STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SYRUS J. PARTIAN, )

)

Petitioner, )

)

vs. ) Case No. 97-4989

) DEPARTMENT OF HEALTH, BOARD OF ) CHIROPRACTIC EXAMINERS, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case on January 7, 1998, at Fort Lauderdale, Florida, before Claude B. Arrington, a duly designated Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Syrus J. Partian, pro se

1992 Northwest 166 Avenue Pembroke Pines, Florida 33028

For Respondent: Anne Marie Williamson, Esquire

Department of Health 1317 Winewood Boulevard

Building 6, Room 102

Tallahassee, Florida 32399-0700 STATEMENT OF THE ISSUES

Whether Petitioner is entitled to a passing grade on the June 1997 chiropractic licensure examination.

PRELIMINARY STATEMENT

Petitioner sat for the chiropractic licensure examination in June 1997. Petitioner received a passing grade on all parts of

the examination except for the physical diagnosis portion of the exam. A score of 75 is needed to pass the physical diagnosis portion of the examination. Petitioner received a score of 70.5 on that portion of the examination and, consequently, failed the licensure examination.

Petitioner's timely challenge of the grading of the examination was referred to the Division of Administrative Hearings, and these proceedings followed. Petitioner initially challenged Questions 3, 13, and 26. At the formal hearing, Petitioner withdrew his challenge to Question 13.

At the formal hearing, Respondent presented its case first to expedite the proceedings. Respondent presented the testimony of Dr. John Gentile, who was accepted as an expert in the field of chiropractic medicine, and Dr. Bhaskar Dawadi, who was accepted as an expert in the field of psychometrics. Respondent presented 11 exhibits, each of which was accepted into evidence. At the request of Respondent, official recognition was taken of Sections 455.229 and 460.406, Florida Statutes, and Rules

61-11.014 and 64P2-11.003, Florida Administrative Code. Petitioner testified on his own behalf and presented one composite exhibit, which was accepted into evidence.

A transcript of the proceedings has been filed. The Petitioner and Respondent filed proposed recommended orders, which have been duly considered by the undersigned in the preparation of this Recommended Order.

FINDINGS OF FACT

1. Respondent is the agency of the State of Florida with the authority and responsibility to regulate the practice of

   chiropractic medicine. Petitioner sat for the chiropractic licensure examination administered in June 1997.

2. The licensure examination administered in June 1997 included a section that tested the candidates in making physical diagnoses. This section consisted of an oral practice examination that was administered and graded by two examiners. A standardized system was used to ensure consistency in the questions and in the grading of the questions.

3. To pass the licensure examination, a candidate must pass all sections of the examination, including the physical diagnosis section. Petitioner passed all sections of the exam except for the physical diagnosis section. A score of 75 was required to pass the physical diagnosis section of the exam. Petitioner received a score of 70.5 on the physical diagnosis section. Consequently, he failed that section of the exam and the overall exam.

4. Petitioner originally challenged the grading of Questions 3, 13, and 26. At the formal hearing, Petitioner withdrew his challenge to Question 13.

5. Questions 3 and 26 were not multiple choice questions. The candidate was required to perform physical examinations of "patients" and to answer one or more questions about the examinations. The candidate was to provide the best answer to each question. Question 3 was worth 5 points and Question 26 was worth 8 points. A candidate could receive partial credit for his

   or her answer to Question 3. Partial credit was not available for Question 26; a candidate would receive either zero or eight points for his or her response. The grade was based on the physical examinations and on the answer to each question.

6. Question 3 required the candidate to examine the patient's eyes and answer the question: "What does papilledema indicate?" 1/ Petitioner examined the eyes of the patient and answered that papilledema indicates that the patient's cerebral spinal fluid pressure has increased.

7. Petitioner was awarded no credit for his examination or his answer to the question. Petitioner presented no evidence at the formal hearing to demonstrate that he was entitled to credit for his performance on the eye examination; however, Petitioner did assert that he was entitled to credit for his response to the question.

8. The correct answer to Question 3 is that papilledema indicates an increased intracranial pressure. Papilledema is a non-inflammatory swelling of the optic nerve-head resulting from increased intracranial pressure. An increase in the cerebral spinal fluid pressure is one of many causes for papilledema. Other causes of increased intracranial pressure that may result in papilledema, unrelated to increased cerebral spinal fluid pressure, include bleeding, tumors, headaches, and hypertension. Petitioner was not awarded credit for his answer to Question 3 because his was not correct. 2/

9. Question 3 was not ambiguous. The decision of the examiners to award no points for Petitioner's response to the question pertaining to papilledema was not arbitrary, capricious, or an abuse of discretion. There was no evidence that Petitioner

   was entitled to additional credit for his performance on the eye examination.

10. Question 26 presented the candidate with a patient with symptoms and required the candidate to specifically diagnosis the patient's condition. The correct diagnosis was stenosing tenosynovitis of the abductor pollicis longus and the extensor pollicis brevis, 3/ which is also known as de Quervain's disease. Petitioner's diagnosis was tenosynovitis. That diagnosis is incomplete. Petitioner incorrectly named the muscles involved. When asked to be more specific, Petitioner stated that the patient had tendonitis, which is a more general diagnosis. Petitioner was awarded no credit for his answer to Question 26 because he gave an incomplete diagnosis, was not specific in his answer, and incorrectly identified the muscles involved.

11. Question 26 was not ambiguous. The decision of the examiners to award no points for Petitioner's diagnosis was not arbitrary, capricious, or an abuse of discretion.

    CONCLUSIONS OF LAW

    
    

12. The Division of Administrative Hearings has jurisdiction of the parties to and the subject of this proceeding. Section 120.57(1), Florida Statutes.

13. Section 455.574, Florida Statutes, requires candidates seeking licensure as a chiropractor to demonstrate his or her competency to practice that profession by passing a licensure

    examination. Respondent has the responsibility of administering that examination.

14. Petitioner has the burden of proving by a preponderance of the evidence that he is entitled to additional credit for his responses to the examination questions. See Harac v. Department of Professional Regulation, 484 So. 2d 1333 (Fla. 3d DCA 1986); State ex rel. I. H. Topp v. Board of Electrical Contractors for Jacksonville Beach, Florida, 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). Petitioner did not meet that burden.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a Final Order dismissing Petitioner's challenge to the grades he received to Questions 3, 13, and 26 of the physical diagnosis portion of the chiropractic licensure examination administered in June 1997.

DONE AND ENTERED this 17th day of February, 1998, in Tallahassee, Leon County, Florida.

CLAUDE B. ARRINGTON

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 17th day of February, 1998.

ENDNOTES

1/ Ordinarily, exam questions are confidential. The findings of fact pertaining to the questions at issue in this proceeding are based on the greater weight of the evidence presented and on the discussion of the questions contained in Respondent's Proposed Recommended Order.

2/ Dr. Gentile, the Respondent's expert in chiropractic medicine, aptly analogized Petitioner's answer to Question 3 to responding that a fever indicates a sinus infection. While a sinus infection can cause fever, there are, of course, numerous other causes.

3/ The abductor pollicis longus and the extensor pollicis brevis are muscles in the hand. Petitioner would have been awarded credit without naming the muscles. He would have been awarded credit if he had answered stenosing tenosynovitis or de Quervain's disease.

COPIES FURNISHED:

Syrus J. Partian, pro se 1992 Northwest 166 Avenue

Pembroke Pines, Florida 33028

Anne Marie Williamson, Esquire Department of Health

1317 Winewood Boulevard

Building 6, Room 102

Tallahassee, Florida 32399-0700

Eric G. Walker, Executive Director Board of Chiropractic

Department of Health 1940 North Monroe Street

Tallahassee, Florida 32399-0792

Angela T. Hall, Agency Clerk Department of Health

1317 Winewood Boulevard, Building 6

Tallahassee, Florida 32399-0700

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15 days from the date of 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: 97-004989

Orders for Case No: 97-004989