STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CAROLYNN HENDRICKS, )

)

Petitioner, )

)

vs. ) CASE NO. 90-3404

) DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF )

CHIROPRACTIC MEDICINE, )

)

Respondent. )

)

RECOMMENDED ORDER

A hearing was held on this matter September 24, 1990, in Tallahassee, Florida, before Stephen F. Dean, the Hearing Officer designated by the Division of Administrative Hearings. The hearing was concluded on December 17, 1990, before same Hearing Officer.

APPEARANCES

For Petitioner: Carolynn Hendricks, pro se

206 Sope Creek Lane No. 102

Marietta, GA 30068

For Respondent: Vytas J. Urba, Esquire

Department of Professional Regulation, Suite 60

Northwood Centre

1940 N. Monroe Street Tallahassee, FL 32399-0792

STATEMENT OF THE ISSUES

The issue is whether Carolynn Hendricks deserves additional credit for one or more content areas within the physical diagnosis practical section of the chiropractic examination administered in November 1989.

PRELIMINARY STATEMENT

Both parties filed proposed findings which were read and considered. The Respondent's findings summarize the Petitioner's detailed findings, but both reach the same result. The findings summarized by Respondent are adopted in their entirety as the most succinct statement of the facts.

FINDINGS OF FACT

1. The Candidate made a timely challenge to the grade she received on the physical diagnosis/practical chiropractic licensure examination administered in November 1989. She received a score of 73.7%. The minimum passing score was 75%. The Candidate needs a .5 additional raw score points in order to obtain a minimal passing grade. If she receives any additional credit whatsoever from either examiner on any content area, she will obtain a minimal passing grade.

   
   

2. The Candidate testified on her on behalf and also called Dr Loretta Bobo, D.C., as her witness.

   
   

3. Dr. Albert Welberry, D.C., and David Paulson testified on behalf of the Respondent.

   
   

4. The Candidate's petition challenged clinical judgment and neurology.

   
   

5. Loretta Bobo, D.C., testified that she is currently licensed to practice chiropractic medicine in four separate states, including Florida. Dr. Bobo also holds a registered nurse's degree and teaches entrance clinical competency and exist clinical competency at Life Chiropractic College.

   
   

6. Dr. Albert Welberry, D.C., was first licensed to practice chiropractic medicine in the State of Florida in 1961. He is currently a licensed Florida chiropractor. Dr. Welberry has been an examiner for the Florida Chiropractic Licensure Examination regularly since 1985.

   
   

7. Both Drs. Bobo and Welberry are experts in chiropractic.

   
   

8. The Department of Professional Regulation's expert, Dr. Albert Welberry, agreed with Petitioner's witness, Dr. Bobo, regarding the clinical judgment and neurologic content areas of the physical diagnosis exam. Regarding clinical judgment, Dr. Welberry testified that the question posed was out of place, was not correctly presented, and therefore candidate should have received a grade of 4.

   
   

9. Dr. Welberry stated regarding the neurologic content area of the examination that the comment "disc lesion cervical cannot be upper motor neuron lesion" was a correct response since disc lesion cervical is a lower motor neuron lesion. Dr. Welberry opined that the Candidate should have had a grade 4 for this question.

   
   

10. The Candidate proved by a preponderance of the evidence that she was deserving of significantly more than the .5 extra raw score points she needed for a minimally competent overall grade.

    
    

    CONCLUSIONS OF LAW

    
    

11. The Division of Administrative Hearings has jurisdiction over the parties and subject matter pursuant to Section 120.57(1), Florida Statutes. Section 460.406, Florida Statutes, directs the Department of Professional Regulation to examine applicants for chiropractic licensure.

    
    

12. Chapter 21D-11, Florida Administrative Code, specifies the manner for administration of licensure examinations and also the criteria for grading the examinations.

13. Candidate's burden was to prove by a preponderance of the evidence that her examination merited the award of additional points sufficient to give her a passing grade on the examination.

    
    

14. Candidate proved by a preponderance of the evidence that her answers to the above-referenced challenged questions were correct and deserving of additional credit.

RECOMMENDATION

Based upon the foregoing findings of fact and conclusions of law, it is recommended that the Petitioner receive a passing grade on the physical diagnosis practical section of the chiropractic examination.

ENTERED this 26th day of February, 1991, in Tallahassee, Florida.

STEPHEN F. DEAN

Hearing Officer

Division of Administrative Hearings The Desoto Building

1230 Apalachee Parkway

Tallahassee, FL 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 26th of February, 1991.

COPIES FURNISHED:

Carolynn Hendricks

206 Sope Creek Lane No. 102

Marietta, GA 30068

Vytas J. Urba, Esquire Department of Professional

Regulation, Suite 60 Northwood Centre

1940 N. Monroe Street Tallahassee, FL 32399-0792

Patricia Guilford Executive Director Board of Chiropractic

Department of Professional Regulation

Northwood Centre

1940 North Monroe Street Suite 60

Tallahassee, FL 32399-0792

Jack McRay General Counsel

Department of Professional Regulation

Northwood Centre

1940 North Monroe Street Suite 60

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.

Docket for Case No: 90-003404

Orders for Case No: 90-003404