Little v. North Carolina State Bd. of Dental Examiners, 8210SC1035

• Citation: 306 S.E.2d 534,64 N.C.App. 67
• Decision Date: 20 September 1983
• Docket Number: No. 8210SC1035,8210SC1035
• Parties: Dr. Thomas A. LITTLE v. NORTH CAROLINA STATE BOARD OF DENTAL EXAMINERS.
• Court: Court of Appeal of North Carolina (US)

Page 534

306 S.E.2d 534

64 N.C.App. 67

Dr. Thomas A. LITTLE v. NORTH CAROLINA STATE BOARD OF DENTAL EXAMINERS.

No. 8210SC1035.

Court of Appeals of North Carolina.

Sept. 20, 1983.

Kenneth Hill, Raleigh, for petitioner-appellant.

Bailey, Dixon, Wooten, McDonald & Fountain by Ralph McDonald and Carson Carmichael, III, Raleigh, for respondent-appellee.

BRASWELL, Judge.

Dr. Thomas A. Little, a licensed dentist, seeks appellate review of the trial court order affirming final agency decision of the North Carolina State Board of Dental Examiners which revoked Dr. Little's license to practice dentistry. The Board of Dental Examiners found that the evidence supported the charges that Dr. Little had violated the North Carolina Dental Practice Act, G.S. 90, Article 2: by improper delegation of professional duties to dental assistants Linda D. Horton, David Terry Maness, and Connie Watts Verricchia; by unauthorized prescription of Valium to family members; and by dental malpractice in the treatment of patients Hubert J. McNeil and Ellen Rommel. We affirm.

Dr. Little brings forward eight questions for review from his assignments of error. The first six questions address the issue of whether the findings of fact and conclusions of law of the Board, adopted by the trial judge, are supported by substantial evidence in view of the entire record as submitted. The seventh question, being derivative of the first six, challenges the Board's order of 23 November 1981 as being arbitrary and capricious. The eighth question similarly challenges the trial court's order of 21 May 1982 as being arbitrary and capricious. The scope of our judicial review is controlled by the Administrative Procedure Act, G.S. 150A, Art. 4. The standard of our review is chartered by G.S. 150A-51(5) which requires us to determine whether the findings and conclusions are supported "by substantial evidence ... in view of the entire record as submitted." By case law an insignificant variation of the words "entire record" has become "whole record," and this is the test we must apply. A & T University v. Kimber, 49 N.C.App. 46, 270 S.E.2d 492 (1980); Thompson v. Board of Education, 292 N.C. 406, 233 S.E.2d 538 (1977).

In an administrative proceeding, it is the prerogative and duty of that administrative body, once all the evidence has been presented and considered, "to determine the weight and sufficiency of the evidence and the credibility of the witnesses, to draw inferences from the facts, and to appraise conflicting and circumstantial evidence. [Citations omitted.] The credibility of witnesses and the probative value of particular testimony are for the administrative body to determine, and it may accept or reject in whole or part the testimony of any witness." Comr. of Insurance v. Rate Bureau, 300 N.C. 381, 406, 269 S.E.2d 547, 565 (1980).

When the Agency decision is on review before the superior court judge, his consideration of the case is that of an appellate court. In re Faulkner, 38 N.C.App. 222, 247 S.E.2d 668 (1978). The reviewing court, both trial and appellate, "while obligated to consider evidence of record that detracts from the administrative ruling, is not free to weigh all of the evidence and reach its own conclusion on the merits." Savings and Loan Assoc. v. Savings and Loan Comm., 43 N.C.App. 493, 497, 259 S.E.2d 373, 376 (1979). The "whole record" test demands that "[i]f, after all of the record has been reviewed, substantial competent evidence is found which would support the agency ruling, the ruling must stand." Id. at 497-98, 259 S.E.2d at 376. In this context substantial evidence has been held to mean "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Comr. of Insurance v. Rating Bureau, 292 N.C. 70, 80, 231 S.E.2d 882, 888 (1977). Therefore, in reaching its decision, the reviewing court is prohibited from replacing the Agency's findings of fact with its own judgment of how credible, or incredible, the testimony appears to them to be, so long as substantial evidence of those findings exist in the whole record. In re Appeal of Amp., Inc., 287 N.C. 547, 215 S.E.2d 752 (1975).

By his recourse to the appellate division of our courts, the petitioner also seeks to have the action of both the trial tribunal and administrative agency set aside by alleging that the action was both arbitrary and capricious. See G.S. 150A-51(6). These imposing terms apply "when such decisions are 'whimsical' because they indicate a lack of fair and careful consideration; when they fail to indicate 'any course of reasoning and the exercise of judgment,' [citation omitted] or when they impose or omit procedural requirements that result in manifest unfairness in the circumstances though within the letter of statutory requirements." Comr. of Insurance v. Rate Bureau, supra, 300 N.C. at 420, 269 S.E.2d at 573, reh. denied, 301 N.C. 107, 273 S.E.2d 300 (1980). In asserting his position Dr. Little argues, in substance, as to each question presented for review that there was contradictory evidence in the entire record which materially conflicted with the evidence found and accepted as credible by the Board of Dental Examiners, that this contradictory evidence was substantial and overlooked or not considered by the Board and that by rejecting other evidence the order reflects that the Board reached its decision in an arbitrary and capricious way. We disagree and hold that material, relevant, and substantial evidence in the whole record support the final Agency decision and the decision of the superior court.

An examination of three of the questions presented will suffice to demonstrate the basis for our conclusion.

As to the charge that Dr. Little improperly delegated duties to Connie Watts Verricchia which constituted the practice of dentistry, the unchallenged evidence shows the following. Ms. Verricchia was employed as a dental assistant in Dr. Little's office from July through December 1980. During this period she was not licensed as a dentist or dental hygenist, nor had she received the necessary formal training or experience to qualify as a Dental Assistant II under the rules and regulations of the Board. She did not qualify to take dental X rays until October 1980. Her first employment in any dental office was in January 1980.

The evidence received from Ms. Verricchia which is challenged by appropriate exceptions is in the Agency's order as fact-finding paragraphs 18 through 23. In each instance the opening words of the paragraphs are: "Having considered conflicting evidence, the Board finds that Respondent directed and allowed Ms. Verricchia during the term of her employment with him to ...." The descriptive words that follow this introduction indicate the extent to which Ms. Verricchia was allowed to practice dentistry. For instance, she was permitted: to remove from the oral tissues of his patients, including Ellen Rommel, bone splinters and on occasion root tips which had surfaced after extractions by respondent; to apply topical anesthetic and then to remove the bone particle with cotton pliers if possible, and if not, with Rongeur's forceps; to diagnose and treat dry sockets; to adjust and grind down full dentures; to adjust partial dentures; to take impressions of edentulous patient's mouths; to perform "hot" or chair-side relines of dentures; and to take X rays.

These findings of ultimate facts are fully supported by a reading of the evidentiary facts in the transcript. For example, the transcript reveals that Ms. Verricchia took 80% of the X rays that were taken during her period of employment and this included taking panorexes X rays of the patient Ellen Rommell in her first month of employment. It also shows that when patients returned after extractions complaining of pain, Dr. Little delegated solely to her care those patients he had labeled as problem patients. Her testimony in the transcript details the procedure she used when attending a patient with bone splinters. She would take a Q-tip and rub a topical anesthetic on the area, then take cotton pliers to try to lift the bone spicules, or would use a Ronguers instrument which trimmed the bone. With dry or infected sockets she would clean it out and pack it with sterile gauze and put some medication on it. She performed these procedures with respect to bone splinters on patient Ellen Rommel several times. As for the total patients for the office, Ms. Verricchia saw about 20% on a daily basis. The testimony of Ms. Verricchia was supported and corroborated in various parts by the testimony of Ellen Rommel, David Terry Maness, and Jane Venters.

Dr. Little testified himself and offered evidence through several witnesses. He refuted the fact that Ms. Verricchia was authorized to take X rays before she had completed her technical course in October 1980 and that he permitted her to remove splinters and root tips or to diagnose or...