STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PAUL ANDREW LIGERTWOOD, D.C., )

)

Petitioner, )

)

vs. ) Case No. 98-1503

)

DEPARTMENT OF HEALTH, )

BOARD OF CHIROPRACTIC, )

)

Respondent. )

)

RECOMMENDED ORDER

Upon due notice, William R. Cave, an Administrative Law Judge for the Division of Administrative Hearings, held a formal hearing in this matter on June 15, 1998, in Tallahassee, Florida.

APPEARANCES

For Petitioner: Alfred W. Clark, Esquire

Post Office Box 623

117 South Gadsden Street Tallahassee, Florida 32302

For Respondent: Anne Marie Williamson, Esquire

Department of Health 1309 Winewood Boulevard

Building 6, Room 240

Tallahassee, Florida 32399-0700 STATEMENT OF THE ISSUE

Should Respondent receive a passing grade on the November 1997, Chiropractic Licensure Examination?

PRELIMINARY MATTERS

Petitioner took the November 1997, Chiropractic Licensure Examination (Examination). By an Examination Grade Report dated

January 5, 1998, Petitioner was advised that he had failed the Physical Diagnosis and the X-ray Interpretation portions of the Examination and had thereby failed the Examination. By letter dated March 7, 1998, Petitioner challenged the grading of his answers to: questions 2, 3, 4, 8, 12, 17, and 22 on the Physical Diagnosis portion of the Examination and; question 24 and the accommodations he was not given for a disability on the X-ray Interpretation portion of the Examination. In his petition letter of March 7, 1998, Petitioner requested an administrative hearing. By Notice dated March 25, 1998, the Department of Health (Department) referred this matter to the Division of Administrative Hearings (Division) for the assignment of an Administrative Law Judge and for the conduct of a hearing.

At the hearing, the Petitioner testified in his own behalf and presented the testimony of Beth Roraback, D.C. Petitioner’s Exhibits 1 through 15 were received as evidence. The Department presented the testimony of Zohre Bahrayni. The deposition of Billy Heyser, D.C., with Exhibits A, B, C, and D attached to the deposition, was received in lieu of his live testimony.

Department’s Exhibits 1 through 4 were received as evidence.

Sections 455.647 and 460.406, Florida Statutes and Chapter 61-11 and Rule 64B2-11.001, Florida Administrative Code were Officially Recognized.

A transcript of this proceeding was filed with the Division on June 29, 1998. The parties timely filed their Proposed

Recommended Orders.

FINDINGS OF FACT

Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made:

1. The examination for licensure as a chiropractor in the State of Florida is administered by the Department of Business and Professional Regulation, Bureau of Testing, under a contractual arrangement with the Department and consists of three parts: Physical Diagnosis, Technique,and X-ray Interpretation.

2. A candidate for licensure must receive a score of 75.00 on each of the three portions of the examination in order to receive an overall passing grade.

3. A candidate for licensure must pass at least two of the three portions of the examination in order to retake only the failed portion of the Examination. Otherwise, the candidate must retake the entire examination.

4. Petitioner holds a Doctor of Chiropractic degree and is a licensed chiropractor in the State of Georgia. Petitioner practices chiropractic in the State of Georgia.

5. In September 1997, after submitting all documents required to sit for the November 1997, Examination, Petitioner experienced a total retinal detachment in his right eye and underwent ophthalmic surgery. Petitioner has significant vision impairment and his vision is described as “poor” by his

   ophthalmic surgeon. In November 1997, Petitioner’s ophthalmic physician opined that Petitioner “has not reached complete recovery and I do not think he has accommodated to his loss of vision in the right eye.”

6. Prior to the Examination, Petitioner telephoned the Board to discuss his recent vision impairment and requested the special accommodations of being allowed to sit up front and to be given more time on the Examination. A Board representative requested confirmation from a physician of the vision impairment. By letter dated November 7, 1997, Robert T. King, M.D., Petitioner’s ophthalmic surgeon, advised the Board of Petitioner’s vision problem and indicated that he suspected that Petitioner would require additional time for the examination.

7. If timely requested, accommodations such as flexible time, flexible settings, flexible recording of responses, and flexible format are available to the examinees.

8. There is no evidence that the Board responded to the request by Dr. King or to Petitioner’s earlier verbal request for accommodations. Likewise, there is no evidence that Petitioner, prior to the Examination, followed through on his request for accommodations.

9. On the day of the Examination, Petitioner requested a large print test booklet.

10. Despite his impaired vision, Petitioner decided to continue with the November 1997, Examination. Petitioner passed

    the Technique portion of the Examination and is not challenging that portion of the Examination.

11. Petitioner was advised that his score on the Physical Diagnosis and X-ray Interpretation portions of the Examination was 73.50 and 72.00, respectively.

12. In his initial petition letter, Petitioner challenged the grading of his answers to questions 2, 3, 4, 8, 12, 17, and

    22 on the Physical Diagnosis portion of the Examination and challenged the grading of his answer to question 24 and the accommodations he was not given for a disability on the X-ray portion of the Examination.

13. Prior to the hearing, the Department awarded Petitioner credit for his answer to question 24 on the X-ray Interpretation portion of the Examination. Petitioner no longer challenges the Department on his answer to question 24. Petitioner’s score on the X-ray Interpretation portion of the Examination has been raised to 73.50 by the Department.

14. At the hearing, Petitioner withdrew his challenge to questions 2, 3, and 17 of the Physical Diagnosis portion of the Examination. Without objection from the Department, Petitioner amended his petition letter to include a challenge to his answer to question 13 of the Physical Diagnosis portion of the Examination.

15. During the X-ray Interpretation portion of the Examination, slide screens are set up in the front of the

examination room and slides of an X-ray are projected on the screens. All lights in the examination room are turned off. The examinee has a test booklet and an answer sheet. A pen light is provided to read the test booklet and to see the answer sheet.

The answer sheet is a “Scan-Tron” sometimes called a “bubble sheet.” In order to record an answer on the answer sheet, the examinee darkens one of four small circles (bubbles) spaced within an approximate one-inch column on the answer sheet. The examinee is allowed one and one-half minutes to answer each question. Answering the question requires the examinee to read the question in the test booklet, view the projected slide of the X-ray on the screen, and then locate and darken the appropriate “bubble” on the answer sheet with a pencil.

1. During the X-ray Interpretation portion of the Examination, Petitioner was allowed to sit up front but was not allowed additional time or given a large print booklet.

2. Another examinee with vision problems took the X-ray Interpretation portion of the Examination at the same time as Petitioner. This examinee was allowed to sit closer to the slide screen, given a large print test booklet, and an unlimited amount of time to transcribe answers from the test booklet to the answer sheet. However, there was no evidence as to the extent of this examinee’s vision problem or when this examinee had requested special accommodations.

3. Petitioner did not advise any of the proctors present at the test site of the difficulty that he was having with his vision.

4. Because of his vision impairment, the nature of the

X-ray Interpretation portion of the Examination made it difficult for Petitioner. Additionally the lack of additional time resulted in Petitioner not being able to properly check his answers in the test booklet with those on the answer sheet.

1. Petitioner did not request that his examination booklet be graded instead of his answer sheet (bubble sheet). The Examination Instructions provide in pertinent part as follows:

   While you may write in your examination booklet, please note that the examination booklets used during the actual examination are shredded after the examination administration. Post examination review candidates will NOT be given their original examination booklet but will be provided with a clean, exact copy of the original examination booklet.

2. There was no evidence that the Department’s denial of Petitioner’s request for additional time and a large print test booklet was due to cost, administration restraints, or availability of resources.

3. Petitioner contends that because he was denied certain accommodations that he most likely miss-keyed some of his answers on the X-ray Interpretation portion of the Examination when he transposed his answers from the test booklet to the answer sheet. Without the test booklet, there is insufficient evidence to show

   that Petitioner incorrectly transposed any answer from his test booklet to the answer sheet, notwithstanding Petitioner’s testimony to the contrary.

4. The Physical Diagnosis portion of the Examination is a subjective test in which the examinee is presented with a test booklet with certain information. There is an examination patient (live mannequin) provided for the examinee to demonstrate answers to various questions. There are two examiners who score the examinee’s answers. This portion of the examination is videotaped.

5. An examiner for the examination for licensure as chiropractic must be a licensed chiropractor in the State of Florida with five years of continuous practice in the State of Florida and must not have had a chiropractic license or other health care license suspended, revoked, or otherwise disciplined.

6. Before an examination, examiners are required to go through standardization training and are not allowed to consult with each other on their scoring of an examination.

7. After an examination, the Bureau of Testing calculates the agreement rates of the examiners to ensure scores are based on the standardization training. The examiners who graded Petitioner’s examination had agreement rates of 93 percent and 95 percent. The Department considers 80 percent or better acceptable.

8. Test questions on the Physical Diagnosis portion of the Examination are assigned different point values, with some questions having partial credit available. A question’s point value is based on the frequency, practicality, importance of the subject matter, and how much harm could be done to the patient if the procedure is not performed correctly.

9. Partial credit is given on some questions and not others because in some situations a partial answer is considered as a no answer, whereas in other situations, partial information is considered better than no information. The Department does not award a candidate partial credit on a question where it has been determined that partial credit is not available.

10. The first two questions challenged by Petitioner, Questions Nos. 4 and 8, are on the “Case 1” portion of the Physical Diagnosis portion of the Examination. Within “Case 1,” the examinee is required to demonstrate ability relating to case history, physical examination, selection of laboratory tests, selection of diagnostic imaging, providing a diagnosis, and exercising clinical judgment.

11. In “Case 1,” the examinee was provided with a theoretical 68-year old female with midback and chest pain and a variety of physical complaints. After developing a case history (Question No. 1) and performing a physical examination (Question Nos. 2 and 3). The examinee was required to select laboratory tests in Question No. 4 which had assigned to it a value of

either zero points or four points. The specific question in Question No. 4 is: “For the case presented, name which laboratory tests or diagnostic procedures, if any, would confirm your suspected diagnosis.”

31`. In response to this question, Petitioner stated that he would order a CPK, SGOT, CBD, and an EKG. Petitioner was advised by the examiners that an EKG was not available.

Petitioner also requested a urinalysis to look for infection.

1. An SGOT laboratory test, also known as an AST test, is a laboratory test used to indicate if there is damage to the heart.

2. A CPK laboratory test, also known as a CK tests (which Petitioner correctly referred to as CPK but also referred to as CKP or CK, is also a laboratory test which detects heart damage.

3. The examiners were informed in their booklets that the suspected diagnosis was congestive heart failure. The examinee was not advised that the suspected diagnosis was congestive heart failure. The examiners were also informed in their booklet that they should expect to hear the answer for Question No. 4 to be “SMAC” and a “CBC” laboratory test.

4. SMAC is an acronym for the laboratory test know as Sequential Multi-Channel Analyzer with Computer. A SMAC laboratory test is a series of individual tests, or a biochemistry profile. And while the number of individual tests performed in a SMAC laboratory test may vary from laboratory to

   laboratory, there are certain individual laboratory test that are always included in a SMAC laboratory test.

5. SMAC and CBC was the Department’s preferred answer to Question No. 4. However, based on the testimony of Dr. Roraback, which I find to be credible, Petitioner’s answer to Question No.

   4 was equally correct in that the laboratory tests suggested by Petitioner would have confirmed the suspected diagnosis of congestive heart failure notwithstanding the testimony of Dr. Heyser to the contrary. Therefore, Petitioner should have been awarded 4 points for his answer to Question No. 4.

6. In Question No. 8, Petitioner was asked to provide the diagnosis for this Case 1 patient. The value assigned to Question No. 8 is either zero points or eight points.

7. The examiners were instructed by their test booklet that “congestive heart failure” was the correct answer. The answer sought by the Department, congestive heart failure, is a “specific ICD-9” diagnosis. ICD-9 stands for the International Classification for Disease Diagnosis. Cardiopulmonary disease is not an ICD-9 diagnosis.

8. Petitioner’s initial oral answer to Question No. 8 was “COPD.” COPD is an acronym for chronic obstructive pulmonary disease. In response to an examiner’s question of “Which is?, Petitioner stated “cardiopulmonary disease.” In response to another examiner’s question who asked “Can you be more specific?”, Petitioner responded “It is a disease with the ---

   because the heart is enlarged, it is infringing on the lungs, and it causes a back-up of fluid in the lungs.”

9. Cardiopulmonary disease is a very broad diagnosis and Petitioner’s narrative description of that diagnosis may have included congestive heart failure. However, based on the testimony of Dr. Heyser, which I find credible, Petitioner’s answer was incorrect in that it lacked the specificity the Department was seeking.

10. Questions Nos. 11, 12, and 13 of the Physical Diagnosis portion relate to orthopedics. In Question No. 11, the examinee was asked to name orthopedic tests which would be used to evaluate a shoulder problem. Petitioner appropriately named these tests.

11. In Question No. 12, Petitioner was asked to demonstrate several of the named tests. In Question No. 13, Petitioner was asked to name the condition which would be indicated by a positive response on each particular orthopedic test. The only test which is in dispute with regard to Question Nos. 12 and 13 is the Dawbarn’s sign or test.

12. Petitioner’s demonstration of the Dawbarn’s test is shown on videotape. On the videotape of Petitioner’s performance with regard to the demonstration (Question No. l2), Petitioner can be seen placing his finger in the area of the patient’s shoulder and raising (abducting) the patient’s arm, performing the test, while at the same time stating:

    Dawbarn’s is you palpate the area of tenderness and, as I raise your arm, please let me know when the pain stops, okay. If the pain stops, it’s indicative of bursitis.

    
    

13. It is clear from the videotape, the testimony of

    
    

    Dr. Roraback, and Petitioner’s exhibits that Petitioner correctly demonstrated the Dawbarn’s test. However, while one examiner gave Petitioner full credit (four points) on Question No.12, the other examiner only gave Petitioner partial credit (three points) The examiner awarding three points stated in comments: “Dawbarn’s performed improperly.”

14. Petitioner correctly performed the Dawbarn’s test and should have been given the full four points on Question No. 12.

15. Question No. 13 asks the examinee to state what disease conditions positive results on the different tests would indicate. With regard to Dawbarn’s test, Petitioner stated that a positive response would be indicative of “subdeltoid bursitis.” Question No. 13 was a four-point question, with partial credit being available at one, two, and three points.

16. On Question No. 13, each examiner gave Petitioner three points out of four. Each examiner appears to have deducted one point from Petitioner’s answer, because Petitioner named subdeltoid bursitis. The examiners were informed to look for the answer “subacromial“ bursitis.

17. Five different texts received into evidence and Dr. Roraback’s expert testimony reveal that the terms “subdeltoid

    bursitis” and “subacromial bursitis” are used interchangeably. One of the text specifically states:

    A consideration of shoulder movements would not be complete without reference to the role of subacromial (subdeltoid) bursa . . . There may be two, a subacromial and a subdeltoid, but they function as one and are frequently fused. Whether fused or not, subacromial bursa is the more common name.

    
    

18. Petitioner’s Exhibit 12, the Merck’s Manual states:

    
    

    Subacromial bursitis (subdeltoid bursitis or supraspinatus tendinitis) presents with localized pain and tenderness of the shoulder, particularly in abduction in an arc from 50 to 130 degrees.

    
    

19. Petitioner should have received full credit (four points) for Question No. 13, because a positive response to the Dawbarn’s test is indicative of subdeltoid bursitis notwithstanding the testimony of Dr. Heyser to the contrary.

20. In Question 22, Petitioner was asked to perform a “triceps reflex”, which is one of a series of deep tendon reflexes that the examinees were asked to perform.

21. A triceps reflex is one of several deep tendon reflexes done at various locations in the body to determine neurological status. The triceps muscle is a muscle of the upper arm, and the triceps tendon attaches the muscle to the upper portion of the lower arm bones. It is necessary for the triceps tendon to cross the elbow joint between the upper and lower arm bones in order to move the joint. Proximal means the end of a muscle or tendon closest to the body. In this case, distal means the area closer

    to the hand. In order for the triceps tendon to move the joint, the tendon must pass from the proximal end of the joint to the distal end of the joint.

22. The videotape shows Petitioner preparing the patient to avoid a voluntary reflex, and then tapping an area close to the elbow of the patient, with the patient’s lower arm then reacting by moving in a somewhat jerking manner away from the body. The reason the arm “pops out to the side” is that the triceps is responsible for extending the elbow. This happens because, when the tendon is quickly stretched (tapped), it signals a nerve to tell the muscle to contract in order to prevent damage to the area. This contraction results in the lower arm responding with movement.

23. Question No. 22 has a maximum value of two points, with partial credit of one point available. Each examiner awarded Petitioner partial credit of one point. It appears from the examiners’ comments on the score sheet that they did not believe Petitioner appropriately struck the tendon for the triceps muscle, or believed Petitioner tapped in an area “distal” to the elbow joint.

24. With regard to distal versus proximal, it is clear that Petitioner did tap an area of the arm distal to the elbow joint between the upper arm and the lower arm, but very close to the elbow joint. However, since the triceps tendon must attach to an

    area of the lower arm it is possible to tap the tendon distal to the joint.

25. It is clear from the videotape that the arm movement response was not voluntary and was consistent with a triceps reflex and that the triceps reflex was performed properly. Therefore, Petitioner is entitled to the full two points available for Question No. 22.

    CONCLUSIONS OF LAW

    
    

26. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this proceeding pursuant to Sections 120.57(1), Florida Statutes.

27. The burden of proof is on the party asserting the affirmative of an issue before an administrative tribunal. Florida Department of Transportation v. J.W.C. Company, Inc., 396 So. 2d 778 (Fla. 2d DCA 1981). To succeed in his challenge to the examination, Petitioner must establish, by a preponderance of the evidence, that the examination was somehow faulty, was arbitrarily or capriciously worded, or that he was arbitrarily or capriciously denied credit through a grading process devoid of logic or reason. Harac v. Department of Professional Regulation,

484 So. 2d 1333, 1338 (Fla. 3d DCA 1986); State ex rel Glaser v. J.M. Pepper, 155 So. 2d 383 (Fla. 1st DCA 1963); State ex rel I.H. Topp v. Board of Electrical Contractors for Jacksonville Beach, Florida, 101 So. 2d 583 (Fla. 1st DCA 1958). Petitioner has satisfied his burden in regard to Question Nos. 4, 12, 13,

and 22 of the Physical Diagnosis portion of the Examination and that he should have been allowed the special accommodations requested on the X-ray Interpretation portion of the Examination. However, Petitioner has failed to satisfy his burden in regard to Question No. 8 of the Physical Diagnosis portion of the Examination. Furthermore, Petitioner has failed to satisfy his burden in regard to having correctly answered, in his test booklet, certain test questions (in particular Question No. 61) on the X-ray Interpretation portion but incorrectly transposed those answers to his test sheet.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department enter a final order granting Petitioner full credit for his answers to Question Nos. 4, 12, 13, and 22 of the Physical Diagnosis portion of the Examination and a final score of 80 but deny Petitioner’s challenge to Question No. 8 of the Physical Diagnosis portion of the Examination and deny any further challenge to the X-ray Interpretation portion of the Examination. It is further recommended, that Petitioner be allowed to retake the X-ray Interpretation portion of the Examination at the earliest possible date without cost.

DONE AND ENTERED this 3rd day of August, 1998, in Tallahassee, Leon County, Florida.

WILLIAM R. CAVE

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) 921-6947

Filed with the Clerk of the Division of Administrative Hearings this 3rd day of August, 1998.

COPIES FURNISHED:

Eric G. Walker, Executive Director Board of Chiropractic

Department of Health 1940 North Monroe Street

Tallahassee, Florida 32399-0752

Angela T. Hall, Agency Clerk Department of Health

BIN A02

2020 Capital Circle, Southeast Tallahassee, Florida 32399-1703

Alfred W. Clark, Esquire Post Office Box 623

117 South Gadsden Street Tallahassee, Florida 32302

Anne Marie Williamson, Esquire Department of Health

1309 Winewood Boulevard

Building 6, Room 240

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: 98-001503

Orders for Case No: 98-001503