STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MICHAEL SELINSKY, )

)

Petitioner, )

)

v. ) CASE NO. 88-3559

)

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

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, an administrative hearing was held before Diane D. Tremor, Hearing Officer with the Division of Administrative Hearings, on September 2, 1988, in Tallahassee, Florida. The issue for determination in this proceeding is whether petitioner is entitled to a passing score on the Florida chiropractic examination.

APPEARANCES

For Petitioner: Michael Selinsky

6159 Wayside Court

Spring Hill, Florida 34606

For Respondent: William A. Leffler, III, Esquire

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

INTRODUCTION

Petitioner requested a formal administrative hearing regarding two grades he received on the physical diagnosis portion of the chiropractic practical examination for licensure. At the hearing, petitioner testified on his own behalf, but presented no other witnesses. The respondent presented the testimony of Dr. Stephen Ordet, who was accepted as an expert in chiropractic medicine, including examination grading. Joint Exhibits 1, 2 and 3 were received into evidence.

Subsequent to the hearing, the parties were given the opportunity to file proposed findings of fact and proposed conclusions of law. Neither of the submissions filed by the parties contain appropriate findings of fact; however, the post-hearing documents have been considered as legal argument and/or as setting forth the respective positions of the parties in this proceeding.

FINDINGS OF FACT

Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found:

1. The petitioner, Michael Selinsky, was a candidate for the chiropractic examination given in November of 1987. The practical examination is composed of three portions, X-ray interpretation, technique and physical diagnosis, and a score of 75% must be achieved on all three subject areas in order to pass. The petitioner received a score of 77.1 on the X-ray interpretation area, a score of

   77.5 on the technique area and a score of 72.5 on the physical diagnosis area. In this proceeding, petitioner challenges two of the scores he received on the examination in the area of physical diagnosis.

   
   

2. The physical diagnosis portion of the examination consists of oral questions posed to the candidate by two examiners. The answers are graded on a scale of 1 to 4, with 4 being the highest grade. Petitioner challenges the grade of 3 one of the examiners gave him for the "neurological" portion of the exam and the grade of 2 another examiner gave him for the "X-ray technique & diagnosis" portion of the examination. On these two areas of the examination, Examiner number 14 awarded petitioner a grade of 3 on both areas. Examiner number 23 awarded petitioner a grade of 4 on the "neurological" portion anal a grade of 2 on the "x-ray technique & diagnosis" portion.

   
   

3. During the neurological section of the oral examination, petitioner was requested to demonstrate upon a live model how he would test the extensor hallicus longus muscle for the L-5 mytome. In response, he extended the great toe in the wrong direction. In responding to a question concerning an upper motor neuron lesion and a lower motor lesion, petitioner's answers were very incomplete.

   
   

4. During the X-ray technique portion of the oral examination, petitioner was requested to demonstrate with a live model how he would position a patient for a lateral shoulder x-ray. The petitioner responded that he had never heard of such a position, but then attempted to position the patient. In fact, there is no way to take an x-ray of the lateral shoulder view because two bones would be superimposed. While this might be viewed as a "trick" question, petitioner should have been aware that no such x-ray could be taken. During another x-ray positioning question, petitioner failed to turn the patient's head.

   
   

5. Also, during the X-ray technique portion of the oral examination, petitioner was asked to identify three factors that affected his exposure to radiation as an operator. The petitioner's answer included such things as lead- lined booths, lead-lined walls in the x-ray room and proper film developing to decrease the number of retakes. Several times, the examiners asked him questions regarding his answers, and the petitioner responded that he was not sure. When considering an operator's safety with regard to radiation exposure, there are three fundamental and established factors to take into account: time of exposure, distance and shielding. The petitioner's answers had relevance to patient safety, but not to the safety of the operator. In spite of prodding and grilling by the examiners with regard to operator safety, petitioner was unable to elucidate the three fundamental factors of radiation safety.

   
   

   CONCLUSIONS OF LAW

   
   

6. In order to prevail in this proceeding, the petitioner must prove by a preponderance of the evidence that he actually passed the chiropractic

   examination and that respondent arbitrarily and capriciously failed to give him the grades or scores he earned. Petitioner has failed to sustain these burdens of proof.

   
   

7. Absent proof to the contrary, it is assumed that an administrative agency exercises its powers correctly and in good faith. Here, petitioner presented absolutely no evidence that the respondent or the examiners acted invalidly, with bad faith, arbitrarily or capriciously. There was no proof or allegation that the individual examiners who graded petitioner's oral examination lacked qualifications or training for this task. Independent evidence offered by the respondent's witness at the hearing supported the findings of deficiencies in the answers given by the petitioner during the examination. The petitioner presented no competent evidence to refute such evidence. He simply felt that he was entitled to two perfect grades in the neurological portion of the exam and at least a score of 3 in the x-ray technique portion of the exam. The evidence presented amply demonstrates that he wrongfully and/or incompletely answered at least two questions in each of the two areas.

   
   

8. Having failed to demonstrate that the examination itself was faulty or that he was entitled to a higher score on the examination, petitioner has failed in his burden of proof and is not entitled to relief.

RECOMMENDATION

Based upon the findings of fact and conclusions of law recited herein, it is RECOMMENDED that the petition be DISMISSED.

Respectfully submitted and entered this 17th day of October, 1988, in Tallahassee, Florida.

DIANE D. TREMOR

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 17th day of October, 1988.

COPIES FURNISHED:

Copies furnished:

William A. Leffler, III, Esquire Bruce D. Lamb, General Counsel Department of Professional Department of Professional

Regulation Regulation

130 North Monroe Street 130 North Monroe Street Tallahassee, Florida 32399-0750 Tallahassee, Florida 32399-0750

Michael Selinsky Pat Guilford, Executive

5259 Wayside Court Director

Spring Hill, Florida 34606 Board of Chiropractic

Examiners

Lawrence A. Gonzalez, Secretary Department of Professional Department of Professional Regulation

Regulation 130 North Monroe Street

130 North Monroe Street Tallahassee, Florida 32399-0750 Tallahassee, Florida 32399-0750

Docket for Case No: 88-003559

Orders for Case No: 88-003559