Altos v N & S Trolley Services Pty Ltd
[2022] NSWPICMP 87
•14 April 2022
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Altos v N & S Trolley Services Pty Ltd [2022] NSWPICMP 87 |
| APPELLANT: | Najib Altos |
| RESPONDENT: | N & S Trolley Services Pty Ltd |
| APPEAL PANEL: | Member Catherine McDonald Dr Mark Burns Dr John Dixon-Hughes |
| DATE OF DECISION: | 14 April 2022 |
| CATCHWORDS: | WORKERS COMPENSATION- Claim for further permanent impairment compensation for lumbar spine and digestive system; Medical Assessor issued two Medical Assessment Certificates (MAC); MACs internally inconsistent; requirement to show path of reasoning; State of NSW v Kaur discussed; re-examination Held– MAC revoked. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 26 November 2021 Najib Altos lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Richard Crane, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 10 November 2021 and a further certificate on 23 November 2021.
The appellant relies on the following grounds of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act):
· the assessment was made on the basis of incorrect criteria, and
· the MAC contains a demonstrable error.
The delegate was satisfied that, on the face of the application, at least one ground of appeal has been made out, being that the MAC contains a demonstrable error. The Appeal Panel has conducted a review of the original medical assessment but limited to the grounds of appeal on which the appeal is made.
The WorkCover Medical Assessment Guidelines 2018 set out the practice and procedure in relation to the medical appeal process under s 328 of the 1998 Act. An Appeal Panel determines its own procedures in accordance with the WorkCover Medical Assessment Guidelines 2018.
The assessment of permanent impairment is conducted in accordance with the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed 1 April 2016, reissued 1 March 2021 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5).
RELEVANT FACTUAL BACKGROUND
Mr Altos was working as a trolley collector on 8 December 2004 for N & S Trolley Services Pty Ltd (N & S) when he experienced low back pain while pushing a stack of about 15 trolleys. He saw his general practitioner and continued working until 18 February 2005. He ceased work and underwent extensive conservative treatment.
Mr Altos made a claim for permanent impairment compensation and saw Dr Adler who issued a MAC on 18 December 2006. Dr Adler assessed 5% whole person impairment (WPI) and apportioned 4% to the injury on 8 December 2004 and 1% to the nature and conditions of Mr Altos’ employment between 29 November 2004 and 18 February 2005.
Mr Altos underwent further treatment, including surgery. Associate Professor Papantoniou undertook L4/5 nucleoplasty on 25 November 2019 and L5/S1 nucleoplasty on 23 December 2019.
On 9 March 2021, Mr Altos claimed compensation in respect of permanent impairment of his lumbar spine and digestive system.
The Medical Assessor issued the first MAC on 10 November 2021 and assessed 0% WPI. He issued an amended MAC on 23 November 2021 in which he assessed 5% WPI in respect of his lumbar spine and 0% in respect of his digestive system. There is no explanation in the second MAC as to why it was issued.
PRELIMINARY REVIEW
The Appeal Panel conducted a preliminary review of the original medical assessment in the absence of the parties and in accordance with the WorkCover Medical Assessment Guidelines 2018.
As a result of that preliminary review, the Appeal Panel determined that the worker should undergo a further medical examination because the physical findings set out in the second MAC were inconsistent with the assessment made.
EVIDENCE
The Appeal Panel has before it all the documents that were sent to the Medical Assessor for the original medical assessment and has taken them into account in making this determination.
Dr Mark Burns and Dr John Dixon-Hughes of the Appeal Panel conducted an examination of the worker on 14 March 2022 and reported to the Appeal Panel.
The parts of the medical certificate given by the Medical Assessor that are relevant to the appeal are set out, where relevant, in the body of this decision.
SUBMISSIONS
Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel.
In summary, and in submissions prepared by his solicitor Mr Santone, Mr Altos submitted that the Medical Assessor:
(a) failed to take Dr Adler’s MAC into account;
(b) failed to conduct a proper examination and assessment of the accepted lumbar spine injury;
(c) made inconsistent findings about the lumbar spine injury;
(d) did not consider and assess deterioration of Mr Altos’ lumbar spine injury;
(e) incorrectly applied a causation test to the accepted injury to Mr Altos’ digestive system;
(f) issued an amended MAC in contravention of ss 294(3) and 325(3) of the 1998 Act, and
(g) did not follow the guidelines in issuing an amended certificate.
In reply, and in submissions prepared by Mr Michael, N & S said that the Medical Assessor had referred to the previous MAC and that he took an adequate assessment of the lumbar spine, despite observing abnormal illness behaviour. N & S said that it was appropriate for the Medical Assessor to be cautious in those circumstances. It said that the Medical Assessor provided an examination for the deterioration since the first MAC, being that it was a progression of degenerative disease. With respect to Mr Altos’ digestive system, N & S said that the Medical Assessor had not conflated liability issues with the assessment of impairment.
N & S said that the right to seek correction of an obvious error does not detract from the right of a decision maker to promptly make corrections, referring to Minister for Immigration and Multicultural Affairs v Bhardwaj[1] where Gleeson CJ “generally rejected any blanket principle that once a power to make an administrative decision has been purportedly exercised, it was necessarily spent”.
[1] [2002] HCA 11 at [5].
FINDINGS AND REASONS
The procedures on appeal are contained in s 328 of the 1998 Act. The appeal is to be by way of review of the original medical assessment but the review is limited to the grounds of appeal on which the appeal is made.
In Campbelltown City Council v Vegan[2] the Court of Appeal held that the Appeal Panel is obliged to give reasons. Where there are disputes of fact it may be necessary to refer to evidence or other material on which findings are based, but the extent to which this is necessary will vary from case to case. Where more than one conclusion is open, it will be necessary to explain why one conclusion is preferred. On the other hand, the reasons need not be extensive or provide a detailed explanation of the criteria applied by the medical professionals in reaching a professional judgement.
[2] [2006] NSWCA 284.
The Workers Compensation Commission issued Dr Adler’s MAC on 18 December 2016 and his findings are set out above. Because Mr Altos’ previous claim was determined before 19 June 2012, he was able to make one further claim for permanent impairment compensation.
In respect of Mr Altos’ grounds of appeal, we note that the task of the Medical Assessor was to assess Mr Altos as he presented on the day of the examination[3]. It was not his role to consider Dr Adler’s MAC, to take into account the amount assessed at that time. It was also not his role to consider deterioration because the claim was a further claim for compensation not an appeal under s 327(3)(a).
[3] Guidelines paragraph 1.6(a)
The first MAC
The examination took place on 25 October 2021 and the first MAC was dated 10 November 2021. The Medical Assessor summarised the treatment Mr Altos underwent. He recorded Mr Altos’ symptoms:
“The main problem is described as permanent low back pain, passing down the backs of both lower extremities in a global distribution to affect the entire limbs, including the feet and toes. He believes the situation is gradually getting worse and he does not think he would be able to work anymore.
Mr Altos also complains of having upper abdominal discomfort almost every day but says his appetite is satisfactory and he has to pay attention to the intake of food as permitted with his diabetes. His bowels open every day and he says the motions are quite hard. He has been told he has haemorrhoids and describes having had two operations but exactly when these were is not really able to be accurately explained. Rectal bleeding is not described.
Mr Altos believes that the medications he is taking to control his back discomfort have caused the abdominal problems and he is taking one Nexium tablet daily to try and control the abdominal discomfort.”
When describing his examination the Medical Assessor said:
“Examination of the back was difficult, as Mr Altos had trouble co-operating with requested movements and there did appear to be abnormal illness behaviour .
There was no deformity of the back and no surgical scarring was seen in the lumbar spinal area. There were some small dimples laterally at the region of the L5/S1, which
I assume would have been where the nucleoplasty procedures had been carried out in November and December of 2019.Range of motion of the lumbar spine was symmetrically reduced in all directions by about one third concerning flexion, extension, lateral bending and rotation with no evidence of dysmetria, muscle spasm or guarding.
Mid-thigh circumference was 50cm on the right and 49cm on the left, with maximum calf circumference 39cm bilaterally. Sensation was described as globally reduced over the right lower extremity and this also involved the feet and all the toes. Muscle power, tone and reflexes appeared normal, although testing muscle power and tone it was very difficult to obtain a proper response from the claimant.
Abdominal examination was normal and anal examination showed only a few small skin tags with no evidence of external haemorrhoids.
The global nature of reduced sensation over the entire right lower extremity followed no dermatomal or neurological pathways and there was consequently no evidence of radiculopathy.”
The Medical Assessor summarised the injuries and diagnoses:
“There is discogenic disease at the lumbar spine, mainly involving L4/5 and L5/S1. There is also evidence of medications taken for the discomfort having a secondary effect on the digestive system.”
Despite the comments above, the Medical Assessor said:
“There were no obvious inconsistencies but as indicated earlier, obtaining a precise history presented significant difficulties.”
The Medical Assessor gave reasons for his assessment:
“From the documentation with which I have been provided, there is no evidence to suggest that the subject motor accident would have caused more than a minor soft tissue injury to the lumbar spine, which would have rapidly resolved.
Examination findings did not reveal evidence of dysmetria, muscle spasm or guarding, or any neurological impairment or other indication of impairment related to the injury.
There was also no documented evidence to suggest the occurrence of haemorrhoids resulting from the incident and examination did not show any evidence of these haemorrhoids.”
The Medical Assessor said that he was unable to confirm Dr Adler’s findings.
There is nothing in the file or the second MAC to explain why it was issued. Section 57(2) of the Personal Injury Commission Act 2020 (the 2020 Act) provides that the President may correct an obvious error. The second MAC was issued by the President’s delegate. Section 57(4) to (6) provide:
“(4) If a decision is altered, the altered decision is taken to be the decision and notice of the alteration is to be given to the parties in the proceedings in the manner directed by the President.
(5) If a replacement certificate is issued, the certificate prevails over any previous certificate.
(6) Examples of obvious errors in a decision are where—
(a)there is an obvious clerical or typographical error in the text of the notice or statement, or
(b)there is an error arising from an accidental slip or omission, or
(c)there is a defect of form, or
(d)there is an inconsistency between the stated decision and the stated reasons.”
There was one obvious error in the first MAC because the Medical Assessor described the injury as a motor accident. Other aspects of the MAC were changed which were not obvious errors.
The amended MAC
The amended MAC is dated 23 November 2021 and, under s 57(5) of the 2020 Act it prevails over the first MAC. We have confined our consideration to the errors in the second MAC.
The history of treatment and symptoms is the same as in the first MAC, though the statement that Mr Altos does not describe rectal bleeding has been removed.
The description of the examination was the same though the paragraph describing the range of motion was amended to read:
“Range of motion of the lumbar spine was symmetrically reduced in all directions by about one-third concerning extension, lateral bending and rotation but there was a 50% reduction in flexion. Here [sic] was no evidence of muscle spasm or guarding.”
The Medical Assessor said:
“Abdominal examination was normal and anal examination showed only a few small skin tags with no evidence of haemorrhoids.”
Despite that, the Medical Assessor said that there was evidence of medication having a secondary effect on the digestive system, based presumably on Mr Altos’ description of his symptoms.
The summary of injury and diagnoses and the consistency of presentation remained the same as in the first MAC.
In the amended MAC the Medical Assessor explained his calculations in the following way:
“Of the documentation with which I have been provided, there is no evidence to suggest that the subject work incident would have caused more than soft tissue injury to the lumbar spine.
Examination findings revealed dysmetria in the lumbar spine but no muscle spasm or guarding, or any neurological impairment or other indication of impairment related to the injury. There was no radiculopathy.
I have noted the medical assessment certificate of the approved medical specialist Dr R Adler, dated 8 December 2006, provided for the Workers Compensation Commission approximately 2 years after the work incident when he assessed 5% WPI of the lumbar spine.
I consider that any deterioration of the claimant’s situation following that would not have been related to the work injury but simply a progression of the discogenic disease shown on radiology at the time of the work incident. This includes my opinion that there is no relationship to the work incident of the surgical procedure performed on the lumbar spine.
In this regard, I have also noted the opinion of orthopaedic surgeon Dr Vijay Panjratan who did not find evidence of past radiculopathy leading to the surgical procedures and considered there was no evidence of radiculopathy on his examination of the claimant.
Occupational physician Dr Uthum Dias, reporting for the claimant, found 0% WPI related to the work incident as concerns the lumbar spine.
Having carefully considered all this information, I have come to the conclusion that it is reasonable to accept the assessment of Dr Adler provided for the WCC two years after the work incident. The assessment of Dr Adler was DRE II of the lumbar spine with 5% WPI. My examination findings did show some dysmetria also leading to a similar WPI.
There was also no documented evidence to suggest the occurrence of haemorrhoids resulting from the incident and examination did not show haemorrhoids.”
Demonstrable error
It is appropriate that we consider only the second MAC, it is clear that the Medical Assessor made a demonstrable error because several statements in the MAC are inconsistent and it is not possible to discern how the Medical Assessor arrived at his assessment. While he was not required to provide extensive reasons, it was necessary that he explain the path of his reasoning.
The Medical Assessor said that he observed abnormal illness behaviour but there were no inconsistencies. Those statements cannot sit together.
The Medical Assessor did not explain why he considered that the discogenic disease suffered by Mr Altos was not related to the injury in 2004 other than to say he considered that the injury was a soft tissue injury. Despite that he paraphrased the report of an MRI scan undertaken on 24 May 2005, six months after the injury which showed “degenerative disc disease at L4/5 and L5/S1 with right intraforaminal L4/5 disc protrusion which had the potential of irritating the exiting right L4 nerve root”. The MRI scan report by Dr Cass dated 24 May 2005[4] identified the degenerative disc disease and noted that the dominant abnormality was an “annular tear with right intraforaminal L4/5 disc protrusion which may well irritate the exiting right L4 nerve root.”
[4] MAP brief p 2382.
The Medical Assessor accepted that there was evidence of the effect of pain-relief medication on Mr Altos’ digestive system but said that the examination was normal.
Campbell J said in State of New South Wales (NSW Department of Education) v Kaur[5]:
“In Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43; 252 CLR 480, the High Court of Australia dealt with the nature of the jurisdiction exercised by a medical panel under cognate Victorian legislation. The legislation is not entirely the same but it is broadly similar in purpose. Allowing for some differences, the High Court said at page 498 [47]:
‘The material supplied to a medical panel may include the opinions of other medical practitioners, and submissions to the Medical Panel may seek to persuade the Medical Panel to adopt reasoning or conclusions expressed in those opinions. The Medical Panel may choose in a particular case to place weight on the medical opinion supplied to it in forming and giving its own opinion. It goes too far, however, to conceive of the functions of the panel as being either to decide a dispute or to make up its mind by reference to completing contentions or competing medical opinions. The function of a medical panel is neither arbitral or adjudicative: It is neither to choose between competing arguments nor to opine on the correctness of other opinions on that medical question. The function is in every case to perform and to give its own opinion on the medical question referred to it by applying its own medical experience and its own medical expertise.’
Not all of this, as I have said, is apposite in the context of the New South Wales legislation. In particular it is obvious that approved medical specialists are required to decide disputes referred to them by the process of medical assessment. Even so, it is not necessary that approved medical specialists should sit as decision makers choosing between the competing medical opinions put forward by the parties. Essentially, the function is the same as that described by the High Court in Wingfoot Australia. That is to say, their function is in every case to form and give his or her own opinion on the medical question referred by applying his or her own medical experience and his or her own medical expertise. It is sufficient, as their Honours pointed out at [55], that:
‘The statement of reasons… explain the actual path of reasoning in sufficient detail to enable the Court to see whether the opinion does or does not involve any error of law.’”
[5] [2016] NSWSC 346 at [25]-[26]..
The nature of the errors made a re-examination essential. The report of Drs Burns and Dixon-Hughes is attached to these reasons. We adopt that report.
Re-assessment
On re-examination, Mr Altos did not fulfil two or more of the criteria for the assessment of radiculopathy in paragraph 4.27 of the Guidelines. Paragraphs 4.27 and 4.28 provide:
“Radiculopathy is the impairment caused by malfunction of a spinal nerve root or nerve roots. In general, in order to conclude that radiculopathy is present, two or more of the following criteria should be found, one of which must be major (major criteria in bold):
· loss or asymmetry of reflexes
· muscle weakness that is anatomically localised to an appropriate spinal nerve root distribution
· reproducible impairment of sensation that is anatomically localised to an appropriate spinal nerve root distribution
· positive nerve root tension (AMA5 Box 15-1, p 382)
· muscle wasting – atrophy (AMA5 Box 15-1, p 382)
· findings on an imaging study consistent with the clinical signs (AMA5, p 382).
Radicular complaints of pain or sensory features that follow anatomical pathways but cannot be verified by neurological findings (somatic pain, non-verifiable radicular pain) do not alone constitute radiculopathy.”
However, A/Prof Papantoniou stated in his reports from August to October 2019, that Mr Altos had sciatica or radiculopathy. A/Prof Papantoniou recommended and Mr Altos underwent nucleoplasties, on 25 November 2019 (L4/5) and on 23 December 2019 (L5/S1). A nucleoplasty is often defined as a percutaneous discectomy and is the removal of a small amount of disc material to relieve pressure on a nerve root. The purpose of the procedure is to treat radicular symptoms and/or signs.
Based on that history, Mr Altos should be assessed in DRE Lumbar Category III because he had radiculopathy but is now asymptomatic, resulting in 10% WPI. Assessment in that category is appropriate for, among other things:
“history of a herniated disc at the level and on the side that would be expected from objective clinical findings, associated with radiculopathy, or individuals who had surgery for radiculopathy but are now asymptomatic.”
Based on Mr Altos’ history, it is appropriate to assess 2% for the impact on his activities of daily living, resulting in an assessment of 12% WPI.
Because he has undergone two operations at two levels Table 4.2 of the Guidelines requires that a further 3% be combined with that assessment, resulting in an assessment of 15% WPI in respect of his lumbar spine.
Because Mr Altos was injured in 2004, no deduction under s 323 was appropriate.
There was no evidence of ongoing upper digestive tract disease with symptoms, signs or anatomic loss or alteration. Therefore no assessment of WPI would be made under Table
6-3 of AMA 5.Mr Altos has been treated by Dr Sanki who undertook a gastroscopy in 2010 which showed gastritis and duodenitis. Dr Sanki confirmed this diagnosis in his report dated 30 June 2013. He has undergone the appropriate investigations to permit the assessment under paragraph 16.9 of the Guidelines.
In respect of the lower digestive tract, there was evidence of ongoing symptoms (discomfort and bleeding) with anatomical changes (internal haemorrhoids). This is evidence of rectal disease which would be assessed as Class 1 from Table 6-4 of AMA 5. This class allows assessment in the range of 0 – 9% WPI.
At the time of rectal examination there was no evidence of prolapse of the haemorrhoids, Mr Altos would therefore be assessed toward the lower end of the class at 3% WPI.
For these reasons, the Appeal Panel has determined that the MAC issued on 23 November 2021 should be revoked, and a new MAC should be issued. The new certificate is attached to this statement of reasons.
PERSONAL INJURY COMMISSION
APPEAL PANEL
MEDICAL ASSESSMENT CERTIFICATE
Injuries received after 1 January 2002
This Certificate is issued pursuant to s 328(5) of the Workplace Injury Management and Workers Compensation Act1998.
The Appeal Panel revokes the Medical Assessment Certificate of Dr Richard Crane and issues this new Medical Assessment Certificate as to the matters set out in the Table below:
Table - Whole Person Impairment (WPI)
| Body Part or system | Date of Injury | Chapter, page and paragraph number in WorkCover Guides | Chapter, page, paragraph, figure and table numbers in AMA 5 Guides | % WPI | Proportion of permanent impairment due to pre-existing injury, abnormality or condition | Sub-total/s % WPI (after any deductions in column 6) |
| Lumbar spine | 8.12.2004 | Ch 4, pp 24-29 | Ch 15, p 384, Table15-3 | 15% | 0 | 15% |
| Digestive system | 8.12.2004 | Ch 16, pp 78-79 | Ch 6, pp 117-138 | 3% | 0 | 3% |
| Total % WPI (the Combined Table values of all sub-totals) | 18% | |||||
The above assessment is made in accordance with the Guidelines for the Evaluation of Permanent Impairment for injuries received after 1 January 2002
Catherine McDonald
Member
Mark Burns
Medical Assessor
John Dixon-Hughes
Medical Assessor
14 April 2022
PERSONAL INJURY COMMISSION
APPEAL AGAINST MEDICAL ASSESSMENT
REPORT OF THE EXAMINATION BY MEDICAL ASSESSOR
MEMBERS OF THE APPEAL PANEL
| Examination Conducted By: | Dr Mark Burns & Dr John Dixon-Hughes |
| Date of Examination: | 14 March 2022 |
Ms Virginia Khoshaba, an Official Assyrian interpreter was present by telephone for the duration of the assessment.
The workers medical history, where it differs from previous records.
Mr Altos confirmed the medical history obtained by Assessor Crane (23 November 2021). He believes that a request for a spinal fusion has been made by Dr Papantoniou, but to date no response has come from the Insurer.
Additional history since the original Medical Assessment Certificate was performed.
He reported that he has received no further treatment since Dr Crane’s assessment and has had no further investigations.
Current Symptoms:
Lumbar Spine:
He reported constant pain into both sides of his low back, which he described as “band like”. He rated the average pain as 7-8/10 on the Visual Analog Scale (VAS). The pain radiates into both legs and involves the entire leg on each side. The pain comes and goes and occurs every 30 - 60 minutes for a short period.
In the right leg he reported numbness in the lateral side of the leg which runs down to the foot and involves all toes. He also reported a burning sensation into the sole of the right foot. In the left leg he did not report any numbness but stated that the right leg feels weaker than the left.
He stated that he has lost bowel control on 4 – 5 occasions over the years but has never lost control in passing urine.
Digestive System:
Mr Altos confirmed that he has upper abdominal discomfort but did not report any specific symptoms of Gastroesophageal reflux. He eats a normal diet looking after his diabetes. His main problem is chronic constipation with hard motions. His bowels do open regularly (daily). When questioned about bleeding from the rectum, he reported very occasional bright bleeding. It is not a major problem, but he has been told that he has recurrent haemorrhoids.
Current Treatment:
He currently sees Dr Emil Guirgis, GP for certificates and prescriptions.
He has no further appointments with Dr Papantoniou, Neurosurgeon until the insurer approves the request for spinal fusion.
Current medications include Nurofen and Panadol for pain relief as well as Voltaren gel.
He is currently having no formalised physiotherapy or other treatment.
Findings on clinical examination
Mr Altos was noted to walk with a mildly antalgic gait with a stick in his right hand. It was noted that his gait was not altered when he did not use the stick.
Lumbar Spine:
Tenderness was present in the midline from L4 – S1. Mild lateral tenderness was also noted but there was no evidence of muscle spasm or muscle guarding. Flexion was 1/3rd predicted but extension was almost absent due to reports of back pain. Lateral flexion to the left and right was 1/3rd predicted and symmetrical.
Straight leg raising was 60º bilaterally in the seated position but only 20º bilaterally in the supine position. He reported increased low back pain but no radicular pain. This was a negative nerve root tension sign.
Neurological examination of both lower limbs revealed decreased sensation mostly in the right leg which did not follow a nerve root pattern. Muscle power was decreased in all muscle groups (in both legs) on manual muscle testing and did not follow a nerve root pattern. At rest muscle tone was noted to be normal. Ankle reflexes were present and symmetrical in both legs. Knee and Medial Hamstring reflexes were difficult to measure due to complaints of pain but were present and symmetrical.
Thigh circumference 10cm above the patella was 44.5cm bilaterally. Mid-calf circumference was 38.5 cm bilaterally.
Digestive System:
Palpation of the abdomen revealed no localised tenderness.
Examination of the anal region revealed several skin tags only. Proctoscopy revealed large internal haemorrhoids. Discussion with Mr Altos revealed that they do occasionally prolapse and do occasionally bleed.
Results of any additional investigations since the original Medical Assessment Certificate
No further investigations have been performed
[Image unable to be replicated]
Signed: Dr Mark Burns Dr J. Dixon Hughes OAM
Date: 14 March 2022
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