STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DIANA CRIVELLI, )

)

Petitioner, )

)

vs. ) Case No. 00-1484

) DEPARTMENT OF HEALTH, BOARD OF ) CHIROPRACTIC, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case on July 10, 2000, by video teleconference at Miami and Tallahassee, Florida, before Susan B. Kirkland, a designated Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Diana Crivelli, pro se

900 West 47th Street

Miami Beach, Florida 33140

For Respondent: Cherry A. Shaw, Esquire

Department of Health

4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1703

STATEMENT OF THE ISSUE

Whether Petitioner earned a passing grade on the X-ray portion of the chiropractic licensure examination given in November 1999.

PRELIMINARY STATEMENT

By examination grade report mailed January 5, 2000, Petitioner, Diana Crivelli (Crivelli), was notified by the Respondent, Department of Health, Board of Chiropractic (Department), that she had failed the X-ray interpretation portion of the chiropractic licensure examination given in November 1999. Crivelli requested an administrative hearing, challenging several questions on the examination. On April 5, 2000, the case was forwarded to the Division of Administrative Hearings for assignment to an administrative law judge.

Respondent filed a Motion for Clarification/Specificity of Petitioner's Petition for Hearing, which was granted. On

June 29, 2000, Petitioner filed a Notice of Amended Hearing, challenging questions 17 and 30 on the examination.

At the final hearing, Petitioner testified on her behalf and entered Petitioner's Exhibits 1-3 into evidence. Respondent called Juan Trujillo and Dr. Philip B. Leon as its witnesses.

Respondent's Exhibits A-I and O-Q were admitted in evidence.

The parties agreed to file proposed recommended orders within ten days of the filing of the Transcript, which was filed on July 26, 2000. Petitioner filed her Proposed Recommended Order on August 2, 2000, and Respondent filed its Proposed Recommended Order on August 7, 2000. The parties' Proposed Recommended Orders have been considered in rendering this Recommended Order.

FINDINGS OF FACT

1. Crivelli took the chiropractic licensure examination in November 1999. The examination consists of three sections: physical diagnosis, technique, and X-ray interpretation. The minimum passing score for each section is 75. Crivelli passed the physical diagnosis and technique portions of the examination, but failed the X-ray interpretation portion with a score of 72.

2. There are 68 questions on the X-ray portion of the examination. Crivelli challenges questions 17 and 30.

3. Question 17 asks for a diagnosis relating to two X-ray slides of the cervical spine and the lumbar spine of a 53-year- old male. Crivelli contends that her answer of rheumatoid arthritis is correct based on the patient's age and the limited history provided in the question. She argues that the answer that the Department contends is correct is not correct because the Department's suggested diagnosis first manifests itself in much younger patients. However, question 17 does not state that this is the first manifestation of the disease. Crivelli admitted that the best X-ray for diagnosing rhuematoid arthritis is an open-mouth frontal view. The X-rays for question 17 did not provide an open-mouth frontal view.

4. Crivelli's answer to question 17 is not correct. The Department's answer to the question is correct.

5. Question 30 called for a diagnosis related to a 12-year- old boy complaining of knee pain. Crivelli contends that the

   correct answer is enchondroma based the location and shape of the tumor and the indication of pain. Crivelli's answer is incorrect because, although an enchondroma can occur in long bones, the majority occur in the short tublar bones of the hands and feet.

   In Essentials of Skeletal Radiology, a drawing of the skeletal distribution of solitary enchondroma does not show that it occurs in the tibia, which is the location in the X-ray given for question 30.

6. Enchondroma usually presents itself as a painless tumor. When there is pain with an enchondroma, either it is associated with trauma or it is at the end of the pathology when the patient has had the enchondroma for a long time. The history for the patient did not indicate there had been any trauma. Given the age of the patient, it is not realistic to think that he has had the enchondroma for a long time.

7. Crivelli argues that the Department's answer is not correct because the X-ray shows the tumor as concentric, and the diagnosis claimed by the Department to be correct is usually an eccentric tumor. The Department's diagnosis is usually eccentric; however it can be seen as a "blown-out" appearance of bone. The X-ray for question 30 is very similar to a picture of an X-ray in Essentials of Skeletal Radiology, depicting the Department's diagnosis.

8. Crivelli's answer for question 30 is incorrect. The Department's answer for question 30 is correct.

   CONCLUSIONS OF LAW

   
   

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

10. The Department is authorized to administer licensure examinations for chiropractors pursuant to Section 455.574, Florida Statues. Any person desiring to practice chiropractic medicine in Florida is required to pass the licensure examination developed by the Department to test an applicant's competency as a chiropractor. Section 460.406, Florida Statutes.

11. The Petitioner has the burden to establish by a preponderance of the evidence that her examination scoring was flawed and that the Department acted arbitrarily or capriciously or with an abuse of discretion. See Harac v. Department of Business and Professional Regulation, 484 So. 2d 1333, 1338 (Fla. 3rd DCA 1986).

12. Petitioner failed to establish that her answers were correct and failed to establish that the Department's decision to give her no credit for the challenged questions was arbitrary or capricious or constituted an abuse of discretion.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that Diana Crivelli's answers to questions 17 and 30 of the

chiropractic licensure examination were not correct and that she failed to pass the chiropractic licensure examination.

DONE AND ENTERED this 11th day of August, 2000, in Tallahassee, Leon County, Florida.

SUSAN B. KIRKLAND

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 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 11th day of August, 2000.

COPIES FURNISHED:

Diana Crivelli

900 West 47th Street

Miami Beach, Florida 33140

Cherry A. Shaw, Esquire Department of Health

4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1703

Joe Baker, Jr., Executive Director Board of Chiropractic

Department of Health

4052 Bald Cypress Way, Bin C07 Tallahassee, Florida 32399-3257

Angela T. Hall, Agency Clerk Department of Health

4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1703

William W. Large, General Counsel Department of Health

4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1703

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: 00-001484

Orders for Case No: 00-001484