Whitmire v. Oregon State Board of Chiropractic Examiners

533 P.2d 1375, 21 Or. App. 139, 1975 Ore. App. LEXIS 1349
CourtCourt of Appeals of Oregon
DecidedApril 14, 1975
Docket3768
StatusPublished

This text of 533 P.2d 1375 (Whitmire v. Oregon State Board of Chiropractic Examiners) is published on Counsel Stack Legal Research, covering Court of Appeals of Oregon primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Whitmire v. Oregon State Board of Chiropractic Examiners, 533 P.2d 1375, 21 Or. App. 139, 1975 Ore. App. LEXIS 1349 (Or. Ct. App. 1975).

Opinion

THORNTON, J.

Petitioner seeks judicial review of an order of the Board of Chiropractic Examiners (Board) denying petitioner’s application for a license to practice chiropractic. ORS 183.480.

The findings filed by the Board recite the following chronology of events:

On June 16-18, 1973, petitioner took a regular state examination to practice chiropractic, hut failed to pass.

On July 24-26, 1973, the Board permitted petitioner to take a second state examination, hut petitioner failed to pass two subjects, Clinical Laboratory and Diagnosis.

On September 26, 1973, the Board permitted petitioner to take a third state examination in the two subjects in which he had failed. Petitioner passed Diagnosis, hut again failed Clinical Laboratory.

The findings also recite that on some unspecified date in 1973 petitioner received a passing score in Clinical Laboratory by taking a national examination in this subject administered under the auspices of the National Board of Chiropractic Examiners. The Oregon Board found that

“* * * The test was not as strict as a test administered by this Board and was graded on a curve.
[142]*142“* * * The Board does not grade on a curve, but on individual merit.”

On April 5, 1974, petitioner was permitted to take a fourth state examination in Clinical Laboratory-only, but failed to pass.

Petitioner then requested a hearing as a result of having failed the last examination. Following a hearing on June 20, 1974, the Board found that petitioner had failed the April 5 examination and was not entitled to practice chiropractic.

Petitioner contends that the Board erred (1) in not accepting the results of the test in the subject of Clinical Laboratory given by the National Board of Chiropractic Examiners which petitioner passed; (2) in requiring petitioner to take the April 5, 1974 test in Clinical Laboratory and ruling that petitioner had failed; (3) in applying an invalid and unconstitutional 75 per cent standard to petitioner’s April 5 examination; and (4) in limiting the scope of the hearing requested on denial of the license.

A threshold issue in this ease is the contention by petitioner that he was wrongfully denied the opportunity to supplement the record of the administrative hearing with documents he deems vital to a proper judicial review by this court. We do not agree.

ORS 183.480(4) provides in part:

“* * # The court [of appeals] may require or permit subsequent corrections or additions to the record when deemed desirable * *

ORS 183.480(5) provides in part:

“If, on review of a contested case, before the date set for hearing, application is made to the court for leave to present additional evidence, and it is shown to the satisfaction of the court that the additional evidence is material and that there were good and substantial reasons for failure to present it in [143]*143the proceeding before the agency, the court may order that the additional evidence be taken before the agency upon such conditions as the court deems proper. * * *”

In Terry v. Layman, 12 Or App 283, 287-88, 505 P2d 930, Sup Ct review denied (1973), this court stated:

“While ORS 183.480 provides that the public agency shall prepare and certify the record for judicial review by this court, it is the petitioner’s responsibility to make certain that the record is sufficiently complete to permit this court to review whatever issues he seeks to raise. Petitioner has legal means of compelling the respondent agency to certify a complete record if not satisfied with the record certified. ORS 183.480(4). It is not for this court on this appeal to order a more complete record. * * *”

We are of the opinion that petitioner’s request of March 10, 1975, which was more than three and one-half months after the record had been served, and after petitioner’s and respondent’s briefs had been filed in this court and the case set for argument, was not timely made, and was therefore properly denied. Moreover, most of the documentary evidence which petitioner was seeking to have added to the record concerned the Board’s actions on examinations taken by petitioner prior to April 5,1974. In our view of this case, the issue is the validity of the Board’s action solely with reference to the April 5 examination. Petitioner’s proposed evidence would therefore not be relevant. (See our discussion of petitioner’s fourth assignment, infra.)

Turning to the merits, for the reasons which follow we reach the conclusion that on the record before us none of petitioner’s contentions can be sustained.

The state has plenary power to regulate the [144]*144various healing arts, including chiropractic. This power includes the power to require practitioners of these arts to obtain licenses as a condition of engaging in practice, Semler v. Oregon Dental Examiners, 148 Or 50, 34 P2d 311 (1934), aff'd 294 US 608, 55 S Ct 570, 79 L Ed 1086 (1935), and to pass a satisfactory examination before licensure. Collins v. Texas, 223 US 288, 32 S Ct 286, 56 L Ed 439 (1912).

Under ORS 183.480(7) (a) and (d) we are required to affirm if we find that the administrative decision is not “unlawful in substance or procedure,” and there is substantial evidence in the record supporting it. Hickam v. Morgan, 9 Or App 25, 495 P2d 1243 (1972).

We have examined the record and findings and conclusions of the Board and conclude that the administrative decision is not unlawful in substance or procedure in any of the particulars challenged by petitioner, and that there is substantial evidence therein to support the decision of the Board that petitioner failed the April 5 examination. We can find no evidence in the record to support several unessential findings, e.g., that petitioner took and failed prior examinations, that petitioner took and passed the national examination in Clinical Laboratory, that the national examination was not as strict as a test administered by the Oregon Board.

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Related

Collins v. Texas
223 U.S. 288 (Supreme Court, 1912)
Semler v. Oregon State Board of Dental Examiners
294 U.S. 608 (Supreme Court, 1935)
Hickam v. Morgan
495 P.2d 1243 (Court of Appeals of Oregon, 1972)
State Sanitary Authority v. Pacific Meat Co.
360 P.2d 634 (Oregon Supreme Court, 1961)
Semler v. Oregon State Board of Dental Examiners
34 P.2d 311 (Oregon Supreme Court, 1934)
Miller v. Medical Board
52 P. 763 (Oregon Supreme Court, 1898)
Terry v. Layman
505 P.2d 930 (Court of Appeals of Oregon, 1973)

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Bluebook (online)
533 P.2d 1375, 21 Or. App. 139, 1975 Ore. App. LEXIS 1349, Counsel Stack Legal Research, https://law.counselstack.com/opinion/whitmire-v-oregon-state-board-of-chiropractic-examiners-orctapp-1975.