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



12/19/2017

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Date

The claimant previously occupied a Physician, AD-602, position with the Medical Center, Department of Veterans Affairs (VA), in Miami, Florida, and seeks to file a pay setting claim with the U.S. Office of Personnel Management (OPM).  He asserts he is due unpaid compensation as a result of the agency’s failure to set pay in accordance with the pay range applicable to the pay table (PT) appropriate for his specialty/assignment.  For reasons discussed herein, the claim is denied.

The claimant was compensated as an AD-602 cardiac electrophysiologist with a total salary of $262,000, upon reassignment to the Miami Veterans Affairs Medical Center (VAMC) on July 22, 2007.  Effective October 11, 2009, the VA decided that pay for interventional cardiologists was to be determined by reference to PT 7 instead of other PTs, such as table 3 which covers non-invasive cardiology.  Cardiac electrophysiologists, like the claimant, were considered interventional cardiologists and to be paid by reference to PT 7.  Although he requested pay increases due to the PT change, he asserts the agency failed to comply with setting his pay in line with the table appropriate for his specialty.  There is no dispute his pay was to be set by reference to PT 7.  When he subsequently accepted employment with Orlando VAMC, the claimant asserts the September 17, 2012, pay panel convened by that VAMC set his pay appropriately by reference to PT 7, with a total salary of $325,000 to be effective upon his April 7, 2013, appointment.  He asserts he is due compensation as a result of the pay errors from October 11, 2009, when PT 7 was determined to be appropriate for interventional cardiologists, to April 6, 2013.  The relief being sought by the claimant is described in his March 4, 2015, claim request to OPM as follows:

Dr. Lopera thus has a valid claim for unpaid additional compensation in accordance with [PT] 7 guidelines from October 11, 2009 through April 6, 2013.  Had the Miami VA properly classified and paid Dr. Lopera in October 2009 according to [PT] 7, with 2% per annum step increases…his salary should have increased to at least $300,000.00 as of October 11, 2009, with annual increases until reaching a minimum of $325,000.00…up to a maximum of $375,000.00.  In addition, Dr. Lopera’s corresponding 5% per year retirement contribution should have been larger each year had proper [PT] treatment been implemented.[1]

The agency explains in its administrative report to OPM:

Dr. Lopera transferred from the Bay Pines VA Healthcare System to the Miami [VAMC] effective July 22, 2007.  On January 8, 2008 a compensation panel was convened in order to review Dr. Lopera’s salary.  This review resulted in no increase to his pay.

Based on the January 8, 2008 compensation panel, Dr. Lopera’s salary was to be reviewed on or around January 8^th on a biennial basis.  Once it was brought to the Miami VA’s attention that Dr. Lopera did not properly receive his biennial reviews, two compensation panels were convened.  The first panel, signed August 25, 2014, reviewed Dr. Lopera retroactive to January 8, 2010.  This compensation panel resulted in no increase to pay and the final salary was within [PT] 7 limits.

The second panel, signed October 10, 2014, was retroactive to January 8, 2012.  This compensation panel resulted in an increased salary to $300,000.00 which is within the [PT] 7 limits.

The claimant received no pay increase as a result of the first pay panel convened by the Miami VAMC.  We note on the documentation from that pay panel, titled “Compensation Panel Action” dated August 4, 2014, and signed by panel members on August 22, 2014, and approved by the Director of the Miami VAMC on August 25, 2014, “No change” is identified as the salary recommendation and the “Assignment/Pay Table” as PT 7, tier 1 with a pay range or rate from $96,539 to $375,000.  The claimant’s request to OPM states:

The Pay Panel 1 decision does not award Dr. Lopera salary in accordance with the applicable [PT] 7 requirements for cardiac electrophysiologists, such as Dr. Lopera, and as requested in the underlying VA claim.  It in fact does not give Dr. Lopera any more money than what he was already making at the time, when he was incorrectly classified under [PT] 3.  The Pay Panel 1 decision evidences “No Change” in his salary.  However, as evidenced herein and in the underlying claim, he was entitled to be at least at the $300,000 level, per [PT] 7, for the remaining months in 2009, with subsequent salary adjustments each year thereafter.

As stated by the agency in its administrative report to OPM:

Per VA Handbook 5007, Part IX, Paragraph 9b (1); a physician’s pay is not automatically entitled to a corresponding increase due to a nationwide VA increase to the minimum and/or maximum amounts of annual pay.  Dr. Lopera’s salary while employed with the Miami [VAMC] was always within [PT] 7 levels and was never under the minimum amount of [PT] 7.

VA Handbook 5007, Part IX, implements the pay provisions of physicians to a table and tier structure based on clinical specialty and scope of responsibilities.  The Handbook, Part IX, Paragraph 9b (1), is clear that:

When VA increases the nationwide minimum and/or maximum amounts of annual pay under this paragraph, physicians and dentists are not automatically entitled to a corresponding increase in their individual pay rates.  Only physicians and dentists whose existing rate of annual pay falls below the newly prescribed nationwide minimum for their designated pay range will automatically receive an increase in market pay to make their annual pay rate equivalent to the new nationwide minimum.

In claims such as this, our role is to determine if agency regulations and policies were applied appropriately to the claimant’s situation.  On the completed “Compensation Panel Action” from the first pay panel, the pay of the claimant’s position was determined by reference to PT 7 and tier 1 as noted in the block for assignment/PT, and the pay range for that table and tier is identified as $96,539 to $375,000.  The agency was at liberty to set the claimant’s pay within the table-and-tier range provided.  His annual salary remained at his former rate of $271,940.  Since his annual salary fell within the pay range for PT 7, tier 1, rather than below the prescribed minimum of the pay range ($96,539), the agency was not obligated to “automatically” increase his pay per VA Handbook 5007, Part IX, Paragraph 9b (1).  We conclude that:  1) claimant was paid in accordance with VA’s pay practices and policies; 2) he has not provided a credible claim that he was “entitled” to a salary of $300,000; and 3) the agency’s decision (after consideration of the first panel’s findings) to not increase his compensation to $300,000 was not erroneous.

The claimant submitted a copy of VA Form 10-0432A “Compensation Panel Action” from a July 2011 pay panel.  The claim request to OPM asserts that “VA professed no knowledge [of the document] in connection with the underlying claim.”  The request further states:

Dr. Lopera has learned that, at the request of then acting Chief of Medicine [name] and Chief of Cardiology [name], a compensation pay panel was convened in July 2011, and that a pay increase for Dr. Lopera to $300,000.00, purportedly to comply with [PT] 7 requirements, had been approved at that time…However, the results of the pay panel decision approving the pay increase were never originally disclosed to Dr. Lopera, despite his repeated requests for a copy of the decision and for the required upward adjustment of his pay.  In addition, it has been learned that the pay panel decision was never implemented and was arbitrarily and capriciously blocked by then Chief of Staff [name].  As a result, notwithstanding a pay panel’s express approval of a pay increase for Dr. Lopera, back in July 2011 the Miami VA, through [Chief of Staff], improperly kept Dr. Lopera’s annual salary at [PT] 3 levels, and did not increase his pay to the required and approved level, in contravention of the compensation pay panel decision and the required pay level for interventional cardiologists per [PT] 7.

Even assuming, arguendo, that findings from the July 2011 pay panel had been acted on, the claimant’s assertions that the pay panel “approved” his pay increase to $300,000 and that the “decision” had been impeded by management officials are predicated on the pay panel having been delegated the authority to set the claimant’s pay.  We reviewed the compensation panel form signed by panel members on July 21, 2011, which states under Part A, the reason for the compensation panel review, as follows:

National Association of VA Physicians and Dentists, Washington, DC revised the physician and dentist pay ranges effective October 11, 2009 reflecting additional [PT].  Because Dr. Lopera is an Electrophysiologist he meets the criteria for Table 7.  In order to adhere to these new guidelines a change in Dr. Lopera’s pay from a [PT] 4 to [PT] 7 must be implemented.

The form further identifies the “recommendation” from the pay panel for the salary of the claimant’s position as $300,000, in addition to the assignment/[PT] as PT 7, tier 1 with a pay range or rate from $97,987 to $375,000.  Relevant to the claimant’s assertions, we note VA Handbook 5007, dated February 21, 2008, at Part IX, Paragraph 9, states:

g.  Compensation Panel recommendations are taken into consideration by the appropriate approving official.  The approving official determines the amount of market pay to be paid a physician dentist after consideration of the range and tier recommended by the panel.  The approving official’s decision is final.

On the compensation panel form of July 2011, the “approval” block is identified as the Veterans Integrated Service Network 8 Director.  The Handbook provides the network director (or designee) with authority to approve annual pay up to a prescribed amount per annum for physicians and dentists under their jurisdiction.  The Handbook’s language is not ambiguous, making clear that panel recommendations are only a consideration rather than an entitlement.  As noted in Part A (Reason For Compensation Panel Review) and block for assignment/PT, the pay of the claimant’s position was determined by reference to PT 7 and tier 1.  The pay range for that table and tier is identified as $97,987 to $375,000.  The approving official was permitted to set the claimant’s pay within the table-and-tier range provided.  We thus find the claimant’s assertions that the July 2011 pay panel had authority, if their findings had been implemented, to approve salary increases contrary to the clear language of agency regulations and policies.

The claim request to OPM states that actions from the first pay panel were to be retroactive to January 8, 2010, asserting the decision was made “without any explanation for the selection of that date and why any increase in pay for Dr. Lopera should not be retroactive to the earlier October 11, 2009, date…”  The Miami VAMC convened a second pay panel for the claimant.  The compensation panel form, dated August 4, 2014, and signed by panel members on August 22, 2014, and approved by the Director of the Miami VAMC on October 10, 2014, identifies the “salary recommendation” as $300,000 based on reference to PT 7, tier 1.  The panel’s recommendation was implemented by the approving official, and the claimant’s pay was thus set at $300,000 as confirmed by our review of Standard Form 50s.  The comments section of the compensation panel form from the second pay panel notes that “[t]his compensation panel serves as a retroactive biennial review from 1/8/2012.”  The claimant’s request to OPM states:

While Pay Panel 2 does seem to retroactively increase Dr. Lopera’s pay to $300,000, it is only retroactive back to the arbitrarily selected date of January 8, 2012.  Dr. Lopera’s position for Pay Table 7 treatment should be retroactive to October 11, 2019 [sic], more than two years earlier.[2]

The claimant’s request characterizes the retroactive dates of the pay panel’s findings as arbitrary, but we note VA Handbook 5007, Part IX, Paragraph 10, states:

1. At least once every 24 months, the market pay of each physician and dentist is reviewed by the appropriate Compensation Panel (or approving official when a compensation panel is not required) in accordance with the criteria in paragraph 9e.  Each physician and dentist will be provided a written notice of the results of the review, even if the review does not result in a pay adjustment.  The Notification of Personnel Action, SF-50, as well as the Compensation Panel form VA 10-0432A, serve as the written notice.  If an adjustment is made as a result of the biennial review, the effective date of such change will be retroactive to the first pay period following the biennial review due date.

The agency states a pay panel was convened on January 8, 2008, to set the claimant’s pay upon his transfer to the Miami VAMC.  Because his pay was to be reviewed biennially on January 8, 2010, and January 8, 2012, per Handbook guidance, we conclude the retroactive dates of his compensation pay panels were assigned to effect actions on the first pay period following the biennial review due date.

In addition, the claim request to OPM states the claimant was entitled, but failed, to receive his two pay panel reviews while employed by the Miami VAMC.  The agency admits he did not receive his biennial pay reviews, thus convening two panels subsequent to his April 2013 departure from the VAMC.  The claim request also points to the lack of cardiologists on the pay panels, stating it “underscores the arbitrary and capricious nature of the retroactive, clearly inadequate pay increase decisions.”  That the outcome would have been different if the pay panels had been timely and/or included cardiologists is entirely speculative as it would be at the approving official’s discretion to set pay.  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).  Further, we have determined the agency’s actions were based on controlling statute, regulations, and pay practices.  Therefore, the claim is denied.

The claims jurisdiction authority of OPM flows from section 31 U.S.C. 3702 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.  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 calculation of pay made within the confines of an agency-appointed panel of medical professionals and human resources compensation specialists, with approval from a designated official, as provided for by VA Handbook 5007, Part IX.

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

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