STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PATRICK DENNIS, )

)

Petitioner, )

)

vs. ) CASE NO. 90-7294

)

DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF CHIROPRACTIC )

)

Respondent. )

)

RECOMMENDED ORDER

The final hearing in this case was held on February 20, 1991, in West Palm Beach, Florida, before Donald D. Conn, Hearing Officer, Division of Administrative Hearings.

APPEARANCES

For Petitioner: Lawrence J. Langer, Esquire

400 Executive Center Drive Suite 210

West Palm Bach, FL 33401

For Respondent: Vytas J. Urba, Esquire

Northwood Centre, Suite 60 1940 North Monroe Street Tallahassee, FL 32399-0792

STATEMENT OF THE ISSUE

The issue in this case is whether Patrick Dennis (Petitioner) should be granted additional credit for any physical diagnosis practical examination questions which he answered on the May, 1990, chiropractic examination administered by the Department of Professional Regulation (Respondent), or whether, in the alternative, he should be permitted to retake the chiropractic practical examination at no additional charge.

PRELIMINARY STATEMENT

At the hearing, the Petitioner testified on his own behalf, and also called Thomas P. Toia, D.C., Michael Nathanson, D.C., Salvatore D. LaRusso, D.C., and Ian Grassam, D.C., who were all accepted as experts in chiropractic. The Petitioner introduced seven exhibits. The Respondent called Todd Zazulia, D.C., and Philip B. Leon, D.C., who were accepted as experts in chiropractic. The Respondent introduced twenty-two exhibits. See the Order entered on March 15, 1991, regarding the numbering of the exhibits.

The transcript of the final hearing was filed on March 18, 1991, and thereafter, the parties requested an extension of time until April 4, 1991, to file proposed recommended orders. A ruling on each proposed finding of fact included in the parties' proposed recommended orders is included in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. Petitioner is a graduate of the New York Chiropractic College, is licensed to practice chiropractic in New York and New Jersey, and is seeking licensure as a chiropractor in the State of Florida. He took the chiropractic practical examination administered by the Respondent in May, 1990, receiving grades of 96.6% in X-ray interpretation, 95.3% in technique, and 63.75% in physical diagnosis. A grade of 75% on each portion of the practical examination is required to pass. After receiving notification that he had failed the examination, Petitioner timely requested a hearing to determine if he should be granted additional credit on this practical exam.

   
   

2. It was established that the practical exam was properly administered, appropriate standardization procedures were followed, and each examiner independently graded Petitioner's exam, and was qualified to serve as an examiner. At hearing, the Petitioner solely disputed the score he received in the content areas of general physical examination and laboratory diagnosis.

   
   

3. A four point scoring system is used on the practical examination. A score of 4 means that the candidate demonstrated an exceptional knowledge and understanding of the subject area; a score of 3 represents an adequate understanding; a score of 2 indicates an inadequate knowledge of the subject area; and a score of 1 indicates that the candidate would be a danger to the public if allowed to practice in that particular subject area. If a grader feels that the candidate's answer demonstrates a degree of knowledge that is between two of these scores, a .5 credit can be given. This is a subjective, rather than an objective, scoring system that requires each examiner to use his own judgment in evaluating the completeness of a candidate's response; generally, there are no simple right or wrong answers to practical exam questions.

   
   

4. In arriving at a candidate's overall percentage score, a score of 4 equals 100 points, a score of 3 equals 75 points, 2 equals 50 points, and 1 equals 25 points. A .5 score equals 12.5 points. For example, a score of 3.5 would equal 87.5 points. Each content area of the practical exam is weighted equally, and there were 5 content areas in the May, 1990, chiropractic practical exam.

   
   

5. Two examiners are used to score each candidate's practical examination, and the scores given by each examiner are then averaged to give the candidate's overall grade. In this instance, out of a possible 4 credits, the Petitioner received a grade of 1 and 1.5 from his two examiners in general physical examination, and grades of 1.5 and 2 from the examiners in laboratory diagnosis. In this case, the Petitioner has presented challenges to the grades he received on these two content areas of the practical exam, general physical examination and laboratory diagnosis.

   
   

6. Since there are five portions of the physical diagnosis exam, and an average of 75%, or an average score of 3, is required to pass the examination, a cumulative average score of 15 (3 points times the 5 exam areas) is required. The Petitioner's cumulative average score was 12.75, or 2.25 points short of

   passage. Thus, he would have to receive an increase of 2.25 points in the average of the grades he received from the two examiners on the general physical examination and laboratory diagnosis portions of the exam, in order to receive an overall passing score.

   
   

7. Regarding the general physical examination content area, the Petitioner was asked to describe how a prostate examination should be conducted.

   Petitioner understood that this was a rectal exam, but he testified that he was not trained to perform such examinations at New York Chiropractic College, and he had not seen one performed. Therefore, he could not, and did not, describe how to perform a prostate exam.

   
   

8. The evidence is conflicting concerning whether New York Chiropractic College offered instruction in prostate examinations. The Petitioner testified that such instruction was not offered, but Dr. Todd Zazulia, who graduated from that college in 1978 and who is a licensed Florida chiropractor, testified that such instruction was offered at New York Chiropractic College. Documentary evidence received from the Dean of Academic Affairs at New York Chiropractic College, Dr. Anthony Onorato, confirms Dr. Zazulia's testimony. Dr. Salvatore

   D. LaRusso graduated from this same college in 1984, after Petitioner and Dr. Zazulia, and he testified that instruction in the examination of the prostate was not offered at that time. The Petitioner testified that he was taught to recognize signs and symptoms associated with prostate problems since they cause lower back pains, and that he was taught laboratory tests that would signify prostatic problems. He admitted that he felt an obligation to recognize potential problems from signs and symptoms associated with the prostate. The greater weight of the evidence supports the Respondent's position that the Petitioner was offered instruction in signs and symptoms of prostate problems, as well as rectal prostatic examinations, at New York Chiropractic College. Therefore, the Petitioner has failed to establish that he should not have been asked a question about prostate examinations on his practical examination.

   
   

9. The Respondent introduced competent substantial evidence to establish that some chiropractors in Florida do perform prostate examinations, and that this practice is within the recognized scope of practice of chiropractic in Florida. Although a substantial number of chiropractors in Florida do not perform this examination, and although there is evidence that it is a violation of chiropractic licensing statutes and rules in a majority of states for chiropractors to perform prostate examinations, nevertheless there is no evidence that the Florida Board of Chirporactic has adopted any rule or taken any action against any chiropractor in Florida for performing such examinations. In fact, Dr. Phil Leon, a licensed Florida chiropractor and licensure examiner, testified that he has asked a question about prostatic examinations of almost every applicant he has examined over the past five years. Documentary evidence submitted by the Respondent from other examiners confirms Dr. Leon's testimony that such questions are a regular part of the chiropractic practical examination in Florida, and also indicates that prostatic examinations are covered on the exam given by the National Board of Chiropractic Examiners. Even Dr. Thomas P. Toia, who was called on behalf of the Petitioner, testified that the ability to recognize prostate problems is within the scope of the practice of chiropractic, and that prostate examinations are an authorized chiropractic procedure.

   
   

10. Based on the evidence in the record, it is found that the Petitioner has not established that the grades he received on the general physical exam content area of the practical examination were arbitrary or capricious. Dr. Leon testified that he gave the Petitioner a grade of 1.5 because he did not know where the prostate was, could not describe how to perform a prostate

    examination, and did not evidence an awareness or understanding of the fact that pain in the low back area could be related to the prostate. Dr. Zazulia testified that he also would have given the Petitioner a grade of 1.5. Dr. Toia testified that when a candidate has no knowledge about a particular question, a grade of 1 is appropriate.

    
    

11. Regarding the exam content area of laboratory diagnosis, the Petitioner was asked to identify the tests that should be given to diagnose gonorrhea and lupus. For gonorrhea, the Petitioner identified the chocolate agar test, and for lupus, the Petitioner identified the antinuclear antibody test (ANA). While these are correct answers, the Petitioner's grades in this content area were lowered to 1.5 and 2 by the two examiners because he failed to mention an additional test which can also detect systemic lupus, the LE prep test, and he failed to describe how the lab samples are taken and how these tests are performed in the laboratory.

    
    

12. Based upon the evidence in the record, it is found that Petitioner has not established that the grades he received on the laboratory diagnosis content area were arbitrary or capricious. While Dr. Toia testified that he would have given the Petitioner higher grades on this content area, Dr. Zazulia supported the grades given. Dr. Zazulia testified that the Petitioner's failure to inform the patient about what they were likely to expect at the lab when they had the tests performed, and his inability to differentiate the test for gonorrhea as a smear, swab or blood test would result in a grade of 1.5. Because systemic lupus affects almost every system of the body, the Petitioner's failure to identify the LE prep test for complete screening was significant and would result in a grade of 2. There is competent substantial evidence in the record to support the grades which the Petitioner received on the laboratory diagnosis content area of the practical exam.

    
    

    CONCLUSIONS OF LAW

    
    

13. The Division of Administrative Hearings has jurisdiction over the parties, and the subject matter in this cause. Section 120.57(1), Florida Statutes.

    
    

14. Section 460.406, Florida Statutes, authorizes the Respondent to administer examinations to applicants for licensure in chiropractic. The Board of Chiropractic has adopted Rule 21D-11.013, Florida Administrative Code, which provides that the remedy for an applicant who is graded improperly in a portion of a practical examination through no fault of his own is to retake that portion of the practical exam at no charge. However, in this case the Petitioner has failed to shown that he received a failing grade through no fault of his own, and therefore, he is not entitled to retake the exam at no charge.

    
    

15. Since this is a case in which Petitioner is seeking to obtain licensure in chiropractic, the Petitioner has the burden of establishing his entitlement to that certification by a preponderance of the evidence. Florida Department of Transportation v. J.W.C. Co., Inc., 396 So.2d 778 (Fla. 1st DCA 1981); Balino v. Department of Health and Rehabilitative Services, 348 So.2d 349 (Fla. 1st DCA 1977). Specifically, an examinee who seeks to establish that his grade on a subjective examination was incorrect, must show that the agency's initial grading of his exam was arbitrary or capricious. Harac v. Department of Professional Regulation, 484 So.2d 1333, 1338 (Fla. 3rd DCA 1986); State ex rel. Glaser v. J.M. Pepper, 155 So.2d 383 (Fla. 1st DCA 1963). In Agrico Chemical Company v. Department of Environmental Regulation, 365 So.2d 759, 763 (Fla. 1st DCA 1978), relevant terms were defined as follows:

    A capricious action is one which is taken without thought or reason or irrationally.

    An arbitrary decision is one not supported

    by facts or logic, or despotic. Administrative discretion must be reasoned and based on competent substantial evidence. Competent substantial evidence has been described as

    such evidence as a reasonable person would accept as adequate to support a conclusion.

    
    

16. Petitioner challenges his grades on the general physical examination and laboratory diagnosis portions of the physical diagnosis practical examination administered by the Respondent in May, 1990. As found above, based on the evidence presented, the grades which the Petitioner received were not shown to be either arbitrary or capricious. To the contrary, competent substantial evidence in the record supports the grades which the Petitioner received, and establishes that the challenged portion of the general physical examination covered a subject, the examination of the prostate, which is within the recognized scope of chiropractic in Florida.

    
    

17. Section 460.406(1)(c) states that no application shall be denied solely because a candidate has graduated from a school subscribing to one philosophy of chiropractic. This statutory provision is not applicable in this case, despite the Petitioner's assertions to the contrary. The questions which were asked of the Petitioner concerning a prostate exam did not constitute the sole reason for his failure of the exam, and it was not established that New York Chiropractic College followed any particular "philosphy" at the time Petitioner attended that college. Therefore, the Petitioner's application was not denied solely because of the philosophy of the school from which he graduated.

RECOMMENDATION

Based upon the foregoing, it is recommended that Respondent enter a Final Order dismissing the Petitioner's challenge to the grades he received on the May, 1990, chiropractic practical examination in the content areas of general physical examination and laboratory diagnosis.

DONE AND ENTERED this 23rd day of April, 1991 in Tallahassee, Florida.

DONALD D. CONN

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

Filed with the Clerk of the Division of Administrative Hearings this 23rd day of April, 1991.

APPENDIX

Rulings on Petitioner's Proposed Findings of Fact:

1. This is a conclusion of law and not a proposed finding of fact.

2-4. Adopted in Finding 1.

1. Adopted in Findings 1 and 5.

2. Adopted in Finding 1.

3. Adopted in Finding 7.

4. Adopted in Finding 11.

5. Adopted in Finding 11, but otherwise Rejected as not based on competent substantial evidence.

6. Rejected as irrelevant and immaterial.

7. Adopted in Finding 3, but otherwise Rejected as irrelevant and immaterial.

8. Rejected as simply an excerpt of testimony and not a proposed finding.

9. Rejected as citations to statutes and rules and not a proposed finding of fact.

10. Adopted and Rejected in part in Finding 9, and otherwise Rejected as irrelevant and immaterial.

15-16. Rejected as irrelevant and immaterial.

1. Rejected in Findings 8-10.

2. Adopted and Rejected in Finding 8.

3. Rejected as irrelevant and immaterial

4. Adopted in Finding 2, but otherwise Rejected as irrelevant and not based on competent substantial evidence.

21-23. Rejected as not based on competent substantial evidence. Rulings on the Respondent's Proposed Findings of Fact:

1. Adopted in Finding 8.

2. Adopted in Finding 9.

3. Adopted in Finding 10.

4. Adopted in Findings 11 and 12.

Copies furnished:

Lawrence J. Langer, Esquire

400 Executive Center Drive Suite 210

West Palm Beach, FL 33401

Vytas J. Urba, Esquire Northwood Centre, Suite 60 1940 North Monroe Street Tallahassee, FL 32399-0792

Jack McRay, Esquire Northwood Centre

1940 North Monroe Street Tallahassee, FL 32399-0792

Patricia Guilford Executive Director Board of Chiropractic

1940 North Monroe Street Tallahassee, FL 32399-0792

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the Final Order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the Final Order in this case.

Docket for Case No: 90-007294

Orders for Case No: 90-007294