In the Matter of a Mail Dispute Between:

 DR. JAMES N. DUFFY, JR.,
 DUFFY CLINIC OF CHIROPRACTIC
 and
 DR. JAMES C. HERNDON 

 P.S. Docket No. MD-102

 12/4/90

 Mason, Randolph D., Administrative Law Judge

 APPEARANCE FOR DR. DUFFY: James N. Duffy, Jr., D.C.,
 7601 Della Drive, Ste. 3, Orlando, FL  32819-7225 

 APPEARANCE FOR DR. HERNDON: Charles H. Stark, Esq.,
 Zimmerman Shuffield Kiser & Sutcliffe,
 P. O. Box 3000, Orlando, FL  32802-3000

This mail dispute proceeding was docketed under Domestic Mail Manual § 153.72, which requires Regional Counsel to forward certain unresolved mail disputes to this Department for decision. Both disputants filed written submittals under 39 C.F.R. § 965.5. The dispute concerns delivery of mail addressed to James C. Herndon, Jr., D.C., at 7601 Della Drive, Ste. 3, Orlando, FL 32819-7225. The following findings of fact and conclusions of law are based upon the submittals and exhibits attached thereto:

1. Dr. James N. Duffy, Jr., has been operating a chiropractic practice at 7601 Della Drive, Ste. 3, Orlando, FL, since March of 1983. In 1987 he operated as Duffy and Diel, P.A. d/b/a Chiropractic Physicians Group ("CPG"). Beginning in 1988 Dr. Duffy changed the form of his business to a Florida professional service corporation known as the James N. Duffy Clinic of Chiropractic, D.C., P.A. He is the president, director, and 100% shareholder of that corporation.

2. In 1987 Disputant James C. Herndon was hired as an associate. In 1988 Dr. Herndon worked at the Della Drive location three days a week, and beginning in April 1990 he worked full time at that location.

3. In 1987, Dr. Herndon entered into an "Associate Agreement" with Duffy and Diel, P.A. d/b/a CPG. Dr. Herndon was described as an "independent contractor" rather than as an employee. He was to provide care for patients of CPG. It was agreed that all accounts receivable and collections of same would be the property of CPG, and that the latter would receive and handle the collections (Agreement #4). Also, all patient records, x-rays, lab reports, or other patient information are the property of CPG.

4. Under the agreement, payments made to Dr. Herndon for services rendered to CPG would be made as follows: CPG would pay him a minimum of $300 per week plus 20% of all collections for blood lab work and other chiropractic services rendered to patients directly assigned to his care by CPG. The number of patients that he would see would be limited and determined solely by CPG.

5. The agreement was automatically renewed each year, and the parties continued to operate under its terms after Dr. Duffy changed the name of his business to the Duffy Clinic of Chiropractic ("DCC").

6. The lease agreement for the office is under Dr. Duffy's name and DCC pays all expenses for salary, advertisements, rent, office supplies, utilities, and equipment. Dr. Herndon buys his own liability insurance and license fees. The name "Duffy Clinic of Chiropractic" appears on all patient forms, fee slips, prescriptions, etc.

7. Accordingly, any patient of Dr. Herndon at that address knew that he or she was dealing with DCC.

8. On August 7, 1990, Dr. Herndon terminated his relationship with Dr. Duffy and moved to another address. He now seeks to have all mail addressed to James C. Herndon, Jr., D.C., at 7601 Della Drive, Ste. 3, Orlando, FL 32819-7225, forwarded to him at his current address (Herndon affidavit).

1. As the parties are aware, the Domestic Mail Manual does not specifically resolve the instant mail dispute. Section 153.41 holds that mail directed to former officials or employees of a private organization at the address of the organization will be delivered to the organization when such mail is claimed both by the former officer or employee and by the organization. In the agreement of the parties, Disputant Herndon was described as an independent contractor rather than an employee of the Duffy Clinic. However, regardless of this characterization in the agreement, Dr. Herndon's patients knew that they were in fact patients of the Duffy Clinic rather than that of an independent, sole practitioner.

2. It has been held that an independent contractor who rendered services to a corporation should be treated in the same manner as an employee for the purposes of § 153.41. Paul Rimes and Patricia Alonzo, P.S. Docket No. MD-83 (I.D., May 21, 1990).

3. Furthermore, it is most likely that the bulk of the mail addressed to Dr. Herndon at 7601 Della Drive, Ste. 3, Orlando, FL 32819-7225 is intended for the Duffy Clinic. Therefore, it is concluded that all such mail should be delivered to the latter address.

4. This decision only determines how the mail in dispute should be delivered and does not determine ownership of such mail. Accordingly, if the Duffy Clinic receives any mail pursuant to this decision which belongs to Dr. Herndon, it shall be responsible for assuring that such mail is immediately forwarded to him.

5. The attached mail delivery order should be issued.