STATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS

JENS EMILIO VALLE, )

)

Petitioner, )

)

v. ) CASE NO. 89-0886

)

DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF CHIROPRACTIC ) EXAMINERS, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case on June 12, 1989, in Tallahassee, Florida, before the Division of Administrative Hearings, by its designated Hearing Officer, Diane K. Kiesling.

APPEARANCES

For Petitioner: Jens Emilio Valle, Pro Se

901 Cedar Canyon Square Marietta, Georgia 33067

For Respondent: E. Harper Field, Deputy General Counsel

Department of Professional Regulation Northwood Centre, Suite 60

1940 North Monroe Street Tallahassee, Florida 32399-0792

STATEMENT OF ISSUES

The issue is whether Petitioner, Jens Emilio Valle, is entitled to licensure by virtue of a passing grade on the May 1988 Chiropractic examination, specifically on the technique portion of the examination.

PRELIMINARY STATEMENT

Petitioner presented his own testimony and that of Jim Terrell, D.C. Petitioner's Exhibit 1 was admitted in evidence. Respondent, Department of Professional Regulation, Board of Chiropractic Examiners, (DPR), presented the testimony of Steven Ordet, D.C. The relevant portions of the videotape of the examination were shown as part of the formal hearing, but neither party introduced the videotape in evidence. Joint Exhibit 1 was admitted in evidence.

The transcript of the proceedings was filed on June 28, 1989. DPR timely filed its proposed findings of fact and conclusions of law on July 7, 1989. Dr. Valle had until July 18, 1989, to file proposed findings of fact and conclusions of law. He failed to file a proposed order. Specific rulings on all proposed

findings of fact are made in the Appendix attached hereto and made a part of this Recommended Order.

FINDINGS OF FACT

1. Dr. Valle was an unsuccessful candidate for the May 1988 Chiropractic examination. As part of the practical examination, Dr. Valle took the technique portion and received a score of 73.9. A score of 75 is required for certification for licensure.

   
   

2. The technique portion is part of an oral practical examination and is subjectively graded by two independent graders. All graders have been licensed to practice chiropractic medicine in Florida for at least five years and have received several hours of standardization training prior to serving as graders on the practical examination.

   
   

3. The grade range on each section is one to four. A score of three is assigned when a candidate demonstrates minimal competency and a score of four is given when a candidate demonstrates superior or expert knowledge. These scores are then added with other factors and scores to produce a total.

   
   

4. Dr. Valle claims that he was underscored on the technique portion of the examination. His scores were as follows:

   
   

   Grader 27--Cervical (3), thoracic (3),

   occipital (3), pelvic (2), rib (3), and soft

   tissue (3.5).

   Grader 37--Cervical (3), thoracic (3),

   occipital (3), pelvic (3), rib (3), and soft

   tissue (3).

   
   

5. Dr. Valle presented the expert testimony of Jim Terrell, D.C., who has been licensed in Florida for less than five years. Dr. Terrell has received no training in grading practical examinations. He has never participated in the administration and grading of a chiropractic examination for licensure. Dr. Terrell based his testimony solely on his observation of the videotape. His opinion was that Dr. Valle's performance in the pelvic technique was "essentially" correct. Dr. Terrell's opinion related solely to the mechanical performance.

   
   

6. Steven M. Ordet, D.C., is a chiropractic physician licensed in Florida since 1974. He is the past Chairman of the Peer Review Committee of the Florida Chiropractic Association, a Director of the Florida Chiropractic Association, and has been an examiner for the chiropractic examination for the last seven years. He was not an examiner on the May 1988 examination. Dr. Ordet also reviewed the videotape. In his opinion as a trained grader, he would have awarded the following scores based on Dr. Valle's performance:

   
   

   Cervical (3), thoracic (2.5), occipital (3),

   pelvic (2), rib (3), and soft tissue (2.5).

   
   

7. Dr. Ordet would have given these scores in part because Dr. Valle failed to describe the technique he was demonstrating. The preliminary instructions given for the examination and shown on the videotape require, in part, that the candidate describe the technique as it is demonstrated. The opinion of Dr. Ordet is persuasive based on his experience as a grader and on his explanation for the grades he would give.

   CONCLUSIONS OF LAW

   
   

8. The Division of Administrative Hearings has jurisdiction of the parties to and subject matter of these proceedings. Section 120.57(1), Florida Statutes.

   
   

9. Dr. Valle, as the Petitioner, has the burden of proving, by the preponderance of the evidence, that the grades given were erroneous and that he actually passed the challenged portion of the examination. Dr. Valle failed to carry that burden of proof. The preponderance of the competent, substantial evidence shows that the scores given are correct and that Dr. Valle failed to achieve a passing score on the practical portion of the examination.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Professional Regulation, Board of

Chiropractic Examiners, enter a Final Order denying the request for relief filed

by Jens Emilio Valle and dismissing the petition for relief.

DONE and ENTERED this 17th of August 1989, in Tallahassee, Florida.

DIANE K. KIESLING

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this

17th day of August, 1989.

APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 89-0886

The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on the proposed findings of fact submitted by the parties in this case.

Specific Rulings on Proposed Findings of Fact Submitted by Respondent, Department of Professional Regulation,

Board of Chiropractic Examiners

1. Each of the following proposed findings of fact are adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1-4 (1-7).

COPIES FURNISHED:

E. Harper Field

Deputy General Counsel

Department of Professional Regulation Northwood Centre, Suite 60

1940 North Monroe Street Tallahassee, Florida 32399-0792

Jens Emilio Valle, D.C. 901 Cedar Canyon Square Marietta, GA 33067

Patricia Guilford Executive Director

Board of Chiropractic Examiners Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399-0792

Kenneth E. Easley General Counsel

Department of Professional Regulation Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399-0792

Docket for Case No: 89-000886

Orders for Case No: 89-000886