39. VNA submitted false and inaccurate documents to IBC for the purpose of securing reimbursement under the Medicare Program. VNA knew it was not lawfully entitled to these payments.
40. IBC relied on the "recreated" Nelson invoices submitted by VNA. IBC determined that VNA did not have to set off 15.7% of Nelson's fees. As a result, VNA received and accepted reimbursement for Nelson's non-reimbursable fundraising activities.
41. At all material times, Ferrara and Chicco acted within the scope of their authority for VNA.
42. VNA terminated Godwin's employment because she refused to participate in the creation and submission of false documents to IBC.
43. At the time Godwin was discharged by VNA, she was an employee, and not an independent contractor, of VNA. Godwin did her work in an office supplied by VNA at their headquarters. Her hours and days off were controlled by VNA. At all material times, VNA not only controlled the results of the work done by Godwin, but also had the right to direct the way in which it was done. The employer provided an office and supplies. Godwin performed routine bookkeeping functions. Godwin never had exclusive control of the manner of performing the work assigned to her. She was not responsible just for the results. Ferrara told Godwin what to do, when to do it, and how to do it. There was no material change in Godwin's status after her label changed from employee to independent contractor.
44. At the time Godwin was discharged by VNA, she was earning $ 23.00 per hour. She would have received a 4% pay raise during the relevant period, based on past experience.
45. Godwin's regular work hours were from 8:00 a.m. to 3:30 p.m., Monday through Friday.
46. Godwin's average work month consisted of 184 hours. Def. Ex. 9.
47. As a result of her discharge, Godwin lost wages from the date of her termination through the date of trial totalling $ 62,400.00, to which she is entitled, with interest on the back pay, litigation costs and reasonable attorneys' fees. Plaintiff tried to mitigate her damages, but was unsuccessful.
48. VNA violated the False Claims Act by terminating Godwin.
49. VNA wrongfully terminated Godwin for reasons which were against the public policy of the Commonwealth of Pennsylvania.
50. No punitive damage award is appropriate in this case. The award of twice Godwin's back pay provided under the False Claims Act suffices to punish and deter VNA.
51. Godwin performed services worth $ 2,024.00 for VNA prior to her termination for which Godwin has not received compensation. Pl. Ex. 17. Godwin is also entitled to recover a 10% penalty on these wages ($ 202.40) and her reasonable attorneys' fees.
52. VNA's failure to pay these wages was not in good faith. Therefore, the plaintiff is entitled to $ 506.00 as liquidated damages.
II. CONCLUSIONS OF LAW
1. Fundraising consultation services are not compensable under the Medicare Program.
2. VNA is liable for the acts of its agents acting within the scope of their agency. 42 U.S.C.A. § 1320(a)-7(a)(l).
3. In determining whether a person is an independent contractor or an employee, the court's decision must be based on what the relationship "really was under the facts and applicable rules of law" and not in the way in which the parties regarded this relationship. Jones v. Century Oil U.S.A., Inc., 957 F.2d 84, 86 (3d Cir. 1992). A person is an employee, if his master not only controls the results of the work, but has the right to direct the way in which it shall be done. Id. "Broadly stated, if the contractor is under the control of the employer, he is a servant; if not under such control, he is an independent contractor. It is not the fact of actual interference or exercise of control by the employer, but the existence of the right or authority to interfere or control which renders one a servant rather than an independent contractor." Moon Area Sch. Dist v. Garzony, 522 Pa. 178, 190, 560 A.2d 1361 (1989); see also Jones, 957 F.2d at 86.
4. It is a violation of Federal law to present or cause to be presented to an agent of the United States a claim for a medical item or service that a person knows or should know was not provided as claimed. 42 U.S.C. § 1320a-7a(a)(1)(A).
5. It is illegal to knowingly and willfully make or cause to be made any false statement or representation of a material fact in any application for payment under the Medicare Program. 42 U.S.C. § 1320a-7b(a)(1),(2).
6. The False Claims Act makes it unlawful for an employer to discharge an employee because the employee refuses to participate in submitting false claims under the Federal Medicare Program and makes an intracorporate complaint. See 31 U.S.C. § 3730(h); Passaic Valley Sewerage Commissioners v. United States Dept. of Labor, 992 F.2d 474, 478-80 (3d Cir. 1993).
7. An employee unlawfully terminated under the False Claims Act "shall be entitled to all relief necessary to make the employee whole." 31 U.S.C. § 3730(h). This relief includes reinstatement with the same seniority status she would have had but for the discrimination, two (2) times the amount of back pay, and interest on the back pay. Id. Additionally, the employee shall also receive any special damages sustained as a result of the employer's discrimination, including litigation costs and reasonable attorneys' fees. Id. Pursuant to section 3730(h), Godwin is entitled to recover twice her lost wages, reinstatement, and attorneys' fees and costs she has incurred in prosecuting this lawsuit.
8. Under Pennsylvania law, a cause of action exists for wrongful discharge, when the employer's dismissal of the plaintiff violates well-established public policy. See Geary v. United States Steel Corp., 456 Pa. 171, 184, 319 A.2d 174 (1974); Woodson v. AMF Leisureland Centers, Inc., 842 F.2d 699 (3d Cir. 1988).
9. Under Pennsylvania's Wage Payment and Collection Act, in addition to repayment of her back wages, Godwin is entitled to recover a ten percent (10%) penalty ($ 202.40) and her reasonable attorneys' fees. 43 Pa. C.S.A. 260.9a(c,f).
10. Under Pennsylvania's Wage Payment and Collection Act, if the defendant's failure to pay the back wages was not in "good faith," then the plaintiff is entitled to liquidated damages. 43 Pa C.S.A. § 260.10. Liquidated damages are defined as an amount equal to 25% of the total wages due or $ 500, whichever is greater. Id.
BY THE COURT:
MARVIN KATZ, J.
AND NOW, this 15th day of September, 1993, it is hereby ORDERED that judgment is entered in favor of Hajar Godwin, plaintiff, and against Visiting Nurse Association Home Health Services, defendant, in the amount of $ 127,532.40, together with interest on the back pay, litigation costs and reasonable attorneys' fees.
Defendant shall reinstate plaintiff to her former position, with the same seniority status she would have had but for the discrimination.
BY THE COURT:
MARVIN KATZ, J.
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