Donnelly v Secretary, Department of Customer Service

Case

[2024] NSWPICMP 540

6 August 2024


DETERMINATION OF APPEAL PANEL
CITATION: Donnelly v Secretary, Department of Customer Service [2024] NSWPICMP 540
APPELLANT: Kate Donnelly
RESPONDENT: Secretary, Department of Customer Service
APPEAL PANEL
MEMBER: Jane Peacock
MEDICAL ASSESSOR: Douglas Andrews
MEDICAL ASSESSOR: Graham Blom
DATE OF DECISION: 6 August 2024
CATCHWORDS: 

WORKERS COMPENSATION - Psychological injury; appellant worker; alleged assessment on the basis of incorrect criteria and demonstrable error in the making of assessments under two of the psychiatric impairment rating scale (PIRS) categories; inadequate path of reasoning; Held – error found; re-examination was considered necessary; Medical Assessment Certificate revoked.

BACKGROUND TO THE APPLICATION TO APPEAL

  1. On 13 March 2024 Kate Donnelly lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Surabhi Verma, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 14 February 2024.

  2. The appellant relies on the following grounds of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act):

    ·        the assessment was made on the basis of incorrect criteria, and

    ·        the MAC contains a demonstrable error.

  3. The delegate is satisfied that, on the face of the application, at least one ground of appeal has been made out. The Appeal Panel has conducted a review of the original medical assessment but limited to the ground(s) of appeal on which the appeal is made.

  4. Rule 128 of the Personal Injury Commission Rules 2021 (the PIC Rules) and Procedural Direction PIC7 - Appeals, reviews, reconsiderations and correction of obvious errors in medical disputes 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 r 128(1) of the PIC Rules.

  5. The assessment of permanent impairment is conducted in accordance with the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed
    1 March 2021 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5).

PRELIMINARY REVIEW

  1. The Appeal Panel conducted a preliminary review of the original medical assessment in the absence of the parties and in accordance with the Procedural Direction PIC7.

    The appellant worker requested that she be examined by a Medical Assessor who is also a member of the Appeal Panel. As a result of the Appeal Panel’s preliminary review, the Appeal Panel determined that it was necessary for the worker to undergo a further medical examination because the Appeal Panel found error: see New South Wales Police Force v Registrar of the Personal Injury Commission of New South Wales [2013] NSWSC 1792.

EVIDENCE

Documentary evidence

  1. 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. 

Further medical examination

  1. Medical Assessor Douglas Andrews of the Appeal Panel conducted an examination of the worker on 24 May 2024 and reported to the Appeal Panel.

Medical Assessment Certificate

  1. 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

  1. Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel.

FINDINGS AND REASONS

  1. 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.

  2. In Campbelltown City Council v Vegan [2006] NSWCA 284 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.

  3. The matter was referred to the Medical Assessor by the Personal Injury Commission (Commission) as follows:

    The following matters have been referred for assessment (s 319 of the 1998 Act):

    ·    Date of injury: 22 January 2021

    ·    Body parts/systems referred: Psychiatric/psychological disorder

    Method of assessment: Whole person impairment”

  4. The Medical Assessor issued a MAC as follows:

Body Part or system

Date of Injury

Chapter,

page and paragraph number in NSW workers compensation guidelines

Chapter, page, paragraph, figure and table numbers in AMA5 Guides

% WPI

WPI deductions pursuant to S323 for pre-existing injury, condition or abnormality (expressed as a fraction)

Sub-total/s % WPI (after any deductions in column 6)

1. Psychological Injury

22.1.2021

Chapter 11

Guidelines

11.1-11.3

11.4-11.6

Guidelines

11.11,11.12

Table

:11.1,11.2,11.3,11.

5,11.5,11.6

9%

- 0.9% for pre-existing impairment + 1% for treatment effect

9%

Total % WPI (the Combined Table values of all sub-totals)

9%

  1. The assessment of impairment under the psychiatric impairment rating scale (PIRS) was as follows:

Table 11.8: PIRS Rating Form

Name

Kate Donnelly

Claim reference number (if known)

W8524/23

DOB

xxxx

Age at time of injury

42 years old

Date of Injury

22 January 2021

Occupation at time of injury

Strategic Communication Manager

Date of Assessment

24 January 2024

Marital Status before injury

Divorced

Psychiatric diagnoses

1.  Major Depressive Disorder and Generalised Anxiety Disorder on the background of PTSD and ADHD

2.  Alcohol Use Disorder

Psychiatric treatment

Yes

Is impairment permanent?

Yes

PIRS Category

Class

Reason for Decision

Self Care and personal hygiene

2

Ms Donnelly reported that when Kevin is at home, she has a good routine, but when he is away, then she does not have a good routine.  She said that she is able to take care of her self-care and personal hygiene and attend to the needs of her high needs children.  She reported that Kevin does most of the cooking when he is at home.  She is able to look after the dogs, kids, gardening, washing clothes, et cetera.

Social and recreational activities

2

Ms Donnelly reported that she used to enjoy working in kids group and was involved in Toastmasters group, was on a startup committee, et cetera.  She has stopped engaging in these committees and participating in family events.  She added that she at times will go to the restaurant with her partner and goes to the gym with a friend and prefers going at quiet time.  She prefers click and collect option.  She is able to leave home for picking and dropping kids from school, from appointments, et cetera.

Travel

2

Ms Donnelly is able to drive to short distances.  She feels nervous about driving and at times, her partner has to accompany her when driving to far distances.

Social functioning

2

Ms Donnelly lives aged 14, 13 and 10 years, who live with them 50% of the time.  She feels that her current partner is quite supportive even though her mood remains irritable most of the time.  Her kids have also been supportive and know that she has been fighting for them.  She has been well supported by her mum and kids’ teachers.

Concentration, persistence and pace

3

Ms Donnelly reported that her attention and concentration have been poor.  She has stopped reading as she feels it is “too much mentally”.  Her mind often wanders off to a distance.  She, at times, forgets to dry her clothes and even though gets her work done, she procrastinates a lot.

Employability

5

Based on the various PIRS categories, her current mental health status and her cognitive dysfunction, I believe that she does not have any capacity to engage in full-time employment.

Score

Median Class

2

2

2

2

3

5

=2

Aggregate Score Impairment

Total

%

+2

+4

+6

+8

+11

16

9

  1. From this assessment under PIRS, the Medical Assessor deducted one-tenth under s 323 and made an allowance of 1% for effects of treatment as follows:

    “The deduction for pre-existing impairment equals to 1/10 of 9 = 0.9%.

    Treatment effect is 1%.

    Therefore, final WPI is 9% - 1% + 1% = 9%.”

  2. The worker appealed.

  3. In summary, the appellant made submissions on appeal that the Medical Assessor made assessments on the basis of incorrect criteria and/or demonstrable errors when making assessments under two of the PIRS categories as follows:

    (a)    in respect of self care and personal hygiene by assessing a mild impairment at Class 2 when a moderate impairment at Class 3 should have been assessed, and

    (b)    in respect of social and recreational activities by assessing a mild impairment at Class 2 when a moderate impairment at Class 3 should have been assessed.

  4. There was no complaint on appeal about the deduction of one-tenth made under s 323 or the allowance of 1% whole person impairment (WPI) for the effects of treatment.

  5. In summary, the respondent employer the Secretary, Department of Customer Service (the respondent) submitted that the Medical Assessor did not make an assessment on the basis of incorrect criteria and did not make demonstrable errors and that the MAC should be confirmed.  

  6. The role of the Medical Assessor is to conduct an independent assessment on the day of examination. The Medical Assessor is required to take a history, conduct a mental state examination, make a psychiatric diagnosis and have due regard to other evidence and other medical opinion that is before the Medical Assessor. The Medical Assessor must bring her clinical expertise to bear and exercise her clinical judgement when making an independent assessment of impairment under the PIRS categories. The assessment is not to be based upon self-report alone. An appeal panel cannot disturb ratings under the PIRS scale for mere difference of opinion but must be satisfied as to error.

  7. The appellant submitted that the findings of the Medical Assessor were inconsistent with the ratings assessed by her and not in accordance with the correct criteria set out in the Guidelines in the categories of self care and personal hygiene. The respondent submitted that the Medical Assessor has clearly exercised her clinical judgment on the day of examination and the rating assessed were open to her.

  8. The path of reasoning disclosed by the Medical Assessor must be adequate. This is also dependent on the extent of the history taken and a thorough examination of the worker so that self- report can be properly evaluated in the context of other evidence before the Medical Assessor. The Appeal Panel considered that it was not clear that the Medical Assessor had considered all of the evidence before her and the path of reasoning was inadequate. The Appeal Panel was satisfied as to error because the history taken by the Medical Assessor was inadequate and did not support an adequate path of reasoning of the assessments made under the PIRS categories of self care and personal hygiene and social and recreational activities.

  9. The Appeal Panel considered that the Medical Assessor had erred and that the ratings ascribed for the two categories were not in accordance with correct criteria and there was inadequate history taking such that her path of reasoning for ascribing mild impairment in both categories could not properly be understood. In these circumstances of a finding of  error  the appeal panel considered that a re-examination was necessary.

  10. The Appeal Panel found error and considered that a re-examination was necessary. Medical Assessor Douglas Andrews conducted the re-examination and reported to the Appeal Panel as follows:

PERSONAL INJURY COMMISSION

APPEAL AGAINST MEDICAL ASSESSMENT

REPORT OF THE EXAMINATION BY MEDICAL ASSESSOR

MEMBER OF THE APPEAL PANEL

Matter Number:

M1 – W8524/23

Appellant:

Kate Donnelly

Respondent:

Secretary, Department of Customer Service

Examination Conducted By:

Dr Douglas Andrews

Date of Examination:

29 May 2024

  1. The worker's medical history, where it differs from previous records

    Ms Donnelly lives on the Central Coast with her partner Kevin and three daughters, ages 15, 13 and 10. The two younger girls have autism and ADHD, and their conditions have been well-managed with adequate support.

    Her relationship with Kevin has been stressed. They separated briefly last year and have been seeing a marriage counsellor this year.

    Ms Donnelly sees two psychologists. She has a long-term psychologist, Andrew Sozomenou, whom she sees every couple of months, and another, Fotini Koklas, whom she has seen every two weeks since the onset of the work injury.

    She has ADHD, persisting into adulthood, which is well-managed with methylphenidate.

    She uses clonidine and sertraline 200 mg daily for her current mental health condition.

    Her condition has been stable since she was assessed by the MA on 14 February 2024.

  2. Additional history since the original Medical Assessment Certificate was performed

    Ms Donnelly was diagnosed by the MA with “Major Depressive Disorder, Generalised Anxiety Disorder and Alcohol Use Disorder”, with a pre-existing ADHD, complex PTSD and Generalised Anxiety Disorder.

    Current Symptoms

    Ms Donnelly described prominent anxiety and mild mood disturbance. She is especially anxious when interacting with other people and, consequently, avoids social situations and going out without support. She had frequent panic attacks, but these occur less frequently now because she avoids situations in which they might arrive.

    Driven by her anxiety, she picks at her facial skin, leaving excoriations.

    She is impatient, irritable, on edge and easily angered.

    Her concentration, attention and memory have deteriorated. Whereas her ADHD had been well-managed before the workplace injury, these symptoms have worsened.

    She acknowledged thoughts of suicide.

    She falls asleep quickly with clonidine, but she suffers from middle insomnia and disturbed dreams. She sometimes calls out during the night, disturbing her partner. She also grinds her teeth and has fractured a tooth as a result. She now wears a dental splint.

    She has reduced appetite and has lost 4-5 kg since the beginning of this year. At 73 kg and 158 cm, her BMI is 29.2, in the overweight range.

    Her libido is reduced.

    She drinks between one and two bottles of wine daily, a significant increase since her workplace injury. Before, she would drink a moderate amount socially on weekends. When her partner is away, she commences drinking in the early afternoon.

    Diagnoses

    The cluster of symptoms is consistent with the diagnoses offered by the MA.

    Activities of Daily Living

    Ms Donnelly generally rises at about 7:30 AM, encouraged by her partner, who gets up half an hour earlier. He prepares coffee before he goes to work. She may put on a load of laundry but often forgets to hang it out. In the morning, she takes her dogs out into the backyard and for a short walk.

    She neglects most housework but will occasionally wash dishes or vacuum. She leaves meal preparation to her partner.

    She goes to the gym two or three mornings weekly with her best friend. They choose a quiet time, and Ms Donnelly avoids contact with other patrons. She would not attend the gym independently and sometimes makes excuses, even when her friend wants to go.

    She drives her daughter to school in the morning. When the girls return home in the afternoon, they look after their own needs regarding snacks and activities. She drives them to their netball practice but waits in the car. On the weekend, when there are netball games, she attends with her partner or best friend but sits away from the other parents without interacting.

    When her partner is at home, she showers daily, responding to his encouragement. She showers every two or three days without prompting if he is away, which he is every second week. She no longer wears makeup and washes her hair infrequently. She often skips meals.

    Before becoming unwell, she had an active social life centred around work colleagues. She went to the gym and played netball. She was a member of Toastmasters, the treasurer of her strata committee, and ran a carer’s support group at work. She used to attend gatherings with her partner’s family monthly.

    She no longer sees work colleagues. She doesn’t play netball and is not involved with Toastmasters or other groups. Kevin continues to attend family gatherings monthly, but she no longer goes. His children and mother have asked her not to attend because of her irritability and disengagement. She will go out to dinner with Kevin about once every two months.

    In April 2023, they went on a two-day family trip to a theme park in southern Queensland. Ms Donnelly described the trip as “a disaster” because she was anxious and coped poorly.

    She is estranged from her brother.

    PIRS Categories

    The MA determined a 9% WPI before deducting one-tenth for the pre-existing impairment and adding 1% for the treatment effect, determining a final 9% WPI. The appellant appealed the categories of self-care and personal hygiene, and social and recreational activities. The MA had determined a mild (class 2) impairment in these categories.

    Self-care and personal hygiene:

    Ms Donnelly is less attentive to her personal appearance. She no longer wears make-up or takes care of her hair. She showers daily when her partner is at home to encourage her, but she goes 2 or 3 days between when he is away. She does little housework except for some laundry and occasional cleaning tasks. She anxiously picks at her face, leaving visible scarring and marring her appearance. She is drinking in a harmful pattern, one likely to impact her physical and mental health. She often skips meals and has lost significant weight since the beginning of the year.

    Social and recreational activities:

    Ms Donnelly has given up most of her social and recreational activities. About once a month, she goes out to dinner with her partner. She watches her daughters’ netball games but sits apart from other parents in does not interact with them. She attends a gym 2 to 3 times a week during quiet periods, avoiding other patrons. She wouldn’t attend her daughters’ sporting events or the gym without her partner or best friend supporting her. She no longer attends her partner’s family gatherings because she is uncomfortable and unwelcome. One year ago, she ran on a family holiday to a theme park but coped poorly and has no plans to repeat it.

  3. Findings on clinical examination

    I assessed Ms Donnelly via video link in her home, supported by her friend, Seri Stewart. She spoke for herself, answering my questions candidly.

    She was casually attired in a T-shirt with her hair pulled back. She wore no makeup, and her face had several lesions caused by her anxious scratching.

    She was anxious. Her affect was reactive, consistent with her anxiety and congruent with the interview content.

    There was no evidence of disorder of thought form or perception.

    She acknowledged occasional thoughts of suicide.

    She gave a coherent account over the course of the interview.

  4. Results of any additional investigations since the original Medical Assessment Certificate

    No additional investigations were done.

    Signed:           Dr Douglas Andrews

  5. The Appeal Panel considers that the examination undertaken by Medical Assessor Douglas Andrews was conducted in a thorough manner. The Appeal Panel notes the history Medical Assessor Douglas Andrews has provided in his report to the Appeal Panel, including the history as to the appellant’s ability to function in the PIRS categories that have been challenged on appeal, namely self care and personal hygiene and social and recreational activities. The Appeal Panel notes that Medical Assessor Douglas Andrews has had clear regard to the other evidence before him and has not relied on self -report alone.

  1. The Appeal Panel also notes Medical Assessor Douglas Andrews clinical findings on clinical examination of the appellant and his diagnosis made after clinical examination of the appellant, namely that the appellant continues to display symptoms consistent with the diagnoses made by the Medical Assessor as follows:

    ·        major depressive disorder and generalised anxiety disorder on the background of post-traumatic stress disorder and ADHD, and

    ·        alcohol use disorder.

  2. In respect of Self Care and Personal Hygiene, Table 11.1 of the Guides provides as follows:

    Table 11.1: Psychiatric impairment rating scale – self care and personal hygiene

Class 1

No deficit, or minor deficit attributable to the normal variation in the general population

Class 2

Mild impairment: able to live independently; looks after self adequately, although may look unkempt occasionally; sometimes misses a meal or relies on take-away food.

Class 3

Moderate impairment: Can’t live independently without regular support. Needs prompting to shower daily and wear clean clothes. Does not prepare own meals, frequently misses meals. Family member or community nurse visits (or should visit) 2–3 times per week to ensure minimum level of hygiene and nutrition.

Class 4

Severe impairment: Needs supervised residential care. If unsupervised, may accidentally or purposefully hurt self.

Class 5

Totally impaired: Needs assistance with basic functions, such as feeding and toileting.

  1. The Appeal Panel adopts the findings of Medical Assessor Douglas Andrews on re-examination as follows:

    “Ms Donnelly is less attentive to her personal appearance. She no longer wears make-up or takes care of her hair. She showers daily when her partner is at home to encourage her, but she goes 2 or 3 days between when he is away. She does little housework except for some laundry and occasional cleaning tasks. She anxiously picks at her face, leaving visible scarring and marring her appearance. She is drinking in a harmful pattern, one likely to impact her physical and mental health. She often skips meals and has lost significant weight since the beginning of the year.”

  2. The Appeal Panel considers that based on these findings, the best fit is a moderate impairment or class 3 for self-care and personal hygiene.

  3. In respect of Social and Recreational Activities, Table 11.2 of the Guides provides as follows:

    Table 11.2: Psychiatric impairment rating scale – social and recreational activities

Class 1

No deficit, or minor deficit attributable to the normal variation in the general population: regularly participates in social activities that are age, sex and culturally appropriate. May belong to clubs or associations and is actively involved with these.

Class 2

Mild impairment: occasionally goes out to such events eg without needing a support person, but does not become actively involved (eg dancing, cheering favourite team).

Class 3

Moderate impairment: rarely goes out to such events, and mostly when prompted by family or close friend. Will not go out without a support person. Not actively involved, remains quiet and withdrawn.

Class 4

Severe impairment: never leaves place of residence. Tolerates the company of family member or close friend, but will go to a different room or garden when others come to visit family or flat mate.

Class 5

Totally impaired: Cannot tolerate living with anybody, extremely uncomfortable when visited by close family member.

  1. The Appeal Panel adopts the findings of Medical Assessor Douglas Andrews on re-examination as follows:

    “Ms Donnelly has given up most of her social and recreational activities. About once a month, she goes out to dinner with her partner. She watches her daughters’ netball games but sits apart from other parents in does not interact with them. She attends a gym 2 to 3 times a week during quiet periods, avoiding other patrons. She wouldn’t attend her daughters’ sporting events or the gym without her partner or best friend supporting her. She no longer attends her partner’s family gatherings because she is uncomfortable and unwelcome. One year ago, she ran on a family holiday to a theme park but coped poorly and has no plans to repeat it.”

  2. The Appeal Panel considers that based on these findings, the best fit is a moderate impairment or class 3 for social and recreational activities.

  3. This means that the assessment of impairment under the PIRS table becomes as follows:

Table 11.8: PIRS Rating Form

PIRS Category

Class

Reason for Decision

Self-care and personal hygiene

3

Ms Donnelly is less attentive to her personal appearance. She no longer wears make-up or takes care of her hair. She showers daily when her partner is at home to encourage her, but she goes 2 or 3 days between when he is away. She does little housework except for some laundry and occasional cleaning tasks. She anxiously picks at her face, leaving visible scarring and marring her appearance. She is drinking in a harmful pattern, one likely to impact her physical and mental health. She often skips meals and has lost significant weight since the beginning of the year.

Social and recreational activities

3

Ms Donnelly has given up most of her social and recreational activities. About once a month, she goes out to dinner with her partner. She watches her daughters’ netball games but sits apart from other parents in does not interact with them. She attends a gym 2 to 3 times a week during quiet periods, avoiding other patrons. She wouldn’t attend her daughters’ sporting events or the gym without her partner or best friend supporting her. She no longer attends her partner’s family gatherings because she is uncomfortable and unwelcome. One year ago, she ran on a family holiday to a theme park but coped poorly and has no plans to repeat it.

Travel

2

Ms Donnelly is able to drive to short distances. She feels nervous about driving and at times, her partner has to accompany her when driving to far distances. – as per MA.

Social functioning

2

Ms Donnelly lives aged 14, 13 and 10 years, who live with them 50% of the time. She feels that her current partner is quite supportive even though her mood remains irritable most of the time. Her kids have also been supportive and know that she has been fighting for them. She has been well supported by her mum and kids’ teachers. – as per MA

Concentration, persistence and pace

3

Ms Donnelly reported that her attention and concentration have been poor. She has stopped reading as she feels it is “too much mentally”. Her mind often wanders off to a distance. She, at times, forgets to dry her clothes and even though gets her work done, she procrastinates a lot. – as per MA

Employability

5

Based on the various PIRS categories, her current mental health status and her cognitive dysfunction, I believe that she does not have any capacity to engage in full-time employment. – as per MA

Score

Median Class

3

3

2

2

3

5

= 3

Aggregate Score Impairment                   18

Total

22 %

  1. The Medical Assessor deducted one-tenth for the pre-existing conditions and added 1% WPI to adjust for treatment effects. These findings were not challenged. Therefore, the final WPI is 21%. This means that the MAC will be revoked and a new MAC issued certifying 21% WPI as a result of injury.

  2. For these reasons, the Appeal Panel has determined that the MAC issued on
    14 February 2024 should be revoked, and a new MAC should be issued.  The new certificate is attached to this statement of reasons.

WORKERS COMPENSATION DIVISION

APPEAL PANEL

MEDICAL ASSESSMENT CERTIFICATE

Injuries received after 1 January 2002

Matter number:

W8524/23

Applicant:

Kate Donnelly

Respondent:

Secretary, Department of Customer Service

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 Medical Assessor Surabhi Verma 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 NSW workers compensation guidelines

Chapter, page, paragraph, figure and table numbers in AMA5 Guides

% WPI

WPI deductions pursuant to S323 for pre-existing injury, condition or abnormality (expressed as a fraction)

Sub-total/s % WPI (after any deductions in column 6)

1. Psychological Injury

22.1.2021

Chapter 11

Guidelines

11.1-11.3

11.4-11.6

Guidelines

11.11,11.12

Table

:11.1,11.2,11.3,11.

5,11.5,11.6

22

1/10th

20% plus 1% for effects of treatment

Total % WPI (the Combined Table values of all sub-totals)

21%

The above assessment is made in accordance with the SIRA NSW Guidelines for the Evaluation of Permanent Impairment for injuries received after 1 January 2002.

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