STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BENNETT L. WOLANSKY, )

)

)

Petitioner, )

)

vs. ) CASE NO. 89-1494

)

DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF PODIATRY, )

)

)

Respondent. )

)

RECOMMENDED ORDER

This matter was heard by William R. Dorsey, Jr., the hearing officer designated by the Division of Administrative Hearings, on August 24, 1989, in Miami, Florida.

APPEARANCES

For Petitioner: Donald J. Murray, Esquire

9200 South Dadeland Boulevard Suite 515

Miami, Florida 33156

For Respondent: E. Harper Field, Esquire

Department of Professional Regulation

1940 North Monroe Street Tallahassee, Florida 32399-0792

STATEMENT OF THE ISSUE

Whether the Petitioner's performance on the podiatry examination was misgraded, so that he should be licensed?

PRELIMINARY STATEMENT

Following the hearing, a transcript of the proceeding

was filed, and the parties thereafter filed proposed findings of fact and conclusions of law. Rulings on proposed findings of fact are made in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. Mr. Wolansky took the podiatry licensure examination in July of 1988. He received a score of 73.8 (he answered 266 items correctly); a score of 75 is required to pass (correct on 270 items). If Petitioner obtains credit for four more correct answers, he would pass the examination.

2. Wolansky challenges the grading of nine questions. These are AM #1; PM #5; PM #30; PM #7; AM #92; AM #19; AM #191; PM #114, and PM #59.

   
   

3. The general instructions given during examination to the examinees included the following:

   
   

   To answer the questions: . . . from those choices presented, select the choice that you judge as the correct answer to the question. .

   
   

4. The first question at issue is AM #1 which stated:

   
   

   The sesamoid bone that must be differentiated from a fracture of the styloid process at the base of the fifth metatarsal is the os

   
   

   The four choices given were:

   
   

   1. trigonum

   2. vesaleum

   3. peroneum

   4. tibialis exterior

      
      

      The Department maintains the correct answer is (B) vesaleum. Dr. Marianne Bouvier, an Assistant Professor of Cell Biology and Anatomy at the University of Miami School of Medicine testified on behalf of Dr. Wolansky that the available choices contain no correct answer. There is a recognized distinction in text books on human anatomy between accessory bones and sesamoid bones.

      These classes of bones are mutually exclusive. There is, therefore, no correct answer available. The testimony offered by Dr. Chester A. Evans, who is Dean and Professor of Podiatric Surgery at Barry University School of Podiatric Medicine, is that vesaleum is the correct answer, and that sesamoid and accessory bones are the same. The testimony of Dr. Bouvier is more persuasive. The question had no correct answer and therefore should not be used in determining the outcome of the examination.

      
      

5. Question PM #5 asked:

   
   

   Which of the following changes contributes to the oxygen debt that occurs during exercise?

   
   

   1. a decrease in the arteriovenous oxygen concentration difference

   2. a rise in the concentration of oxygen in the lungs

   3. a decrease in the concentration of hemoglobin

   4. an increase in lactic acid concentration

      
      

      Dr. Wolansky chose (C) as his answer. The Board regards (D) as the correct answer. Dr. David Landowne, an Associate Professor in Physiology and Biophysics at the University of Miami School of Medicine, testified that no correct answer is available. The Board's answer is incorrect because lactic acid concentration does not contribute to oxygen debt, but is rather the result of oxygen debt. The answer reverses causality, and is incorrect.

      While Dr. Wolansky does not contend that his answer is correct, no correct answer was offered as a choice. Dr. Evans' testimony that the Board's answer is the best of the answers available is unpersuasive. All answers are wrong and this question should not be considered at accessing Dr. Wolansky's performance.

      
      

6. Question PM #30 asks:

   
   

   A systolic blood pressure below is

   usually considered to be of potential serious level.

   
   

   The four choices given were:

   
   

   (A) 100

   1. 90

   2. 80

   3. 70

   
   

   Dr. Wolansky answered (C); the Department regards the correct answer as (D). The Department relies upon an article in Podiatry Quarterly published in 1965 in support of its answer (that publication is now known as The Journal of Podiatric Medicine) Dr. Landowne testified that according to medical publications, such as Current Medical Diagnoses and Treatment, published by Lange Medical Publications, and others, a systolic blood pressure below 80 would be regarded as shock, and is a serious condition. The question does not require an examinee to answer the question according to some undisclosed text, but according to current medical knowledge. The answer provided by Dr. Wolansky of 80 is a correct answer, and he should be given credit for that answer.

   
   

7. Dr. Wolansky next disputes the scoring of question PM #7 which asks:

   
   

   Which of the following causes abnormal dynamics at the capillary membrane, resulting in edema?

   
   

   1. the kidney stops the retension of fluid

   2. high colloid osmotic pressure

   3. decreased plasma protein

   4. increased plasma protein

      
      

      Dr. Wolansky answered (B); the Department regards the correct answer as (C). Edema is the flow of water from the blood vessel into tissue spaces. It occurs where there is an imbalance of osmotic pressure across a capillary wall. Decreased plasma protein would cause an imbalance, but as Dr. Landowne pointed out, high colloid osmotic pressure outside the capillary would also cause an imbalance. The question does not say where the osmotic pressure is, or what it is high in relationship to. Dr. Evans merely recounted a source which the Department relied upon to support its answer, but the testimony of Dr. Landowne that the source could support either answer is more persuasive. Dr.

      Wolansky's answer to the question should be regarded as correct.

      
      

8. Question AM #92 asks:

   
   

   Type one classification of Salter-Harris growth plate injuries includes?

   
   

   The four choices given were:

   
   

   1. separation of epiphysis from metaphysis

   2. the growth place is crushed, involving adjacent structures

   3. line of fracture includes the joint

   4. line of fracture passes through the growth plate

      
      

      Dr. Wolansky answered (D); the Department regards the correct answer as (A). Dr. Wolansky presented the testimony of Dr. John Levin, a podiatrist, that both answers are correct. All Salter- Harris injuries are injuries to the growth plate, that is they are fractures which pass through the epiphyseal growth plate, so that separation of the epiphysis from the metaphysis occurs in Salter-Harris injuries types 1-4. The type 1 Salter-Harris injury includes both separation of the epiphysis from the metaphysis as well as the line of fracture passing through the growth plate. Because of the particular wording of the question, viz; " . . . of Salter-Harris growth plate . . ." the answer probably should be limited to injuries to the growth plate so that Dr. Wolansky's answer is more correct. The testimony of Dr. Levin is persuasive, and the answer given by Dr. Wolansky should be regarded as a correct answer.

      
      

9. Dr. Wolansky next challenges the grading of question AM #191 which states:

   
   

   A patient who presents with red to cyanotic discoloration of the digits is said to exhibit?

   
   

   1. dependent rubor

   2. cold feet

   3. elevational ischemia

   4. abnormal venous filling time

   5. capillary fragility

   
   

   Dr. Wolansky answered (D); the Department regards the correct answer as (A). Dependent rubor describes an insufficiency in arterial circulation. This same problem can be exhibited by patients who have problems not with arteries, but with veins, either due to dilation of the veins, or to incompetent valves in the veins which can also result in cyanotic discoloration. The question is sufficiently vague that either answer can be considered correct, and Dr. Wolansky should be given credit for his answer.

   
   

10. Dr. Wolansky next challenges the answer to question PM #114, which asks:

    
    

    The local anesthetic action of lidocaine would be increased by?

    
    

    The four choices given were:

    
    

    1. a decrease in local pH such as accompanies infection or inflammation

    2. coadministration with epinephrine

    3. presence of aneuroma at the site of a nerve block

    4. none of the above

       
       

       Dr. Wolansky answered (D); the Department regards the correct answer as (B). The local anesthetic action of lidocaine is not increased by coadministration of epinephrine. While the use of epinephrine with lidocaine will prolong the anesthesia, it will not increase the effect of the lidocaine.

       
       

       The language of the question stem referring to increasing action asks the examinee to evaluate the intensity of the effect of the coadministration of the drugs, as opposed to a prolongation of the effect of the lidocaine. The answer given by Dr. Wolansky is correct.

       
       

11. On balance, the testimony provided by the experts

    for Dr. Wolansky, Drs. Bouvier, Landowne and Levin, were significantly more persuasive. Drs. Bouvier and Landowne are professors at the University of Miami Medical School, with Ph.D. degrees in their fields, and were able to clearly discuss the implications of the answers offered to the candidates. Dr.

    Evans, in general, limited his testimony to identifying sources available somewhere in the professional literature which support the answer the Department regarded as correct.

12. Dr. Wolansky had objected to questions AM #119 and

    PM #59, but adduced no testimony about it, and has not carried any burden of proof with respect to the scoring of those questions.

    
    

    CONCLUSIONS OF LAW

    
    

13. The Division of Administrative Hearings has jurisdiction over this matter. Section 120.57(1), Florida Statutes.

    
    

14. A candidate challenging the answers to a licensing examination shoulders a heavy burden to show that the Department's decision not to allow him credit for challenged questions is erroneous. Under Rule 20-6.008(3), Florida Administrative Code, the potential licensee has the burden of establishing entitlement to the license. By preponderance of evidence, Dr. Wolansky has established that the answers to two questions, AM #1, and PM #5 had no correct answer, and that those questions should be disregarded. Dr. Wolansky proved by preponderance of evidence that his answer to questions PM #30, PM #7, AM #92 and PM #114 are all correct. Dr. Wolansky should be given credit for five correct answers, so that his total number of correct answers becomes 271. This is sufficient to give him a grade above the minimum passing grade of 75. His grade becomes

1. if the percentage is determined from all questions on the test, or 75.7 if his grade is determined using two fewer questions, because questions AM #1 and AM #5 are disregarded.

   
   

   RECOMMENDATION

   
   

   Bennett L. Wolansky has established that he should be regarded as having received a passing grade on the July, 1988, examination for licensure as a podiatrist. Assuming that he meets the other qualifications for licensure (which were not as issue in this case) he should be licensed as a podiatrist in the State of Florida.

   
   

   DONE AND ENTERED in Tallahassee, Leon County, Florida, this 13 day of February, 1990.

   
   

   WILLIAM R. DORSEY, JR.

   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 of Administrative Hearings this 13th day of February, 1990.

   APPENDIX TO RECOMMENDED ORDER DOAH CASE NO. 89-1494

   
   

   Rulings on proposed findings submitted by Dr. Wolansky:

   
   

   1. Adopted in finding of fact 1.

   2. Adopted in finding of fact 3.

   3. Adopted in finding of fact 4.

   4. Adopted in finding of fact 5.

   5. Adopted in finding of fact 6.

   6. Essentially adopted in finding of fact 7.

   7. Generally adopted in finding of fact 8.

   8. Generally adopted in finding of fact 9.

   9. Generally adopted in finding of fact 10.

Rulings on proposed findings submitted by the Department of Professional Regulation, Board of Podiatry:

1. Adopted in finding of fact 1.

2. Adopted in finding of fact 1.

3. Adopted in finding of fact 2.

4. Generally adopted in the paragraphs dealing with the substantive questions.

5. Generally adopted in finding of fact 4.

6. Generally rejected for the reasons stated in finding of fact 4.

7. Generally rejected for the reasons stated in finding of fact 5.

8. Generally rejected for the reasons stated in finding of fact 6.

9. Generally rejected for the reasons stated in finding of fact 7.

10. Generally rejected for the reasons stated in finding of fact 8.

11. Adopted in finding of fact 12.

12. Generally rejected for the reasons stated in finding of fact 9.

13. Generally rejected for the reasons stated in finding of fact 10.

14. Adopted in finding of fact 12.

COPIES FURNISHED:

Donald J. Murray, Esquire 9200 South Dadeland Boulevard Suite 515

Miami, Florida 33156

E. Harper Field, Esquire

Department of Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-0792

Patricia Guilford, Executive Director Department of Professional Regulation Board of Podiatric Medicine

1940 North Monroe Street Tallahassee, Florida 32399-0792

Kenneth E. Easley, General Counsel Department of Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399

Docket for Case No: 89-001494

Orders for Case No: 89-001494