage.

In a medical report dated September 16, 2020, Dr. Dannie Chang, a Board-certified 

dermatologist, noted that appellant related that the black spot on his lower back was becoming 

darker. She performed a physical examination and biopsy.

In an October 15, 2020 development letter, OWCP informed appellant of the deficiencies 

of his claim. It advised him of the type of factual and medical evidence necessary. OWCP afforded 

appellant 30 days to submit the requested information.

In a form report dated October 16, 2020, Dr. Chang noted that appellant underwent skin 

cancer surgery on that date and recommended that he remain out of work through

October 22, 2020. She also released him to return to work with light-duty restrictions as of 

October 23, 2020 and then to full duty commencing November 2, 2020.

In a letter dated November 3, 2020, Dr. Chang diagnosed appellant with squamous cell 

skin cancer on his right buttock/lower back region. She recounted that she had surgically removed 

the cancer on October 16, 2020. Dr. Chang noted that, based upon a review of medical literature, 

there “appears to be an association” between radiation and an increased risk of skin cancer. She 

also opined that there was a “possible association” between appellant’s use of the K910B device 

and his skin condition. Dr. Chang recommended that he avoid wearing any devices that 

transmitted radiation.

By decision dated November 16, 2020, OWCP denied appellant’s occupational disease 

claim, finding that he had not submitted rationalized medical evidence establishing a causal 

relationship between his diagnosed condition and the accepted employment factors.
3

On September 21, 2021 appellant requested reconsideration of OWCP’s November 16, 

2020 decision. In support of his request, he submitted a statement dated September 12, 2021,

indicating that he was submitting evidence he had acquired following the November 16, 2020

decision; however, no additional medical evidence was received.

By decision dated September 28, 2021, OWCP denied appellant’s request for 

reconsideration of the merits of his claim, pursuant to 5 U.S.C. § 8128(a), finding that his request 

for reconsideration neither raised substantial legal questions, nor included new or relevant 

evidence.

LEGAL PRECEDENT

Section 8128(a) of FECA does not entitle a claimant the review of an OWCP decision as a 

matter of right.2 OWCP has discretionary authority in this regard and has imposed certain 

limitations in exercising its authority.3 One such limitation is that the request for reconsideration 

must be received by OWCP within one year of the date of the decision for which review is sought.4

A timely request for reconsideration, including all supporting documents, must set forth 

arguments, and contain evidence that either: (1) shows that OWCP erroneously applied or 

interpreted a specific point of law; (2) advances a relevant legal argument not previously 

considered by OWCP; or (3) constitutes relevant and pertinent new evidence not previously 

considered by OWCP.5 When a timely request for reconsideration does not meet at least one of 

the above-noted requirements, OWCP will deny the request for reconsideration without reopening 

the case for a review on the merits.6

ANALYSIS

The Board finds that OWCP properly denied appellant’s request for reconsideration of the 

merits of his claim pursuant to 5 U.S.C. § 8128(a).

Appellant has not alleged or demonstrated that OWCP erroneously applied or interpreted 

a specific point of law. Moreover, he has not advanced a relevant legal argument not previously 

2

Id. at § 8128(a).

3

20 C.F.R. § 10.607. 

4

Id. at § 10.607(a). For merit decisions issued on or after August 29, 2011, a request for reconsideration must be 

received by OWCP within one year of OWCP’s decision for which review is sought. Federal (FECA) Procedure 

Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4 (February 2016). Timeliness is determined by the 

document receipt date of the request for reconsideration as indicated by the received date in the Integrated Federal 

Employees’Compensation System (iFECS). Id. at Chapter 2.1602.4b.

5

Id. at § 10.606(b)(3); see L.F., Docket No. 20-1371 (issued March 12, 2021); B.R., Docket No. 19-0372 (issued 

February20, 2020).

6

Id. at § 10.608.
4

considered. Consequently, appellant is not entitled to a review of the merits of his claim based on 

the first and second above-noted requirements under 20 C.F.R. § 10.606(b)(3).7

In support of his request for reconsideration, appellant also did not submit any new and 

relevant medical evidence. The underlying issue on reconsideration is whether appellant has met 

his burden of proof to establish a skin condition causally related to the accepted factors of his

federal employment. This is a medical issue which can only be addressed by submission of 

rationalized medical evidence not previously considered.8 Thus, appellant is not entitled to further 

review of the merits of his claim based on the third requirement under 20 C.F.R. § 10.606(b)(3).9

The Board, therefore,finds that appellant has not met any of the requirements of 20 C.F.R. 

§ 10.606(b)(3). Pursuant to 20 C.F.R. § 10.608, OWCP properly denied merit review.

CONCLUSION

The Board finds that OWCP properly denied appellant’s request for reconsideration of the 

merits of his claim pursuant to 5 U.S.C. § 8128(a).

7 C.B., Docket No. 18-1108 (issued January 22, 2019).

8 Y.L., Docket No. 20-1025 (issued November 25, 2020); Eugene F. Butler, 36 ECAB 393 (1984); Edward Matthew 

Diekemper, 31 ECAB 224 (1979).

9

Id.
5

ORDER

IT IS HEREBY ORDERED THAT the September 28, 2021 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: June 14, 2022

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

James D. McGinley, Alternate Judge

Employees’ Compensation Appeals Board