Washington, DC

U.S. Office of Personnel Management
Compensation Claim Decision
Under section 3702 of title 31, United States Code

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Damon B. Ford
Compensation and Leave Claims
Program Manager
Agency Compliance and Evaluation
Merit System Accountability and Compliance


03/23/2017

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Date

The claimant occupies a Physician (Internal Medicine), GP-602-15, position with the Warrior Transition Unit, Warrior Primary Care Clinic, U.S. Army Medical Command, in Bethesda, Maryland.  He asserts the agency erroneously set his pay when converting his position from the National Security Personnel System (NSPS) to the Physicians and Dentists Payment Plan (PDPP), and he requests his agency correct this and subsequent pay setting decisions.  We received the claim request filed by his duly appointed representative on August 20, 2015, the claim administrative report (AAR) on November 24, 2015, and comments on the AAR on December 31, 2015.  For the reasons discussed herein, the claim is denied.

When his position converted from NSPS to PDPP in November 2011, the claimant’s pay was set at $183,718 (base pay of $129,517 plus market pay adjustment of $54,201), and he received an additional 25 percent of his market-adjusted pay ($45,929.50) as a retention incentive.  He asserts the Activity Compensation Panel (ACP) and Authorized Management Official (AMO), appointed by the Northern Regional Medical Command (NRMC) to make pay setting decisions for physicians converting to the PDPP, inappropriately assigned him as a Tier 1 physician although his position, scope, and definition (i.e., the criteria established by the PDPP ACP User’s Guide for designating a tier) match the description for and thus should have been compensated equal to a Tier 3 physician.  The salary of a Tier 1 physician for his clinical specialty ranged from $96,539 to $195,000 and from $120,000 to $235,000 for a Tier 3 physician in 2011.  The claimant also states the PDPP Conversion Worksheet documenting the pay action failed to include the amount of his retention incentive under the section designated specifically for recruitment, relocation, and retention incentives.  Had his incentive been included, he asserts his PDPP pay would have been set at $229,648 instead of $183,718.  The claimant maintains the AMO failed, as required by agency instructions, to sign and certify his PDPP Conversion Worksheet and explain to him how his pay was set.

In addition to the ACP and AMO continuing to assign him as a Tier 1 physician, the claimant disagrees with other pay setting decisions made in August 2013.  The market pay component of the PDPP addresses pay gaps between the annual pay of Federal and private sector physicians by reviewing the market pay of physicians in comparable clinical specialties performing similar work in similar work settings.  The claimant asserts the agency failed to refer to the Department of Defense (DoD) Market Analysis Tool (MAT) when considering his market pay adjustment, and thus “failed to ensure that [the claimant’s] pay determination maintained internal equity within all GP-15 Internal Medicine providers within the national capital region.”  He also states the agency failed to consider his retention incentive in the calculation of his annual compensation, and instead determined it was no longer necessary and terminated the incentive.  The claimant asserts that agency instructions direct the ACP and AMO “in such circumstances” to decrease the incentive by only 50 percent and add the amount to the market pay.  His claim request states:

In Dr. Passamonti’s case, despite the errors in the 2011 conversion process that left 25% of his pay as retention incentive, if the ACP and AMO had followed published orders and used the DoD MAT, it is extremely plausible that his market pay would have increased significantly.  In this regard, had the 2013 ACP assigned Dr. Passamonti as a Tier Level 3 physician, as was entirely appropriate, his market pay should have been increased by $22,965 to $77,166, and his Total Annual Compensation, with the 50% reduction in his retention incentive, would have been $229,648, which would have been entirely consistent with the pay of other GP-15 Tier 3 Internal Medicine physicians in the metropolitan area.  Instead, the 2013 ACP erroneously calculated Dr. Passamonti’s Total Annual Compensation at $183,713 -- $45,929.50 less than he had earned the prior year.

In May 2014, the ACP with AMO approval increased the claimant’s total compensation to $203,586 (base pay of $130,810, market pay adjustment of $64,190, and a 4.403 percent retention incentive of $8,586).  The claimant disagrees with the agency’s decision to continue designating him as a Tier 1 physician and asks OPM to reconsider his agency’s tier assignment, providing his position description, resume, and other information to support his rationale for the Tier 3 designation.  He points to the scope of his position as described by his position description; his organization’s alignment with the Walter Reed National Military Medical Center; his education, experience, board certifications, credentials, awards and honors, and other accomplishments and qualifications; and his longevity in the position to support the higher tier designation.  He asserts the agency’s undervaluing of his worth to the organization led to his significantly reduced total annual compensation.

DoD Instruction (DoDI) 1400.25-V543, dated August 18, 2010, implements the pay provisions of the PDPP including the assignment of physicians and dentists to a table and tier structure based on clinical specialty and scope of responsibilities.  Both the DoDI 1400.25-V543 and the PDPP ACP User’s Guide establish the AMO as the approval authority for tier assignments recommended by the ACP.  The AMO is thus responsible for ensuring tier assignments and the associated pay setting decisions of the medical panel’s professional determinations are consistent with authorizing regulations, as expressly provided by the pay setting guidance.  In claims such as this, our role is to determine if the agency regulations and policies were applied appropriately to the claimant’s situation.

The claimant disagrees with the agency’s Tier 1 designation, which is described by DoDI 1400.25-V543 as positions involving nonsupervisory direct patient care services at a clinic, dispensary, ambulatory care, or ambulatory military treatment facility.  Tier 1 physicians perform the full range of cases, from those where the patients have common ailments to the very difficult.  The most difficult and complex diagnostic cases may be referred to consultants at specialized facilities.  Tier 1 positions may be responsible for medical students, interns, or residents assigned for training in their specialty.  They may also engage in some research projects.  Tier 1 is appropriate for most clinical and dispensary assignments.

The claimant asks OPM to consider designation to Tier 3 instead, which describes positions involving direct patient care services and medical program managers or researchers at medical centers and research facilities, at the headquarters of major commands, medical centers, or medical research facilities.  Tier 3 patient care physicians are typically located at specialized medical centers and are responsible for the most difficult cases where they routinely diagnose rare and difficult-to-identify symptoms and are responsible for developing a full-treatment regimen using emerging techniques and/or prolonged or complicated procedures.  Cases are often critical and require immediate decisions because patients have failed to respond to previously tried regimens.  Within DoD, Tier 3 is typically found at medical research facilities and special DoD medical facilities (e.g., Walter Reed Army Medical Center for prosthesis).

Position, scope, and definition must be considered as a whole, and the satisfaction of one of the criteria in isolation does not justify assignment to any particular tier.  We considered the work performed by the claimant for his assigned organization, as described by his position description and other documentation, to determine the appropriateness of his tier determination.  Although his Tier 3 rationale is based in part on assertions that his position is assigned to the Walter Reed National Medical Center, Tier 3 criteria make clear that not all positions assigned to that Medical Center warrant Tier 3 designation.  Rather, it specifies that only direct patient care positions at special DoD medical facilities, such as in Walter Reed National Medical Center’s prosthetics service with its state-of-the-art advanced prosthetic limb technology, responsible for developing a full-treatment regimen using emerging techniques and/or prolonged or complicated procedures, meet Tier 3 criteria.  The claimant’s request to OPM asserts:

The Warrior Clinic is also regularly involved in clinical research and closely aligned with the Defense & Veterans Center for Integrative Pain Management.  For three years the Warrior Clinic at Walter Reed was one of only 2 clinics selected for a research protocol which studied the use of a pain tracking tool in assisting providers in a primary care clinic manage pain in a group of severely injured Soldiers.  Further, Walter Reed is only one of two locations in the Army that service Soldiers with amputations, and Soldiers with advanced orthopedic devices called external fixators.  All active duty Soldiers who undergo amputation, or receive an elective amputation, and are attached to Walter Reed get assigned to a primary care physician at the Warrior Clinic for their follow-up, rehabilitation and administrative processing.

That the claimant’s clinic served as a project research site and has been referred patients with amputations for follow-up, rehabilitation, and administrative processing fails to meet the Tier 3 description of the work specifically and directly performed by the physician.  The claimant provided no evidence to show he was directly responsible for conducting research, the full-treatment care of patients with amputations other than for follow-up and rehabilitation purposes, or was routinely required to diagnose rare and difficult-to-identify symptoms and develop a full-treatment regimen using emerging techniques and/or prolonged or complicated procedures expected at Tier 3.  Instead, his position description also shows he works as a primary care physician in a Warrior Clinic rather than the specialized service discussed at Tier 3 at the Walter Reed National Medical Center.  We thus conclude the position, scope, and definition of the claimant’s situation do not meet Tier 3 criteria.

The agency states the claimant is qualified as an Internal Medicine provider, but that those skill sets are not required by his position.  As the agency explains in its AAR to OPM:

Dr. Passamonti also claims that his assigned Tier 1 level is erroneous and should be higher based on his Internal Medicine experience.  Dr. Passamonti was not, however, hired at the Warrior Transition Clinics at Fort Belvoir or Fort Meade to be an Internal Medicine Physician.  He was hired to be a Primary Care Manager, primarily responsible to assist wounded warriors to transition back to full duty or prepare for a medical evaluation board (MEB) and prepare for separation from the Army.  His assigned duties and scope of practice with minimal clinical responsibilities do not rise to a level above Tier 1.

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Although Dr. Passamonti is a qualified Internal Medicine provider, those specific skill sets are not required for the position that he holds…. He was hired to be a Primary Care Manager, primarily responsible to assist wounded warriors to transition back to full duty or prepare for a medical evaluation board (MEB) and prepare for separation from the Army.  Providers at this level carry minimal clinical responsibilities, if any at all, since they generally evaluate Soldiers, and if necessary, refer the patient to a clinician.

When the agency’s factual determination is reasonable, we will not substitute our judgment for that of the agency.  See e.g., Jimmie D. Brewer, B-205452, March 15, 1982.  Since an agency decision made in accordance with established regulations, as is evident in the present case regarding their rationale for assigning Tier 1 to the claimant’s position, cannot be considered arbitrary, capricious, or unreasonable, there is no basis upon which to reverse the decision.

The claimant asserts his annual retention incentive was not included in the section designated for recruitment, relocation, and retention incentives on his 2011 PDPP Conversion Worksheet.  He suggests that had his retention incentive been included, his PDPP pay would have increased by $45,929.50 to $229,648, instead of the $183,718 set upon conversion to the PDPP.  The claimant’s reading of the absence of the recruitment, relocation, and retention incentives on the PDPP Conversion Worksheet is contrary to pay guidelines in the PDPP ACP User’s Guide, under Initial Conversion, which states that recruitment, relocation, or retention incentives “are not included as part of market pay and are not included in annual pay.”

The claimant also asserts the agency failed to refer to the DoD MAT, which captures the annual salary data for physicians and dentists assigned to Defense components, when considering his market pay adjustment in 2013.  In a discussion with the NRMC Chief of Staff regarding his pay issues, he noted a copy of the DoD MAT for the metropolitan area suggesting a market pay in the amount of $77,166 instead of the $54,201 set for him by the agency.  Attached to the claimant’s 2013 Pay Setting Worksheet is a copy of the local salary survey used for determining the comparison market and a note of the salary websites consulted to calculate the average pay of an Internal Medicine physician in Maryland, Virginia, and Washington DC.  The record includes the agency’s February 12, 2014, response to a Congressional inquiry on the claimant’s behalf, which explained:

A compensation panel appointed by the NRMC Commander reviewed, calculated and recommended all physicians’ pay be aligned with reasonable market pay for the National Capital Region (which includes the District of Columbia, Maryland and Virginia) and Veterans Affairs (VA).  Despite the assertion by Dr. Passamonti, the DoD [MAT] was used for the purpose of establishing the regional average pay for physicians within the command.

The DoDI 1400.25-V543 provides that “[e]ach physician and dentist covered by this Volume is eligible for market pay in lieu of locality pay.”  The instructions further explain the ACP recommends market pay amounts based on various criteria including, but not limited to, the physician’s level of experience in the specialty, the need for the specialty at the military treatment facility, and the healthcare labor market for the specialty covering the geographic area with labor market information based on health professional salary surveys obtained by DoD.  Agency implementing guidance, such as the NRMC’s FY 2013 Market Pay Adjustments Guidance, further indicates the ACP will take the DoD MAT “into consideration” when determining the market pay adjustment amount for eligible physicians.  The AMO, however, is responsible for determining and approving the physician’s market pay after consideration of the ACP’s recommendations.

The claims jurisdiction authority of OPM flows from section 3702 of title 31, United States Code (U.S.C.), and is limited to consideration of statutory and regulatory liability.  OPM adjudicates compensation claims by determining whether controlling statute, regulations, policy, and other written guidance were correctly applied to the facts of the case.  Since DoDI 1400.25-V543 extends eligibility for market pay to PDPP-covered physicians “in lieu of locality pay established in section 5304 of Reference (c) [title 5, U.S.C.]or a special salary rate supplement established by either section 5305 of Reference (c) or Reference (d) [38 U.S.C. Sections 7421, 7422, 7431(c), 7431(e)(2)-(4), 7431(f), 7431(h), and 7455], it is at the agency’s discretion to grant as well as determine the amount of market pay for eligible physicians and dentists.  Agency implementing guidance also makes clear labor market information is just one of many components to consider when calculating market pay.  Therefore, the claimant’s reliance on the compensation and leave claims settlement authority to resolve a discretionary matter relating to market pay calculation is misplaced.  The authority in 31 U.S.C. 3702(a)(2) is narrow and limited to adjudication of compensation and leave claims and does not extend to interfering with decisions concerning market pay usage and calculation made within the confines of an agency-appointed panel of medical professionals and human resources compensation specialists as provided for in DoDI 1400.25-V543, “to ensure the consistency and propriety of market pay decisions.”

Even assuming, arguendo, the agency failed to consider the DoD MAT in setting the claimant’s market pay despite assertions to the contrary, whether his market pay would be set at $77,166 as he suggested or decreased, is entirely speculative and would be at the AMO’s discretion to determine and approve his market pay.  Thus, the claimant’s assertion that the DoD MAT had not been considered does not confer entitlement to the market pay adjustment he suggested under controlling policy and regulations.

In addition, the claimant asserts the agency did not consider his annual retention incentive in setting his pay in 2013.  Instead, the agency determined the incentive was no longer necessary and thus terminated it on September 7, 2013[1].  The claimant argues the agency instructions specifically direct the ACP and AMO “in such circumstances” to decrease the incentive by only 50 percent and add the amount to market pay.  His comments on the AAR state:

The Army has failed to explain what circumstances have changed so as to justify the elimination of Dr. Passamonti’s retention incentive and its self-serving statement that Dr. Passamonti now somehow does not possess the skills necessary to warrant a retention incentive is entirely baseless.

Agencies are granted discretionary authority to confer and terminate retention incentives.  As provided for by section 575.311(a)(2) of title 5, Code of Federal Regulations (CFR), an authorized agency official must terminate a retention incentive service agreement when conditions change such that the original determination to pay the retention incentive no longer applies or when payment is no longer warranted.  Authority to terminate retention incentives is reserved to the agency to determine if continued payment of an incentive to retain an employee is necessary and OPM will not review such determinations or consider the claimant’s issues regarding the termination of his retention incentive within the context of the claims adjudication function it performs under 31 U.S.C. 3702(a)(2).

The claimant asserts the ACP and AMO failed to follow agency instructions that only 50 percent of his retention incentive should have been reduced and added to his market pay, referring to the July 2013 NRMC Fragmentary Order 2 to Operation Order 11-23 which states the ACPs “will divide the annual dollar amount of 3R, Retention Incentive, by 2 and the resulting amount will also be added to the market pay.”  Further explanation is provided by NRMC’s FY 2013 Market Pay Adjustments Guidance:

Along with recommending market pay adjustments, the [medical treatment facility] AMOs will reduce the current Retention Incentive by 50% and add the resulting amount to market pay.

The following example was provided:

AMO approves a $10,000 market pay increase, and the physician is receiving a 25% Retention Incentive, totaling $40,000.  (50% = $20,000).  The AMO approved $10K and the $20K will be added to market pay.  The retention incentive percentage will be reduced to a percent that will result in an annual retention incentive total of $20,000…ZERO SUM gain on 3Rs.

The agency’s implementing instructions provide guidance on incorporating a current, approved retention incentive into the pay setting calculation.  Contrary to the claimant’s assertions, the guidance was not intended to prohibit pay officials from either limiting or eliminating retention incentives.  In the claimant’s situation, he received 25 percent of his base pay as a retention incentive until the agency notified him of its termination in an August 7, 2013, email.  Since he no longer had a current, approved retention incentive at the time of his pay setting determination, the ACP and AMO were not required to implement instructions for calculating the retention incentive by dividing the amount in half and adding to the market pay adjustment.

The claimant asserts the AMO failed to certify his pay upon PDPP conversion as described by NRMC’s April 2011 Operations Order 11-23, stating the AMO is required to certify the PDPP Conversion Worksheet with a signature.  He also indicates the AMO did not provide an explanation of his compensation or a copy of his PDPP Conversion Worksheet at the time, as required by Operations Order 11-23.  Although we noted the PDPP Conversion Worksheet does not include the AMO’s signature, Comptroller General decisions have long held that the Federal Government cannot be held liable for mistakes or advice of employees (B-193588, April 10, 1979).  Payments of money from the Federal Treasury are limited to those authorized by statute, and mistakes or erroneous advice given by a Government employee cannot bar the Government from denying benefits not otherwise permitted by law.  See OPM v. Richmond, 496 U.S. 414, 425-426 (1990); Falso v. OPM, 116 F.3d 459 (Fed.Cir. 1997); and 60 Comp. Gen 417 (1981).  That the pay action, implemented and memorialized by a Notification of Personnel Action, Standard Form 50, required the approval of an authorized appointing official, reflects certification that the underlying regulatory requirements were met for the PDPP conversion process.  Further, we determined the agency’s actions were based on controlling statute, regulations, and pay practices.  Therefore, the claim is denied.

This settlement is final.  No further administrative review is available within OPM.  Nothing in this settlement limits the claimant’s right to bring an action in an appropriate United States court.

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