STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FRANK GIAMPIETRO, )

)

Petitioner, )

)

vs. ) CASE NO. 90-3399

)

DEPARTMENT OF PROFESSIONAL )

REGULATION, )

)

Respondent. )

)

RECOMMENDED ORDER

The final hearing in this case was held on August 23, 1990, in Fort Pierce, Florida, before Donald D. Conn, Hearing Officer, Division of Administrative Hearings.

APPEARANCES

For Petitioner: Frank Giampietro, pro se

1704 Adair Road

Port St. Lucie, FL 34952

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 Frank Giampietro (Petitioner) should be awarded additional credit for answers given on the chiropractic physical diagnosis practical licensure examination administered in November, 1989, and based thereon, whether he should be licensed to practice chiropractic in the State of Florida.

PRELIMINARY STATEMENT

At the hearing, the Petitioner testified on his own behalf, and also called Kim Ray Hoover, D.C., and his son, Frank Giampietro, Jr., D.C. The Petitioner introduced one exhibit. The Respondent called Steven M. Ordet, D.C., who was accepted as an expert in chiropractic medicine, and also David L. Bolton. The Respondent introduced three exhibits. One joint exhibit was also received.

The transcript of the final hearing was filed on September 26, 1990, and thereafter, the parties were allowed to file proposed recommended orders within ten days. 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 has been licensed to practice chiropractic in the State of Rhode Island since March, 1986. He took the diagnosis portion of the chiropractic practical examination administered by the Respondent on November 9, 1989, for purposes of being licensed in the State of Florida. Petitioner received a grade of 68.7% on this portion of the exam. The minimum passing grade on this practical exam was 75%. Thereafter, Petitioner timely requested a hearing to determine if he should be granted additional credit on this practical exam, and based thereon, whether he should have passed this examination.

   
   

2. It was established that the physical diagnosis 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 disputed the score he received in the areas of neurology, orthopedics, and differential 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 2 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 4 content areas in the November, 1989 physical diagnosis 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, one examiner gave Petitioner the grades of 2.5 in orthopedics and 3 in both neurology and differential diagnosis, while the other examiner gave him 2 in orthopedics, 2.5 in neurology and 3 in differential diagnosis.

   
   

6. If Petitioner received two additional raw points on these three content areas which are under challenge, he would receive an overall passing score of 75%.

   
   

7. Regarding the practical exam content area of orthopedics, the Petitioner improperly performed Apley's test, according to the expert testimony of Dr. Ordet, and incorrectly responded that the medial and lateral meniscus could not be differentiated using Apley's test. The Petitioner also improperly performed McMurray's test, as well as muscle testing of the hamstrings and quadriceps. The Petitioner's witness, Dr. Hoover, confirmed that he did not properly perform Apley's test, and did not make a determination as to the medial or lateral meniscus by rotating the patient's foot, as he could have.

8. Regarding the neurology portion of the exam, Petitioner incorrectly identified the location of the upper motor neuron track, and according to Dr. Ordet, the Petitioner also incorrectly stated that pathologic reflexes which would actually be for a lower motor neuron lesion were the pathologic reflexes for an upper motor neuron lesion. This was a very significant error, according to Dr. Ordet, whose testimony is credited.

   
   

9. Regarding the differential diagnosis portion of the exam, the Petitioner's response to the patient's bowel blockage was not precise or specific. Petitioner did not demonstrate that he had more than an adequate understanding of this subject area due to the nebulous answers he gave. Even the Petitioner's witness, Dr. Hoover, agreed with the grade of 3 which Petitioner received on this portion of the exam.

   
   

10. Based on the evidence in the record, it is found that Petitioner was correctly graded on the orthopedics, neurology and differential diagnosis portions of the practical examination. It was not established that the grades given were contrary to fact or logic, and in fact, competent substantial evidence supports the grades which he received.

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

12. Section 460.406(3), Florida Statutes, authorizes the Respondent to administer examinations to applicants for certification in physiotherapy. The Board of Chiropractic has adopted Rule 21D-11.003, Florida Administrative Code, which specifies the examination procedures to be followed for licensure to practice chiropractic in the State of Florida.

    
    

13. Since this is a case in which Petitioner is seeking to obtain licensure in chiropractic from the Respondent, the Petitioner has the burden of establishing his entitlement to that licensure 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.

14. Petitioner challenges his grades on the orthopedic, neurological and differential diagnosis portions of the practical examination administered by the Respondent in November, 1989, for licensure in chiropractic. As found above, based upon competent substantial evidence in the record, the grades received by the Petitioner on these portions of the examination were neither arbitrary nor capricious, but were, in fact, correct.

    
    

15. The expert testimony of. Dr. Ordet, which is credited, fully explains and supports the grades which the Petitioner received. Even Dr. Hoover, who was called by the Petitioner, did not significantly disagree with Dr. Ordet regarding Petitioner's performance on the differential diagnosis and orthopedic portions of the exam. In order to receive a passing grade, the Petitioner would have to receive two additional raw points on his grade, but there is no basis upon which it could be concluded that he should receive any additional points, much less a two point increase in his raw examination score.

RECOMMENDATION

Based upon the foregoing, it is recommended that Respondent enter a Final Order dismissing Petitioner's challenge to his grades on the orthopedics, neurology and differential diagnosis portions of the November, 1989, chiropractic examination.

DONE AND ENTERED this 18th day of October, 1990 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 18th day of October, 1990.

APPENDIX

(D0AH CASE NO. 90-3399)

The Petitioner did not file specific proposed findings of fact, but did file a letter dated September 28, 1990, on October 1, 1990, addressed to the undersigned. This letter does not evidence that a copy was provided to counsel for the Respondent, and therefore, it has not been considered.

Rulings on the Respondent's Proposed Findings of Fact:

1. Adopted in Finding 1.

2-3. Rejected as unnecessary.

4. Adopted in Finding 2.

5-6. Adopted in Finding 7.

7-8. Adopted in Finding 8.

9-10. Adopted in Finding 9.

COPIES FURNISHED:

Frank Giampietro 1704 Adair Road

Port St. Lucie, FL 34952

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

Kenneth D. Easley, 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 ten 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: 90-003399

Orders for Case No: 90-003399