Dawn McKenzie and Repatriation Commission
[2013] AATA 216
[2013] AATA 216
Division Veterans' Appeals Division File Number(s)
2010/3682
Re
Dawn McKenzie
APPLICANT
And
Repatriation Commission
RESPONDENT
DECISION
Tribunal Deputy President J W Constance
Date 11 April 2013 Place Melbourne The decision under review, being the decision of the Repatriation Commission made 20 November 2009 rejecting Mrs McKenzie's claim for a pension in accordance with the Veterans' Entitlements Act 1986 (Cth), is affirmed.
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Deputy President J W Constance
CATCHWORDS
VETERANS' AND MILITARY COMPENSATION – widow’s pension – whether death was war-caused –– cardiomyopathy – malignant neoplasm of the oesophagus – whether material raises an hypothesis connecting the death with the circumstances of operational service – smoking and supply of cigarettes to members of the Australian Defence Forces –– decision under review affirmed.
LEGISLATION
Veterans’ Entitlements Act 1986 (Cth) ss 9, 120, 120A
CASES
Dixon v Repatriation Commission [1999] FCA 582
East v Repatriation Commission (1987) 16 FCR 517
Forrester and Repatriation Commission [2012] AATA 846
McKenna v Repatriation Commission (1996) 86 FCR 144Repatriation Commission v Deledio (1998) 83 FCR 82
REASONS FOR DECISION
Deputy President J W Constance
INTRODUCTION
Mrs McKenzie is the widow of the late Mr McKenzie who served in the Royal Australian Air Force during the Second World War. He served in the Philippines.
Mrs McKenzie has applied for a pension under the Veterans’ Entitlements Act 1986 (Cth). Her application has been refused by the Commission and Mrs McKenzie has applied to this Tribunal for a review of that decision.
For the reasons which follow the decision under review will be affirmed.
MATERIAL BEFORE THE TRIBUNAL
Mr McKenzie’s service records
Mr McKenzie was a member of the Royal Australian Air Force from 10 July 1942 until 25 January 1946. He served in the Philippines from 1 August 1945 until 27 October 1945.[1]
[1] Exhibit RR2 p.1.
Mrs McKenzie’s evidence
Mr and Mrs McKenzie were married in 1953. Mrs McKenzie first met Mr McKenzie about one year before their marriage.
Mr McKenzie did not smoke tobacco at any time after he and Mrs McKenzie met.
Mr McKenzie told Mrs McKenzie the following:
owhen he was serving in the Philippines his duties involved the interception and de-coding of Japanese Army signals;
ohis duties in the Philippines were stressful; he undertook long shifts which were tedious and he felt keenly the sense of responsibility which these duties imposed upon him;
ohe began smoking during his service years as he worked in a small group and he felt pressure to smoke;
otobacco was readily available during his service and he received rations of tobacco;
othere were long periods during service when he was inactive and felt bored and he would pass the time by smoking;
oin the Philippines he served not far from where there was enemy contact;
ohis habit extended for approximately 10 years, from about the time of his enlistment until shortly before [they] met.[2]
[2] Exhibit AA1.
Mr McKenzie did not tell Mrs McKenzie how much he smoked.
Mr McKenzie’s treating general practitioner for 30-40 years was Dr Menzies of Camperdown, Victoria.
In about April 2009 Mr McKenzie was diagnosed as suffering cancer of the oesophagus.
When she gave evidence at the hearing of this matter on 11 February 2013 Mrs McKenzie said that her husband did not tell her how much he smoked but that she understood he smoked 10-15 cigarettes per day. She later said that he said that he smoked 10-15 cigarettes per day. Mrs McKenzie did not give evidence as to the time for which Mr McKenzie smoked this quantity of cigarettes.
Mrs McKenzie also gave evidence in this matter on 3 November 2011. On that occasion she said that she did not know how many cigarettes per day were smoked by Mr McKenzie.[3] She said that she believed Mr McKenzie had been a moderate smoker and that by moderate she meant a consumption of 10-15 cigarettes per day.[4]
[3] Exhibit AA11 p.24.
[4] Exhibit AA11 p.28.
Ms McKenzie’s evidence
Ms McKenzie is the daughter of Mr and Mrs McKenzie. She was born in 1963.
Ms McKenzie recalls that when she was about 10 years old she had a conversation with her father during which she asked him if he had ever smoked and he replied that he was a keen smoker and that he smoked anything he could get [his] hands on.[5] She also recalls her father telling her that he found smoking inconvenient whilst at work and that he smoked a lot.[6]
[5] Transcript 11.2.13.
[6] Transcript 11.2.13.
Extracts from letters from Mr McKenzie to his family while on operational service[7]
[7] Exhibit AA10.
While overseas Mr McKenzie wrote:
Cigarettes are for sale on board for 3/- per carton of 200, which of course is less duty, which boosts up prices many times ashore.
On 28 June 1945 Mr McKenzie wrote:
We are get [sic] 600 cigarettes for a pound very shortly. Not bad eh!
On 24 July 1945 he wrote:
All along the railway line the local kids + grown ups crowded around the train trying to exchange Jap invasion money for cigarettes which by the way are worth a peso a packet (3/1) of twenty to sell to the natives.
On 5 August 1945 he wrote:
As this is still supposed to be an operational area , we receive a free issue of American cigarettes – a packet of twenty a day …… We got our “comforts issue” as they call it tonight. It consisted of five packets of yank Raleigh cigarettes & five boxes of matches. We have an issue every five days & so are allowed twenty cigarettes per day.
On 9 August 1945 he wrote:
I also bought a pipe at the Yank canteen for three shillings. …
On 17 August 1945 he wrote:
… I still have my pipe & even went so far as to buy some cleaners for it tonight, because two chaps moved out of the tent as a protest against the high scent of the rattling thing. (It wasn’t quite as bad as that but I still have it anyway).
On 17 September 1945 he wrote:
I had to go to Manilla the other day to pick up our ration of smokes …
References to Mr McKenzie’s smoking habit in South West Health Care clinical notes[8]
[8] Exhibit AA7.
Date Reference to smoking Page number
29/10/80 Non-smoker 444
05/03/96 No 402
03/11/99 Non-smoker for 50 years 176
21/05/04 Former 60 years ago 346
01/12/04? No 136
02/01/05 No 292
02/01/05 Former 297, 295
16/02/09 Ever? Yes. Stopped? 60 years ago 274
26/04/09 Never 240
27/04/09 Ever? Yes. Stopped? 1950 247
06/07/09 Former 60 years ago 211, 209
References to Mr McKenzie’s smoking habit in Epworth Health care clinical notes[9]
[9] Exhibit AA5.
Date Reference to smoking Page number
09/02/99 No 129
19/10/99 No 57
24/05/00 No 31
31/03/03 Past 50 years ago 13
References to Mr McKenzie’s smoking habit in Dr Menzies’ clinical notes[10]
[10] Exhibit AA8.
On 18 June 2003 Dr Menzies recorded that Mr McKenzie smoked 60 years ago.
Report of Dr Lynch, Radiation Oncologist
On 1 June 2009 Dr Lynch reported that histopathology carried out in May 2009 revealed Mr McKenzie had moderate to poorly differentiated adenocarcinoma arising in an area of Barrett’s oesophagus … .[11]
[11] Exhibit AA6 p.4.
Report of Dr Ung, Radiology Oncology Registrar
In a report dated 25 June 2009[12] Dr Ung noted that Mr McKenzie had completed a course of palliative radiotherapy which commenced on 1 June 2009 and was completed on 22 June 2009.
[12] Exhibit AA6 p.5.
Report of Dr Collins, Consultant Forensic Pathologist
In his report dated 30 May 2011[13] Dr Collins agreed with the stated cause of death in the autopsy report and that there was a reasonable possibility that the cancer of the oesophagus contributed to Mr McKenzie’s death. He agreed also with Dr Lynch’s view that the type of oesophageal cancer was moderately to poorly differentiated adenocarcinoma.
[13] Exhibit AA3.
Report of Professor Cade, Intensive Care Specialist[14]
[14] Exhibit RR1.
In the opinion of Professor Cade [t]he cause of the veteran’s death was undoubtedly his severe cardiomyopathy, as listed on the death certificate. … I also agree with the forensic pathologist’s conclusion that the veteran’s death from cardiomyopathy was contributed to … by his oesophageal cancer…. As the oesophageal cancer had been treated recently by chemotherapy and radiotherapy and as it was not metastatic, it was not currently problematic. However, the mediastinal radiotherapy recently given to the patient can exacerbate cardiac disease, as listed in factor 6.z.s. [sic] in the Statement of Principles for cardiomyopathy.
Report of Professor Harper, Consultant & Interventional Cardiologist
In a report dated 18 February 2011 Professor Harper stated that he was uncertain as to whether oesophageal cancer contributed to Mr McKenzie’s death.[15]
LEGISLATIVE BACKGROUND
[15] Exhibit RR4.
War-caused injury
Section 9 of the Act sets out the circumstances in which an injury is taken to be “war‑caused”. The relevant parts of that section are:
9 War‑caused injuries or diseases
(1)Subject to this section and section 9A, for the purposes of this Act, an injury suffered by a veteran shall be taken to be a war‑caused injury, or a disease contracted by a veteran shall be taken to be a war‑caused disease, if:
(a) the injury suffered, or disease contracted, by the veteran resulted from an occurrence that happened while the veteran was rendering operational service;
(b) the injury suffered, or disease contracted, by the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran.
Standard of proof
Section 120 relevantly provides:
120 Standard of proof
(1)Where a claim under Part II for a pension in respect of the incapacity from injury or disease of a veteran, or of the death of a veteran, relates to the operational service rendered by the veteran, the Commission shall determine that the injury was a war‑caused injury, that the disease was a war‑caused disease or that the death of the veteran was war‑caused, as the case may be, unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.
Note: This subsection is affected by section 120A.
…
(3)In applying subsection (1) or (2) in respect of the incapacity of a person from injury or disease, or in respect of the death of a person, related to service rendered by the person, the Commission shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining:
(a)that the injury was a war‑caused injury or a defence‑caused injury;
(b)that the disease was a war‑caused disease or a defence‑caused disease; or
(c)that the death was war‑caused or defence‑caused;
as the case may be, if the Commission, after consideration of the whole of the material before it, is of the opinion that the material before it does not raise a reasonable hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person.
Note: This subsection is affected by section 120A.
…
(6)Nothing in the provisions of this section, or in any other provision of this Act, shall be taken to impose on:
(a)a claimant or applicant for a pension or increased pension, or for an allowance or other benefit, under this Act; or
(b)the Commonwealth, the Department or any other person in relation to such a claim or application;
any onus of proving any matter that is, or might be, relevant to the determination of the claim or application.
Reasonable hypothesis and a Statement of Principles
Subsection 120A(3) provides:
For the purposes of subsection 120(3), a hypothesis connecting an injury suffered by a person, a disease contracted by a person or the death of a person with the circumstances of any particular service rendered by the person is reasonable only if there is in force:
(a) a Statement of Principles determined under subsection 196B(2) or (11); or
(b) a determination of the Commission under subsection 180A(2);
that upholds the hypothesis.
APPLYING THE LAW
In Repatriation Commission v Deledio[16] the Full Court of the Federal Court set out the steps to be taken in determining claims which arise from operational service such as this:
1. The Tribunal must consider all the material which is before it and determine whether that material points to a hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person. No question of fact finding arises at this stage. If no such hypothesis arises, the application must fail.
2. If the material does raise such a hypothesis, the Tribunal must then ascertain whether there is in force a SoP [Statement of Principles] determined by the Authority under s 196B(2) or (11). If no such SoP is in force, the hypothesis will be taken not to be reasonable and, in consequence, the application must fail.
3. If a SoP is in force, the Tribunal must then form the opinion whether the hypothesis raised is a reasonable one. It will do so if the hypothesis fits, that is to say, is consistent with the "template" to be found in the SoP. The hypothesis raised before it must thus contain one or more of the factors which the Authority has determined to be the minimum which must exist, and be related to the person's service (as required by ss 196B(2)(d) and (e)). If the hypothesis does contain these factors, it could neither be said to be contrary to proved or known scientific facts, nor otherwise fanciful. If the hypothesis fails to fit within the template, it will be deemed not to be "reasonable" and the claim will fail.
4. The Tribunal must then proceed to consider under s 120(1) whether it is satisfied beyond reasonable doubt that the death was not war-caused, or in the case of a claim for incapacity, that the incapacity did not arise from a war-caused injury. If not so satisfied, the claim must succeed. If the Tribunal is so satisfied, the claim must fail. It is only at this stage of the process that the Tribunal will be required to find facts from the material before it. In so doing, no question of onus of proof or the application of any presumption will be involved.
[16] (1998) 83 FCR 82, 97-98.
For the reasons which I set out in Forrester and Repatriation Commission [17] I am of the view that the requirement that the material before the Tribunal “points to a hypothesis connecting the ……death with the circumstances of the particular service …”[18] (emphasis added) means that the hypothesis advanced must be reasonable.
[17] [2012] AATA 846.
[18] Repatriation Commission v Deledio supra.
ISSUES FOR DETERMINATION
I have to determine the following issues.
1)Did Mr McKenzie render “operational service” and if so, when?
2)Within the meaning of s 120A(4) of the Act, what was the “kind of death” met by Mr McKenzie?
3)Considering all the material before the Tribunal, does it point to a hypothesis connecting the death with the circumstances of the operational service?
4)If such an hypothesis is raised, is there a relevant Statement of Principles in force?
5)If a relevant Statement of Principles is in force, is the hypothesis consistent with the “template” within that Statement?
6)If so, are we satisfied beyond a reasonable doubt that the death of the late Mr McKenzie was not war-caused?”
DETERMINATION OF THE ISSUES
Issue 1: Did Mr McKenzie render operational service and if so, when?
On the basis of Mr McKenzie’s service records I am satisfied that he rendered operational service in the period 10 July 1942 until 25 January 1946. This is not in dispute.
Issue 2: What was the kind of death met by Mr McKenzie?
The death certificate records cardiomyopathy as the cause of Mr McKenzie’s death.[19] The autopsy report prepared by Dr Crowley and dated 13 October 2009[20] records the cause of death as:
CARDIAC ARREST IN A PATIENT WITH SEVERE CARDIOMYOPATHY, AT THE CONCLUSION OF A SURGICAL PROCEDURE FOR AMPUTATION OF GANGRENOUS TOES, PERFORMED UNDER LOCAL ANAESTHETIC AND INTRAVENOUS SEDATION WITH ANAESTHETIC AGENTS
It notes the following as contributing factors:
CORONARY ATHEROSCLEROSIS, OESOPHAGEAL CARCINOMA
[19] Exhibit RR2 p.20.
[20] Exhibit RR2 p.39.
On the basis of the autopsy report and the evidence of Dr Collins and Professor Cade I am satisfied that the kind of death met by Mr McKenzie was cardiomyopathy to which carcinoma of the oesophagus contributed. I am satisfied further, on the basis of the evidence of the report of Dr Lynch that the carcinoma was moderate to poorly differentiated.
Issue 3: Considering all the material before the Tribunal, does it point to a hypothesis connecting the death with the circumstances of the operational service?
It is put on behalf of Mrs McKenzie that the material before me points to the following hypothesis:
a.McKenzie commenced smoking during his period of operational service as a result of peer group pressure, stress, boredom and as a result of cigarettes and other tobacco products being supplied to him as part of his rations during his service and otherwise being readily available.
b.Mr McKenzie smoked tobacco from approximately 1942 until 1952;
c.Mr McKenzie’s smoking habit caused him to suffer cancer of the oesophagus;
d.McKenzie died from cardiomyopathy to which the cancer of the oesophagus contributed.
The hypothesis under consideration must be more than one which is left open on the material before me. It must be a hypothesis which is pointed to, or supported by, the material. This requirement has also been expressed as meaning that the hypothesis is to be a reasonable one.
The determination of whether the hypothesis is pointed to or supported by the material or is reasonable is not to be confused with the reasoning required at the third step of the Deledio process. That step requires the determination of whether the hypothesis fits the “template” to be found in any relevant Statement(s) of Principles. If the hypothesis does not fit the template it will be deemed not to be reasonable.
Having considered all of the material before me I determine that it does point to a hypothesis connecting Mr McKenzie’s death to his operational service.
The material indicates that Mr McKenzie smoked for a period of about 10 years which commenced after his enlistment and ended before he met Mrs McKenzie. In addition there is material pointing to cigarettes being supplied to Mr McKenzie as part of his service rations and that he developed a particular interest in smoking to which he referred on several occasions in the letters to his family.
Issue 4: Is there a relevant Statement of Principles in force?
As the hypothesis links two medical conditions it is necessary to consider whether there is a Statement of Principles in force for each of those conditions.[21]
[21] McKenna v Repatriation Commission (1996) 86 FCR 144, 151-152.
I am satisfied that there are two relevant Statements of Principles in force being the Statement of Principles No. 23 of 2007 concerning Cardiomyopathy and the Statement of Principles concerning Malignant Neoplasm of the Oesophagus No. 41 of 2007. This is not in dispute.
Clause 4 of the Statement of Principles concerning Cardiomyopathy provides:
The Repatriation Medical Authority is of the view that there is sound medical-scientific evidence that indicates that cardiomyopathy and death from cardiomyopathy can be related to relevant service rendered by veterans, members of Peacekeeping Forces, or members of the Forces under the VEA, or members under the Military Rehabilitation and Compensation Act 2004 (the MRCA).
Clause 5 provides:
Subject to clause 7, at least one of the factors set out in clause 6 must be related to the relevant service rendered by the person.
Clause 6(zs) provides:
6. The factor that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting cardiomyopathy or death from cardiomyopathy with the circumstances of a person’s relevant service is:
…
(zs) undergoing a course of therapeutic radiation involving the mediastinum before the clinical worsening of cardiomyopathy;
Clause 4 of the Statement of Principles concerning Malignant Neoplasm of the Oesophagus provides:
The Repatriation Medical Authority is of the view that there is sound medical-scientific evidence that indicates that malignant neoplasm of the oesophagus and death from malignant neoplasm of the oesophagus can be related to relevant service rendered by veterans, members of Peacekeeping Forces, or members of the Forces under the VEA, or members under the Military Rehabilitation and Compensation Act 2004 (the MRCA).
Clause 5 provides:
Subject to clause 7, at least one of the factors set out in clause 6 must be related to the relevant service rendered by the person.
Clause 6(c) provides:
6 The factor that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting malignant neoplasm of the oesophagus or death from malignant neoplasm of the oesophagus with the circumstances of a person’s relevant service is:
…
(c) for adenocarcinoma of the oesophagus only, smoking at least five pack years of cigarettes, or the equivalent thereof in other tobacco products, before the clinical onset of malignant neoplasm of the oesophagus, where smoking commenced at least five years before the clinical onset of malignant neoplasm of the oesophagus;
Pack years of cigarettes, or the equivalent thereof in other tobacco products is defined in clause 9 to mean:
a calculation of consumption where one pack year of cigarettes equals twenty tailor made cigarettes per day for a period of one calendar year, or 7300 cigarettes. One tailor made cigarette approximates one gram of tobacco or one gram of cigar or pipe tobacco by weight. One pack year of tailor made cigarettes equates to 7300 cigarettes, or 7.3 kg of smoking tobacco by weight. Tobacco products means either cigarettes, pipe tobacco or cigars smoked, alone or in any combination;
Issue 5: Is the hypothesis consistent with the template within each of the Statements of Principles?
The evidence that Mr McKenzie underwent radiotherapy to treat his oesophageal cancer is consistent with the requirement of clause 6(zs) of the Statement of Principles concerning Cardiomyopathy.
The question of whether the hypothesis is consistent with the Statement of Principles concerning Malignant Neoplasm of the Oesophagus is in dispute. It is argued on behalf of Mrs McKenzie that the hypothesis advanced by her is consistent with clause 6(c) set out above.
In the Statement of Facts and Contentions filed on behalf of Mrs McKenzie I was referred to what was said by the Federal Court in Dixon v Repatriation Commission:[22]
The question whether a decision maker reaches a conclusion adverse to a claimant at the step 3 stage or the step 4 stage is not a mere technicality. If belief is addressed at the step 3 stage, there is a risk that the decision maker will rule against a claimant simply because he or she is not persuaded the claimant's story is probably true. Although the decision maker should not think in terms of onus of proof, in a practical sense at the step 3 stage the claimant is likely to be left with this burden. Moreover, the decision maker is likely to reject the application even though he or she thinks the claimant's story may possibly be true. This would defeat the protection for veterans embodied in s120(1)…(original emphasis)
[22] [1999] FCA 582, [25].
The Commission does not dispute that the hypothesis is consistent with the template in that there is material pointing to Mr McKenzie’s smoking habit having commenced in the early 1940s and that this was more than five years before the clinical onset of the malignant neoplasm. The Commission argues that the hypothesis is not consistent in that the material does not point to Mr McKenzie’s having smoked at least five pack years of cigarettes (or the equivalent in other tobacco products) nor does it point to his smoking being related to his operational service.
Counsel for the Commission referred to the judgement in East v Repatriation Commission[23] in which the Full Court of the Federal Court said:
The necessity for quantitative evidence in a particular case must depend upon the nature of the hypothesis being expounded. For example, if a Tribunal accepts medical evidence that condition B may be caused by any degree of exposure to factor A, that the veteran was exposed to factor A and that he or she subsequently developed condition B, it would be wrong to reject the claim because of an absence of evidence as to the extent of the exposure. The hypothesis itself makes quantity irrelevant. If, on the other hand, the evidence is that exposure to quantity X of factor A may cause condition B, the hypothesis cannot be described as reasonable unless there is reason to believe that the veteran was exposed to factor A to the extent of quantity X.
[23] (1987) 16 FCR 517, 533.
As previously noted, in Repatriation v Deledio the Federal Court said in relation to step 3 of the process:
The hypothesis raised before it must thus contain one or more of the factors which the Authority has determined to be the minimum which must exist, and be related to the person’s service … .
Having considered all of the material before me I have determined that there is no material pointing to factor 6(c) in the Statement of Principles concerning Malignant Neoplasm of the Oesophagus in that there is no material pointing to the required minimum quantity of cigarettes and/or other tobacco products smoked by him prior to the onset of the malignancy.
Although Mrs McKenzie said that she believed Mr McKenzie was a moderate smoker and that in her mind moderate was equivalent to smoking about 20 cigarettes per day, this was speculation on her part. She said that she did not know how many cigarettes Mr McKenzie smoked and properly raised the rhetorical question, how could I know? Ms McKenzie did not provide any information as to the extent of her father’s consumption of tobacco.
The letters written by Mr McKenzie indicate that he smoked tobacco and had a considerable interest in obtaining his ration of cigarettes. They do not provide any material pointing to the quantity of cigarettes consumed. In taking account of all of the material I have considered the material suggesting that Mr McKenzie may have had an interest in trading cigarettes. It is important to note that the requirement of the Statement of Principles requires a consumption of at least five pack years, which, in Mr McKenzie’s case would require material pointing to his having consumed the equivalent of an average of 10 cigarettes per day for the whole of the time he smoked.
I therefore determine that the hypothesis raise by Mrs McKenzie fails to fit within the template of the Statement of Principles No. 41 of 2007 and, for this reason her claim must fail.
Issue 6: Am I satisfied beyond a reasonable doubt that the death of Mr McKenzie was not war-caused?
By reason of my determination set out in the preceding paragraph I do not need to decide this issue. However, had the hypothesis raised fitted within the template of the Statement of Principles I would not have been satisfied beyond a reasonable doubt that Mr McKenzie’s death was not war-caused.
CONCLUSION
The decision under review, being the decision of the Repatriation Commission made 20 November 2009 rejecting Mrs McKenzie’s claim for a pension in accordance with the Veterans’ Entitlements Act 1986 (Cth), will be affirmed.
I certify that the preceding 64 (sixty-four) paragraphs are a true copy of the reasons for the decision herein of Deputy President J W Constance.
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Associate
Dated 11 April 2013
Date(s) of hearing 11 February 2013 Counsel for the Applicant Ms F Ryan Solicitors for the Applicant Williams Winter Counsel for the Respondent Ms E James Solicitors for the Respondent Australian Government Solicitor
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