Wright v. Tennessee Board of Dispensing Opticians

759 S.W.2d 929, 1988 Tenn. App. LEXIS 505
CourtCourt of Appeals of Tennessee
DecidedAugust 17, 1988
StatusPublished
Cited by2 cases

This text of 759 S.W.2d 929 (Wright v. Tennessee Board of Dispensing Opticians) is published on Counsel Stack Legal Research, covering Court of Appeals of Tennessee primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Wright v. Tennessee Board of Dispensing Opticians, 759 S.W.2d 929, 1988 Tenn. App. LEXIS 505 (Tenn. Ct. App. 1988).

Opinion

OPINION

TODD, Presiding Judge.

This is a judicial review of an administrative decision of the Tennessee Board of Dispensing Opticians whereby the license of Jimmy Wright, a Dispensing Optician, was suspended indefinitely. The Trial Judge affirmed the decision of the Board, and Jimmy Wright appealed to this Court presenting three issues as follows:

1. Did the trial Court err in concluding that the findings of fact made by the Board of Dispensing Opticians are sufficient for judicial review in view of the nature of the controversy and the intensity of the factual dispute?
2. Did the trial Court err in concluding that the findings of fact of the Board of Dispensing were, with one exception, supported by evidence which is both substantial and material in light of the entire record in the case?
3.Did the trial Court err in concluding that the decision of the Board of Dispensing Opticians was not arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion?

Appellant was notified of forty three charges as to which the Board heard evidence. The Board found appellant guilty of five separate violations of regulatory laws and/or regulations. The judgment upon the first violation is conceded to be unsupported by evidence, so that only four violations are involved in the present appeal. They are:

2. Respondent has performed some type of refraction on patient Sheppard.
3. Respondent has treated a human ailment of physical condition of the eye by placing drops in patient Dickerson’s eye.
4. Respondent has made eye glasses for patient Sheppard without a written prescription from an ophthalmologist or optometrist.
5. Respondent has incompetently prepared eye glasses for patient Sheppard.

The evidence supporting charge no. 2, above, is as follows:

Ms. Sheppard testified that she went to appellant in 1983 for an eye examination because of pressure behind her eyes; that appellant examined her eyes, had her read a chart and look through a big black machine similar to one she had looked through in the office of an eye doctor.

The evidence supporting charge no. 3 is as follows:

Ms. Dickerson testified that she developed an eye infection, that her eyes were “very red and prickly”; that she consulted appellant who had her look through a machine, assured her that nothing was wrong with her eyes, put some drops in them and told her that the drops should take care of [931]*931the situation; and that appellant put drops in her eyes every day for a week or more.

Appellant denied any contact or transaction with or treatment of Ms. Dickerson.

Charge no. 4 is supported by the following evidence:

Ms. Sheppard testified that when she first saw appellant she used no glasses or contact lenses; that appellant examined her eyes, and told her that she needed glasses which would be ready in about a week; and that appellant did furnish glasses to her, but told her to go to a doctor for a second opinion.

Charge no. 5 is supported by the following evidence:

Ms. Sheppard testified that she could not see through the glasses furnished by appellant that her eyes hurt worse after use of the glasses, and that she subsequently obtained other glasses from a qualified practitioner which were satisfactory.

Appellant denied any contact or transaction with or treatment of Ms. Sheppard.

Appellant first insists that the findings of fact by the Board are insufficient for judicial review. T.C.A. § 4-5-314(c) provides as follows:

(c) A final order, initial order or decision under § 50-7-304 shall include conclusions of law, the policy reasons therefor, and findings of fact for all aspects of the order, including the remedy prescribed and, if applicable, the action taken on a petition for stay of effectiveness. Findings of fact, if set forth in language that is no more than mere repetition or paraphrase of the relevant provision of law, shall be accompanied by a concise and explicit statement of the underlying facts of record to support the findings....

The findings of fact by the Board are as follows:

2.Respondent has performed some type of refraction on patient Sheppard.
3.Respondent has treated a human ailment or physical condition of the eye by placing drops in patient Dickerson’s eye.
4. Respondent has made eye glasses for patient Sheppard without a written prescription from an ophthalmologist or optometrist.
5. Respondent has incompetently prepared eye glasses for patient Sheppard.

Appellant asserts that the Board erred in failing to render a finding of fact as to 38 of the 43 charges against him. Since appellant was not found guilty in respect to 38 of the charges, the failure to find facts in respect to said charges is harmless, appellant was not prejudiced thereby, and he has no standing to complain.

Appellant next asserts that finding no. 2, above, is outside the scope of the charges originally filed against him. Counts (6) and (7) of the charges are as follows:

Counts Six (6) and Seven (7) — on or about January 20, 1983, and late 1983 or early 1984, Respondent performed eye examinations on patients Sheppard and Bird-well, respectively.

One of the accepted meanings of the word, refraction, is:

The act or technique of determining ocular refraction and identifying abnormalities as a bases for the prescription of corrective lenses.
Webster's Third New International Dictionary, Unabridged.

The word, ocular, means:

Of or relating to or connected with the eye.

Ibid.

It is therefore clear that the finding that appellant “performed some type of refraction on patient Sheppard” is equivalent in meaning to “performed an eye examination on patient Sheppard”.

Finding no. 1 was therefore within the scope of the charges, especially counts (6) and (7), quoted above.

Appellant next complains that the Board gave no reasons for accepting or [932]*932accrediting some evidence offered against him and not rejecting his evidence. This Court does not understand the law to require the Board to explain its decisions as to credibility of witnesses. No authority is cited by appellant to support such a duty and none is known to this Court. As to those matters on which the Board found facts and found appellant guilty, the findings speak for themselves. The Board believed the evidence supporting its findings and disbelieved evidence to the contrary.

Appellant next states correctly that, on petition for review, the Courts are required to:

Review the entire record and to take into account whatever in the record fairly detracts from its weight. T.C.A. § 4-5-322

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Bluebook (online)
759 S.W.2d 929, 1988 Tenn. App. LEXIS 505, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wright-v-tennessee-board-of-dispensing-opticians-tennctapp-1988.