STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
CARL L ALTCHILER, )
)
Petitioner, )
)
vs. ) CASE NO. 81-008
)
DEPARTMENT OF PROFESSIONAL ) REGULATION,BOARD OF DENTISTRY, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, an administrative hearing was held before Diane D. Tremor, Hearing Officer with the Division of Administrative Hearings on June 18 and 19, 1981, and August 7, 1981, in the Grand Jury Room of the Orange County Courthouse, Orlando, Florida. The transcript of the hearing was received by the undersigned on September 30, 1981. The issue for determination at the hearing was whether petitioner should be awarded a passing grade on the clinical portion of the dental examination taken in June of 1980.
APPEARANCES
For Petitioner: Robert Dyer
Duckworth, Allen, Dyer and Pettis, P.A.
400 West Colonial Post Office Box 3791
Orlando Florida 32802
For Respondent: Carol L. Gregg
130 North Monroe Street Tallahassee, Florida 32301
INTRODUCTION
In this proceeding, petitioner is challenging the grades he received on certain procedures tested during the clinical portion of the dental examination taken in June of 1980. Petitioner alleges that the grades he was awarded on Procedures 5, 6, 8 and 9 were unjust, arbitrary and capricious. With respect to Procedures 10 and 11, petitioner alleges that the respondent provided him with a defective mannequin making it impossible for him to successfully complete those portions of the examination. The respondent's position is that the June, 1980, examination was properly administered and that the grades received by petitioner accurately reflect his performance and level of competence on each &f the challenged procedures.
In support of his position, petitioner presented the testimony of himself, Suzette Marie Rogers, who assisted him during Procedures 10 and 11 involving use of the manne9uin, Beatrice King, petitioner's patient for Procedures 5 and 6, and Thomas Gerald Ford, Jr. and Allen M. Guy, both of whom were accepted as
expert witnesses in the field of dentistry. Petitioner's Exhibits 1 through 27 were received into evidence at the hearing.
The testimony of Rupert Q. Bliss and Louis F. Vodila, both of whom were accepted as expert witnesses in the field of dentistry, was presented by the respondent. Respondent's Exhibits A & B were received into evidence.
Subsequent to the hearing, the petitioner submitted a brief and the respondent submitted a proposed recommended order. To the extent that the proposed findings of fact contained in these documents are not inc9rporated in this Recommended Order, they are rejected as being either not supported by competent, substantial evidence, immaterial or irrelevant to the issues in dispute, or as constituting conclusions of law as opposed to findings of fact.
FINDINGS OF FACT
Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found:
Petitioner Carl L. Altchiler holds licenses to practice dentistry in the States of New York (1957) and New Jersey (1973). From 1974 through 1977, petitioner was employed in Florida as an institutional dentist at the Sunland Center in Orlando and the Sumter Correctional Institution in Bushnell. He has not practiced dentistry since 1978.
In June of 1980, petitioner was a candidate for Florida licensure and took the clinical or practical portion of the dentistry examination. A prerequisite for licensure is that a candidate receive a final total clinical grade of 3.0. Petitioner received a grade below 3.0 on six of the eleven procedures tested, giving him an overall grade of 2.70 on the clinical portion of the exam.
A candidate for licensure with the Board of Dentistry must take both a written examination and a pracatical or clinical examination. The clinical exam consists of six parts and requires that eleven procedures be completed. These include the following:
Amalgam preparation on a patient Amalgam restoration on a patient Periodontal exercise on a patient Occlusal registration and transfer Final impression
Pin amalgam preparation
Pin amalgam final restoration Endodontic anterior Endodontic posterior
Cast gold preparation Cast gold restoration
Prior to the June, 1980, clinical examination, all candidates were sent an instruction booklet which included information concerning the subject areas to be tested, the weight to be accorded each area, the procedures the candidates were to follow in taking each procedure and the grading system. The candidates also participated in a three to four hour orientation program prior to the exam, where protocol was discussed and questions regarding procedure were answered.
Florida dentists who have practiced for at least five years are preselected to be examiners for the clinical portion of the dentistry exam. Approximately 23 examiners were utilized during the June, 1980, exam. Prior to arriving at the examination site, each examiner is sent the grade sheets to be utilized and the instructions to candidates. They also receive examiner and monitor instructions and forms. On the day prior to the exam, the examiners are given an 8-hour "standardization" course where the grading guidelines and procedures are discussed. This is to promote consistency and objectivity in grading. Examiners are instructed to independently grade each procedure assigned to them by awarding a grade of from 0 to 5 and indicating the appropriate number on the comment portion of the grading sheet to justify the grade assigned. They may also provide additional comments if they so desire. The grades of 0 to 5 represent the following:
0 = complete failure
1 = unacceptable dental procedure
2 = below minimal acceptable dental procedure
3 = minimal acceptable dental procedure
4 = better than minimally acceptable dental procedure
5 = outstanding dental procedure
Each clinical procedure performed by a candidate is independently graded by three different examiners, and the three grades are then averaged to determine the total grade for that procedure.
Among the forms which the examination monitors are instructed to utilize is a "Report of Equipment Failure." If utilized during the exam, this form is to be placed in the candidate's file containing the examiner's grade sheets.
Four witnesses who were qualified and accepted as experts in the field of dentistry testified in this proceeding. Thomas Gerald Ford, Jr., D.D.S. and Allen M. Guy, D.D.S. were called on behalf of the petitioner. Dr. Ford has practiced general dentistry since 1972, is a member of various dental associations, is a dental consultant for various agencies and private organizations and has given testimony in all phases of forensic dentistry. Dr. Guy has practiced general dentistry since 1971 and is a member of various dental associations. Neither Dr. Ford nor Dr. Guy has served as a monitor or examiner for the Florida dentistry examination. Testifying on behalf of the respondent were Rupert Q. Bliss, D.D.S. and Louis Vodila, D.D.S. Dr. Bliss has practiced general dentistry since 1956, specializing in restorative dentistry, is a member of various dental associations, has taught dentistry, is currently a member of the,Florida Board of Dentistry and has served as an examiner for the Florida dental examination. Dr. Vodila has practiced general dentistry since 1956, is a former member of the Board of Dentistry and has served as Chairman of the Dental Examination for two or three exams. He presently serves, as he did in June of 1980, as the consultant and Chief Dental Examiner for the Department of Professional Regulation, Office of Examination Services.
PROCEDURE NUMBER 5
Procedure Number 5, entitled "Complete Denture Evaluation" was a test of the candidate's ability to transfer the centric relation of a live patient's jaw to an articulator. The accurate transfer from the human jaw to the
articulator is crucial since the denture will be constructed on the articulator and not in the patient's mouth. If the transfer is not accurate, the denture will not fit or function properly. Wax bite registrations were utilized for this procedure and the test was whether the candidate could accurately duplicate the patient's jaw relationship on an articulator. Hand articulation is not an acceptable means of determining the accuracy of the transfer and cannot simulate the articulation observed by the three examiners who graded this procedure.
Petitioner received the grades of 3, 2 and 2, for an overall score of
2.33 on Procedure Number 5. The two examiners who assigned a grade of 2 noted that the centric relation was unacceptable. Other comments listed by the three examiners were that the appearance of the wax was overcontoured and that the interocclusal distance (space) was too little.
Petitioner's live patient for this procedure, Beatrice King, testified that the wax bite registrations fit and felt comfortable during the June, 1980, examination. She felt that two of the three examiners were very rough with her. She noted that the one gentle examiner had no trouble placing the rims in her mouth, and that she had to blow to enable their removal. During the administrative hearing, Mrs. King inserted the wax registrations in her mouth and felt that they were still comfortable and that her bite was normal. The expert witnesses testifying for both petitioner and respondent observed the registrations inside Mrs. King's mouth during the hearing.
Petitioner's two expert witnesses agreed that the wax bite registrations lacked in appearance and were overcontoured. However, they both felt from observing the registrations in Mrs. King's mouth, that the centric relation was acceptable and repeatable and that, if inserted properly, a full seating could be obtained on Mrs. King. They would have assigned a grade of 3 and 4, respectively.
Respondent's expert witness observed that the rims of the wax did not match and that the back sides of the rims were touching, thus providing an obstruction to proper closing. It was also his observation that the inserted bite rims in Mrs.King's mouth had lateral movement. He felt that a grade of 2 was "very generous."
PROCEDURE NUMBER 6
Procedure Number 6, entitled "(Final) Complete Denture Evaluation," consisted of the preparation of an impression of the mouth. of a completely endentulous patient. On this procedure, petitioner received grades of 1, 2 and 4, for an overall grade of 2.33. All of the examiners noted voids in the impression tray. Other comments made by the examiners included pressure areas, inablility to observe a post-dam area, the tray not being built u high enough into the vestibule and lack of retention and stability.
The actual impression tray used by petitioner during the examination has been distorted by improper storage while in the custody of respondent. It therefore could not be inserted into the mouth of Mrs. King for observation by the expert witnesses who testified at the hearing. Nevertheless, upon observation of the impression tray, petitioner's two witnesses, while noting the voids and pressure areas, would assign grades of 3.5 and 4, respectively. Respondent's expert witness did not feel that the impression submitted by petitioner constituted good dentistry. Voids and pressure areas in the impression tray can cause distortions and inaccuracies in the final denture. Respondent's witness felt that the grades of 1 or 2 were "very generous."
PROCEDURE NUMBER 8
Procedure Number 8, entitled "Cast Gold Cavity Preparation," was conducted on a mannequin and required candidates to complete a cavity preparation to receive a cast gold onlay. The instructions called for the preparation of an MOD onlay replacing the buccal and lingual cusps. Petitioner received grades of 2, 2 and 1 on this procedure, for an overall grade of 1.67. The comments noted on the grading sheets included a rough marginal finish, no gingival bevel, debris, the scarring of adjacent teeth, unsupported enamel and unacceptable outline form and depth preparation.
Petitioner agrees that the marginal finish was rough and that the adjacent teeth were scarred. According to petitioner, this latter defect occurred when the head of the mannequin suddenly moved as a result of a loose neck screw causing the drill to slip and go through the metal bands on the adjacent teeth.
Petitioner's expert witnesses observed the rough marginal finish, but found the remaining criteria satisfactory. They would assign grades of 3 and 4, respectively.
Respondent's witness felt that the outline form did not match what was called for on the examination. Rather than the MOD onlay required, the outline form more resembled one for a three-quarter crown. He noted the other deficiencies marked by the examiners on the comment section of the grading sheet. He felt that the grades of 1 and 2 were consistent with what he observed.
PROCEDURE NUMBER 9
Procedure Number 9, entitled "Final Gold Restoration," consisted of the candidate fabricating an onlay casting for an ivorine tooth from a dentoform in a mannequin. The procedure was graded with the gold onlay placed on the tooth within the mannequin jaw and with regard to the relationship of the onlay to the other teeth in the jaw. Petitioner received grades of 0, 1 and 2 for this procedure, for an overall grade of 1.00. The examiner who assigned a grade of 0 noted that the casting was not seated and rocked. The other two examiners did not check this comment, but did make comments pertaining to functional anatomy, proximal contour, contact and surface finish.
Petitioner's expert witnesses did not observe the ivorine tooth with the gold on lay in the dentoform in the mannequin jaw. They did observe the ivorine tooth with the gold onlay and found that the onlay did not rock on the tooth. Dr. Ford, while noting a few rough edges on the casting and a little problem in the margin, found the gold to be an exact match of the tooth. He would assign a grade of 4 to this procedure. Dr. Guy, noting a rough surface finish, would assign a grade of 3.6.
The ivorine tooth and the gold onlay were in the possession of the respondent until several weeks prior to the administrative hearing. Respondent's two witnesses observed the tooth and onlay prior to the last part of April, 1981, and found that the gold onlay had a slight rock to it at that time. They both admitted that the on lay now seated better on the tooth than
when they first observed it, though Dr. Bliss still detected a slight rock. Dr. Vodila felt that the procedure still deserved a failing grade because of the deficiencies in the margins. Dr. Bliss, noting that the procedure could not be
accurately graded outside the dentoform in the mannequin's mouth, as well as the lack of seating when he first observed it, felt that the grade of 0 was accurate and that the product failed to meet minimal standards for the practice of dentistry.
PROCEDURE NUMBER 10
Procedure Number 10, entitled "Pin Amalgam Preparation," was conducted on a dentoform in a mannequin and consisted of the preparation of a tooth for amalgam restoration. Petitioner did not complete this procedure and received a grade of 0 from each of the three examiners.
According to petitioner, during this procedure the head on his mannequin often made sudden movements due to a loose screw on the back of the mannequin's neck. He attempted to tighten the screw to fixate the head on several occasions, but the screw would not hold. He testified that he called the monitor over on several occasions and was told, at first, to do the best he could, and eventually, to go on to another procedure. This testimony was corroborated by the testimony of Suzette Rogers, who assisted petitioner during this procedure.
A steady, stable working station is important in this type of procedure for an accurate preparation. A competent dentist is trained to and should be able to steady his work area and complete the procedure even with a loose mannequin head.
As noted above, the monitors are instructed to complete a form when equipment failure is demonstrated and to insert that form into the candidate's file. No such form was found in petitioner's file. The lead examiner for the dental exam, Dr. Vodila, was never notified of any mannequin failure during the June, 1980, exam. The same mannequin head used by petitioner was also used by four other candidates before and after petitioner used it.
PROCEDURE NUMBER 11
Procedure Number 11, entitled "Pin Amalgam Final Restoration," required the candidate to complete an amalgam restoration in an ivorine tooth with a pin. This procedure was to be accomplished on a prepared tooth placed in a mannequin by the monitor after the candidate turned on a light to indicate his readiness for this procedure. Petitioner apparently did not understand the directions for this procedure, no prepared tooth was placed in the mannequin, and no work product was turned in by the petitioner. A grade of 0 was assigned by all three examiners for Procedure Number 11.
CONCLUSIONS OF LAW
It is undisputed that the petitioner received failing grades from the examiners on Procedures Number 5, 6, 8, 9, 10 and 11, thereby receiving a total and final clinical grade of 2.70. It is the petitioner's contention in this proceeding that the grades he received on Procedures Number 5, 6, 8 and 9 of the examination were unjust, arbitrary and capricious, and that he was unable to successfully complete Procedures Number 10 and 11 because of the defective mannequin provided to him by the respondent. In order to prevail in this proceeding, the petitioner must prove by a preponderance of the evidence that he actually passed the examination, thereby demonstrating his competency to practice dentistry in Florida, or that he is entitled to retake portions of the exam. In addition to this burden, he must prove that respondent arbitrarily and
capriciously failed to give him the grades he earned. State ex rel. Glasser vs. Pepper, 155 So.2d 383 (Fla. 1st DCA, 1963). For the reasons stated below, it is concluded that petitioner has failed to sustain these burdens of proof.
Absent proof to the contrary, it is assumed that an adminstrative agency exercises its powers correctly and in good faith. Here, there was absolutely no evidence presented that the respondent or the clinical examiners or monitors acted invalidly or with bad faith. The evidence adduced at the hearing, at most, illustrates only a difference of professional opinion regarding the quality of the work performed by the petitioner during the dental examination. There was absolutely no proof or allegation that the individual examiners selected and utilized during the June, 1980 examination lacked qualifications or training for this task. Independent evidence offered through the respondent's witnesses at the hearing supported the findings of deficiencies in petitioner's work product noted by the examiners. Due to various reasons, many of the procedures tested could only accurately be graded during the examination itself. While the petitioner's expert witnesses would have awarded grades higher than some of the examiners did award, the facts that they were, in some instances, looking at a different product than that which was actually graded and that they had never been instructed or "standardized" in the dental examination grading process must be taken into account when reviewing their testimony.
The grades received form the examiners on Procedures Number 5, 6, 8 and 9 are contested by the petitioner on the grounds of arbitrariness and capriciousness. Before specifically discussing each of these procedures, several facts should be noted. In these four procedures, twelve grades were received from six different examiners. Of these twelve grades, only two were passing grades. The examiner who awarded a grade of 4 in Procedure Number 6 also awarded a grade of 2 in Procedure Number 5. The examiner who awarded the other passing grade of 3 in Procedure Number 5 awarded petitioner grades of 2 in Procedures Number 6 and 8 and a grade of 1 in Procedure Number 9.
Turning now to the evidence offered with respect to the specific procedures challenged by petitioner, the testimony of Dr. Bliss corroborates the grades and comments given by the examiners with respect to the appearance of the wax bite impressions used for Procedure Number 5. In addition, it appears that the object of this procedure was to test the candidate's ability to transfer the centric relation of the human jaw to an articulator. Since the articulator utilized by the petitioner during the exam was not utilized by any of the testifying witnesses, they could not comment on the actual articulation observed by the examiners. The fit of the wax bite rims in the patient's mouth is not what was graded in this procedure. Therefore, the testimony of Doctors Ford and Guy cannot serve to illustrate that petitioner deserved a passing grade on this procedure or that the grades of 2 awarded by two of the examiners were arbitrary or capricious.
Due to the distortion of the impression tray caused by improper storage, the same conclusion must be drawn with respect to Procedure Number 6. The experts who testified at the hearing could not observe what the examiners observed at the time they awarded grades for this procedure; to wit: the fit of the impression in the patient's mouth. Absent a legal obligation on the part of the respondent to retain and preserve all materials used by a candidate during an examination, the argument of petitioner as to the evidentiary inferences to be drawn from the damaged impression tray and its proper seal are without merit. State ex rel. Glasser vs. Pepper, supra. Petitioner's own witnesses, as well as Dr. Bliss, noted several of the same deficiencies in the appearance of the
tray noted by the examiners. The fact that Doctors Ford and Guy would give different weight to these deficiencies than the examiners did does not prove that the grades awarded by the examiners were arbitrary or capricious.
Procedures Number 8 and 9 can be considered together. On Procedure Number 8, the three examiners awarded scores of 2, 2 and 1 and, on Procedure Number 9, scores of 0, 2 and 1 were awarded. Even if one of the examiners had awarded a grade of 3 on Procedure Number 8 or a grade of 4 on Procedure Number 9, as Dr. Ford would have done, petitioner would not have received a passing grade on these portions of the examination. The undisputed evidence regarding the roughness of the finishes on Procedure Number 8 and 9 and the fact that the end work product was not what was called for on the exam is sufficient to suppress any contention of arbitrariness or capriciousness on the part of the examiners. Much of the hearing was devoted to the issue of whether or not the gold onlay prepared for Procedure Number 9 accurately seated on the ivorine tooth at the time it was graded during the examination. Only one examiner noted that the casting was not seated and he gave a grade of 0. He also checked the comment "margins." The issue of whether or not the casting was seated at the time of the exam becomes somewhat irrelevant when it is considered that even if that examiner's score were thrown out, or even assuming that that one examiner awarded a grade of 4 for Procedure Number 9, petitioner would still have received an overall grade below 3.0 for that procedure. Also, the other examiners who did not comment that the casting was not seated awarded the petitioner's work product grades of 2 and 1 for other reasons. Again, it should be noted that the witnesses who testified at the hearing did not have the benefit of the same observation of petitioner's work product in Procedure Number
9 as the examiners. In June of 1980, Procedure Number 9 was graded with the onlay placed on the tooth within the mannequin's jaw, thus illustrating the relationship of the onlay to the rest of the teeth in the jaw. Petitioner has failed to adequately demonstrate that he either passed Procedures Number 8 and 9 of the clinical exam or that the grades awarded are arbitrary or capricious.
Petitioner received six grades of 0 for Procedures Number 10 and 11 of the clinical examination. His explanation and complaint regarding these procedures was that the respondent provided him with a defective mannequin head which unexpectedly became loose on several occasions causing his drill to slip and his inability to complete the assigned tests. While his testimony concerning the loose mannequin head was corroborated by his assistant for these two procedures, it is not consistent with the fact that no equipment failure form was inserted in his file, that no mannequin failure was reported to the lead examiner and that the same mannequin head was used by four other candidates both before and after petitioner during the same examination. Also, his testimony concerning the loose mannequin head does not explain his failure to produce any work product for Procedure Number 11 which did not involve the use of the work product from Procedure Number 10. When coupled with the testimony that a competent dentist is trained to and should be able to steady his work area, it is concluded that petitioner has not adequately demonstrated that he passed these procedures, that the grades of 0 were arbitrary or capricious or that he is entitled to retake these portions of the clinical examinations.
Based upon the findings of fact and conclusions of law recited above, it is RECOMMENDED that the grades awarded to petitioner on Procedures Number 5, 6, 8, 9, 10 and 11 of the clinical portion of the dentistry examination held in June of 1980 be upheld.
Respectfully submitted and entered this 29th day of October, 1981, in Tallahassee, Florida.
DIANE D. TREMOR, Hearing Officer Division of Administrative Hearings The Oakland Building
2009 Apalachee Parkway
Tallahassee, Florida 32301
(904) 488-9675
Filed with the Clerk of the Division of Administrative Hearings this 29th day of October, 1981.
COPIES FURNISHED:
Robert Dyer, Esquire Duckworth, Allen, Dyer
and Pettis, P.A.
400 West Colonial Post Office Box 3791
Orlando, Florida 32802
Carol L. Gregg, Esquire Department of Professional
Regulation
130 North Monroe Street Tallahassee, Florida 32301
Samuel Shorstein Secretary, Department of
Professional Regulation
130 North Monroe Street Tallahassee, Florida 32301
| Issue Date | Proceedings |
|---|---|
| Oct. 29, 1981 | Recommended Order sent out. CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| Oct. 29, 1981 | Recommended Order | Petitioner failed to show the grades he received on dentistry exam were arbitrary or capricious. |
