Aminova and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
[2011] AATA 683
•30 September 2011
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2011] AATA 683
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2010/4009
GENERAL ADMINISTRATIVE DIVISION ) Re Aliya Aminova Applicant
And
Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
Respondent
DECISION
Tribunal Senior Member A K Britton Date30 September 2011
PlaceSydney
Decision The decision under review is affirmed. .......................[sgd].......................
Senior Member A K Britton
CATCHWORDS
SOCIAL SECURITY – disability support pension – eligibility – whether applicant permanent resident when first had continuing inability to work – decision under review affirmed
Social Security Act 1991 (Cth) – ss 94(1), 94(2), 94(5), 94(1)(e), Sch1B
Social Security (Administration) Act 1999 (Cth) – ss 41, 42, sch 2 cl 4(1)
Administrative Appeals Tribunal Act 1975 (Cth) – s 37
Secretary, Department of Family and Community Services v Michael (2001) 116 FCR 500; [2001] FCA 1811
REASONS FOR DECISION
30 September 2011 Senior Member A K Britton 1. Mrs Aliya Aminova challenges the decision made by Centrelink and affirmed by the Social Security Appeals Tribunal (SSAT) to refuse her claim for Disability Support Pension (DSP). Mrs Aminova is 60 years of age and arrived in Australia in 1997. On 8 January 2010 she became a permanent resident of Australia having been granted a carer visa in respect of her adult son.
2. To qualify for DSP, a person must have an impairment of 20 points or more, as assessed under the Impairment Tables in Schedule 1B of the Social Security Act 1991 (Cth) (the Act), and a “continuing inability to work”: s 94(1). These criteria must be satisfied at, or within 13 weeks of the date the claim was made, in this case, 28 April 2010 to 28 July 2010 (the claim period): ss 41, 42, sch 2 cl 4(1) of the Social Security (Administration) Act 1999 (Cth) (the Administration Act). Mrs Aminova will not qualify for DSP if she first had a “continuing inability to work” before she became an “Australian resident”: s 94(1)(e).
3. Centrelink and the SSAT accepted that Mrs Aminova (i) had an impairment of at least 20 points as a result of three claimed conditions: diabetes, depression, and a “shoulder and elbow condition” and, (ii) as a result, had a “continuing inability to work”. However both decided that Mrs Aminova did not qualify for DSP because her incapacity arose before she became an Australian resident.
4. In these proceedings, Mrs Aminova submitted that prior to becoming an Australian resident her long-standing diabetes and depression were largely under control and she did not become incapacitated for employment until she made her claim for DSP three months later. In addition, she contended that despite listing “shoulder pain with limited range movement” in the claim lodged with Centrelink on 28 April 2010 as a “claimed condition”, that condition had largely resolved by 2006. In addition she argues that in the assessment of her claim, hand and hip conditions should be taken into account.
Eligibility criteria for DSP
5. Mrs Aminova will qualify for DSP if she satisfies the criteria set out in s 94(1) of the Act, that is, if she has:
·a physical, intellectual or psychiatric impairment (s 94(1)(a)); and
·an impairment of 20 points or more under the Impairment Tables (s 94(1)(b)); and
·a “continuing inability to work” as a result of that impairment, sufficient to prevent her from doing any work that exists in Australia, for at least 15 hours per week or undertake training, for the next two years (ss 94(1)(c), 94(2), 94(5)).
6. Mrs Aminova must also satisfy paragraphs (i), (ii) or (iii) of s 94(1)(e). She cannot satisfy paragraph (ii) because she does not have “qualifying Australian residence” as defined by s 7(6) or a “qualifying residence exemption” (see s 7(6B)). Nor can she satisfy paragraph (iii) she is not a dependent child of an Australian resident.
7. Therefore Mrs Aminova must satisfy paragraph (i) if her application is to succeed. This requires that Mrs Aminova was an “Australian resident” at the time she first satisfied s 94(1)(c). “Australian resident” is defined by s 7(2) of the Act to mean a person who resides in Australia; and among other things is the holder of a permanent visa. Mrs Aminova became an “Australian resident” on 8 January 2010.
The Impairment Tables
8. The stated purpose of the Impairment Tables referred to in s 94(1)(b) is to assess whether a claimant for DSP “meets an empirically agreed threshold in relation to the effect of their impairments, if any, on their ability to work” (sch 1B of the Act). Paragraphs 4 and 5 of the Introduction to the Table are relevant to that determination and for convenience are set out below:
4. A rating is only to be assigned after a comprehensive history and examination. For a rating to be assigned the condition must be a fully documented, diagnosed condition which has been investigated, treated and stabilised. The first step is thus to establish a working diagnosis based on the best available evidence. Arrangements should be made for investigation of poorly defined conditions before considering assigning an impairment rating. In particular where the nature or severity of a psychiatric (or intellectual) disorder is unclear appropriate investigation should be arranged.
5. The condition must be considered to be permanent. Once a condition has been diagnosed, treated and stabilised, it is accepted as being permanent if in the light of available evidence it is more likely than not that it will persist for the foreseeable future. This will be taken as lasting for more than two years. A condition may be considered fully stabilised if it is unlikely that there will be any significant functional improvement, with or without reasonable treatment, within the next 2 years.
9. Paragraph 6 sets outs the factors that must be considered in making the assessment and relevantly provides:
6. In order to assess whether a condition is fully diagnosed, treated and stabilised, one must consider:
what treatment or rehabilitation has occurred;
whether treatment is still continuing or is planned in the near future;
whether any further reasonable medical treatment is likely to lead to significant functional improvement within the next 2 years.
Claim lodged by Mrs Aminova
10. In a claim lodged with Centrelink on 28 April 2010, Mrs Aminova listed as her illnesses/injuries: “abdominal pain, diabetes, depression, shoulder pain with limited range movement both arms, right elbow torn muscle, left hip arthritis requires hip replacement”.
11. She described the treatment she was receiving for those conditions in these terms:
Daily insulin injections, anti-depressant medication, steroid injections into muscle, counselling with psychologist, gastro specialist, gynaecologist
12. She answered “yes” to the question “Does this treatment affect your ability to work?” and elaborated:
Not able to use arms for lifting, continuous abdominal pain affects day to day living, feel lethargic in need of frequent rest, unable to walk long distance due to the above illnesses
13. In answer to the question, “When do you think you could do any activities that would help prepare you for work?”, Mrs Aminova ticked the box “not sure”.
Treating doctor’s report
14. A medical report prepared by her GP, Dr Nora Abelev, accompanied Mrs Aminova’s claim. Dated 9 April 2010, the report listed “insulin dependent diabetes” as the condition having “most impact” on Mrs Aminova’s functional capacity. Dr Abelev wrote that diabetes affected her patient’s ability to function in this way:
Inability to work due to need to have frequent small meals and administer insulin/low endurance and concentration
15. Dr Abelev wrote that she expected this to continue for “more than 24 months”.
16. Dr Abelev listed as “Condition 2” — “right and left supraspinatus (shoulder) tendinitis and right elbow tendinitis”. She described Mrs Aminova’s current symptoms as:
Pain in right shoulder/right elbow — cannot lift anything even a kettle
17.She described the impact on Mrs Aminova’s ability to function in these terms:
Inability to lift and do repetitive movement of right arm
18. Dr Abelev indicated that she expected this to continue for between three to 24 months. She also indicated that over the next 24 months the effect of this condition on Mrs Aminova’s ability to function was likely to “fluctuate”.
19. Dr Abelev listed “left hip osteoarthritis” and “right upper quadrant abdominal pain” as conditions having “minimal or limited impact” on Mrs Aminova’s ability to function.
Job Capacity assessment
20. After receipt of her claim, Centrelink referred Mrs Aminova to psychologist Ms Eleni Demetriou for a job capacity assessment. On the basis of a file review, Ms Demetriou concluded in a report dated 26 May 2010 that Mrs Aminova’s condition of diabetes, depression and “shoulder and upper arm disorder” were permanent and had been “fully treated and stabilised”. She assigned a total impairment rating of 45 points under the Impairment Tables:
Diabetes 20
Shoulder and upper arm disorder 15
Depression 10
21. In respect of Mrs Aminova’s capacity to work, Ms Demetriou wrote:
The client is experiencing significant limitations in endurance, energy levels, manual strength and psychological level of functioning due to the cumulative impact of permanent medical conditions.
Report of Authorised Review Officer
22. The Centrelink Authorised Review Officer (ARO) who reviewed the original decision to refuse Mrs Aminova’s claim for DSP spoke by phone to Mrs Aminova on 25 June 2010 through a Russian interpreter and made a file note of that conversation. The note reads, in part:
Mrs Aminova said that she injured her shoulder at a job in 2002 when she was cleaning. She said that she had been unable to work since this incident. I asked if she has any evidence of this injury and she said she has papers with her solicitor. I asked when she had her three operations on her shoulder and she said she did not remember. She thinks the first was in 2003 and the last in 2005.
She has had depression for two or three years and has been having psychological treatment and medication.
The diabetes started in 2003 and she took tablets and it has become more serious in the last year. She takes insulin four times a day now.
She has had an operation on her bladder.
She needs a hip replacement
She has pain in her stomach
She has high blood pressure seeing a specialist
She said that she visits her doctor regularly – almost every day.
She has no energy and has to lie in bed
Alleged errors in claim form and Dr Abelev’s report
23. Mrs Aminova alleges that the claim form lodged with Centrelink in April 2010, and the accompanying medical report prepared by Dr Abelev, contain the following material errors:
24. Diabetes: Mrs Aminova disagreed with the comment made by Dr Abelev that she had a “long history of diabetes”. Mrs Aminova stated that she was treated by the “diabetes clinic”, not Dr Abelev, who was not familiar with her condition.
25. According to Mrs Aminova she was diagnosed with diabetes and prescribed “pills” when she came under the care of Dr Abelev in about 2007.
26. Mrs Aminova testified that before becoming an Australian resident she had a “very light form of diabetes” which did not prevent her working. She claimed that throughout 2009 her condition had been stable and she had been looking for a job. She stated that she did not commence daily insulin injections until November 2009 and by April 2010 her condition had deteriorated to such an extent that she required four injections per day. She could not recall if she stopped looking for work in November 2009 because of her health.
27. Depression: According to Mrs Aminova, she was not disabled from depression until April 2010. On her account, while she had been seeing a psychologist for a number of years, she did not commence taking anti-depressant medication until April 2010 or seeing a psychiatrist until the following year.
28. Shoulder: Mrs Aminova testified that despite listing “shoulder pain” as a claimed condition, she was not troubled by her shoulder after surgery was performed in 2005.
29. Mrs Aminova was asked to comment on the following extracts from the report prepared by Dr Abelev:
History
2005 - surgery to right shoulder. This is her third surgery. Severe pain - one year- Right elbow pain following a fall.
Current symptoms
Pain in right shoulder, right elbow - cannot lift anything, even a kettle.
30. Mrs Aminova claimed she had never mentioned problems with her shoulder to Dr Abelev — “it wasn’t an issue”. She stated that the reference to “severe elbow pain for one year” was a mistake as she did not injure her elbow until 2010 although she was unsure when she did so. She was unable to offer an explanation as to why Dr Abelev had written that she could not lift a kettle. When taken to the answer she gave to the question, “Does this treatment affect your ability to work or study?” — “Not able to use arms for lifting”, Mrs Aminova testified that it was “not true” and she was “100 per cent confident” that her shoulder did not bother her when she submitted her claim. She suggested that Dr Abelev might have confused her shoulder with her elbow.
Completion of the claim form
31. Mrs Aminova’s first language is Russian and is not fluent in spoken or written English. The claim form lodged with Centrelink in April 2010, was completed by her adult son who is fluent in English. Mrs Aminova testified that she told her son what to write and he read back what he had written. However she claimed that she did not fully appreciate that the claim form was a legal document and if she had, she would have taken more care. Her son stated the reason he listed “shoulder condition” as one of his mother’s claimed conditions was because it was his understanding that all, not just current, complaints were required to be listed.
Additional claims
32. In these proceedings, Mrs Aminova requested that her claim for DSP be assessed on the basis of the conditions listed by Dr Abelev in her letter to the SSAT dated 4 August 2010. In that letter, Dr Abelev wrote “since receiving permanent residency [Mrs Aminova] has had new onset health conditions which include:
1 Right elbow pain – severe tendonitis. Had injections and imaging
2 Worsening depression. Has seen a psychiatrist and is now taking antidepressant medication
3 Unstable diabetes: worsening glycaemic control. Seems to be quite resistant to insulin. She is now using insulin injections four times a day at quite high doses.
4 Severe pain in her hands.
5 Left hip osteoarthritis. Had hip replacement surgery scheduled but deferred for now due to disease settling somewhat and due to unstable diabetes.”
33. Mrs Aminova requested that her alleged shoulder condition be disregarded.
Evidence received after the hearing
34. At the close of these proceedings, Mrs Aminova was invited to provide further medical evidence to address the apparent discrepancy between the evidence she gave in these proceedings and the claims made in her initiating claim and Dr Abelev’s original report. Mrs Aminova submitted eight reports from various practitioners (the supplementary material). Where relevant they are referred to below.
Does Mrs Aminova qualify for DSP?
35. For the purpose of this assessment, I will examine each claimed condition including those listed by Dr Abelev as set out above.
Diabetes
36. Mrs Aminova’s claim that she was not especially troubled by her diabetes throughout 2009 is unsupported and inconsistent with the weight of evidence. It will be recalled that in the medical report accompanying Mrs Aminova’s claim for DSP, Dr Abelev nominated diabetes as the condition having the “most impact” on her patient’s ability to function. Mrs Aminova’s assertion that Dr Abelev had no knowledge of her condition is inconsistent with the many reports before me prepared by Dr Abelev.
37. Indeed, if the upbeat account given by Mrs Aminova in these proceedings about her condition at the time she lodged her claim was accepted, it is arguable that it could not be assigned an impairment rating under the Impairment Tables. While there is evidence that her condition deteriorated after April 2010, the weight of evidence indicates that at least by the commencement of the claim period the condition was “permanent” and had been fully documented, diagnosed and investigated, treated and stabilised. Therefore a rating can be assigned under the Impairment Tables.
38. I agree with Ms Demetriou that Mrs Aminova’s diabetes should be assessed under Table 19 of the Impairment Tables and awarded 20 points because during the claim period the condition was “poorly controlled”.
39. I will return to consider whether that condition resulted in any incapacity for employment, and if so whether that incapacity first arose before Mrs Aminova became an Australian resident.
Depression
40. As noted, Mrs Aminova listed depression as one of her claimed conditions. Dr Abelev made no mention of depression in her original report but in a letter to the SSAT dated 4 August 2010 nominated “worsening depression” as one of five “new onset” health conditions.
41.In an assessment report dated 26 May 2010, Ms Demetriou wrote:
Diagnosis: Depression; Onset: 2008; Treatment: Antidepressant medication and psychological counselling on a regular basis for the last three years. No further significant interventions are planned and the condition is assessed as ‘fully diagnosed, treated and stabilised’ and an impairment rating will be assigned.
42. In that report Ms Demetriou identified the “previous assessment” as her source of information about Mrs Aminova’s depression. The report of the previous assessment was not included in the material provided to the Tribunal under s 37 of the Administrative Appeals Tribunal Act 1975 (Cth). After the hearing, at my request, the previous assessment was provided to the Tribunal and Mrs Aminova. It reveals that on 14 April 2010 a “face to face” assessment was conducted by Ms Demetriou, apparently in relation to an earlier claim made by Mrs Aminova. In her report, Ms Demetriou identified a “medical certificate” as the “source” of her information for her conclusion that Mrs Aminova’s depression was “permanent”. That certificate is not before me. Both parties were invited to make submissions about the “previous assessment” report but declined to do so.
43. Despite the shortcomings in the evidence, I am satisfied that, as Ms Demetriou concluded, prior to the end of the claim period Mrs Aminova’s depression was “permanent” and had been fully documented, diagnosed and investigated, treated and stabilised. As confirmed by Dr Abelev, Mrs Aminova was commenced on anti-depressant medication in April 2010. By that time, there was a long-standing diagnosis of depression for which Mrs Aminova had been receiving treatment from psychologist Ms Tania Alexander for at least 14 months.
44. It follows that a rating can be assigned under the Impairment Tables. Table 6 lists five possible ratings for psychiatric impairment: nil to 40. The criteria for a rating of 10 is a follows:
Moderate and regular symptoms and generally functioning with some difficulty, (eg. noticeable reduction in social contacts or recreational activities, or the beginnings of some interference with interpersonal or workplace relationships). May have received psychiatric treatment which has stabilised the condition. Minor effects on work attendance and/or ability to work but the impairment would not prevent full-time work (eg. short periods of absence from work).
45. I agree with Ms Demetriou’s decision to award the condition 10 points.
Hand pain
46. Dr Abelev, in her most recent report, stated that Mrs Aminova suffered from bilateral carpel tunnel syndrome affecting the function of both hands. That report makes no mention of the date of onset or what treatment, if any, Mrs Aminova had received before the end of the claim period.
47. In a report dated 1 November 2010, hand and wrist surgeon, Dr Stuart Myers noted that Mrs Aminova had a six month history of hand pain and that nerve condition studies revealed bilateral carpel tunnel syndrome. On 6 December 2010 he wrote that an injection that day to various fingers had “abolished her pain”. On 15 November 2010 he reported some improvement following further injections. He wrote that surgery might eventually be needed.
48. There is no evidence of Mrs Aminova receiving treatment for carpel tunnel syndrome prior to the end of the claim period. Indeed, Dr Myers’s report of 1 November 2010 places the date of onset shortly after Mrs Aminova lodged her claim. This would explain the absence of any mention of the condition in either the claim form or Dr Abelev’s original report.
49. The evidence in my opinion does not support a finding that the condition had been fully treated and stabilised during the claim period. A rating therefore cannot be assigned under the Impairment Tables.
Right elbow
50. In a report dated 17 February 2010, Dr Leonard Kuo wrote that he had referred Mrs Aminova for physiotherapy and hydrotherapy and that if her condition did not improve she might benefit from steroid injections. It is unclear whether that treatment was undertaken. In her original report, Dr Abelev wrote that following a steroid injection there had been some improvement and that Mrs Aminova would be reviewed by Dr Kuo the following month.
51. I am unable to find on the evidence before me that that the condition had been fully treated and stabilised before the end of the claim period. Therefore a rating cannot be assigned.
Left hip osteoarthritis
52. There is conflicting evidence about this condition. In her original report, Dr Abelev described it as “generally well managed … caus[ing] minimal or limited impact on ability to function”. In evidence given in these proceedings, Mrs Aminova stated that in about April 2010, while on the waiting list for a hip replacement, the disabling pain she had been experiencing in her hip disappeared. Dr Abelev’s most recent report sheds no light on the issue and simply states that the condition is still present and getting worse.
53. On what is before me, I am not satisfied that prior to the end of claim period the condition had been fully stabilised and treated. Therefore a rating cannot be assigned.
Shoulder condition
54. Despite stating in her initiating claim that she suffered “shoulder pain with limited range movement of both arms”, in these proceedings Mrs Aminova denied any shoulder problems after 2006. In the report that accompanied Mrs Aminova’s initiating claim, Dr Abelev listed — “right and left supraspinatus (shoulder) tendinitis and right elbow tendinitis” as the condition with the second greatest impact on Mrs Aminova’s capacity to function and that “Pain in right shoulder/right elbow — [means that she] cannot lift anything even a kettle”. In contrast, in her most recent report dated 5 August 2011, Dr Abelev wrote that Mrs Aminova’s shoulder had settled after surgery and she had regained close to full range of motion. In addition she stated that Mrs Aminova did not have acute shoulder pain and this was “not [Mrs Aminova’s] main problem”. No explanation has been provided for the apparent discrepancy between these reports.
55. Absent independent evidence, it is not possible to resolve these conflicting accounts. However, for the reasons that follow, it is unnecessary to do so because I have decided that Mrs Aminova was not an Australian resident when her continuing ability to work on account of depressions and diabetes first arose.
Continuing inability to work
56. Mrs Aminova has an impairment of at least 35 points under the Impairment Tables based on her depression and diabetes and therefore satisfies paragraphs (a) and (b) of s 94(1). Paragraphs (d) and (f) of s 94(1) are also satisfied. Accordingly, Mrs Aminova will be eligible for DSP if, at some point within the claim period, she satisfied paragraph (e), that is, had “a continuing inability to work” and, was an Australian resident when she first satisfied paragraph (e): s 94(1)(e)(i).
57. Mrs Aminova will have a “continuing inability to work” if the impairment resulting from diabetes and depression, of itself, is sufficient to prevent her from doing work that exists in Australia for at least 15 hours per week or undertake a training activity during the next two years (ss 94(2)) and 94(5)). The relevant two‑year period for the purpose of s 94(1)(c) is the period commencing on the date of claim or any date within the claim period.
58. As Dr Abelev wrote in her report of April 2010, Mrs Aminova’s diabetes caused “low endurance and poor concentration”. In combination with her depression, which Ms Demetriou assessed as resulting in low mood, limited motivation, reduced concentration and memory, its seems to me more probable than not that Mrs Aminova had a “continuing inability to work” or undertake a training program for at least two years from the date of lodging her claim for DSP.
When did the continuing inability to work first arise?
59. The final issue to be determined is whether Mrs Aminova’s “continuing inability to work” pre-dated her becoming an Australian resident. The inter-relationship between s 94(1)(c) and s 94(1)(e) was considered by the Full Court of the Federal Court in Secretary, Department of Family and Community Services v Michael (2001) 116 FCR 500. In a joint judgement, Kiefel and Dowsett JJ stated, at 508:
We favour the construction of s 94(1)(e)(i) which requires the decision-maker to determine when the actual impairment identified for the purposes of s 94(1)(a), (b) and (c) was first such as to prevent the claimant from doing any work within the 2 year period identified for the purposes of s 94(1)(c). It is true that such an exercise will sometimes be difficult to perform. As was recognised by the Full Court in Raizenberg, any exercise of this kind will pose problems. However, in most cases, the decision-maker will have only to determine whether or not the impairment as it is at the relevant time was present at the time at which the claimant became an Australian resident. It is only where the condition has become more or less acute, or where one of the other variable factors to which we have referred has come into operation that the matter will become more difficult.
60. Despite being invited to do so at the end of the hearing, Mrs Aminova did not provide any medical evidence to support her claim that her diabetes or depression did not impact on her functional capacity before April 2010.
61. Mrs Aminova’s claim that throughout 2009 she felt well and had been looking for work is unsupported and inconsistent with the contemporary note made by the authorised review officer in June 2010, which records her as saying that she had been unable to work since injuring her shoulder in 2002 and that her diabetes had become more serious in “the last year”.
62. While there is evidence that Mrs Aminova’s diabetes has worsened since April 2010, it seems to me more probable than not that it had adversely affected her capacity for employment prior to becoming an Australian resident.
63. Mrs Aminova’s claim that she was essentially untroubled by depression until April 2010 is inconsistent with the weight of evidence. Since at least January 2009 her condition was considered serious enough to warrant regular psychological counselling. Her treating psychologist, Ms Tania Alexander, in a letter to the SSAT dated 10 August 2010, wrote that when she first met Mrs Aminova in January 2007 she was experiencing “a lot of stress and depressed mood due to a long period of uncertainty of tenure and multiple psychological stressors”. She stated that a combination of factors had left Mrs Aminova with “complex psychological trauma”. In that letter — essentially a submission setting out why she believes it is unfair that her patient is ineligible for DSP — Ms Alexander notes that her patient’s capacity to work had not been assessed at the time she became an Australian resident and therefore cannot be “confirmed”. She did not offer an opinion about Mrs Aminova’s claim that she was essentially untroubled by depression prior to April 2010. Indeed read as a whole, the letter indicates that Mrs Aminova’s condition is long-standing and impacted on Mrs Aminova’s employment capacity well before April 2010.
64. While difficult to pinpoint when Mrs Aminova’s impairment from diabetes and depression and resultant “continuing inability to work” first arose, I am satisfied that it arose prior to her becoming an Australian resident.
65. It follows that s 94(1)(e) is not satisfied and therefore Mrs Aminova’s claim for DSP must be refused and the decision under review affirmed.
I certify that the 65 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member A K Britton
Signed: .....................................[sgd]...........................
Associate to Senior Member A K BrittonDate/s of Hearing 1 August 2011
Date of Decision 30 September 2011
Representative for the Applicant Mr M AminovsSolicitor for the Respondent Mr A Rado, Centrelink Program Litigation and Review Branch
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