In the Matter of a Mail Dispute Between:

 WALTER R. O'BRIEN, M.D.
 and
 DANIEL D. HILLMAN, M.D.  

 P.S. Docket No. MD-128

 11/19/91

 Cohen, James A., Judicial Officer

 APPEARANCE FOR DISPUTANT WALTER R. O'BRIEN, M.D.: Christopher T. Bradford,
 Esq., Suite 1200, 1901 Avenue of the Stars, Los Angeles, CA  90067-6013 

 APPEARANCE FOR DISPUTANT DANIEL D. HILLMAN, M.D.: Alan M.  Levenstein,
 Esq., Tabach-Bank & Levenstein, Suite 250, 1453 Third Street,
 Santa Monica, CA  90401-3400

Disputant Hillman has filed an appeal from an Initial Decision in which an Administrative Law Judge determined that mail addressed to Dr. Walter R. O'Brien, or Walter R. O'Brien, M.D., at 2001 Santa Monica Blvd., Suite 880W, Santa Monica, CA 90404-2164 or 23712 Malibu Rd., Malibu, CA 90265-4603 is to be delivered in accordance with the direction of Disputant O'Brien. n1 Disputant O'Brien did not file a response to the appeal.

n1 The Administrative Law Judge also determined that mail addressed to Dr. O'Brien jointly with Dr. Hillman or Dr. O'Brien/Pacific Coast Orthopedic and Sports Medicine Center at either address should be delivered in accordance with the direction of Disputant Hillman. No appeal from this determination has been filed and no basis exists to disturb this conclusion.

In the Initial Decision, the Administrative Law Judge correctly found that Disputant O'Brien had entered into an Agreement of Association (hereinafter Agreement) with Daniel D. Hillman, M.D., a medical corporation (hereinafter corporation), and that Disputant O'Brien's association with the corporation terminated on July 1, 1991 (I.D., Findings of Fact (FOF) ##3 & 8). Under the terms of the Agreement, Disputant O'Brien was considered an independent contractor and not an employee of either Disputant Hillman or the corporation but all accounts receivable were the property of the corporation and all patients treated were the patients of Disputant Hillman or the corporation (I.D., FOF ##4-7). After determining that the provisions of Domestic Mail Manual (DMM) § 153.41 do not apply to independent contractors, the Administrative Law Judge concluded that delivery of mail addressed to Dr. Walter R. O'Brien, or Walter R. O'Brien, M.D., at either of the corporation's business offices should be delivered in accordance with the direction of Disputant O'Brien (I.D., pp. 4 & 5).

In his appeal, Disputant Hillman acknowledges Disputant O'Brien's entitlement to his personal mail, but contends mail directed to Disputant O'Brien at the corporate addresses most likely contains accounts receivable which are the property of the corporation. Since the mail in dispute contains receivables intended for the corporation, Disputant Hillman asserts such mail should be delivered in accordance with his instructions.

The Judicial Officer has exercised his discretion to grant review on appeal and on review reverses the Initial Decision. Accordingly, mail addressed to Disputant O'Brien at the corporation's addresses is to be delivered in accordance with the direction of Disputant Hillman.

While the Administrative Law Judge correctly determined that no provision of the DMM specifically addresses mail disputes involving an independent contractor, the circumstances present in this case establish that delivery of the disputed mail should be made to the corporation. Even though the mail in dispute is directed only to Disputant O'Brien, it is addressed to the offices of the corporation and most likely contains accounts receivable since Disputant O'Brien's name appears on all billings sent to patients treated by him while he was associated with the corporation. (I.D., FOF #7). As Disputant Hillman contends, accounts receivable are the property of the corporation and mail which is most likely to contain such receivables should be delivered to the corporation (I.D., FOF ##5-6).

Moreover, as an associate of the corporation, Disputant O'Brien joined and subsequently left the medical practice established and owned solely by Disputant Hillman. While Disputant O'Brien was not per se an employee of Disputant Hillman or his corporation, his status was similar to that of an employee. Therefore, even though DMM § 153.41 does not specifically address this situation, the same mail delivery requirements should apply where, as here, the parties occupy a relationship similar to that contemplated by the DMM provision. Accordingly, mail directed to Disputant O'Brien at Disputant Hillman's corporate offices should be delivered in accordance with the direction of Disputant Hillman, President and owner of the corporation. n2

n2 This decision only determines the right to delivery of the mail in dispute, and not its ownership. In the event that Disputant Hillman or his corporation receives mail clearly intended for Disputant O'Brien, he is responsible for forwarding such mail to Disputant O'Brien.

After consideration of the entire record and Disputant Hillman's exceptions to the Initial Decision, it is concluded all mail addressed to Dr. Walter R. O'Brien, or Walter R. O'Brien, M.D., 2001 Santa Monica Blvd., Suite 880W, Santa Monica, CA 90404-2164 or 23712 Malibu Rd., Malibu, CA 90265-4603, which is currently being held or hereafter received, is to be delivered in accordance with the direction of Disputant Hillman. Accordingly, Disputant Hillman's appeal is sustained and the Initial Decision is reversed to the extent indicated herein.