STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BRIAN P. BRENNAN, )

)

Petitioner, )

)

vs. ) Case No. 88-6000

)

DEPARTMENT OF PROFESSIONAL )

REGULATION, )

)

Respondent, )

)

RECOMMENDED ORDER

This matter came on for hearing in Pensacola, Florida, before the Division of Administrative Hearings by its duly designated Hearing Officer, Diane Cleavinger, on April 20, 1989. The parties were represented as follows:

For Petitioner: Brian P. Brennan, pro se

5828 Rawson Lane

Pensacola, Florida 32503

For Respondent: R. Harper Field, General Counsel

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

The issue at the hearing was whether Petitioner's examination in chiropratic physiotherapy was graded improperly and, if so, should Petitioner be certified in chiropractic physiotherapy.

Petitioner testified in his own behalf and offered into evidence one exhibit. Respondent presented two witnesses and offered one exhibit into evidence.

Respondent filed its proposed recommended order on May 3, 1989.

Respondent's proposed findings of fact have been considered and utilized in the preparation of this Recommended Order except where such proposals were not supported by the weight of the evidence or were immaterial, cumulative or subordinate. Specific rulings on Respondent's proposals are contained in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. Petitioner was a candidate for the May 1988, Chiropractic Physiotherapy certification examination.

   
   

2. The exam consists of a written and an oral part, covering various areas of chiropractic physiotherapy. The written and oral parts of the exam are graded separately and a candidate must score 75 points on each part in order to pass and be certified in Physiotherapy.

3. Petitioner had previously passed the written portion of the exam and was attempting only the oral portion of the physiotherapy exam. Petitioner claims he was incorrectly graded on the oral exam in the areas of manual, ultrasound and galvanic therapy. At the hearing Petitioner abandoned his claim that he was incorrectly graded on the galvanic therapy portion of the exam and that claim is not considered further for purposes of this recommended order. Petitioner obtained a score of 66.6 on the oral exam.

   
   

4. The oral practice exam for physiotherapy certification is graded subjectively according to a candidate's response to questions asked by two grading chiropractors. The graders have been licensed to practice chiropractic for more than five years in Florida and have undergone some grade standardization training prior to examining the candidate for certification. Each grader assigns his or her point score independent of the other grader. A candidate's response therefore has two scores assigned by each grader. The points given by each grader are totalled. The two totals are then averaged together for the overall score on the exam. Some difference in the points assigned often occur. However, the difference between the two scores seldom exceeds 1 point and would therefore not be an unreasonable discrepancy when consideration is given to the effects of grading a subjective test and the effects of averaging the two point scores given by each grader.

   
   

5. The grade range is from 1-4 points with one being the lowest score and four being the highest score. A score of 4 points is given when a candidate demonstrates superior or expert knowledge in the subject area tested. A score of 3 points is given when a candidate demonstrates minimal competency in the subject area tested. A score of 2 points is given when the candidate's answer is wrong but not dangerous to the patient. A score of 1 point is given when a candidate's response is wrong and dangerous to the patient.

   
   

6. Dr. Brennan scored a 1.5 and 2.5 on the manual portion of the exam and a 1.5 and 2.5 on the ultrasound portion of the exam.

   
   

7. In both instances Petitioner's answers to the questions covering the manual and ultrasound areas of the exam were wrong. Therefore the scores given by each grader could not exceed 2.9 points. Even if the highest allowable score is awarded for Petitioner's responses the additional points are not sufficient to raise Petitioner's score to a 75. Based on the above facts Petitioner has failed to present sufficient evidence to establish that he should be certified in Chiropractic Physiotherapy.

   
   

8. More importantly, however, Petitioner's answer to the ultrasound portion of the exam was wrong and dangerous to the patient. Petitioner was clearly confused by the manner in which the question was asked by the examiner. However, the confusion did not exclude the candidate's ability or opportunity to give the correct answer in order to take the safest course of therapy to the patient. To Petitioner's credit he did demonstrate competency in his responses to the other question pertaining to the ultrasound area. It was the application of that knowledge that Petitioner failed to demonstrate. The explanations given by each grader, justifying a failing score given to the candidate, reflect the above. Therefore, neither of the graders scores on the ultrasound portion of the exam can be said to be incorrect and should remain the same.

   
   

9. Petitioner failed to demonstrate that the two grader's scores on the manual and ultrasound portion of the exam were devoid of logic or reason for its respective assignment. Petitioner, therefore, failed to demonstrate that he was

   incorrectly graded on the oral exam and should be certified in Chiropractic Physiotherapy.

   
   

   CONCLUSION OF LAW

   
   

10. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding. Section 120.57(1), Florida Statutes.

    
    

11. Chapter 460, Florida Statutes, sets forth the requirements which must be met in order for a person to be licensed in the State of Florida as a chiropractor and for certification in a specialized area of chiropractic such as physiotherapy. Specifically, Section 460.403(1)(f), Florida Statutes, requires the following:

    
    

    Any chiropractic physician . . . may not,

    . . . use physiotherapy, . . . until certified by the board to use any such procedures. Certification shall be granted to chiropractic physicians . . . after successful passage of an appropriate

    examination as administered by the department.

    
    

12. Chapter 21D-11, Florida Administrative Code, provides the manner in which the examination is to be administered and specifies the criteria which are to be applied in grading candidates.

    
    

13. The Petitioner had the burden of proving, by a preponderance of the evidence that the grades received were erroneous, that he actually passed the exam and that the Respondent arbitrarily and capriciously failed to give him the grades he was entitled to. Department of Transportation v. J.W.C. Co., Inc.,

    390 So.2d 778 (Fla. 1st DCA 1981); Balino v. Department of Health and Rehabilitative Services, 348 So.2d 349 (Fla. 1st DCA 1977); and Glaser v. Pepper, 155 So.2d (Fla. 1st DCA 1963).

    
    

14. The evidence presented in this case proved that the Respondent administered the examination fairly and in accordance with the applicable statutory and rule provisions governing such examinations. The evidence also proved that the grades awarded Petitioner were not erroneous, that he did not pass the exam and that the Respondent did not arbitrarily and capriciously fail to give Petitioner the grades he believes he is entitled to. Petitioner therefore, failed to demonstrate by a preponderance of the evidence that he is entitled to the relief he is seeking.

RECOMMENDATION

Based on the foregoing Findings of Fact acid Conclusions of Law, it is RECOMMENDED that Respondent enter a Final Order finding that Petitioner

failed to demonstrate that he was incorrectly graded on the Chiropractic

Physiotherapy exam and should be certified in the area of Chiropractic Physiotherapy.

DONE and ENTERED this 30th day of May, 1989, in Tallahassee, Florida.

DIANE CLEAVINGER

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 30th day of May, 1989.

APPENDIX

1. The facts contained in paragraphs 1, 2, 3 and 4 of Respondent's Proposed Findings of Fact are adopted in substance, in so far as material.

   
   

2. The facts contained in paragraphs 5 and 6 of Respondent's Proposed Findings of Facts are subordinate.

COPIES FURNISHED:

Brian P. Brennan 5828 Rawson Lan

Pensacola, Florida 32503

E. Harper Field General Counsel

Department of Professional Regulation

1940 North Monroe Street Suite 60

Tallahassee, Florida 32390-0729

Kenneth Easley

Department of Professional Regulation

1940 North Monroe Street Suite 60

Tallahassee, Florida 32390-0729

Pat Gilford Executive Director

1940 North Monroe Street Suite 60

Tallahassee, Florida 32390-0729

Docket for Case No: 88-006000

Orders for Case No: 88-006000