STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MICHAEL MATHESIE, )

)

Petitioner, )

)

vs. ) CASE NO. 89-3255

)

DEPARTMENT OF PROFESSIONAL )

REGULATION, BOARD OF )

CHIROPRACTIC EXAMINERS, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was conducted in this case on August 4, 1989, in Fort Lauderdale, Florida, before Stuart M. Lerner, a duly designated Hearing Officer of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Michael W. Mathesie, pro se

8933 N.W. 51st Place

Coral Springs, Florida 33067

For Respondent: E. Harper Field, Esquire

Deputy General Counsel

Department of Professional Regulation Northwood Centre, Suite 60 Tallahassee, Florida 32399-0792

STATEMENT OF THE ISSUES

1. Has Petitioner's challenge to the failing grade he received on the November 1988, chiropractic licensure examination been rendered moot by virtue of his having retaken and passed the examination?

   
   

2. If not, should his challenge be sustained?

PRELIMINARY STATEMENT

By letter dated May 18, 1989, Michael W. Mathesie requested a formal hearing on his challenge to the failing grade he had received on the November 1988, chiropractic licensure examination. The matter was referred to the Division of Administrative Hearings on June 14, 1989, for the assignment of a Hearing Officer.

At hearing, the Department of Professional Regulation presented the testimony of David Bolton, an employee of the Department's Office of Examination Services, and Dr. Stephen Ordet, a qualified expert in the field of chiropractic who gave his assessment of the answers given by Mathesie on the contested

portion of the November 1988, examination. In addition to presenting the testimony of these two witnesses, the Department offered into evidence three exhibits, all of which were received. The only evidence presented by Mathesie at hearing was his own testimony.

After the conclusion of the evidentiary portion of the hearing, Mathesie announced on the record that he had taken the chiropractic licensure examination a second time and had been informed the day before the hearing that he had received a passing grade. The Department, through its attorney, responded to this revelation by requesting that Mathesie's challenge to the results of the prior examination be dismissed on the ground that it is now moot. Mathesie argued in opposition to the request that he still was entitled to pursue his challenge to demonstrate that he had been the victim of "wrongdoing." The Hearing Officer reserved ruling on the Department's dismissal request and encouraged the parties to brief the matter in their post-hearing pleadings.

The parties were advised on the record before the close of the hearing that their post-hearing pleadings had to be filed within ten days of the date of the filing of the hearing transcript with the Division of Administrative Hearings.

The hearing transcript was filed with the Division on August 23, 1989. On August 29, 1989, the Department filed its Proposed Recommended Order. Mathesie filed his Proposed Recommended Order on September 5, 1989. The findings of facts proposed in these post-hearing pleadings have been carefully considered and are addressed in the Appendix to this Recommended Order.

FINDINGS OF FACT

Based upon the record evidence, the Hearing Officer makes the following Findings of Fact:

1. The licensure examination administered by the Board of Chiropractic Examiners in November 1988, consisted of a written examination on Florida laws and rules and a practical examination.

   
   

2. There were three parts to the practical examination: x-ray interpretation; technique; and physical diagnosis. To pass the practical examination, a candidate needed to receive a passing grade on each of the three separate parts of the examination.

   
   

3. Mathesie passed the written examination on Florida laws and rules, as well as the x-ray interpretation and technique portions of the practical examination. He received a failing grade, however, on the physical diagnosis portion of the practical examination.

   
   

4. The physical diagnosis portion of the practical examination is conducted orally. To facilitate review of this portion of the examination, it is videotaped. The videotape of the physical diagnosis portion of the practical examination in controversy in the instant case was played during the course of the hearing.

   
   

5. Each candidate taking the physical diagnosis portion of the practical examination is asked a series of questions by two examiners who also independently grade the candidate's answers. The examiners are experienced chiropractors who have been licensed to practice chiropractic in the State of Florida for at least five years. First-time examiners receive three hours of

   training in testing and grading procedures and requirements. Examiners who have previously participated in the examination process are given a one or two hour refresher course.

   
   

6. In questioning a candidate on the physical diagnosis portion of the practical examination, the examiners must cover at least four and no more than six of the following subject areas: case history; chiropractic examination; general physical examination; orthopedic examination; neurological examination; x-ray technique and diagnosis; laboratory diagnosis; nutrition; differential diagnosis; and clinical judgment. In addition, they are directed to ask practical questions designed to test the candidate's ability to function competently as a beginning chiropractor. Within these parameters, the examiners are expected to use their professional judgment in selecting the particular questions to ask the candidate. Examiners are not provided with any specific questions that they are required to pose.

   
   

7. The examiners are also expected to exercise their professional judgment in evaluating the candidate's answers to their questions. The grading of these answers therefore is a "subjective" process reflecting the examiners' opinions as to the quality of the candidate's answers.

   
   

8. For each of the subject areas covered during the physical diagnosis portion of the practical examination, the candidate receives a separate grade from each of the two examiners conducting this portion of the examination. A 4 is the highest grade the candidate can receive from an examiner for a covered subject area. This grade is reserved for answers which reflect exceptional expertise in the subject area. A grade of 3 out of a possible 4 (or 75%) is to be given where no more than adequate expertise is demonstrated. Where the candidate's answers demonstrate expertise that is more than adequate but less than exceptional, a grade of 3.5 (or 87.5%) is to be given. Where the candidate, through his answers, displays inadequate expertise, depending on the extent of the inadequacy, either a grade of 2.5 (or 62.5%), 2.0 (or 50%), or 1.5 (or 37.5%), is to be awarded. The lowest possible score a candidate can receive from an examiner is a 1 (or 25%). This grade is warranted where the candidate's knowledge of the subject matter is so lacking as to present a danger to the public.

   
   

9. The candidate's overall average score on the physical diagnosis portion of the practical examination is obtained by dividing the candidate's total number of grade points by two (representing the number of examiners) times the number of subject areas covered by the examiners. To pass this portion of the examination, the candidate's overall average score must be at least a 3 (or 75%).

   
   

10. If the candidate fails to attain such a score and contends that the examiners unfairly or erroneously evaluated his performance, the videotape of this portion of the examination is reviewed by other chiropractic experts. Based on the recommendation of these experts, adjustments may be made to the candidate's score.

    
    

11. Mathesie was tested on six subject areas on the physical diagnosis portion of the November 1988, examination: case history; general physical examination; orthopedic examination; neurological examination; x-ray technique and diagnosis; and laboratory diagnosis. He received a failing overall average grade from the two examiners of a 2.75 (or 68.75%). Following expert review,

    adjustments were made which raised Mathesie's overall average grade to a 2.875 (or 71.875%). This was still less, however, than the 3 (or 75%) he needed to pass.

    
    

12. Mathesie was awarded a 3 by both examiners for his answers pertaining to case history. Both examiners' grades were subsequently increased to a 3.5 after expert review.

    
    

13. Mathesie was asked by the examiners "the basic headings and things that [he] would be interested in having in the case history." In responding to the question, Mathesie mentioned that he would do a "general survey of their whole body," but he failed to specify that he would inquire about urinary incontinence or genital problems, specific inquiries that are routinely made by chiropractors. In view of Mathesie's failure to specifically mention these matters, it cannot be said that it was arbitrary or unreasonable to score his answer on case history no higher than a 3.5.

    
    

14. Both examiners gave Mathesie a 2.5 for his performance on the general physical examination segment of the test. Neither of their grades was raised following expert review.

    
    

15. On this part of the examination, Mathesie was asked to list "the vital signs." He responded, "blood pressure, pulse, respiration rate, and temperature and some sources add height and weight." Mathesie was then asked to take the blood pressure of one of the examiners, a man approaching 40 years of age. He did so and discovered that the examiner's blood pressure was 165 over 70, which Mathesie remarked "is very high blood pressure." When asked what he would tell a patient whose blood pressure remained at this level for three consecutive days, Mathesie replied that he would advise the patient that he "had an elevated blood pressure and that he should be seen by a medical doctor for further evaluation."

    
    

16. Blood pressure of 165 over 70 is only slightly higher than normal for a man approaching 40 years of age. Contrary to what Mathesie indicated to the examiners, it is not "very high blood pressure" and, without more, is no cause for alarm. Accordingly, Mathesie's failure to receive a grade higher than a 2.5 on the general physical examination segment of the test was not without reason or logic.

    
    

17. On the orthopedic examination segment of the test, Mathesie was awarded a 3.0 by both examiners. Expert review did not result in a change of either of these grades.

    
    

18. On this segment of the test, Mathesie was asked to evaluate the right knee of one of the examiners. In conducting his evaluation, Mathesie failed to examine both knees, although during the next segment of the test he did indicate, with some prompting by the examiners, that he "would compare bilaterally all the orthopedic tests." Bilateral examination is a standard, routine chiropractic practice which assists the chiropractor in determining whether the patient has a developmental or pathological problem. Inasmuch as Mathesie did not conduct such a bilateral examination when asked to assess the condition of the examiner's knee, he did not deserve to receive a grade higher than a 3.0 on the orthopedic examination segment of the test.

19. On the neurological examination segment of the test, Mathesie received a 2.5 from one examiner and a 3.0 from the other examiner. After expert review, the 2.5 grade was raised to a 3.0. No change was made to the other examiner's grade.

    
    

20. During this segment of the test, Mathesie initially failed to perform the patella reflex test bilaterally as he should have. It was only after one of the examiners suggested that it was necessary to determine a patient's normal reflexive action that Mathesie indicated he would "compare bilaterally all the orthopedic tests, all the neurological tests and reflexes." Mathesie further stated on this segment of the test that, in attempting to neurologically assess the patient, he would administer a cardinal gaze examination during which he would have the patient cover one eye and follow his finger with the other eye. Although a cardinal gaze examination may be administered in this fashion, the better method is to have the patient follow the moving object with both eyes.

    In view of the foregoing, a 3.0 was not an unreasonably low grade to give Mathesie on the neurological examination segment of the test.

    
    

21. Mathesie received a 3.0 from both examiners on the x-ray technique and diagnosis segment of the test. Neither grade was changed following expert review.

    
    

22. Mathesie was asked on this segment of the test to "set up a right [anterior] oblique." In describing how he would do so, Mathesie failed to give information concerning the film size and central ray. Given these omissions, Mathesie's failure to receive a grade higher than a 3.0 on this segment of the test was not without justification.

    
    

23. Mathesie received a 2.0 from one examiner and a 2.5 from the other examiner on the laboratory diagnosis segment of the test. No adjustments were made to either of these grades.

    
    

24. On this segment of the examination, Mathesie was asked what conclusions he would reach concerning the condition of a patient based on the results of blood tests revealing a hemoglobin of 8, a hematocrit of 25, and a RBC of 3.5. As Mathesie should have been aware, such test results reflect that the patient has suffered a severe loss of blood and therefore requires immediate medical attention. Mathesie, however, did not immediately recognize the seriousness and urgency of the matter. Having failed to do so, he cannot persuasively argue that the grades he received on this segment of the examination were unreasonably low.

    
    

25. After receiving notification that he had failed the physical diagnosis portion of the November 1988, licensure examination, Mathesie retook and passed the practical examination.

    
    

    CONCLUSIONS OF LAW

    
    

26. Any person seeking a license to practice chiropractic in the State of Florida must apply to the Department of Professional Regulation to take the licensure examination if he is not qualified for licensure by endorsement. Section 460.406, Florida Statutes. Such licensure examination must "adequately and reliably measure an applicant's ability to practice [chiropractic.]" Section 455.217(1)(a), Florida Statutes.

    
    

27. The Board of Chiropractic has been statutorily empowered to "by rule specify the general areas of competency to be covered by each examination, the

    relative weight to be assigned in grading each area tested and the score necessary to achieve a passing grade. If a practical examination is deemed to be necessary, the rules [must] specify the criteria by which examiners are to be selected, the grading criteria to be used by the examiner, the relative weight to be assigned in grading each criterion, and the score necessary to achieve a passing grade." Section 455.217(1)(b), Florida Statutes.

    
    

28. Such rules have been adopted by the Board. They are found in Chapter 21D-11, Florida Administrative Code. Subsections (4)-(6) of Florida Administrative Code Rule 21D-11.003 address the practical examination component of the licensure examination. They provide as follows:

    
    

    1. Also, in addition to the above, the Board requires a practical examination developed by the Department of Professional Regulation, which measures competency in the following subject areas:

       1. X-ray interpretation of chiropractic and pathology films.

       2. Technique with special emphasis as taught at the candidate's particular college. Notwithstanding the special emphasis taught at the candidate's particular college, technique will encompass the whole body.

          Physical diagnosis, which may include any of the following: case history, chiropractic examination,

          general physical examination, orthopedic examination, neurological examination,

          X-ray technique, X-ray diagnosis, laboratory diagnosis, nutrition, differential diagnosis, clinical judgment.

    2. A score of 75% on each subject area in subsection (4) shall be necessary to achieve a passing grade on the practical portion of the examination outlined in subsection (4). The taking of the subject areas of the practical examination may not be fragmented as all the subject areas of the practical examination must be taken and passed at the same examination.

    3. An applicant who is a diplomate of the American Board of Chiropractic Roentgenology shall not be required to take the portion of the practical examination measuring X-ray interpretation of chiropractic and pathology films. An applicant who is a diplomate of the American Board of Chiropractic Orthopedics shall not be requested to take the portion of the practical examination measuring orthopedic diagnosis.

29. The candidate's performance on the practical examination must be evaluated by at least two examiners. Florida Administrative Code, Rule 21- 11.009(2). Each examiner is required to "grade independently of the other." Florida Administrative Code, Rule 21-11.009(3). The candidate's final score is arrived at by averaging the independent grades of the examiners. Florida Administrative Code Rule 21-11.009(2).

    
    

30. Pursuant to Florida Administrative Code Rule 21D-11.005(1), an applicant who fails to attain a passing score on the chiropractic licensure exam is entitled to a review of the results of his examination by "a Board approved consultant," provided the unsuccessful applicant "has submitted a written request [for such review] to the Department, within thirty (30) days from the mailing date of the notification of examination results." See also Florida Administrative Code Rule 21-11.011. As Florida Administrative Code Rule 21D- 11.005(2) provides, if, after such review, the applicant still has a failing score and he "believes that an error was made in the grading of his examination, the applicant may request a hearing, pursuant to Chapter 120, Florida Statutes." See also Sections 455.229 and 455.230, Florida Statutes; Florida Administrative Code Rule 21-11.012. In accordance with Florida Administrative Code Rule 21- 11.013(1), "[i]n a practical examination, if it is determined [following such hearing] that a candidate was graded improperly in a portion of the examination through no fault of his/her own, he/she shall be permitted to retake at the next regularly scheduled examination that portion of the examination at no charge." See Alvarez v. Department of Professional Regulation, 458 So.2d. 808 (Fla. 1st DCA 1984) (where a candidate taking the acupuncture licensure examination fails the practical examination component of the examination due to inadequate instructions, the remedy, in light of the provisions of Florida Administrative Code Rule 21-11.13 (renumbered Florida Administrative Code Rule 21-11.013) is to allow the unsuccessful candidate, upon proper application, to retake the examination at no charge).

    
    

31. In the instant case Mathesie has requested a hearing to contest the failing grade he received on the physical diagnosis portion of the November 1988, licensure examination. The question of whether he was given this grade in error, however, has become moot in light of his having retaken the examination and received a passing score. Because Mathesie's failing grade on the November 1988, examination no longer presents an impediment to his obtaining a license to practice chiropractic in the State of Florida, it would not serve any meaningful purpose to determine the validity of that grade. Accordingly, Mathesie's petition seeking such a determination should be dismissed as the Department suggested at hearing. Cf. Montgomery v. Department of Health and Rehabilitative Services, 468 So.2d 1014 (Fla. 1st DCA 1985) ("`The requisite personal interest that must exist at the commencement of the litigation (standing) must continue throughout its existence (mootness);'" "Mootness occurs in two basic situations: "'(W)hen the issues presented are no longer live or (when) the parties lack a legally cognizable interest in the outcome."')

    
    

32. In any event, even if the Board were to consider the merits of Mathesie's challenge to his failing grade on the November 1988, licensure examination, it would find that Mathesie has not demonstrated that any prejudicial error was committed in the grading of his performance. One who fails a licensure examination has a "heavy burden in proving that a subjective evaluation by an expert is arbitrary." Harac v. Department of Professional Regulation, 484 So.2d 1313, 1338 (Fla. 3d DCA 1986). Mathesie has not met this burden in the instant case. There has been no showing made that any of the grades he received on the physical diagnosis portion of the examination, as

adjusted following expert review, were unreasonbly low. If anything, based on Dr. Stephen Ordet's expert testimony, which the Hearing Officer has credited, it would appear that, on the whole, Mathesie was the beneficiary of overly generous grading. Such being the case, his attack upon these grades cannot be sustained.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby

RECOMMENDED that the Board of Chiropractic Examiners enter a final order dismissing Mathesie's challenge to the failing overall average grade he received on the physical diagnosis portion of the November 1988, licensure examination on the ground that such challenge is now moot. Should the Board decline to dismiss Mathesie's challenge on the ground of mootness, it is RECOMMENDED that the Board enter a final order rejecting such challenge as without merit and denying Mathesie the relief he has requested.

DONE AND ENTERED in Tallahassee, Leon County, Florida, this 19th day of September 1989.

STUART M. LERNER

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 Administrative Hearings this 19th day of September, 1989.

APPENDIX TO RECOMMENDED ORDER IN CASE NO. 89-3255

The following are the Hearing Officer's specific rulings on the findings of fact proposed by the parties: Mathesie's Proposed Findings of Fact

1. Accepted and incorporated in substance, but not necessarily repeated verbatim, in this Recommended Order.

2. Accepted and incorporated in substance.

3. Accepted and incorporated in substance.

4. Accepted and incorporated in substance.

5. Accepted and incorporated in substance.

6. First sentence: Accepted and incorporated by reference; Second sentence: Rejected because it is more in the nature of legal argument than a finding of fact. Moreover, in order to be qualified as an expert witness in the field of chiropractic, Dr. Ordet did not have to meet the "continuous practice" requirement of Florida Administrative Code Rule 21D-11.007.

7. To the extent that this proposed finding suggests that the Department failed to substantially comply with any prehearing discovery order issued by the Hearing Officer or that the Department otherwise engaged in improper conduct

   prejudical to Mathesie, it has been rejected because it is not supported by persuasive competent substantial evidence.

8. Rejected because it is more in the nature of commentary on the quality of Ordet's testimony than a finding of fact. Furthermore, while it is true that Ordet's opinion regarding Mathesie's performance was necessarily subjective in nature, based on Ordet's credentials and qualifications, it appears that the opinion he gave was an informed and educated one, notwithstanding his failure to cite any specific authoritative writing supporting his opinion.

9. First sentence: Accepted and incorporated by reference (It should be noted, however, that although Ordet "has been out of school [as a student] for many years," he is currently on the faculty of two chiropractic colleges); Second sentence: Rejected because it is more in the nature of commentary on the quality of Ordet's testimony than a finding of fact. Moreover, the Hearing Officer finds no persuasive support for the statement that Ordet "undoubtedly has not kept up with the advances in the chiropractic education."

10. Accepted and incorporated in substance, except for the last two sentences, which have been rejected because they are not supported by persuasive competent substantial evidence.

11. Accepted and incorporated in substance, except for the last sentence, which has been rejected because it is not supported by persuasive competent substantial evidence.

12. Accepted and incorporated in substance.

13. Accepted and incorporated in substance, except for the last two sentences, which have been rejected because they are not supported by persuasive competent substantial evidence.

14. Rejected because it is not supported by persuasive competent substantial evidence.

15. To the extent that this proposed finding suggests

    that Mathesie should not have had points taken off for indicating that he would tell a patient with a blood pressure reading of 165 over 70 to see a medical doctor, it has been rejected because it is not supported by persuasive competent substantial evidence.

16. First sentence: Rejected because it constitutes a statement of the law rather than a finding of fact; Second sentence: Rejected because it is not supported by persuasive competent substantial evidence.

17. Accepted and incorporated by reference.

18. Rejected because it is not supported by persuasive competent substantial evidence.

19. Accepted and incorporated in substance. (It should be noted, however, that although Mathesie did state "on the video that all tests would be done bilaterally," he made this statement following the orthopedic examination after one of the examiners suggested, through his questioning, that it was important to determine what was "normal" for the patient.)

20. To the extent that this proposed finding suggests that Mathesie should have been awarded a grade higher than a 3.0 on the neurological examination segment of the test, it has been rejected because it is not supported by persuasive competent substantial evidence.

21. Rejected because it is not supported by persuasive competent substantial evidence.

22. To the extent that this proposed finding suggests that Mathesie should have been awarded a higher overall average grade on the physical diagnosis portion of the November, 1988, licensure examination than a 2.875 (or 71.875%), it has been rejected because it is not supported by persuasive competent substantial evidence.

23. Rejected because it is more in the nature of a request for relief than a finding of fact.

24. Rejected because it is more in the nature of a request for relief than a finding of fact.

The Department's Proposed Findings of Fact

1. Accepted and incorporated in substance.

2. Accepted and incorporated in substance.

3. Accepted and incorporated in substance.

4. Accepted and incorporated in substance, except to the extent that it indicates that "[c]ase history was raised to a 2.5 by both examiners." The uncontradicted evidence reveals that Mathesie originally received a 3.0 from both examiners on case history and that both of these grades were subsequently raised, following expert review, to a 3.5.

5. Accepted and incorporated in substance.

6. Accepted and incorporated in substance.

7. Accepted and incorporated in substance.

8. Accepted and incorporated in substance.

9. Accepted and incorporated by reference.

COPIES FURNISHED:

Michael W. Mathesie

8933 Northwest 51st Place Coral Springs, Florida 33067

E. Harper Field, Esquire Deputy General Counsel

Department of Professional Regulation Northwood Centre, Suite 60

1940 North Monroe Street Tallahassee, Florida 32399-0792

Pat Guilford Executive Director Board of Chiropractic Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399-0792

Docket for Case No: 89-003255

Orders for Case No: 89-003255