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

 09/27/91

 Grant, Quentin E., Chief Administrative Law Judge

 APPEARANCE FOR DISPUTANT WALTER R. O'BRIEN, MD.: Christopher T. Bradford,
 Esq., Law Offices of Stephen E.  Scherer, 1901 Avenue of the Stars,
 Suite 1200, Los Angeles, CA 90067-6013 

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

Both parties have filed submittals pursuant to § 965.5 of the Rules of Practice. The following findings of fact are based on such submittals together with documentation furnished to the postmaster prior to transmittal of the case to the Judicial Officer.

1. The disputants are Walter R. O'Brien, M.D., 11600 Wilshire Blvd., Suite 522, Los Angeles, CA 90025-1733 and Daniel D. Hillman, M.D., 2001 Santa Monica Blvd., Suite 880W, Santa Monica, CA 90404-2102.

2. The mail in dispute is addressed to Walter R. O'Brien, M.D. at 2001 Santa Monica Blvd., Suite 880W, Santa Monica, CA 90404 and, by agreement of the parties following the docketing of the dispute, at 23712 Malibu Rd., Malibu, CA 90265.

3. On June 20, 1989, the disputants, individually, and Daniel D. Hillman, M.D., a medical corporation, entered into an Agreement of Association ("Agreement") for the purpose of proceeding to establish a mutual relationship for the practice of orthopedic medicine under the fictitious name Pacific Coast Orthopedic and Sports Medicine Center at two offices: 2001 Santa Monica Boulevard, Suite 880W, Santa Monica, CA and 23712 Malibu Road, Malibu, CA.

4. Under the Agreement (par. 12), Dr. O'Brien was an independent contractor, not an employee of either Dr. Hillman or the corporation.

5. Under paragraph 3 of the Agreement, the corporation is the sole owner of the accounts receivable. Under paragraph 8, Dr. O'Brien agreed that all patients treated by him during the term of the Agreement were the patients of Dr. Hillman and the corporation, not of Dr. O'Brien.

6. Under paragraph 9 of the Agreement, Dr. O'Brien agreed that accounts receivable by the corporation for services performed by him were to be the sole property of the corporation and that he would have no right thereto except in an agreed percentage thereof when collected by the corporation.

7. Under paragraph 9, all billings of patients treated by Dr. O'Brien were to be made in the name "Pacific Coast Orthopedic and Sports Medicine Center with both Doctors Hillman and O'Brien's names as orthopedists."

8. Dr. O'Brien's association with Dr. Hillman and the corporation terminated effective July 1, 1991.

9. On July 2, 1991, Dr. Hillman wrote, as follows, to the postmaster at Santa Monica, CA 90404 "Re: 2001 Santa Monica Blvd., Suite 880W":

Any mail addressed to the above referred to address and bearing the names as follows should be delivered to that address: Daniel D. Hillman, M.D. Walter R. O'Brien, M.D., Daniel D. Hillman, M.D. A Medical Corporation, Pacific coast Orthopedic & Sports Medicine Center.

10. By letter dated July 3, 1991, to the postmaster at Santa Monica, CA 90406, Dr. O'Brien requested a change of address for his personal and business mail from 2001 Santa Monica Blvd., Suite 880W to his new address, 11600 Wilshire Blvd., Suite 522, Los Angeles, CA 90025.

11. The directions contained in the above letters (findings 9 & 10) were treated by the Office of Field Legal Counsel as a dispute over the delivery of mail addressed to Dr. Walter R. O'Brien at 2001 Santa Monica Blvd., Suite 880W, Santa Monica, CA 90404.

12. Dr. O'Brien initiated a companion mail dispute by making a request to the Malibu postmaster that he forward to Dr. O'Brien at 11600 Wilshire Boulevard, Los Angeles, CA all mail addressed to him at 23712 Malibu Road, Malibu, CA the other office covered by the Agreement.

Pursuant to the Agreement of Association (filed by both parties), most of the mail generated by the medical practice engaged in by the parties thereunder, particularly accounts receivable mail, was to be addressed to Pacific Coast Orthopedic and Sports Medicine Center or to that Center and Daniel D. Hillman, M.D. Walter R. O'Brien, M.D. (Parag. 9; see finding 7, above). Clearly, mail so addressed should be delivered as addressed because under paragraph 9 of the Agreement it is the sole property of the corporation. Dr. O'Brien is not seeking the delivery of such mail.

The Agreement does not purport to deal with Dr. O'Brien's personal mail, addressed to him alone at the Santa Monica or Malibu addresses involved. There is no ground for presuming that such mail belongs to Dr. Hillman and/or his corporation under the Agreement. Therefore, Dr. Hillman and/or his corporation have no right to the delivery thereof. Because Dr. O'Brien was an independent contractor under the Agreement, not an employee, DMM § 153.41n1 does not apply.

n1 153.41 Mail directed to officials or employees of a government or private organization at the address of the organization is delivered to the organization when such mail is claimed both by an officer or employee and by the organization. This also applies to mail addressed in this manner to former officials or employees.

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 or at 23712 Malibu Rd., Malibu, CA 90265 should be delivered as directed by Dr. O'Brien.

Mail addressed to Dr. O'Brien jointly with Dr. Hillman or to Dr. O'Brien/Pacific Coast Orthopedic and Sports Medicine Center at either of such street addresses should be delivered as addressed or in accordance with the direction of Dr. Hillman.

This decision does not, and may not, determine the ownership of the disputed mail. If either party receives mail belonging to the other, the recipient will be responsible for forwarding it.