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U. S. DEPARTMENT OF LABOR Employees Compensation Appeals Board In the Matter of DRAG HASHIMOTO and U.S. POSTAL SERVICE, POST OFFICE, Tucson, AZ Docket No. 01-1071; Submitted on the Record; Issued

Act (29 U.S.C. § 2512(a)) for the cause associated with his injury. In the opinion of the administrative law judge, the decision of the Workers Compensation Appeals Board was clearly erroneous because her office failed to consider whether Mr. Hashimoto intentionally struck the postal carrier. The administrative law judge concluded that there was no “reasonable probability” that the postal carrier intentionally struck Mr. Hashimoto and, thus, the employee in question was not entitled to a hearing. The court, however, did have a reasonable-probability standard in mind. The court's decision is reversed. 1. SUMMARY OF THE FACTS In 1985, a postal carrier, Mr. Hashimoto, was driving his truck in Tucson, Arizona, when he was struck by Mr. Hashimoto's van. Hashimoto initially sustained injuries to his left hand and forearm and his left ear was injured. Mr. Hashimoto testified that the driver of the van ran over him when he was crossing the street. Mr. Hashimoto filed a workers' compensation claim for 5,000 for those three injuries. The claim was denied. The workers' compensation board found insufficient evidence of the driver's intention and fault and the claim was remanded for a hearing. In June 1987, the workers' compensation board amended its decision, finding that Mr. Hashimoto had suffered “negligence, in excess of statutory limits or on an inadequate basis,” to the extent that he suffered, on the balance of probability, more than 5,000 worth of damages. In March 1989, the board held another hearing to evaluate Mr. Hashimoto s claim under section 8100(b)(1) of the Act. The hearing board found that Mr. Hashimoto “could be liable for his own injuries if the accident was the proximate cause of his injuries.” The board also found that, because the postal carrier had “intentionally run over” Hashimoto, he should not be awarded a hearing pursuant to section 8128(a)(1). As a result, the workman's compensation board did not award a hearing to Mr. Hashimoto. On appeal, the postal carrier requested reconsideration of his claim. In his request, Mr. Hashimoto argued that the Board's decision on his first hearing was incorrect. On remand, the administrative law judge found that the board “acted properly” in denying Mr. Hashimoto s workers compensation claim for a cause “the Postal Service has not established”.

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