STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH AND ) REHABILITATIVE SERVICES, )

)

Petitioner, )

)

vs. ) CASE NO. 92-6162

)

BOARD OF CHIROPRACTIC, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the above matter was heard before the Division of Administrative Hearings, by its designated Hearing Officer, Donald R. Alexander, on November 23, 1992, in Jacksonville, Florida.

APPEARANCE

For Petitioner: James C. Moore, pro se

P. O. Box 229

Doctor's Inlet, Florida 32030

For Respondent: Vytas J. Urba, Esquire

1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-0792 STATEMENT OF THE ISSUES

Whether petitioner's score on the May 1992 chiropractic licensure examination should be changed to a passing grade.

PRELIMINARY STATEMENT

By notice dated July 2, 1992, respondent, Board of Chiropractic, advised petitioner, James S. Moore, that he had received a score of 70.5, or a failing grade, on the physical diagnosis portion of the May 1992 chiropractic licensure examination. Thereafter, by letter dated September 23, 1992, petitioner requested a formal hearing pursuant to Subsection 120.57(1), Florida Statutes (1991) to contest his grade. In his letter, petitioner contended that "some of the points in question (are) obvious," his "challenges (to the examination score) were not even reviewed," and he "deserve(d) an explanation for his denial." The matter was referred by respondent to the Division of Administrative Hearings on October 4, 1992, with a request that a hearing officer be assigned to conduct a hearing. By notice of hearing dated October 29, 1992, a final hearing was scheduled on November 23, 1992, in Jacksonville, Florida.

At final hearing, petitioner testified on his own behalf and presented the testimony of Dr. Michael R. Buchanan, a licensed chiropractic physician in

Jacksonville, Florida. Also, he offered petitioner's exhibits 1-4. All exhibits were received in evidence. Respondent presented the testimony of Dr. Robert S. Butler, Jr., a Miami chiropractic physician, who was accepted as an expert in chiropractic, and offered respondent's exhibit 1 which was received in evidence. Finally, the parties stipulated into evidence joint exhibits 1-4.

The transcript of hearing was filed on December 14, 1992. Proposed findings of fact and conclusions of law were filed by respondent on December 28, 1992. In addition, on December 2, 1992, petitioner submitted a letter and his late-filed exhibit 4, which have been considered by the undersigned.

FINDINGS OF FACT

Based upon all of the evidence, the following findings of fact are determined:

1. On May 13-16, 1992, petitioner, James S. Moore, a chiropractic physician, was a candidate on the chiropractic licensure examination. Doctor Moore is a recent graduate of Life Chiropractic College and was taking the examination for the first time. The test was administered by the Department of Professional Regulation (DPR) on behalf of respondent, Board of Chiropractic (Board). On July 2, 1992, DPR issued a written uniform grade notice advising petitioner that while he had received passing grades on the X-ray interpretation and technique portions of the examination, he had received a score of 70.5 on the physical diagnosis portion of the test. A grade of 75.0 is necessary to pass this part of the examination.

   
   

2. By letter dated September 23, 1992, petitioner requested a formal hearing to contest his score. In his letter, Dr. Moore generally contended that he had been denied licensure without any reason or explanation, and that during the review process his contentions were not given meaningful consideration. As further clarified at hearing, petitioner contended that he should have received higher scores on procedures 1, 2, 7, 10, 15, 17 and 18 of the physical diagnosis portion of the examination, and thus he should have received a passing grade. That portion of the test is a practical examination requiring the candidate to give verbal and demonstrative responses to a series of questions designed to test the candidate's diagnostic skills. Among other things, the candidate is required to perform certain tests and procedures on a volunteer patient. To memorialize a candidate's performance, the examination is videotaped, and a copy of petitioner's performance is found in joint exhibit 1 received in evidence.

   
   

3. Petitioner generally contends that he should have received a higher grade on the above questions. To support his position, petitioner testified on his own behalf and presented the testimony of his uncle-employer, a chiropractic physician in Jacksonville, Florida, who has seven years experience in the field. Respondent offered the testimony of a Miami chiropractic physician who has been a grader on the examination for the last twelve years and was accepted as an expert in the field of chiropractic. It is noted that both physicians reviewed petitioner's examination prior to giving testimony. However, respondent's expert did not regrade the examination but rather evaluated the questions, petitioner's responses and the grades of the two examiners who graded petitioner to determine if the scores were within acceptable guidelines. As might be expected, the two physicians offered conflicting opinions regarding petitioner's examination scores. In resolving the conflicts in the testimony, the undersigned has accepted the more credible and persuasive testimony, and this testimony is embodied in the findings below.

4. There are two independent chiropractors who grade each candidate on the physical diagnosis part of the examination. Each examiner is given one hour of standardization training prior to the examination, there is no discussion by the examiners during the examination itself, and they grade independently of one another. There is no evidence to support a finding that the two examiners who graded petitioner conferred with each other prior to assigning a grade or otherwise acted improperly in the performance of their duties.

   
   

5. In order to preserve the confidentiality of the examination, the questions or information given to a candidate will not be repeated verbatim here but rather only a general description will be given. As to question 1, petitioner was penalized one point (or given a grade of three out of four points) because he stated that the normal range for a particular joint was at

   100 degrees. He derived this answer from the American Medical Association Guidelines for Impairment, which is the standard used for disability evaluation. Because impairment standards are not synonymous with a normal range of motion, petitioner's response was incorrect and his score of three should not be changed.

   
   

6. In procedure 2, the candidate was given a hypothetical case history of a female patient and was required to choose four appropriate orthopedic tests that related to her condition and to then perform each test. The question noted that if an incorrect test was selected, no credit would be given even if the test was performed correctly. Petitioner selected only two correct tests and accordingly received a grade of two out of four possible points. Respondent's expert confirmed that only two correct answers were selected, and thus petitioner's grade should not be changed.

   
   

7. Among other things, procedure 7 required the candidate to use and interpret the Wexler scale, a reflex scale used by chiropractic and orthopedic physicians. Petitioner contended that the Wexler scale is considered zero to five, and he used this range to fashion his answer. Although at hearing respondent asserted that the scale is actually zero to four, it now concedes that petitioner's response was correct and that his grade on this question should be adjusted upward by 1.5 points.

   
   

8. Procedure 10 related to diagnostic imaging and generally required the candidate to select the appropriate x-rays to be taken for a given set of facts. Because petitioner failed to take a necessary spot hip x-ray, he did not receive full credit on the question. At hearing, petitioner contended that the omitted x-ray would over-radiate the patient and that the large views taken of the patient would give sufficient detail of the primary complaint area. However, these contentions are rejected as not being credible. Therefore, the request to change the grade on this procedure should be denied.

   
   

9. In procedure 15, petitioner was given certain information concerning a patient and was required to make a specific diagnosis to be written in the patient's records. The question also provided that if an incorrect diagnosis was selected, the candidate would receive no credit. In this case, petitioner failed to select the proper diagnosis. His response that the patient suffered from a "sprain/strain" of a particular muscle was incorrect since there is no such thing as a sprain of a muscle. Indeed, only joints and ligaments can be sprained. Although respondent's expert conceded that the correct answer was not "easy" to ascertain, all candidates faced the same level of difficulty on the question and thus no change in petitioner's grade is warranted.

10. Petitioner next contends that he was given an incorrect grade on procedure 17, which required him to identify which physical examination procedures (more than one) he would use based upon a hypothetical patient history. The question provided that unless all procedures were identified, no credit would be given. Because petitioner did not state that he would take the patient's vital signs, a necessary procedure for a new patient, he properly received a zero score.

    
    

11. Finally, procedure 18 used the same hypothetical patient history given in procedure 17 and required the candidate to demonstrate on a volunteer patient the necessary examination procedures. Of particular significance was the requirement that the candidate not only correctly perform the procedures, but also demonstrate those procedures in the usual and customary order. Unfortunately, petitioner performed the first of four procedures last, which would affect the reliability of the findings, and thus he received no credit. Therefore, petitioner's grade on this question should not be changed.

    
    

12. In summary, with the exception of procedure 7, the scores given to petitioner on each of the challenged procedures are supported by logic and reason, and there is no justification in changing the overall score to a passing grade. In addition, the test was fairly administered in every respect to all candidates, including the provision in some questions that unless the entire question was correctly answered, no partial credit would be given. Thus, petitioner's contention that he should have received partial credit instead of no credit on several questions is without merit.

    
    

    CONCLUSIONS OF LAW

    
    

13. The Division of Administrative Hearings has jurisdiction of the subject matter and the parties hereto pursuant to Subsection 120.57(1), Florida Statutes (1991).

    
    

14. As the petitioner in this cause, Dr. Moore bears the burden of proving by a preponderance of the evidence that he is entitled to a passing grade. See,

    e. g., Fla. Department of Transportation v. J. W. C. Company, Inc., 396 So.2d 778, 789 (Fla. 1st DCA 1981). Further, unless the grading of the examination is shown to be devoid of logic and reason, the subjective evaluation of petitioner's examination should not be disturbed. Harac v. Department of Professional Regulation, Board of Architecture, 484 So.2d 1333, 1338 (Fla. 3d DCA 1986).

    
    

15. Rule 21D-11.003(2), Florida Administrative Code, requires that an applicant for licensure achieve "a score of 75%" on the physical diagnosis portion of the examination in order to receive a passing grade. The preponderance of the evidence shows that, with the exception of procedure 7, all challenged scores are supported by logic and reason and should remain unchanged. Since petitioner's overall score is only 72.0 after receiving additional credit on procedure 7, which is still less than the required passing grade of 75.0, his request for a passing grade on the physical diagnosis part of the examination should be denied.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that respondent enter a final order raising petitioner's grade

on the physical diagnosis part of the May 1992 chiropractic licensure examination from 70.5 to 72.0 but denying his petition in all other respects.

DONE and ENTERED this 4th day of January, 1993, at Tallahassee, Florida.

DONALD R. ALEXANDER

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 4th day of January, 1993.

Respondent:

APPENDIX TO RECOMMENDED ORDER IN CASE NO. 92-6162

1-2. Partially adopted in finding of fact 5. 3-4. Partially adopted in finding of fact 6.

1. Partially adopted in finding of fact 7.

2. Partially adopted in finding of fact 8.

3. Partially adopted in finding of fact 9.

4. Partially adopted in finding of fact 10.

5. Partially adopted in finding of fact 11.

NOTE: Where a proposed finding has been partially adopted, the remainder has been rejected as being irrelevant, unnecessary, subordinate, cumulative, not supported by the evidence, or a conclusion of law.

COPIES FURNISHED:

Vytas J. Urba, Esquire

1940 North Monroe Street, Suite 60

Tallahassee, FL 32399-0792

Dr. James S. Moore

P. O. Box 229

Doctor's Inlet, FL 32030

Jack L. McRay, Esquire

1940 North Monroe Street, Suite 60

Tallahassee, FL 32399-0792

Diane Orcutt Executive Director Board of Chiropractic

1940 North Monroe Street Tallahassee, FL 32399-0752

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 consult with the board of Chiropractic concerning its rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the Board of Chiropractic.

Docket for Case No: 92-006162

Orders for Case No: 92-006162