The Issue Whether Petitioner's challenge to the failing grade he received on the physical diagnosis portion of the May 2001 chiropractic licensure exam should be sustained.
Findings Of Fact Based upon the testimony and evidence received at the hearing, the following findings are made: Petitioner is a chiropractic doctor who has been licensed to practice in the state of Ohio since 1993. He maintains an active practice in Ohio, and he currently sees approximately 190 patients per week. Petitioner filed an application with the Department for a Florida chiropractic license. Applicants for licensure are required by statute and rule to take the licensure exam developed by the Department. Petitioner took the exam in May 2001. The exam consists of four parts, three practical and one written. The practical parts test the applicant on physical diagnosis, X-ray interpretation, and technique; and the written part tests the applicant on the Florida laws and rules regulating chiropractors. An applicant for licensure must receive a score of 75 on each part to pass the examination. Petitioner passed the written part of the exam as well as the X-ray and technique practical parts; however, on the physical diagnosis part, he received a failing score of 70. As a result, he failed to pass the exam and may not receive a Florida chiropractic license.2 The physical diagnosis part of the exam consisted of 26 tasks which the applicant was required to perform within the allotted time of 70 minutes. The physical diagnosis part of the chiropractic licensure exam is developed by a team of consultants retained by the Department. The team consists of licensed chiropractic doctors with varied practices and at least ten years of experience. The team derives the exam questions from case studies from prior administrations of the exam. The team meets on several occasions to refine the case studies and rework the questions. The team also develops and refines the answers to the questions based upon their research and a consensus reached after debate. After the exam questions are finalized and before the administration of the exam, the Department holds standardization sessions which all of the examiners are required to attend. The purpose of the standardization sessions is to ensure that each examiner knows what is a correct answer and what is an incorrect answer for each question. This, in turn, ensures consistency in the evaluation and grading of all applicants. The examiners who evaluated Petitioner's performance on the physical diagnosis exam attended all of the standardization sessions. The applicant's performance of each task in the physical diagnosis part of the exam is independently graded by two examiners. The purpose of the independent grading is to eliminate any potential bias in the grading and to increase reliability in the scoring of the exam. The examiners independently assigned a letter score -- A, B, or C -- to the applicant's performance on each task. A score of "C" represents full credit for the task. A score of "B" represents partial credit for the task. A score of "A" represents no credit for the task. Where the examiner awards less than full credit, he or she provides a notation on the score sheet regarding what the applicant failed to do properly. The letter score was translated into a numerical score based upon the pre-determined point value for the task. Each of the tasks at issue in this proceeding -- numbers 13, 14, 18, 21, and 22 -- were worth 4 points each. A grade of "C" for these tasks translates into a raw score of 4 points; a grade of "B" on these tasks translates into a raw score of 2 points; a grade of "A" on these tasks translates into a raw score of 0 points. The raw scores resulting from each examiner's grades are totaled separately and, then, those totals are averaged. The averaged score is what is reported to the applicant as his or her final score on the physical diagnosis part of the exam. As noted above, Petitioner received a score of 70 on that part. Task 13 (S1 Dermatome) Task 13 contained two sub-tasks. To receive full credit for Task 13, the applicant was required to properly complete both sub-tasks. There is no dispute that Petitioner correctly performed the first sub-task. Only the second sub- task, which required the applicant to demonstrate the S1 dermatome, is at issue in this proceeding. Both examiners who evaluated Petitioner's performance gave him a grade of "B" on Task 13. Thus, Petitioner received only two of the possible four points for that task. A "dermatome" is an area of the body surface served by a particular spinal nerve. The S1 dermatome is the area of the body surface served by the S1 nerve. The S1 dermatome encompasses an area which begins on the back of the leg below the calf, runs down the back of the foot over the heel, along a portion of the bottom of the foot to the toes, and then around the outside (lateral) portion of the foot. The expert testimony and the scientific texts introduced in this case vary on the exact portion of the bottom of the foot included in the S1 dermatome. Some indicate that it encompasses only that area from the outside of the foot to the fourth or fifth (little) toe, while others indicate that it extends from the outside of the foot all the way to the midline of the foot at the third (middle) toe. The common element in all of the expert testimony and the scientific texts is that the location of the S1 dermatome on the bottom of the foot is towards the outside of the foot rather than the inside (arch) of the foot. The S1 dermatome is tested by touching the dermatome with an instrument to determine whether the patient exhibits any sensory reaction, i.e., whether and to what degree the patient feels the touch. The dermatome can be tested without tracing its entire area; however, in order to map out the entire dermatome, its entire area would be tested. On the video tape of Petitioner's performance of Task 13, it appears that he is attempting to test the S1 dermatome, rather than demonstrating its area as the task requires. Petitioner can be heard telling the patient that he is going to "test" the dermatome level by touching the patient's foot to see if the patient can feel it. Immediately after these comments, one of the examiners (Dr. Weiss) can be heard on the video tape telling Petitioner to "trace the path of S1." Dr. Weiss also can be heard asking Petitioner to show the examiners where S1 starts and where it goes. Petitioner performed Task 13 by making a single straight-line motion starting on the back of the leg below the calf, then proceeding downward and under the foot, and ending near the big toe. Petitioner repeated the movement, again ending near or even slightly to the inside (arch side) of the big toe. By making only a single straight-line motion along the bottom of the foot, Petitioner failed to demonstrate the area of the S1 dermatome. At most, Petitioner demonstrated the line separating the S1 dermatome from the L5 dermatome, which is adjacent to the S1 dermatome on the bottom of the foot. As noted above, however, the S1 dermatome extends no further than the mid-line of the foot and therefore the line demonstrated by the Petitioner could not have been the boundary of the S1 dermatome. Even if Petitioner understood the task as "test the S1 dermatome" rather than demonstrate its area, the weight of the evidence shows that Petitioner did not correctly test the dermatome along the bottom of the foot. As discussed above, Petitioner's instrument appeared to travel along the inside (arch) of the bottom of the foot rather than the outside of the bottom of the foot. The S1 dermatome does not extend inward on the bottom of the foot beyond the mid-line and it certainly does not extend to the big toe. The notes written by the examiners on the grading sheets indicate that the "B" grade that Petitioner received on Task 13 was based upon the his tracing of an incorrect area on the bottom of the foot. The notes written by Dr. Weiss, the examiner who testified at the hearing, stated "traced wrong area under foot." The notes written by the other examiner similarly stated "S1 under foot incorrect." The notes were corroborated at hearing by the videotape and the testimony of Dr. Mathis. Because Petitioner failed to properly demonstrate the S1 dermatome, the examiners properly gave him only partial credit on Task 13. Task 14 (Acquilles Reflex Test) Task 14 contained two sub-tasks. To receive full credit for Task 14, the applicant was required to properly complete both sub-tasks. There is no dispute that Petitioner correctly performed the first sub-task. Only the second sub- task, which required the applicant to demonstrate the Achilles reflex test, is at issue in this proceeding. Both examiners who evaluated Petitioner's performance gave him a grade of "B" on Task 14. Thus, Petitioner received only two of the possible four points for that task. Petitioner tested the Achilles reflex by lying the patient face down (prone) and then tapping a reflex hammer directly on the Achilles tendon of each foot. Petitioner did not dorsiflex either foot before striking the tendons. The taps elicited a reflexive response which can be clearly seen on the video tape of Petitioner's exam. Had the tap not elicited a response, Petitioner testified that he would have pursued alternative means of testing the reflex. The expert testimony and scientific texts introduced at the hearing show that there are several alternative ways to test the Achilles reflex, all of which are professionally accepted. One way is to tap directly on the Achilles tendon as Petitioner did. This can be accomplished with or without dorsiflexing the foot. The Department was looking for the candidate to pre-stress the tendon by dorsiflexing the foot prior to striking the tendon with the reflex hammer. The evidence does explain why dorsiflexing the foot would be the preferable method of testing the Achilles reflex under the facts of the case study. Another way to test the Achilles reflex is for the doctor to dorsiflex the foot by pressing his or her fingers against the ball of the patient's foot and then tap his or her fingers with a reflex hammer. Where the ankle is swollen or it is too painful to strike the tendon itself, this method of eliciting the reflex is preferred. The case study on which Task 14 was based indicated that the patient had "severe pain and swelling in the right calf, ankle, and heel." The case study did not indicate that the patient had a ruptured Achilles tendon, but that injury could not be ruled out based on the case study. In such circumstances, the expert testimony and scientific texts indicate that the preferred method of checking Achilles reflex would not be striking the tendon itself. Task 18 (X-Ray of 5-year Old) Task 18 contained two sub-tasks. To receive full credit for Task 18, the applicant was required to properly complete both sub-tasks. There is no dispute that Petitioner correctly performed the first sub-task. Only the second sub- task, which required the applicant to answer the question of whether he or she would X-ray a 5-year-old child with certain symptoms, is at issue in this proceeding. Both examiners who evaluated Petitioner's performance gave him a grade of "B" on Task 18. Thus, Petitioner received only two of the possible four points for that task. The question required applicants to answer "yes" or "no." They were not permitted to explain their answer. The question provided only limited information regarding the child and his medical history. The question did not state whether the parent had signed a consent form authorizing treatment of the child. Without parental consent, it would not be proper for the doctor to render any medical treatment to the child. It would have been reasonable for Petitioner to assume that any necessary consent forms had been signed. Petitioner did not request any clarification on this point from the examiners nor did his response during the exam mention the lack of a signed parental consent form. Instead, Petitioner explained that he would not X-ray the child because of the apparent severity of the child's injury and a concern that the child may have an injury "that wouldn't be chiropractic in nature." Based on these concerns, Petitioner stated during his exam that he would refer the child to his family physician. At hearing, Petitioner indicated that his concern regarding the severity of the child's injury was based upon the case study which indicated that the child was holding his neck. Petitioner considered this to be Rust's Sign. Petitioner did not request any clarification from the examiners regarding the manner in which the child was holding his neck. The expert testimony and scientific texts introduced at hearing indicate that Rust's Sign is most commonly exhibited by the patient supporting his or her head by holding the chin, rather than the neck. The patient holds his or her head to compensate for some muscular, ligament, or disk damage, which causes the neck to be unable to support the head. Even if Petitioner construed the limited case history provided to be evidence of Rust's Sign, the proper course of treatment would not have been to refer the patient to a family physician as Petitioner stated during his exam. Instead, the expert testimony and scientific texts indicate that the proper course of treatment would have been to immediately stabilize the neck with a cervical collar or something similar and immediately perform imaging (e.g., X-ray) to determine the source of the injury. Petitioner is not entitled to additional points for Task 18. Task 21 (Gluteus Maximus Test) Task 21 contained two sub-tasks. To receive full credit for Task 21, the applicant was required to properly complete both sub-tasks. There is no dispute that Petitioner correctly performed the second sub-task. Only the first sub- task, which required the applicant to perform the gluteus maximus muscle test, is at issue in this proceeding. Both examiners who evaluated Petitioner's performance gave him a grade of "B" on Task 21. Thus, Petitioner received only two of the possible four points for that task. The gluteus maximus muscle is the largest muscle in the body and is largely responsible for the shape of the buttock. It extends and laterally rotates the hip joint. The muscle is tested by having the patient lie face down (prone) with his or her knee bent 90 degrees or more. The importance of bending the knee is to isolate the muscle. While the doctor holds the patient's hip to stabilize it and applies downward pressure to the back of the thigh, the patient attempts to raise his or her leg. The video tape of Petitioner's exam shows that Petitioner had the patient in the prone position. Petitioner did not have the patient bend his knee. Nor did Petitioner have the patient lift his leg up. Instead, the tape shows Petitioner pulling the leg outward as the patient attempted to move the leg inward. Petitioner did not rotate the leg. The expert testimony and scientific texts introduced at hearing show that the test performed by Petitioner was the proper test for the gluteus medius or gluteus minimus rather than the gluteus maximus. This evidence corroborates the notation on one of the examiners' score sheet which stated "did gluteus med[ius]?" And see Endnote 1. Indeed, it appears from the video tape that Petitioner misunderstood the task he was to perform. When Petitioner first read the question for Task 21, he correctly read the two tests he was to perform, gluteus maximus and soleus. Petitioner then performed the soleus test. Then, he could be heard saying "gluteus medius" as if to remind himself what test he was to perform. Immediately after that comment, one of the examiners suggested that Petitioner reread the question. He did so, correctly reading "gluteus maximus." Petitioner then set up the table and got the patient situated. Then, one of the examiners asked which muscle test Petitioner was going to perform. He stated "gluteus medius." Petitioner then stood over the patient for a minute or so, apparently thinking to himself, and then performed the test as described above. Any confusion regarding the test to be performed was not a result of the form of the examination or the conduct of the examiners. The examination clearly indicates that the test to be performed is gluteus maximus. The words "gluteus maximus" are in bold type. The examiners attempted to clarify Petitioner's confusion by giving him an opportunity to correct himself after he first misstated the test to be performed. Task 22 (Trendelenburg Test) Task 22 required the applicant to perform two distinct tests and state what he or she is looking for in each test. To receive full credit for Task 22, the applicant was required to properly perform each test and state what he or she is looking for in each test. The only dispute in this proceeding is whether Petitioner's statement of what he was looking for in the Trendelenburg test was the correct response. Both examiners who evaluated Petitioner's performance gave him a grade of "B" on Task 22. Thus, Petitioner received only two of the possible four points for that task. The Trendelenburg test is used to evaluate the ability of the hip abductors, primarily the gluteus medius, to stabilize the pelvis on the femur. The test is performed by having the patient stand facing away from the doctor. The patient then lifts one of his or her legs. A positive sign is where the pelvis/hip of the lifted leg tilts downward instead of rising. Reference to the pelvic/hip tilt was what the Department considered to be a correct answer for Task 22. When performing the Trendelenburg test, the doctor should stand behind the patient with his or her hands on the patient's hips. This placement of the hands serves two purposes. First, it allows the doctor to feel even slight movement of the pelvis/hip in order to detect even a mildly positive sign. Second, it allows the doctor to stabilize the patient in the event that the patient loses his or her balance. The video tape of Petitioner's exam shows that he correctly performed the Trendelenberg test. He was positioned behind the patient with his hands on the patient's hips. He directed the patient to raise his right leg. Then, he stated that if the patient were to fall over, there would be a gluteus medius problem. Dr. Weiss requested clarification from Petitioner, specifically asking him what he was looking for. Again, Petitioner stated that the patient would fall over or lose his balance. Petitioner never used the word "lurch." The Trendelenberg test could cause the patient to lose his or her balance and "lurch" in the direction of the lifted leg or even fall over, but only in cases of severe weakness in the gluteus medius muscle. Such a response would be a positive Trendelenburg sign. The most common positive sign, however, is a downward tilt of the pelvis/hip on the side of the lifted leg. All of the scientific texts, including that offered by Petitioner, identify the tilt as the positive sign which the doctor should be looking for. The tilt is what causes the "lurch" that occurs in more severe cases. If the doctor is looking only for a "lurch," he or she might miss the tilt and thereby miss the most common positive sign of the Trendelenburg test. Because Petitioner stated that he was looking for the patient to fall over or lose his balance, rather than looking for the pelvis/hip tilt, his response to Task 22 was incomplete at best. Therefore, Petitioner is not entitled to any additional points for Task 22. Disruptive Noise During Petitioner's Examination The physical diagnosis part of the May 2001, licensure exam was administered in several conference-type rooms of a hotel. Approximately five or six applicants were administered the exam in the same room as Petitioner. Several of those applicants went before Petitioner and several went after him. While Petitioner was taking the examination, loud noises could be heard. On the video tape of Petitioner's exam, the noises sounded like loud scraping, scratching, and rumbling of metal, as if a large piece of equipment or furniture was being moved in a nearby area of the hotel. At other points, the noises sounded like thumping or banging. In his testimony, Petitioner described the noise as sounding like a mechanical tool or jack-hammer. Dr. Weiss, one of the Department's examiners who graded Petitioner's performance on the physical diagnosis part of the exam, testified that he heard the noise as well and described them as construction noises outside of the room. The noise was not continuous throughout the exam. The noise first could be heard on the video tape near the end of Petitioner's performance of Task 1. It was very loud, but lasted only for several seconds before subsiding. It could also be heard at a very loud level during Tasks 2, 4, 7, and 17, again for only a few seconds each time. The noise could also be heard during Tasks 6, 8, and 16, but at a much lower level. Immediately after the noise first occurred during Task 1, one of the examiners asked Petitioner if the noise was bothering him. Specifically, the examiner asked, "Is that distracting you?" To which Petitioner responded "No, it’s okay." Had Petitioner indicated that the noise bothered him, Dr. Weiss testified that the examination would have been stopped until the source of the noise problem could be addressed. Neither Petitioner nor the examiners mentioned the noise during the remainder of the exam. The video tape does not show any significant difference in Petitioner's demeanor during the tasks where the noise could be heard than the remainder of the tasks. Throughout the test, Petitioner looked somewhat uncomfortable, but not any more so than would be expected under the pressure of this type of exam. At most points where the noise could be heard, Petitioner appeared to be oblivious to it because he was so deep in concentration on the task at hand. Petitioner completed the physical diagnosis exam with more than 17 minutes of the allotted 70 minutes remaining. After he completed his exam, Petitioner filled out a Candidate Concern Form on which he stated that the noises made it hard for him to concentrate. The form was provided to Adrian Washington who was the Department employee in charge of administration of the exam. Mr. Washington informed the two examiners who evaluated Petitioner that a concern had been filed and requested that they independently describe the incident. Dr. Weiss' written comments on the incident referred to the noises as "distracting to me." However, Dr. Weiss' comments, as well as the comments of the other examiner, stated that Petitioner was asked during the examination whether the noises were distracting to him and that he said "no." The comments of the other examiner confirmed what the undersigned witnessed on the video tape, i.e., that "he [Petitioner] did not appear to be visually upset during the examination." The examiners comments also noted that even with the distraction from the noise, Petitioner completed the physical diagnosis part of the exam with time remaining. Based upon the responses of the examiners, primarily the fact that Petitioner stated during the exam that the noises were not bothering him, Mr. Washington determined that no further action was warranted with respect to Petitioner's examination. He did notify the hotel staff about the distractions around the testing area. No other candidate or examiner expressed any concern to Mr. Washington regarding noise problems during the examination.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Chiropractic Medicine enter a final order which denies Petitioner's application for a chiropractic license based upon the failing score that he received on the physical diagnosis part of the May 2001 licensure exam. DONE AND ENTERED this 15th day of March, 2002, in Tallahassee, Leon County, Florida. T. KENT WETHERELL, II 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 15th day of March, 2002.
Findings Of Fact Dr. Norman S. Bateh is the Petitioner in this matter and is an unsuccessful candidate on the optometry (theory and practice) licensing examination administered by the Respondent Board of Optometry on July 23 through 25, 1983. The development of, an examination by this Board reflects careful planning and consideration to ensure it fairly tests an applicant's knowledge of the subject matter. Prior to the preparation of a particular examination, a large pool of questions is developed from numerous professional and academic sources. After the examination is given, an analysis of it is conducted to see how the questions are received by the examinees. Examinees are given the opportunity to contest particular questions after the examination has been administered. Based on the Board's analysis of the test results, any question that was answered correctly by less than 58 percent of the examinees, in addition to those questions contested by the examinees are sent for verification to the Board's consultants, in this case Drs. Pappas and Chrycy. If, upon review by the consultants, it appears a question was incorrectly graded, ambiguous, unclear, or unfair; or if, in the consultant's opinion, there is any sort of problem with the question, all examinees are given credit for it. Passing grade on the 100-question, multiple-choice examination was 70 percent. Petitioner was initially awarded a grade of 66, but on review, at his request, of several of the questions which were graded as wrong, he was awarded two more points, which brings his grade to 68, still two points below passing. He was ranked 98th out of 103 examinees. Petitioner challenges four questions at this hearing as being either improperly graded or invalid because the question is incapable of a correct answer. These questions are numbered 8, 31, 73 and 78 and will be discussed individually, infra. If Petitioner's answer is determined to be correct, he will be awarded one point credit for that question. If any question is determined to be invalid for any reason, Petitioner will be awarded one point credit for that question. Question 8 on the examination read: Intraocular lens placement after cateract extraction results in an image magnification of approximately: 0% 4% 9% D. 25% Petitioner's answer on the examination was "C. 9%." The Board's correct answer was "B. 4%." Petitioner presented the testimony of an ophthalmologist, Dr. Schnauss, who has performed the operation to implant intraocular lenses between 500 and 600 times. As an expert who has used the lenses in his practice frequently and as consultant to one .of the major manufacturers of these lenses, e states unequivocally the degree of magnification is less than 1 percent, but not 0 percent. The further away from the location of the original lens of the eye, the greater the magnification. Since the lens implant is close to the plane of the original eye lens, there would be little magnification. Therefore, notwithstanding the conclusions of the Respondent's experts, Dr. Pappas and Dr. Chrycy, both consultants to the Board of Optometry, who cite Duane, Clinical Ophthalmology, Vol. I, as authority, no answer listed as an option on the examination is clinically correct. However, 52 percent of the candidates who took this particular examination gave the Board's correct answer. Question 31 on the examination read: Which of the following would you consider a positive scotoma: the blind spot Evan's angia-scotomas Seidel's scotoma muscae volitantes Petitioner's answer on the examination was "C. Seidel's scotoma." The Board's correct answer was "D. muscae volitantes." A scotoma is a blind spot in the patient's vision. Positive scotomas are those which are noticeable by the patient as he sees. Negative scotomas are not noticeable to the patient, but show up under test. A Seidel's scotoma, which is an extension of a blind spot, would not be a positive scotoma because the patient would not see it in the visual field. The Board's preferred answer, muscae volitantes, was attacked by Petitioner's experts as being inaccurate since they are bits of floating protein substance in the eye which, .though they are opaque and create a block to vision where they exist, are not true blind spots because they are not a defective area in the eye and they move. They are blind only because they temporarily block vision, not because they are a defect in the eye. Therefore, while muscae volitantes are, technically, positive scotomas where they exist, the question is inartfully drawn, vague and confusing, a conclusion supported by the fact that only 28 percent of the candidates got the correct answer. This low figure, to Mr. Gustafson, Respondent's test statistician, is insignificant. However, a question so confusing that only 29 of 103 examinees get it right and which is capable of such substantial meritorious argument on both sides is truly vague. Question 73 on the examination read: A keratoconus patient with "K" readings of 46.00 x 52.00 can best be fitted with which lens: a spherical firm lens a soft lens with overglasses a bitoric gas permeable lens with light touch on the cone a bitoric gas permeable lens with heavy touch on the cone Though Petitioner testified his answer was "D," and he defended it at the hearing, his answer on the examination was "A." The Board's correct answer was "C." The prime consideration in this question is the touch of the lens, not the issue of hard or soft, or gas permeability. The most current edition of Mandell's textbook and the majority of optometrists today feel that the best choice of lens for fitting a keratoconus patient is the bitoric gas permeable lens with light touch. The opinion of the "majority of optometrists" referred to by Dr. Chrycy was garnered in discussions with a personal friend who, as a Fellow of the American College of Optometry, had recently attended a meeting of that body where this exact subject was, discussed and that opinion rendered. Petitioner cited an earlier edition of Mandell's work to urge the position that a firm lens is required to contain the protrusion of the dark part of the eye that comes along with keratoconus. Later opinion, however, changes that position which is now no longer considered the better treatment. Petitioner also challenged the "K" readings in the question as being unreliable. Unfortunately by doing so, reasonable asthat might be in the practice of optometry, he read into the question a factor that was neither present nor intended by the examiners. The "1(" readings in this question were agiven quantity. Petitioner's treating them as a "trick" was an unfortunate mistake. It is also pertinent to note that 71 of the 103 examinees (69 percent) chose the correct answer to this question. Question 78 on the examination, the fourth and last one challenged by Petitioner at the hearing, reads: The extraocular muscle most frequently involved in extropia is the medial rectus superior rectus lateral rectus superior oblique Petitioner's answer was "C. lateral rectus." The Board's correct answer was "A. medial rectus." The term "extropia" means a turning outward of the eye. The term "extraocular" means outside the eye. The medial rectus muscle is the muscle between the eye and the nose which pulls toward the center of the face. The lateral rectus muscle is that on the outward part of the eye which pulls toward the ear. In a normal individual, the muscles, of equal strength, balance each other and the eye looks forward unless the person involved moves it. Extropia is caused when there is an imbalance of the muscles, either by a weakening of the medial rectus, which allows the normallateral rectus to overpower it, or by an unnatural strengthening of the lateral rectus which then overpowers the normal medial rectus. By far the greater weight of optometric opinion, based on observation and testing, reveals that the most frequent" cause of this condition is the weakening ofthe medial rectus, leaving the lateral rectus normal. Consequently, the correct answer is not lateral rectus as claimed by Petitioner, but the medial rectus as stated by the Board,notwithstanding even the Board's expert, witness testified there is no definitive authority to support the Board's choice. In this case, 64 percent of the examinees chose the correct answer.
Recommendation Based on the foregoing, it is RECOMMENDED: That a final order be entered finding that Petitioner should be awarded one additional point credit for Question 31 and that he, nonetheless, failed to achieve a passing score on the July, 1982, optometry examination. RECOMMENDED this 19th day of August, 1983, in Tallahassee, Florida. ARNOLD H. POLLOCK Division of Administrative Hearings Department of Administration 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of August, 1983. COPIES FURNISHED: Abraham I. Bateh, Esq. 2124 Park Street Jacksonville, Florida 32204 Drucilla E. Bell, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Mr. Fred Rochep Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Ms. Mildred Gardner Executive Director Board of Optometry Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
The Issue The issue is whether Petitioner is entitled to a passing grade on the chiropractic examination.
Findings Of Fact Petitioner took the November 1999 examination for chiropractic licensure. He passed the written part and the technique portion of the practical part. However, Petitioner failed the physical diagnosis and X-ray interpretation portions of the practical part. The physical diagnosis portion of the examination supplies candidates with a brief case history followed by several questions. Score sheets provide standards for the scoring of responses. Question 3 of the physical diagnosis portion of the examination requires the evaluators to ask the candidate to demonstrate and describe an abdominal examination and explain the significance of a digital rectal examination on the patient, who has complained of cramping, bloatedness, and distention, as well as alternating stool consistency with an irregular pattern of defacation. The evaluators assigned Petitioner no points for his responses to Question 3. For the demonstration of an abdominal examination, Petitioner failed to ensure that the abdominal muscles were relaxed in order to permit a useful examination. Petitioner attempted to listen to the spleen, prior to performing percussion and palpation, but he was not in the left lower quadrant, which is the location of this organ. Petitioner palpated the abdominal area with his fingertips, rather than his palms, and failed to perform deep palpation. Petitioner also failed to outline the liver in his demonstration. The purpose of the digital rectal examination, for this patient, was to detect blood or a palpable lesion. Petitioner incorrectly responded that the purpose of this examination was to perform a prostate examination. Petitioner's misdiagnosis of diverticulitis, in response to Question 8, reflects his limited insight into this patient's condition, for which the correct diagnosis was irritable bowel syndrome, colitis, or spastic colon. Question 17 of the physical diagnosis portion of the examination required a demonstration of the gluteus maximus and peroneus muscles. The evaluators credited Petitioner for the correct demonstration of the gluteus maximums, but not the peroneus. Petitioner incorrectly grasped the patient's calf and ankle, which precluded the isolation of the peroneus. Failing to grasp the metatarsal end of the foot prevented Petitioner from properly isolating the peroneous muscle. At the hearing, Respondent gave Petitioner full credit for his response to Question 24 of the physical diagnosis portion of the examination. Question 3 of the X-ray interpretation portion of the examination required Petitioner to examine two X-ray films, taken two years apart, and render a probable diagnosis. The vast destruction of bone mass suggested a case of neuropathic joint resulting from syphillis, but Petitioner diagnosed post-traumatic joint disease, focusing instead on the patient's physically demanding profession and her age of 37 years. However, the extensiveness of bone destruction over a relatively short period favored the diagnosis of neuropathic joint over Petitioner's diagnosis. Question 5 of the X-ray interpretation portion of the examination required Petitioner to identify the anatomical structures outlined at lumbar-3 on a specific X-ray. Petitioner identified the structures as lamina, but they were the pars interarticulares, which are isthmus between the lamina and pedicle. Question 38 of the X-ray interpretation portion of the examination required Petitioner to explain why the neural foramen, as revealed on an X-ray, appeared enlarged. Rather than cite the nondevelopment of the cervical-6 pedicle, Petitioner incorrectly chose neurofibromatosis, despite the failure of the exposed structures to reveal the angularity characteristic of this condition and the absence of any bony structure subject to the process of deterioration resulting from neurofibromatosis. Despite the concession by Respondent on Question 24 on the physical diagnosis portion of the chiropractic licensure examination, Petitioner has failed to prove that he is entitled to additional credit on the physical diagnosis or X-ray interpretation portion of the chiropractic licensure examination that he should have passed either portion of the examination.
Recommendation It is RECOMMENDED that the Board of Chiropractic enter a final order dismissing Petitioner's petition. DONE AND ENTERED this 26th day of September, 2000, in Tallahassee, Leon County, Florida. ROBERT E. MEALE 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 26th day of September, 2000. COPIES FURNISHED: Joe Baker, Jr., Executive Director Board of Chiropractic Department of Health 4052 Bald Cypress Way, Bin C07 Tallahassee, Florida 32399-3257 William W. Large, General Counsel Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 Angela T. Hall, Agency Clerk Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 Gregory W. Stancel 2256 Iris Way Fort Myers, Florida 33905 Cherry A. Shaw Senior Examination Attorney Department of Health General Counsel's Office 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1703
The Issue This matter arose when the claimant applied for in line of duty disability retirement and was advised of the denial of his application of in line of duty disability benefits. The claimant was advised of his right to a hearing pursuant to Chapter 120, Florida Statutes, and filed a Petition for a hearing to determine whether he was entitled to disability in line of duty benefits. The matter was referred to the Division of Administrative Hearings for hearing pursuant to Chapter 120, Florida Statutes.
Findings Of Fact The Petitioner, Pat Q. Trocci, is a 59 year old, white male, whose formal education is limited, and whose primary work experience outside military service in World War II was as a mechanic. The Petitioner was first injured on December 2, 1972, as hereinafter described. Between the date of his injury and 1974 he returned to work several times. During the period May 1973 to June 1974 the Petitioner returned to work on several occasions. The longest period which he worked continuously was six weeks, and during the entire period he worked 100 days. On December 2, 1972, Petitioner, Pat Q. Trocci, was installing a large hydraulic cylinder weighing approximately seven hundred (700) pounds in the back of a garbage truck. Trocci was attempting to push the cylinder into place when it shifted on the chain holding it, sheared the retaining bolt and struck Trocci in turn knocking him into other solid structures in the truck. Trocci, in fear, leaped from the truck and fell again striking himself on objects in the garage. Trocci continued to work, but later that evening began to experience pain. Trocci did not report for work for the next two days which were his regular days off. On the third day, he called in sick and went to the doctor. Dr. Talan administered a pain killing injection to Trocci and gave him oral pain killers. Trocci returned to his house, did some light work, such as watering the lawn, but later that evening experienced severe pain. Trocci was admitted to the hospital within several days suffering from back pain. The tentative diagnosis of the injury was a ruptured disc to Trocci's back with nerve root compression. Trocci was treated conservatively and released for bed rest at home. Thereafter, Trocci returned to work after a lengthy recuperation. Trocci was alternately at work and off work for the next year and a half. He would return to work and perform his duties, but eventually reinjure his back. From May 1973 until June 1974 Trocci worked 100 days of which the longest consecutive period on the job was six weeks. During this period, Trocci was in the care of Dr. Talan and thereafter Dr. Drucker. Trocci suffered primarily from his back ailment during that period. Dr. Drucker's deposition was presented in evidence and considered. Dr. Drucker, an orthopedic, had first seen Trocci in 1972 on referral from Dr. Talan. Dr. Drucker diagnosed Trocci's problem as am inflammation of the nerve root in the lower back. Dr. Drucker had treated Trocci until May 1974, but had last seem Trocci on February 1975. Trocci's medical history included Trocci's description of the accident. Dr. Drucker felt that the trauma was the result of Trocci's accident. Dr. Drucker stated that Trocci's condition was complicated by degenerative back disease, but that the disease was not the cause of Trocci's problems, but adversely affected his response to treatment and rehabilitation. Dr. Drucker indicated that Trocci's problems could be neurological rather than a nerve compression syndrome although he felt his diagnosis was accurate and the best he could make without the further tests to include a myelogram, which he had recommended but which to his knowledge Trocci had not had. Dr. Drucker stated his diagnosis was based on the fact Trocci had no neurological deficits which seemed to eliminate neurological damage. Dr. Drucker felt that Trocci's urological problems were due to extended bed rest, but that he would defer his opinion to the treating doctors. Dr. Drucker stated that in his opinion Trocci could not perform the duties he had performed prior to his injury because he could do no heavy lifting, could not bend, sit, or stand for long periods. Dr. Drucker did feel that Trocci could physically perform sedentary work, but was not aware of Trocci's educational background. Dr. Steinsnyder's report was introduced into evidence as Exhibit 1 and considered. Dr. Steinsnyder had first seem Trocci in August of 1974. At that time Trocci was hospitalized from August 15, 1974 until August 18, 1974 for back pain and bladder retention. Dr. Steinsnyder had treated Trocci from August 15, 1974 until February 12, 1975. The reports in Exhibit 1 indicate that Trocci had had a history of bladder retention during the period of Steinsnyder's treatment. Dr. Steinsnyder urged Trocci on January 22, 1975 to seek a fellow up on his nerve root compression with an orthopedic surgeon or neurelogic surgeon. Trocci was hospitalized on January 31, 1975 in Osteopathic General Hospital, North Miami Beach under Dr. Steinsnyder. Dr. Gonyaw was called in as a neurological consultant at that time. 10 Dr. Gonyaw had a myelogram performed on Trocci shortly after first seeing Trocci on February 2, 1975. Dr. Gonyaw expressed his opinion that at that date Trocci had reached maximum medical improvement. Based upon the results of the myelogram, Dr. Gonyaw eliminated nerve root compression resulting from a ruptured disc as a cause of Trocci's problems. This meant, in Dr. Gonyaw's opinion, that Trocci's problems were the result of a trauma of the spinal cord which had left Trocci with permanent damage. Dr. Gonyaw explained that such an injury is sometimes followed by a slow deterioration of the spinal cord which causes progressively severe symptoms. Dr. Gonyaw found that Trocci had impaired control of his legs, a continually worsening urological condition, and probably worsening neurological condition. Dr. Gonyaw felt that Trocci's real problem was neurological and not urological, but clearly indicated that in his condition Trocci could not perform any real work beyond some sort of hand piece work at his home. The deposition of Dr. Gilbert was also introduced into evidence and considered. Dr. Gilbert saw Trocci on August 22, 1973, at which time Trocci advised Dr. Gilbert of his earlier treatment by Drs. Drucker, Steinsynder, and Gonyaw. Dr. Gilbert stated that Trocci's symptoms were pains radiating from the lower back and buttocks into the legs and urinary retention and bladder infection. Dr. Gilbert's examination revealed that Trocci's movements were abnormally diminished, he exhibited bilateral sciatic tenderness, but that Trocci had had no sensory loss and his deep tendon reflexes were normal. Dr. Gilbert's medical opinion was that Trocci should not do any heavy lifting, no prolonged standing or sitting and no climbing. Because of his urological problems, Dr. Gilbert felt Trocci's ability to work is even more restricted. Dr. Gilbert's prognosis was one of continuing worsening of Trocci's condition, with the spread of infection eventually to his kidneys. The doctors involved have indicated in the fashion used in Workman's Compensation cases that the Petitioner is between 60 percent and 80 percent permanently partially disabled. They have all indicated that Trocci is not totally immobile and could do some light work with his hands. A listing of various job descriptions and positions was introduced by the Division as Exhibit 2 together with the affidavit of the head of the State's classification branch. The Hearing Officer finds having reviewed these descriptions and considered the obvious physical requirements of the various positions that the Petitioner could not perform any of these duties on a day in and day out basis based on the doctors' evaluations of his limitations.
Recommendation Based upon the preceding findings of fact and conclusions of law, it is recommended that the Petitioner receive disability in line of duty retirement benefits. DONE and ORDERED this 16th day of February, 1976. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: L. Keith Pafford, Esquire Counsel for Respondent Albert E. Harum, Jr., Esquire Counsel for Petitioner
The Issue The issue in this case is whether Ms. Nalda, a foreign trained applicant for licensure as a physical therapist by examination, has proven that she is eligible to sit for the licensure examination required by Section 486.031(3)(b), Florida Statutes (1935). In its preliminary action, the Board had indicated that Ms. Nalda has not presented evidence of educational credentials which are "deemed equivalent to a bachelor's degree in physical therapy in the United States" as required by Rule 21M-7.020, Florida Administrative Code (1966).
Findings Of Fact Ms. Nalda received her educational preparation in physical therapy in Bogota, Colombia. When she submitted her application for licensure by examination as a physical therapist, she also submitted an evaluation of her educational preparation in physical therapy performed by the International Education Research Foundation, Inc., dated December 5, 1983. It states in pertinent part: The Diploma is recognized as equivalent to a valid bachelor's degree in the United States. When Petitioner was first certified for examination by the Physical Therapy Council, the Council had misunderstood the meaning of the letters of evaluation it received from the International Education Research Foundation, Inc., such as the one quoted above. The letter did not state that the educational preparation under review was equivalent to a valid bachelor's degree in physical therapy in the United States, but the Council treated it that way. Due to this misunderstanding, the Council permitted Ms. Nalda to sit for the physical therapy examination three times, each of which she failed. The fourth time she applied for examination, she was denied the opportunity to be examined because the Council realized her educational credentials were not deemed equivalent to a valid bachelor's degree in physical therapy in the United States. Ms. Nalda requested a second evaluation from International Education Research Foundation, Inc., as well as an evaluation from another agency, International Consultants of Delaware, Inc. The Physical Therapy Council reviewed both of them. Neither evaluation deemed Petitioner's credentials to be equivalent to a valid bachelor's degree in physical therapy in the United States, and both identified specific deficiencies in her educational preparation. The September 24, 1986 evaluation of International Consultants of Delaware, Inc., states that Ms. Nalda lacks ten semester credits in humanities and two semester credits in natural sciences. A transcript from Miami Dade Community College dated May 6, 1967 (admitted into evidence without objection), shows that Ms. Nalda has completed three semester hours in English writing, twelve semester hours in elementary and intermediate Spanish, and three hours in general education biology. Ms. Nalda experienced significant delays in receiving communications from the office of the Physical Therapy Council, which caused her to make numerous telephone calls to the office to determine the status of her applications. Ultimately, she engaged an attorney to assist her in the licensure process. During the period from the date of her first application for licensure through the date of the hearing, Ms. Nalda submitted at least four applications for licensure. Those documents hear different last names and at least four different addresses. At no time did Ms. Nalda notify the Board that she had changed her address. The applications were treated as separate applications from different people. Although there were valid reasons for the different names appearing on Ms. Nalda's applications, due to her divorce and remarriage, the various forms of her name, the number of applications and the many addresses contributed to confusion on the part of the Board of Medical Examiners, Physical Therapy Council, and accounts for the difficulty she encountered in determining the status of her applications.
Recommendation It is RECOMMENDED that the licensure application of Myriam Nalda to sit for the licensure examination be GRANTED. DONE AND ORDERED this 17th day of July, 1987, in Tallahassee, Florida. WILLIAM R. DORSEY, JR. Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 17th day of July, 1989. APPENDIX TO RECOMMENDED ORDER CASE NO. 86-2966 The following constitute my rulings on the proposed findings of the parties as required by Section 120.59(2), Florida Statutes (1985). Rulings on Proposed Findings of Fact Submitted by Petitioner The Petitioner's proposal is in narrative form, not in the form of Proposed Findings of Fact. I have generally accepted the proposals that evaluations of Ms. Nalda's educational credentials have been performed by the agencies identified in Rule 21M-7.020(3)(a) and (b), and that she has completed course work prescribed by an evaluation agency to render her degree equivalent to a bachelor's degree in physical therapy. Rulings on Proposed Findings of Fact Submitted by Respondent Covered in Finding of Fact 1. Covered in Findings of Fact 1 and 2. Covered in Finding of Fact 2. Covered in Finding of Fact 3. Covered in Finding of Fact 4. Rejected as unnecessary. Covered in Finding of Fact 6. Covered in Finding of Fact 8. COPIES FURNISHED: Ms. Myriam Lucia Nalda Van B. Poole, Secretary 9115 Southwest 150th Ave Department of Professional Miami, Florida 33196 Regulation 130 North Monroe Street Patricia V. Russo, Esquire Tallahassee, Florida 32399-0750 Department of Legal Affairs The Capitol, Suite 1601 Joseph A. Sole, General Counsel Tallahassee, Florida 32399 Department of Professional Regulation Ms. Dorothy Faircloth 130 North Monroe Street Executive Director Tallahassee, Florida 32399-0750 Department of Professional Regulation Marcelle Flannigan, Director Board of Medicine Physical Therapy Council 130 North Monroe Street 130 North Monroe Street Tallahassee, Florida 32399 Tallahassee, Florida 32399-0750 =================================================================
