19-001931PL Department Of Health, Board Of Medicine vs. John Carey Tomberlin, M.D. Status: Closed Recommended Order on Tuesday, January 21, 2020.

Summary: Petitioner did not establish by clear and convincing evidence that Respondent failed to meet the standard of care.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH,

BOARD OF MEDICINE ,

Petitioner , Case No. 19 - 1931PL

vs.

JOHN CAREY TOMBERLIN, M.D. ,

Respondent .

/

RECOMMENDED ORDER

On October 15 , 2019, Administrative Law Judge Yolonda Y.

Green of the Division of Administrative Hearings (“DOAH”)

conducted a duly - noticed hearing pursuant to section 120.57(1),

Florida Statutes (2019), in Panama City Beach , Florida.

APPEARANCES

For Petitioner: Jasmine Green, Esquire

Cynthia Nash - Early, Esquire

Department of Health

4052 Bald Cypress Way , Bin C - 65

Tallahassee, Florida 32399

For Respondent: Brian Newman, Esquire 1/

Kathryn Hood , Esquire

Pennington, P.A.

Suite 200

215 South Monroe Street

Post Office Box 10095

Tallahassee, Florida 32301

STATEMENT OF THE ISSUE S

The issues to be determined are whether Respondent,

John Carey Tomberlin, M.D. (“Respondent” or “Dr. Tomberlin”) ,

violated section 458.331 (1) (t) 1. , Florida Statutes (2014) , by

failing to identify a subdural hematoma on the left side of

Patient J . A . ’s brain, as alleged in the Administrative

Complaint; and if so, what penalty should be imposed.

PRELIMINARY STATEMENT

On June 22, 2018, the Department of Health, Board of

Medicine ( “ Petitioner ” or “ the Department ” ), filed a two - count

Administrat ive Complaint alleg ing Respondent violated

section 458.331(1)(m) and (t)1. , in his interpretation of a CT

scan of Patient J.A.’s head . On J uly 1 1, 2018, Respondent

notified the Department that he disputed the allegations in the

Administrative Complaint and requested a hearing involving

disputed issues of material fact. On April 15, 2019, the

Department referred this matter to DOAH for assignment of an

administrative law j udge, which was assigned to the undersigned.

On June 10, 2019, Petitioner filed a Notice of Dismissal of

Count II, which dismissed the allegation of a violation of

section 458.331(1)(m). The remaining count in the

Administrative Complaint alleges that Respondent violated

section 458.331(1)(t)1., by failing to identify a subdural

hematoma on the left side of Patient J.A.’s brain.

The undersigned issued a Notice of Hearing scheduling this

case for June 20, 2019. On June 10, 2019, Respondent filed an

Unopposed Motion to Continue , seeking a continuanc e based on a

scheduling conflict , which the undersigned granted. The

undersigned rescheduled this case for October 15 and 16, 2019 ,

and it commenced as scheduled.

The parties filed a n Amended Joint Pre - H earing Stipulation

on October 8, 2019, containing f actual stipulations that h ave

been incorporated into the Findings of F act below .

At the hearing, Petitioner presented the expert testimony

of Josep h Andriole, M.D . Petitioner’s Exhibit 1 was admitted

over objection and Petitioner’s Exhibits 2 and 3 were admitted

without objection. Respondent testified on his own behalf

and presented the expert testimony of Katherine Lursen, M.D.,

Respondent’s expert witness . Re spondent’s Exhibits 3, 4,

and 6 were admitted without objection , and Respondent’s

Exhibit 5 wa s proffered.

The one - volume Transcript of th e proceeding was filed with

DOAH on December 4, 2019 . On December 12, 2019, the undersigned

considered and granted R espondent’s Unopposed Motion for

E xtension of Time to F ile Proposed Recommended Orders . Thus ,

the deadline for Proposed Recommended Orders ( “ PROs ” ) was

December 20, 2019. The parties timely filed PROs , wh ich have

been considered in preparation of this Recommended Order. 2 /

This proceeding is gover ned by the law in effect at

the time of the commission of the acts alleged to warrant

discipline. See McCloskey v. Dep’t of Fin. Servs. , 115 So. 3d

441 (Fla. 5th DCA 2013). Thus, references to statut es are to Florida Statutes (2014 ), unless otherwise noted.

FINDING S OF FACT

Based upon the testimony and documentary evidence presented

at hearing, the demeanor and credibility of the witnesses, and

the entire record of this proceeding, the following Findings of

F act are made :

Parties

1 . Petitioner is the state agency charged with regulating

the practice of med icine pursuant to section 20.43 and

chapters 456 and 458, Florida Statutes.

2. At all times material to this proceeding and

Petitioner’s Administrative Complaint , Respondent was li censed

to practice medicine in the sta te of Florida, havin g been issued

license number ME 60438.

3. Respondent’s practice address of record is

2600 Hospital Drive, Bonifay , Florida 32425.

4 . Respond ent, a board - certified radiologist , has been

practicing since 1987. Respondent attended University of

Alabama for medical school and is also licensed in that state.

He has worked in rural areas in covering a variety of prac tice

settings, including prisons, clinics , and hospitals. I n his

practice as a radiologist, h e testified that he r eviews 100 to

200 CT scans per week .

Facts Related to Patient J.A. ’s CT S can

5. On August 29, 2014, P atient J.A., a seventy - four year

old male, presented to Doctor’s Memorial Hospital in Bonifay,

Florida.

6 . Patient J.A. presented with a history of suffering a

physical attack including being struck over the head with a

chair and being repeatedly punched in the head. The attack

resulted in complaints of dizziness and a contusion on the left

side of the head. T o fully assess the injury sustained during

the attack , Patient J.A. underwent a CT scan of the head without

contrast .

7 . R espondent was tasked with interpreting the CT scan .

8 . On August 29, 2014, Dr. Tomberlin dic tated a report of

his findings as follows: “Bone and soft tissue windows are

included. Soft tissue density can be seen within some of the

paranasal sinuses. The calvarium is intact. The ventricles are

symmetrical. Pineal calcifications are noted. There is no

acute hemorrhage, midline shift, mass effect or extra - axial

fluid collection.” H is opinion was as follows : “ (1) Negative

CT brain scan ; and (2) M inimal sinusitis with bot h acute and

chronic elements noted. ”

9 . On August 29, 2 014, Respondent did not detect a

subdural hematoma in the CT scan images of Patient J.A .’s head.

10 . A subdural hematoma is a collection of blood in the

head on the outside of the brain beneath the dura, a fibrous

lining of the brain.

11 . Patient J. A . d ied on September 16, 2014 .

12 . Dr. Tomberlin acknowledged that he did not perceive

the hematoma at the time of his initial review, despite

exercising due care in his review of the CT scan. He explained

that he missed the hematoma due to several factors: t here was

no indication of a midline shift ; hyperdensity was white and

dense in comparison to the rest of the brain tissue ; the brain

was very large ; and the size (described as small) of the

subdural hematoma. He noted that while elderly patients are at

a higher risk for subdural he matoma, P atient J.A. ha d a health y

and larger brain despite his age.

13 . Dr. Tomberlin testified that after he learned that

Patient J.A. had died, he performed a post - mortem review of the

CT scan and discovered the subdural hematoma.

Expert Witnesses

D r. Andriole

1 4 . T he Department presented the testimony of Joseph

Gerald Andriole, M.D . Dr. Andriole was accepted as an expert in

diagnostic radiology. Dr. Andriole is a board - certified

diagnostic radiologist with a subspecialty in interventional

radiology. He has been licensed to practice medicine in F lorida

since 1986. He attended Howard University S chool of M edicine

and completed his residency in diagnostic radiology at Case

Western Reserve University Hospital . Dr. Andriole is not

trained in and is not board certified in neuroradiology.

1 5 . Since reducing his full - time practice to three to four

days per month in 2012, Dr. Andriole reviews approximately 15 CT

scans of the head per month in an outpatient setti ng.

Dr. Lursen

1 6 . Respondent presen ted the testimony of Katherine

Perrien Lursen , M.D ., who was accepted as an expert in

diagnostic radiology. Dr. Lursen, a diagnostic radiologist , is

licensed to practice medicine in Alabama . Dr. Lursen is not

licensed to practice medicine in F lorida, but she maintains an

ex pert witness certificate , having been issued certificate

number MEEW6548 , which authorizes her to testify in Florida

cases. For the reasons set forth herein, she is also familiar

wit h the standards of reviewing CT scans.

1 7 . Dr. Lursen earned her medical degree from the

University of Alabama at Birmingham and completed her residency

in radiology. She also completed a fel lowship in

neuroradiology. Dr. Lursen is board certified in diagnostic

radiology with a certification in the subspecialty of

neuroradiology.

18 . Dr. Lursen has practiced diag nostic radiology for nine

years. In her full - time practice , she services three hospitals

as a neuroradiologist and reviews approximately 120 to 150 CT

scans of the head each month.

19 . S he serves as the chair of the radiology department at

Mobile Infirmary, a 700 - bed hospital in Mobi le, Alabama, the

larges t hospital in Mobile. As the department chair , she helps

develop protocols for radiology at Mobile Infirmar y, including

the appropriate method to interpret radiology images.

Dr. Lursen also serves on a hospital peer - review committee and

reviews cases where the standard of care i s at issue.

2 0 . In addition to h er practice related duties, Dr. Lursen

teaches at the Alabama College of Osteopathic Medicine and

instructs students during rotations.

Allegations Related to the Standard of Care

2 1 . Dr. Andriole reviewed the hospital records for

Patient J.A. for August 29, 2014, including the admission record

that reflected Patient J.A. was “hit in the head” in the left

temple area and a contusion was noted on the left temple.

Dr. Andriole also reviewed t he CT scan of Patient J.A.’s h ead

and Respondent’s CT report . Based on his review of the CT scan ,

CT report, and hospital records, D r. Andriole opined that

Dr. Tomberlin departed from the standard of care by failing

to identify the subdural hematoma on the left side of

Patient J.A.’s brain.

2 2 . When the standard of care is at issue , the individual

opinion of an expert witness does not establish the standard of

care. The standard of care is based on the level of care,

skill, and treatment which, in light of all relevant surrounding

circumstances, is recognized as acceptable and appropriate by

reasonably prudent similar health care providers . 3/

23. Petitioner’s expert, D r. Andriole , was tasked with

establishing the actions a reasonably prudent radiologist would

exercise when interpreting a CT scan of the head. Dr. Andriole

testified that “ the standard of care states that a physician

would provide the type of interpretation that wou ld be expected

from a competent, prudent physician at the time under similar

circumstances. ” He also testified that th e standard of care

required Dr. Tomberlin to identify “expected abnormalities” that

result from the type of head injury or trauma suffered by

Patient J.A.

2 4 . Based on the testimony at hearing, Dr. Andriole ’s

expert testimony fell short of establishing the standard of care

a reasonably prudent physician would exercise under the

circumstances to detect an abnormality.

2 5 . W hen addre ssing the standard of care, Dr. Andriole’s

testimony was as follows:

Q. W hat is the standard of care for a

radiologist reviewing the CT scan of the

head or brain ?

A. [T] he standard of care states that a

physician would provide the type of

interpretatio n that would be expected from

a competent, prudent physician at the time

under the circumstances.

2 6 . Dr. Andriole testified that a physician would provide

the type of interpretation that w ould be expected, but failed

to stat e standards upon which the undersigned could evaluate

Dr. Tomberlin’s interpretation of the CT scan.

2 7 . Further, Dr. Andriole reached his opinion without

regard to the findings in the CT report , which reflected

Dr. Tomberlin’s assessment of the CT sc an. In considering

whether Dr. Tomberlin met the standard of care, Dr. Andriole

testified that a reasonably prudent physician would consider the

underlying cause of injury or trauma to aid in interpret ation of

the CT scan, which Dr. Tomberlin considered. Dr. Andriole

acknowledged that the abnormality was smaller than average for a

subdural hematoma. He also acknowledged that Dr. Tomberlin

carefully reviewed the CT scan because he identified small

abnormalities in the sinuses that were smaller than the subdural

hematoma.

2 8 . Dr. Andriole agreed that the type of error in this

case, a perceptional error, may still meet the standa rd of care.

Dr. Andriole ack nowledged that a three to five percent error

rate can occur when reviewing radiology images.

29 . Dr. Lursen , on the other hand, opined that

Dr. Tomberlin met the standard of care in his review of the CT

scan for Patient J.A. Dr. Lursen pointed to Respondent ’s

interpretation of the CT scan and highlighted that his reference

to absence of midline shift, absence of mass effect, and

calvarium (being) intact show Dr. Tomberlin was looking for a

subdural hematoma.

30 . Dr. Lursen credibly testified that when interpreting a

CT scan of the head of a trauma patient, the standard of care

requires a physician to look at several factors to detect an

abnormality. Dr. Lursen testified that assessing whether there

is a midline shift and mass effect is important because those

are two signs of intracranial hemorrhage, including subdural

hematoma. The standard of care also requires that the

radiologist look for areas of hyperdensity because hyperdensity

is an indicator o f intracranial hemorrhage. Density refers to

the amount of gray versus the amount of black and white on an

image. If an image is hyperdense, then it is whiter than the

su rrounding or adjacent structure or tissue . The radiologist

should determine whether there is a skull fracture. Finally,

the radiologist should look for acute hemorrhage.

3 1 . Dr. Lursen noted that Respondent’s CT report reflecte d

an appropriate assessment of care a reasonably prudent physician

would exercise to detect a subdural hematoma.

3 2 . Despite the appropriate assessment, however, it is

undisputed that Respondent failed to identify the subdural

hematoma.

3 3 . Dr. Lursen opined that failure to identify the

hematoma was not a departure from the sta ndard of care due to

its atypical appearance. Dr. Lursen considered the presentation

of the subdural hematoma to be atypical because of its “tiny”

size , and the absence of typical traits, “ including, mass

effect, midline shift, or inju ry to the skull in the CT images . ”

She testified that the density of the hematoma was closer to the

shade of the brain mass and there was no skull fracture.

3 4 . Further, a classical subdural hematoma is C - shaped and

causes a midline shift of the brain , which was not apparent on

Patient J.A.’s CT scan.

3 5 . Dr. Lursen provided testimony that Respondent’s

failure to identify the hematoma fell with an accepted three to

five percent error rate . That error rate includes the

presumption that the radiologist has conducted himself in a

manner in interpreting the film or image that is prudent under

the circ umstances. According to Dr. Lursen, a radiologist can

have a three to five percent error rate and still have met the

standard of care. In this case, Dr. Lursen credibly testified

that Respondent’s failure to identify the subdural hematoma f ell

within that three to five percent error rate, but he still met

the standard of care.

3 6 . Dr. Lursen testified that Dr. Tomberlin’s error fell

with in the category of an observational or perceptual error. An

observational or perceptual error occurs when a radiologist

follows the appropriate method for reviewing images but does not

perceive the a bnormality upon initial review.

3 7 . Dr. Lursen ’s opinion that Dr. Tomber l in’s failure to

identify the subdural hematoma wa s a perceptual error, which did

not fa ll outside the standard of care is credited.

Ultimate Findings of Fact

3 8 . In determining whether Dr. Tomberlin met the standard

of care, the question is not whether either of the experts could

identify t he abnormality, but whether Dr. Tomberlin used the

degree of skill and care that a reasonably prudent physician in

the medical community would exercise to detect the abnormality.

39 . To be convincing, the opinion ne eds to establish

clearly the existence of a standard of care in the profession

and explain how such standard ap plies to the facts of the case.

A n expert's opinion on the standard of care must result from a n

analysis of the facts to determine w hat a reason ably prudent

physician in the radiology community would do given the

circumstances.

40 . T he undersigned finds in Dr. Lursen’s expert testimony

t hat Dr. Tomberlin met the standard of care in his

interpretation of Patient J.A.’s CT scan more persuasive than

D r. Andriole ’s testimony . 4 /

4 1 . Thus, the Department did not establish by clear and

convincing evidence that Respondent violated the applicable

standard of care in his interpretation of the CT scan of

Patient J.A.’s head.

CONCLUSIONS OF LAW

4 2 . The Division of Administrative Hearings has

jurisdiction over the parties to and the subject matter of this

proceeding pursuant to sections 120.569, 120.57(1), and

456. 073(5 ), Florida Statutes (2019 ).

4 3 . The Department has authority to investigate and file

administrative complaints charging violations of the laws

governing the practice of nursing. § 456.073, Fla. Stat.

4 4 . This is a proceeding in which the Department seeks to

discipline Respondent’s lice nse as a medical doctor. The

Department has the burden to prove the allegations in the

Administrative Complaint by clear and convincing evidence.

Dep’t of Banking & Fin. v. Osborne Stern & Co. , 670 So. 2d

932 (Fla. 1996); Ferris v. Turlington , 595 So. 2d 292 (Fla.

1987). Fox v. Dep't of Health , 994 So. 2d 416 (Fla. 1st DCA

2008); Pou v. Dep’t of Ins. & Treasurer , 707 So. 2d 941 (Fla. 3d

DCA 1998).

4 5 . The clear and convincing evidence level of proof:

[E} ntails both a qualitative and

quantitative standard. The evidence must be

credible; the memories of the witnesses must

be clear and without confusion; and the sum

total of the evidence must be of sufficient

weight to convince the trier of fact without

hes itancy.

Clear and co nvincing evidence requires

that the evidence must be found to be

credible; the facts to which the witnesses

testify must be distinctly remembered; the

testimony must be precise and explicit and

the witnesses must be lacking in confus ion

as to the facts in issue. The evidence must

be of such weight that it produces in the

mind of the trier of fact a firm belief or

conviction, without hesitancy, as to the

truth of the allegations sought to be

established.

In re Henson , 913 So. 2d 579, 590 (Fla. 2005) (quoting

Slomowitz v. Walker , 429 So. 2d 797, 800 (Fla . 4th DCA 1983)).

While this burden of proof may be met where the evidence is in

conflict, it “seems to preclude evidence that is ambiguous.”

Westinghouse Elec. Corp. v. Shuler Bros. , 590 So. 2d 986,

988 (Fla. 1st DCA 1991).

4 6 . Because this proceeding is considered penal in

nature, Respondent can only be found guilty of those allegations

specifically referenced in the Administrative Complaint.

Trevisani v. Dep’t of Health , 908 So. 2d 1108, 1109 (Fla. 1st

DCA 2005); see also Christian v. Dep’t of Health , 161 So. 3d

416, 417 (Fla. 2d DCA 2014); Ghani v. Dep’t of Health , 714 So.

2d 1113, 1114 - 15 (Fla. 1st DCA 1998). Thus, only those allegations actually charged in the Admini strative Complaint are

considered in this Recommended Order. Moreover, charges in a

disciplinary proceeding must be strictly construed, with any

ambiguity construed in favor of the licensee. Elmariah v. Dep’t

of Prof’l Reg. , 574 So. 2d 164, 165 (Fla. 1st DCA 1990); Taylor

v. Dep’t of Prof’l Reg. , 534 So. 2d 782, 784 (Fla. 1st DCA

1988). Charging statutes must be construed in terms of their literal meaning, and words used by the Legislature may not be

expanded to broaden their application. Beckett v. Dep ’t of Fin.

Servs. , 982 So. 2d 94, 99 - 100 (Fla. 1st DCA 2008); Dyer v. Dep’t

of Ins. & Treas. , 585 So. 2d 1009, 1013 (Fla. 1st DCA 1991).

4 7 . The Administrative Complaint charges Respondent with

violating section 458.331(1)(t)1., which provided:

Notwithsta nding s. 456.072(2) but as

specified in s. 456.50(2):

1. Committing medical malpractice as

defined in s. 456.50. The board shall give

great weight to the provisions of s. 766.102

when enforcing this paragraph. Medical

malpractice shall not be construed to

require more than one instance, event, or

act.

4 8 . Section 456.50(1)(g) defined medical malpractice as

follows:

(g) “Medical malpractice” means the failure

to practice medicine in accordance with the

lev el of care, skill, and treatment

recognized in general law related to health

care licensure. Only for the purpose of

finding repeated medical malpractice

pursuant to this section, any similar

wrongful act, neglect, or default committed

in another state or country which, if

committed in this state, would have been

considered medical malpractice as defined in

this paragraph, shall be considered medical

malpractice if the standard of care and

burden of proof applied in the other state

or country equaled or ex ceeded that used in

this state.

49 . S ection 766.102 provided in pertinent part:

(1) In any action for recovery of damages

based on the death or personal injury of any

person in which it is alleged that such

death or injury resulted from the negligence

of a health care provider as defined in

s. 766.202(4), the claimant shall have the

burden of proving by the greater weight of

evidence th at the alleged actions of the

health care p rovider represented a breach

of the prevailing professional standard of

care for that health care provider. The

prevailing professional standard of care for

a given health care provider shall be that

level of care, skill, and treatment which,

in light of all relevant surrounding

circums tances, is recognized as acceptable

and appropriate by reasonably prudent

similar health care providers.

50 . The Admin istrative Complaint alleges Respondent failed

to meet the prevailing standard of care by failing to identify

the subdural hematoma on P atient J.A.’s CT scan. Both ex perts

agree d that the failure to perceive and identify an abnormalit y

that can be seen on an image does not always amount to a

depa rture from the standard of care , s uch is the case here ,

despite the outcome for the patient.

51 . As set forth in the Findings of F act herein, the

evidence in this case was not clear and convincing that

Respondent violated an applicable standard of care by failing to

identify the subdural hematoma.

52 . Based on the foregoin g , t he Department did not meet

its burden to prove , by clear and convincing evidence , that

Respondent committed a violation as alleged in the

Administrative Complaint.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Department of Health, Board of

Medicine enter a final order dismissing the Administrative

Complaint .

DONE AND ENTERED this 21st day of January, 2020 , in

Tallahassee, Leon County, Florida.

YOLONDA Y. GREEN

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 21st day of January , 202 0 .

ENDNOTE S

1/ Mr. Newman serv ed as counsel of record for Dr. Tomberlin

during the final hearing. On December 12, 2019, Ms. Hood was

substituted as counsel for Dr. Tomberlin .

2 / The undersigned granted the parties request for extension of

time to file PROs . Pursuant to F lorida Administrative Code

Rule 28 - 106.216(2 ) , the parties waived the timeline for this

Administrative Law J udge to issue this Recommended O rder within

30 days after receiving the Transcr i pt.

3/ See Section 766.102 Fla. Stat.

4 / The undersigned had the opportunity to observe the live

testimony of both expert witnesses. Both physicians were

confident in their respective po sitions. However, Dr. Lursen’s

experience, both as a practitioner and as a professional

involved in both developing and implementing programs teaching

the appropriate approach for interpreting CT scans of the head ,

outweighed Dr. Andriole. Dr. Lursen was found to be more

credible as sh e outlined an analysis of all factors to determine

whether Respondent met the standard of care. Dr. Andr iole

appeared to understand what the standard of care typically

requires, but his testimony did not persuasively establish that

his approach represente d the appropria te standard of care. Much

of his testimony seemed directed toward what he deemed to be

prudent, as opposed to what the generally accepted standard of

practice would require. M cDonald v. Dep’t of Prof’l Reg. , Bd.

of Pilot Commrs. , 582. So. 2d 660 (Fla. 1st DCA 1992); Purvis v.

Dep’t of Prof’l Reg., Bd. of Veterinary Med. , 461 So. 2d 134,

136 (Fla. 1st DCA 1984).

COPIES FURNISHED:

Jasmine B. Green, Esquire

Department of Health

Prosecution Services Unit

4052 Bald Cypress Way , Bin C - 65

Tallahassee, Florida 32399

(eServed)

Cynthia Elizabeth Nash - Early, Esquire

Department of Health

4052 Bald Cypress Way , Bin C - 65

Tallahassee, Florida 32399 - 3265

(eServed)

Kathryn Hood, Esquire

Pennington, P.A.

Suite 200

215 South Monroe Street

Post Office Box 10095

Tallahassee, Florida 32301

(eServed)

Claudia Kemp, JD, Exec utive Director

Board of Nursing

Department of Health

4052 Bald Cypress Way , Bin C - 03

Tallahassee, Florida 32399

(eServed)

Louise Wilhite - St. Laurent, General Counsel Department of Health

4052 Bald Cypress Way , Bin C65

Tallahassee, Florida 32399

(eServed)

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.