STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RUTH S. BERMAN, )

)

Petitioner, )

)

vs. ) CASE NO. 90-3402

) DEPARTMENT OF PROFESSIONAL ) REGULATION, )

)

Respondent. )

)

RECOMMENDED ORDER

The final hearing in this case was held on August 21, 1990, in West Palm Beach, Florida, before Donald D. Conn, Hearing Officer, Division of Administrative Hearings.

APPEARANCES

For Petitioner: Brian S. Fischer, Esquire

3695 W. Boynton Beach Blvd. Suite 8

Boynton Beach, Florida 33436

For Respondent: Vytas J. Urba, Esquire

Northwood Centre, Suite 60 1940 North Monroe Street

Tallahassee, Florida 32399-0792 STATEMENT OF THE ISSUE

The issue in this case is whether Ruth S. Berman (Petitioner) should be granted additional credit for questions which she answered on the November, 1989, chiropractic physiotherapy certification examination administered by the Department of Professional Regulation (Respondent), and based thereon, whether she should receive certification in physiotherapy.

PRELIMINARY STATEMENT

At the hearing, the Petitioner testified on her own behalf, and also called Jeffrey S. Gordon, D.C., who was accepted as an expert in chiropractic physiotherapy. The Petitioner introduced two exhibits. The Respondent called Ronald W. Scott, D.C., P.A., who was accepted as an expert in chiropractic medicine and physiotherapy, and also David L. Bolton. The Respondent introduced two exhibits. Two joint exhibits were also received.

The transcript of the final hearing was filed on September 12, 1990, and thereafter, the parties requested an extension of time until October 5, 1990, to file proposed recommended orders. 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 is licensed to practice chiropractic in the State of Florida, and is seeking certification in physiotherapy. She took the practical examination in physiotherapy administered by the Respondent on November 11, 1989, receiving a grade of 71.8%. The minimum passing grade on this practical exam was 75%. Thereafter, Petitioner timely requested a hearing to determine if she should be granted additional credit on this practical exam, and based thereon, whether she should receive certification in physiotherapy.

   
   

2. It was established that the 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 solely disputed the score she received in the content areas of ultrasound and cryotherapy. In each of these areas, she received a score of 3 out of a possible 4 credits.

   
   

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 1 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 physiotherapy 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, each examiner graded Petitioner's practical examination the same in all four content areas.

   
   

6. Instead of the score of 3 on both the ultrasound and cryotherapy portions of the physiotherapy exam, if Petitioner received a 4 on either portion from one of the two examiners, a 3.5 on either portion from both examiners, or a

   3.5 on both portions from only one examiner, she would receive an overall grade of 75%, which is the minimum passing score. Thus, if she received one additional raw point in these two content areas which are under challenge, she would receive a passing score.

7. Regarding the practical exam content area of ultrasound, the Petitioner used a device known as a "coupling cushion" in applying ultrasound over bony prominences in the shoulder area in order to protect her patient from burning. This cushion is basically a water-filled container placed between the ultrasound device and the patient's skin. In addition, when the patient complained of no improvement in his condition after five days, the Petitioner raised the intensity of the ultrasound. Both Drs. Jeffrey Gordon and Ronald Scott, who were accepted as experts in physiotherapy, testified that the Petitioner's use of a coupling cushion and increasing the intensity of ultrasound after five days in response to patient complaints were acceptable methods of treatment. Support for the use of a coupling cushion over bony prominences while administering ultrasound is also found in authoritative treatises, Applied Physiotherapy and Physical Agents for Physical Therapists, excerpts of which were introduced at hearing.

   
   

8. Dr. Scott was one of the two examiners who graded Petitioner's practical exam. He testified he gave her a score of 3 in ultrasound because, while Petitioner did demonstrate an adequate knowledge and understanding of the use of ultrasound, she did not demonstrate a depth of understanding regarding the use of ultrasound over bony prominences without a coupling cushion. He testified that there are other acceptable, and perhaps more efficient, ways of applying ultrasound to a shoulder than through a water coupling. However, he conceded that the Petitioner was never questioned about different theories or techniques of application for ultrasound.

   
   

9. On the "comments" portion of the examination grade sheet, Dr. Scott included the following note next to Petitioner's grade in ultrasound: "limited and instructed poorly". He explained that this meant Petitioner had demonstrated limited knowledge of the content area. However, this conflicts with his assessment at hearing, and with the excerpts from treatises in the record which confirm the method of treatment demonstrated by the Petitioner. While Dr. Scott testified that there are other acceptable methods of applying ultrasound over bony prominences, none were specifically described. Indeed, Dr. Gordon pointed out that the failure to use a coupling cushion over a bony prominence would be neglectful since it would likely subject the patient to burning. There is no basis in the record to support Dr. Scott's comment that Petitioner was instructed poorly, and to the contrary, the only treatises in the record support the treatment methods used by the Petitioner. The other examiner, who was not present to testify, made the comment on his grade sheet for the Petitioner that she "needs work" in ultrasound. No evidence was presented to support this rather imprecise assessment. It is conceded by Respondent's expert witness, Dr. Scott, that Respondent's answer was acceptable.

   
   

10. Based on the evidence in the record, it is found that Petitioner was incorrectly graded on the ultrasound portion of her practical examination. Rather than a grade of 3, meaning she gave an adequate answer, the evidence establishes that the technique she used was consistent with the only authoritative treatises in the record, as well as with the expert testimony of Dr. Gordon. The use of a coupling cushion over bony prominences is recommended to avoid burning the patient while administering ultrasound. Increasing the intensity of ultrasound after five days when the patient complains of no improvement, is reasonable and acceptable practice. However, since Dr. Scott testified that there are other unspecified methods which could also have been used in this situation, it cannot be found that Petitioner's answer was "exceptional", and therefore deserving of a grade of 4. Rather, she

    demonstrated a degree of knowledge and understanding between the grades of 3 and 4, or 3.5, which she should have received from both examiners on the ultrasound portion of this exam.

    
    

11. Regarding the exam content area of cryotherapy, the Petitioner treated the patient, diagnosed as having a mild to moderate lumbar sprain/strain injury, by applying a cold pack wrapped in a warm, moist towel for ten to twenty minutes. Drs. Scott and Gordon acknowledged that this was an acceptable form of treatment for this condition. Authoritative treatises introduced in evidence confirm that this treatment is recommended, although other forms of treatment were also noted, including placing a cooled pack directly on the skin, or wrapping it with a dry towel. There is a conflict among the authorities regarding the placement of a cold pack directly on the skin. In her response on this content area, the Petitioner did not demontrate that she understood this conflict in authorities, but rather expressed the view, adopted by one authority, that cold packs should never be placed directly on the skin.

    
    

12. Based upon the evidence in the record, it is found that Petitioner received the correct grade of 3 from both examiners on the cryotherapy portion of the practical examination. In contrast to the ultrasound portion of the exam, for cryotherapy there is clear evidence of conflicting methodologies for the treatment of a lumbar sprain/strain with cold packs. Petitioner did not demonstrate her knowledge of these conflicting methodologies, but simply demonstrated the one method which she prefers, which while acceptable, is not exclusively appropriate.

    
    

13. Since the Petitioner's score should have been increased by .5 point on both examiners' grading sheets in the content area of ultrasound, she should have received one additional raw point, which results in her achieving an overall average of 75% on the practical examination, the minimum passing score.

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

15. 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-11.013, Florida Administrative Code, which specifies the purpose, content and passing grade for the certification examination in physiotherapy. See subsections (2) and (6), Rule 21D-11.013.

    
    

16. Since this is a case in which Petitioner is seeking to obtain certification in physiotherapy from the Respondent, the Petitioner has the burden of establishing her entitlement to that certification 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 her grade on a subjective examination was incorrect, must show that the agency's initial grading of her 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.

    
    

17. Petitioner challenges her grades on the ultrasound and cryotherapy portions of the practical examination administered by the Respondent in November, 1989, for certification in physiotherapy. As found above, based on the evidence presented, the grade of 3 which she was given by each examiner in the content area of ultrasound is not supported by competent substantial evidence. Her response was fully supported by the record, and no other specific alternative answer is suggested by the record. As such, the grade she received is not supported by fact or logic, and is therefore arbitrary. The examiner who testified, Dr. Scott, simply disagreed with the instruction which he presumed the candidate had received in school, and on this basis apparently concluded that her knowledge was "limited", although at hearing he testified that her response was acceptable.

    
    

18. While her response does not warrant a grade of 4, due to the testimony of Dr. Scott that other unspecified methods of treatment do exist, it exceeds the grade of 3, which indicates only an "adequate" response. In fact, her response is the only specific acceptable response supported by the record. It is concluded that she should have received a .5 additional score from each examiner in this content area, thereby giving her an overall passing score of 75.

    
    

19. The grade given to her in cryotherapy was fully supported by the evidence since there were specific alternative methods of treatment which Petitioner did not reference or explain in her response. While she may not have agreed with each alternative, nevertheless, she should have acknowledged that the literature and authoritative treatises in evidence do recognize the alternative methods of applying cold packs directly to the skin, or with a dry towel. As such, the grade of 3 in this content area was supported by competent substantial evidence, and was not shown to be arbitrary or capricious.

RECOMMENDATION

Based upon the foregoing, it is recommended that Respondent enter a Final Order dismissing Petitioner's challenge to her grade in cryotherapy, but granting her challenge to the ultrasound portion of the November, 1989, chiropractic physiotherapy certification examination and awarding Petitioner a grade of 3.5 in ultrasound instead of 3, thereby increasing her overall grade from 71.8% to 75%, the minimum passing score, and as a result, approving Petitioner's certification in physiotherapy.

RECOMMENDED 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 TO RECOMMENDED ORDER, CASE NO. CASE NO. 90-3402

Rulings on Petitioner's Proposed Findings of Fact:

1. Adopted in Finding 1.

2-3. Rejected as unnecessary.

1. Adopted in Finding 6, but otherwise Rejected as unnecessary.

2. Adopted in Findings 7-10.

3. Adopted and Rejected, in part, in Findings 11, 12.

Rulings on the Respondent's Proposed Findings of Fact:

1. Adopted in Finding 1.

2-3. Rejected as unnecessary.

1. Adopted in Finding 2.

2. Adopted in Findings 7, 8, but otherwise Rejected as unnecessary.

3. Adopted in Findings 3, 6, 8.

4. Adopted in Finding 12, but Rejected in Finding 10.

5. Adopted in Finding 8, but Rejected in Findings 9, 10.

6. Adopted in Findings 11, 12.

7. Adopted in Finding 12, but Rejected in Findings 10, 13.

   
   

   COPIES FURNISHED:

   
   

   Patricia Guilford Executive Director Board of Chiropractic

   1940 North Monroe Street Tallahassee, FL 32399-0792

   
   

   Brian S. Fischer, Esquire 3695 W. Boynton Beach Blvd. Suite 8

   Boynton Beach, FL 33436

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

   
   

   Kenneth E. Easley, Esquire Northwood Centre

   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 10 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.

   
   

   =================================================================

   AGENCY FINAL ORDER

   =================================================================

   
   

   DEPARTMENT OF PROFESSIONAL REGULATION BOARD OF CHIROPRACTIC

   
   

   DEPARTMENT OF PROFESSIONAL REGULATION,

   
   

   Petitioner,

   
   

   vs. DOAH CASE NO.: 90-3402

   
   

   RUTH S. BERMAN,

   
   

   Respondent.

   /

   
   

   FINAL ORDER OF THE BOARD OF CHIROPRACTIC

   
   

   This matter came before the Board of Chiropractic pursuant to Section 120.57(1)(b)(9), Florida Statutes, on January 31, 1991, in Tampa, Florida for the purpose of considering the Hearing Officer's Recommended Order (attached as Exhibit A).

   Petitioner, Department of Professional Regulation, was represented by E. Renee Alsobrook, Esquire. Respondent was duly notified of the hearing and was not present nor was Respondent represented by counsel. Both Petitioner and Respondent filed exceptions to the Recommended Order.

   Upon review of the Recommended Order, the arguments, and the complete record in this case, the Board makes the following findings and conclusions.

   
   

   RULINGS ON PETITIONER'S EXCEPTION

   
   

   Petitioner's exception to the Recommended Order is Rejected as not an exception to any specified findings of fact or conclusions of law as contemplated by Section 120.57(1), F.S.

   
   

   RULINGS OF RESPONDENT'S EXCEPTIONS

   
   

   1. Respondent's exception number one is rejected as not an exception to any specified findings of fact or conclusions of law as contemplated by Section 120.57(1), F.S.

      
      

   2. Respondent's exception number two is rejected as not an exception to any specified findings of fact or conclusions of law as contemplated by Section 120.57(1), F.S.

      
      

   3. Respondent's exception number three is granted based on the arguments and reasons set forth in the exception and on the basis of the Hearing Officer's findings of fact in paragraphs 3,

      7 and 8 of the Recommended Order.

      
      

   4. Respondent's exception number four is granted based of the arguments and reasons set forth in the exception as it relates to the Hearing Officer's conclusions of law on pages 9 and 10.

      
      

   5. Respondent's exception number five is granted based of the arguments and reasons set forth in the exception as it relates to the Hearing Officer's conclusions of law on pages 9 and 10.

FINDINGS OF FACT

1. The Hearing Officer's findings of fact are hereby by approved and adopted only to the extent that they are not inconsistent with the Board's rulings on the Exceptions.

   
   

2. There is competent, substantial evidence to support the findings of fact.

CONCLUSIONS OF LAW

1. The Board has jurisdiction of this matter pursuant to Section 120.57(1), Florida Statutes, and Chapter 460, Florida Statutes.

   
   

2. The Hearing Officer's conclusions of law are hereby approved and adopted only to the extent that they are not inconsistent with the Board's rulings on the Exceptions.

   
   

3. There is competent, substantial evidence to support the conclusions of law.

DISPOSITION

Upon a complete review of the record in this case, including the rulings on the exceptions, findings of fact, conclusions of law, and the arguments and reasons made by the parties, the Board determines that the penalty recommended by the Hearing Officer is inconsistent, inappropriate and without justification to the findings and conclusions set forth above.

THEREFORE IT IS ORDERED THAT:

The Board dismisses Petitioner's challenge to her grade in cryotherapy and ultrasound of the November, 1989 chiropractic physiotherapy certification examination, and thereby denies Petitioner the additional grade of .5. Petitioner will maintain an overall grade of 71.8%. As a result, Petitioner's request for certification in physiotherapy is DENIED.

This Order takes effect upon filing with the Clerk of the agency.

Any person who is substantially affected by this Final Order may, pursuant to Section 120.59, Florida Statutes, appeal

this Final Order by filing, within thirty (30) days of the filing date of this Order, a notice of appeal with the Clerk of the agency and a copy of the notice of appeal, accompanied by filing fees as prescribed by law, with the District Court of Appeal.

ORDERED this 22 day of February , 1991.

BOARD OF CHIROPRACTIC

Stanley Kaplan, D.C. Chairperson

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a copy of this Final Order was provided by U.S. Mail to Brian S. Fischer, Esquire, 3695 W. Boynton Beach Boulevard, Suite 8, Boynton Beach, Florida 33436; Vytas J. Urba, Esquire, Northwood Centre, Suite 60, 1940 North Monroe Street, Tallahassee, Florida 32399-0792; Donald D. Conn, Hearing Officer, Division of Administrative Hearings, 1230 Apalachee Parkway, Tallahassee, Florida 32301 and by hand delivery to E. Renee Alsobrook, Esquire, Department of Professional Regulation, Northwood Centre, 1940 North Monroe Street, Tallahassee, Florida 32399-0750, this 26 day of

February 1991.

PATRICIA B. GUILFORD

Executive Director Board of Chiropractic

Department of Professional Regulation

Docket for Case No: 90-003402

Orders for Case No: 90-003402