STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ROBERT J. DIXON, )

)

Petitioner, )

)

vs. ) CASE NO. 93-0699

) DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF )

CHIROPRACTIC EXAMINERS, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to written notice, a formal hearing was held in this proceeding before Daniel Manry, a duly designated Hearing Officer of the Division of Administrative Hearings, on April 8, 1993, in Melbourne, Florida.

APPEARANCES

For Petitioner: Robert J. Dixon, pro se

8300 U.S. #1 North

Micco, Florida

For Respondent: Vytas J. Urba, Esquire

Department of Business and Professional Regulation

1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399 STATEMENT OF THE ISSUE

The issue for determination in this proceeding is whether Petitioner should have received a passing grade on the chiropractic examination given November 4- 7, 1992.

PRELIMINARY STATEMENT

Petitioner was advised that he failed the chiropractic examination and timely requested a formal hearing. The matter was referred to the Division of Administrative Hearings for assignment of a Hearing Officer and assigned to Hearing Officer Daniel M. Kilbride on February 12, 1993. A formal hearing was scheduled for April 8, 1993. The matter was transferred to the undersigned on April 1, 1993.

At the formal hearing, Petitioner testified in his own behalf and submitted two exhibits for admission in evidence. Petitioner's Exhibit 1 is a video tape of the portion of the examination challenged by Petitioner. The video was

viewed during the hearing and not admitted in evidence. Petitioner's Exhibit 2 is a copy of the resume of Dr. Donald J. Hensley, Respondent's expert.

Petitioner's Exhibit 2 was admitted in evidence without objection.

Respondent presented the testimony of Dr. Eunice Loewe, Senior Psychometrician for Petitioner's Bureau of Testing, and Dr. Hensley. Respondent submitted two exhibits for admission in evidence. Respondent's Exhibit 1 is a copy of the composite examination score sheets. Respondent's Exhibit 2 is a copy of Reiner, The Fundamentals Of Chiropractic, (1983). Respondent's exhibits were admitted in evidence without objection.

The parties requested permission to file late filed exhibits which was granted without objection. The record was kept open for that limited purpose. The record was closed on August 6, 1993. The parties did not file any late filed exhibit.

A transcript of the formal hearing was filed with the undersigned on May 6, 1993. Petitioner did not filed proposed findings of fact and conclusions of law. Respondent timely filed proposed findings of fact and conclusions of law on May 17, 1993. Respondent's proposed findings of fact are addressed in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. Petitioner took the chiropractic examination given by Respondent on November 4-7, 1992. The examination consists of three parts; physical diagnosis, technique, and x-ray interpretation. The minimum passing grade on each part is 75. Petitioner received an 80 on x-ray interpretation and a 36.5 and 67.5, respectively, on the physical diagnosis and technique parts.

   
   

2. Here, Petitioner challenges only his score of 67.5 received on the technique part of the examination. If Petitioner passes the technique portion of the examination, he will be required to pass only the physical diagnosis in order to complete the examination requirements for his license.

   
   

3. The technique portion of the examination consists of five clinical cases and four follow-up questions on each case. The technique part of the examination is timed. Like all candidates, Petitioner was provided with a timer and informed that no more than 10 minutes was allowed for all five cases, including the 20 follow-up questions.

   
   

4. Petitioner neither stated a need for additional time nor requested additional time to complete the technique portion of the examination. Petitioner has only one leg and would have been given additional time if requested.

   
   

5. Petitioner's challenge to the technique part of the examination is limited to clinical Case 1. No challenge is made to the follow up questions to Case 1.

   
   

6. Case 1 required Petitioner to set up an appropriate technique for a patient who was eight months into pregnancy. The patient had a left anterior superior ilium. The condition of anterior superior ilium is more often associated with trauma to the buttocks or a fall on one's hip than with pregnancy.

7. Pregnancy causes the joints to move easily and requires special consideration when performing adjustments. Special consideration includes different set-up, contact, and line of drive.

   
   

8. Petitioner's first form of adjustment for Case 1 was his own adaptation for the facts presented. Petitioner changed the contact points and line of drive from that reasonably considered appropriate under the circumstances. Once the contact points were improperly changed, the line of drive was incorrect.

   
   

   CONCLUSIONS OF LAW

   
   

9. The Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding and the parties thereto. Section 120.57(1), Florida Statutes. The parties were duly noticed for the formal hearing.

   
   

10. The burden of proof is on Petitioner in this proceeding. Petitioner must show by a preponderance of the evidence that his answer to Case 1 was correct and that he is entitled to credit for his answer. Florida Department of Transportation v. J. W. C. Company, Inc., 396 So.2d 778 (Fla. 1st DCA 1981). Petitioner is not required, as suggested by Respondent, to show that the grading of his examination was arbitrary or capricious in order to prevail. The cases of State ex rel I. H. Topp v. Board of Electrical Contractors, 101 So.2d 583 (Fla. 1st DCA 1958) and State ex rel Glaser v. J.M. Pepper, 155 So.2d 383 (Fla. 1st DCA 1963) involved mandamus proceedings in circuit court and do not establish the standard of proof in administrative proceedings.

    
    

11. Petitioner failed to satisfy his burden of proof. The preponderance of evidence showed that Petitioner's response to Case 1 was incorrect.

Petitioner's score on the technique portion of the examination should not change.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a Final Order and therein DENY

Petitioner's request for credit on Case 1 and a passing grade on the technique portion of the chiropractic examination given November 4-7, 1992.

DONE and ENTERED this 18th day of August 1993, in Tallahassee, Florida.

DANIEL MANRY

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 18th day of August, 1993

APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 93-0699

Petitioner's Proposed Findings of Fact Petitioner submitted no proposed findings

Respondent's Proposed Findings of Fact 1.-8. Accepted in substance

COPIES FURNISHED:

Robert J. Dixon 8300 U.S. #1 North

Micco, FL 32976

Vytas J. Urba, Esquire

Dept. of Business and Professional Regulation 1940 N. Monroe St., Ste. 60

Tallahassee, FL 32399-0792

Diane Orcutt Executive Director

Dept. of Business and Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-0792

Jack Mcray

Acting General Counsel

Dept. of Business and Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 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: 93-000699

Orders for Case No: 93-000699