98-001503 Paul Andrew Ligertwood vs. Board Of Chiropractic Status: Closed Recommended Order on Monday, August 3, 1998.

Summary: Petitioner met his burden to show that his answers to certain questions were correct which entitled him to passing score on the physical diagnosis portion of the exam and that he should have been allowed special accommodations.

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.

16 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.

17 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.

18 Petitioner did not advise any of the proctors present at

the test site of the difficulty that he was having with his

vision.

19 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.

20. 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.

21. 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.

22. 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.

23. 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.

24. 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.

25. 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.

26. 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.

27. 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.

28. 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.

29. 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.

30. 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.

32. An SGOT laboratory test, also known as an AST test, is

a laboratory test used to indicate if there is damage to the

heart.

33. 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.

34. 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.

35. 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.

36. 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.

37. 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.

38. 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.

39. 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.”

40. 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.

41. 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.

42. 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.

43. 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.

44. 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.”

45. Petitioner correctly performed the Dawbarn’s test and

should have been given the full four points on Question No. 12.

46. 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.

47. 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.

48. 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.

49. 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.

50. 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.

51. 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.

52. 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.

53. 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.

54. 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.

55. 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.

56. 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

57. 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.

58. 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

[phone] SUNCOM 278-9675

Fax Filing [phone]

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.