Hall v Frankston City Council (WorkCover)
[2014] VMC 15
•5 AUGUST 2014
IN THE MAGISTRATES COURT OF VICTORIA AT MELBOURNE
WORKCOVER DIVISION
Case No.D12618419
JASON HALL Plaintiff v
FRANKSTON CITY COUNCIL Defendant
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| MAGISTRATE: | S GARNETT |
| WHEREHELD: | MELBOURNE |
| DATEOFHEARING: | 27 JUNE, 10 & 11 JULY 2014 |
| DATEOFDECISION: | 5 AUGUST 2014 |
| CASEMAYBECITEDAS: | HALL v FRANKSTON CITY COUNCIL |
REASONS FOR DECISION
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Catchwords: S 109 Rejection: whether injury arose out of or in the course of employment: causal connection – worker at work when experienced spontaneous onset of back pain – no precipitating work incident or activity – evidence given that worker reported that injury and pain commenced at home – treating surgeon not called to give evidence or asked to address issue of causation. Evidence Act s 79 – whether Mr Brearley, General Surgeon, was qualified to give “expert” evidence on orthopaedic issues – s 103 (7)(a) – delay in lodgement of claim. Claim dismissed.
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APPEARANCES: | Counsel | Solicitors |
For the Plaintiff | Ms Wood | Maurice Blackburn |
For the Defendant | Mr Batten | IDP Lawyers |
HIS HONOUR:
1Mr Hall is 25 years of age, 200 cm in height and commenced employment with the defendant on 16 August 2010 as an Animal Support Officer. He alleges that throughout the course of his employment as a consequence of being required to lift and manoeuvre domestic animals and livestock and on Monday 29 October 2012, whilst seated at his desk, he sustained back injuries in the form of an L5/S1 disc protrusion requiring surgery and causing him to be incapacitated for work from 5 November 2012.
2Mr Hall lodged a Workcover claim on 16 May 2013 in relation to the episode of experiencing pain on 29 October 2012 for which liability was denied on 18
June 2013. He lodged a further Workcover claim on 22 January 2014 alleging injury in the course of employment as a consequence of the heavy lifting of animals. Liability was denied in relation to this claim on 12 February 2014.
3The defendant denied liability on the basis that Mr Hall did not sustain an injury which arose out of or in the course of his employment. Furthermore, the defendant alleges that Mr Hall did not lodge his claim as soon as practicable after his incapacity became known pursuant to s 103 (7)(a).
4Mr Hall gave evidence as did Mr Brearley, General Surgeon, who assessed him on behalf of his lawyers on 28 May 2014.The defendant called evidence from Ms Peric, Human Resources and Return to Work Co-Coordinator, Ms Van Den Ham, Compliance Co-Coordinator and Ms Gregory, Compliance Officer and Team Leader. A number of documents, medical records and reports were tendered by the parties.
5 The evidence revealed the following non contentious issues;
a. Mr Hall completed VCE at Mordialloc College and then completed an
Advanced Diploma of Justice course at Chisholm Tafe;
b. he commenced working with the defendant in mid 2009 through Hogan
Recruitment Agency as a Animal Support Officer;
c. his duties involved; animal registration which included visiting the relevant areas doorknocking to ascertain whether animals were present and whether they were registered, preparing Warrants, issuing Infringement Notices, preparing court documents and collecting animals including dogs, cats, chickens, sheep, lyrebirds, cows and horses;
d. in appropriate cases he would load the animals into a van and take them to the pound which would involve manual handling and lifting of varying weights and difficulty;
e. he commenced work as a direct employee of the defendant on 16 August
2010 in the same role;
f.in late 2011, his role was changed to that of a Animal Management Officer which involved more collection tasks and investigative duties than registration of animals and which also involved beach and park patrols;
g. on Monday 29 October 2012, he commenced work at 8.30 a.m. performing office/clerical duties and whilst sitting at his desk at approximately 12 noon he “felt a twinge” in his lower back but continued working for the rest of the day because his back “was okay”;
h. on Friday 2 November 2011, when he woke, he experienced back pain, right leg pain and numbness and pins and needles and during the course of the day mentioned that he was experiencing these symptoms to a fellow employee and whether she could recommend a physiotherapist;
i.the conversation was overheard by Ms Van Den Ham who arranged for him to see the Council preferred physiotherapist as part of the defendant’s Early Intervention Program;
j. Mr Hall attended the physiotherapist at approximately 10.30 a.m.- 11 a.m.
and then returned to work and continued working for the remainder of the day;
k.on Monday 5 November 2011, he attended a further physiotherapy appointment at 8.30 a.m. and then attended work but left after 15 minutes because of back pain and right leg symptoms he was experiencing and then attended Dr Wang that afternoon who arranged for a CT Scan to be performed which demonstrated an L5/S1 disc herniation;
l.Mr Hall was referred to Mr Cunningham, Orthopaedic Surgeon, who arranged for an MRI Scan to be performed on 27 November 2012 which also revealed a right sided L5/S1 disc protrusion and he subsequently performed a discectomy on 18 December 2012;
m.a number of meetings occurred between Mr Hall and defendant representatives regarding his capacity to return to work which did not eventuate and his employment was ultimately terminated on 11 July 2013;
n. a further MRI Scan performed on 13 August 2013 revealed a recurrent L4/5 right sided disc protrusion and Mr Hall underwent a revised discectomy;
o. because of continuing symptoms, a further MRI Scan was performed on
24 May 2014 which revealed the development of a synovial cyst on the right at L5/S1 with recurrent disc bulges.
Mr Hall gave evidence that he could not recall whether he was “twisting” at the time he experienced “a twinge” in his lower back on 29 October. He told the court that he had been doing paperwork that morning and the set up of his work station was that he had his paperwork to his left and a phone to his right and that during the course of that morning he would have been twisting and turning and bending down to get paperwork out of the desk drawer. He also said that during the course of that week he had mentioned to work colleagues
that he had back pain but could not recall what he had said or who he had said it to. He told the court that during the course of the week he felt that his back pain got worse whilst sitting at his desk.
Mr Hall gave evidence that after attending Mr Fankhauser, Physiotherapist, on Friday 2 November he worked until 4 p.m. that day and then rested over the weekend. He said that he told Mr Fankhauser when he saw him before work on 5 November that he still had back and leg pain and that it had got worse despite rest and medication. He said that after attending work that morning he found that his right leg was giving way and he could not concentrate so he left after 15 minutes and was driven home by Ms Van Den Ham.
Mr Hall told the court that he exhausted his sick leave and annual leave entitlements and then claimed payments under an income protection policy rather than claiming workcover because he was told by Ms Peric that he was not entitled to workcover because he could not specify an incident that caused his injury. He said that he was not aware of his rights to claim workcover because he was “young and naive and did not want any animosity” with his employer. He also said that he did not lodge his workcover claim until much later because of a lack of support and direction from his employer, he felt isolated and he was not aware of his entitlement to do so because of what Ms Peric had said. Mr Hall told the court that after receiving union and legal advice he lodged his claim on 16 May 2013.
In cross examination, Mr Hall agreed that it was possible he learnt about industrial and injury issues during his Diploma course and that he may have been told about his workcover rights during induction with the defendant but said he did not lodge his claim earlier because he relied on the advice given by Ms Peric. He conceded that he has experienced the “odd sore back” prior to 29 October 2012 in the form of a “sore muscle” but not his lower back specifically.
Mr Hall said that he could not recall any event that triggered his back pain on
29 October. He agreed that his work duties involving the handling of livestock and domestic animals did not cause him pain in his back but said the episode on 29 October could have been “the straw that broke the camel’s back”. He denied that he told Ms Peric on 5 November that the injury and pain occurred on the weekend. Mr Hall conceded that it was possible that when he rang Ms McClellan at work on Wednesday 7 November to inform her he would be away until at least 12 November that he said that he had “hurt his back at home”, but said he could not recall saying that, denied it did occur at home but said it was possible that it did. He also told the court that he could not recall telling Ms McClellan in May 2013 that other family members had back problems and his problem could be hereditary. He could not recall telling Ms Van Den Ham during a meeting on 16 November 2012 that his back problem could be due to his height or his family history.
Mr Hall denied the suggestion that his evidence concerning bending and twisting at his desk during the morning of 29 October was an attempt by him to reconstruct events. He confirmed that there was no incident on that date or subsequent that caused a worsening of back or leg pain but that it “steadily progressed”. He told the court that he experienced further pain in 2013 which he believes caused his second prolapse at L5/S1 when he was bending in his car to remove a car mat at home.
Mr Hall was questioned at length concerning the nature of his duties involving collecting livestock and domestic animals and the amount of time he was involved in this particular activity. He agreed that most of the collection and transfer of animals involved domestic pets of various breeds and sizes up to
30kg and that 50% of the time this task was not difficult due to the animals size and compliance. He agreed that he was not involved in this activity day in day out and estimated it would consist of 50% of his work duties and that some days he would work at his desk which occupied 80-100% of his time. Mr
Hall told the court that he was only required to occasionally collect livestock and when doing so it would usually involve him assisting a contractor to erect gates/fencing to contain the livestock, the last occasion being on 17 August
2012. He also agreed that the history recorded by Mr Brearley that “his duties included picking up stray animals and he would frequently have to lift dogs weighing up to 50kg and other animals including sheep and cats which would be in cages” was incorrect.
Ms Van Den Ham gave evidence that she became Mr Hall’s supervisor in September 2012. She said that on Friday 2 November 2012, she overheard Mr Hall tell a co-worker that he had a sore back and ask the co-worker if she knew of a cheap physiotherapist or chiropractor. She told the court that she immediately interrupted that conversation to inform Mr Hall that the defendant provides free physiotherapy treatments as part of its Early Intervention Program and she provided him with the telephone number of the preferred provider, Lifecare Frankston, to make an appointment. She said that as he did not do so she made the appointment for him. Ms Van Den Ham said that during Mr Hall’s conversation with the co-worker and with her, no mention was made at that time by Mr Hall as to the cause of his back pain and he did not say it occurred whilst he was doing paperwork. She said that on Monday 5
November, she spoke to Mr Hall after he had attended a physiotherapy appointment that morning and as he was still complaining of back pain she suggested that he go home. Ms Van Den Ham told the court that after being informed by Mr Hall that he would be absent for work for a prolonged period she arranged to have a meeting with him and Ms Peric on 16 November. She said that at that meeting she obtained details of his leave entitlements as he had inquired about them. She said that Mr Hall said he did not know what caused his problem but said that it may be hereditary because other family members had the problem due to their height. She told the court that he never said that his condition was work related, never reported it as a work injury and did not make any entry in the Injury Report Book. Ms Van Den Ham gave
evidence that workcover entitlements and procedures are provided to all employees on induction, the defendant conducts regular OHS meetings where workcover and safety issues are discussed and workcover posters and notices are displayed throughout the building and are available on the intranet which is accessible to all employees. She told the court that at a meeting on
18 March 2013, Mr Hall was becoming agitated and frustrated because he was unable to return to work and had not been given a clearance from his doctors.
In cross examination, she agreed that the 2011-12 Frankston City Council Annual Report revealed that there were 29,972 animal registrations that year and 2,127 dogs and cats impounded. She told the court that the council employ 12 Animal Compliance Officers for 6 areas covered by the Council. She said that when animals are impounded the relevant officer completes paperwork which is recorded by the Council.
The documents tendered by the defendant indicate that Mr Hall impounded
124 domestic animals of which 108 were dogs between January and October
2012. In the three months leading up to 29 October he had impounded 20, 5 and 16 animals respectively. A chart relating to the breed and average weight of dogs impounded by him indicates that the most common breed impounded by him during 2012 was a Staffordshire Bull Terrier Cross with a breed average weight of between 10 and 17 kg. In October, the records indicate Mr Hall impounded 16 animals and in the days leading up to 29 October he collected; a Labrador Cross (average breed weight between 27-40kg) on 25
October; a miniature poodle cross (average breed weight 7-8kg), a Jack Russell Terrier (average breed weight 5.9-7.7kg) and a Staffordshire Bull Terrier on 24 October.
Ms Gregory gave evidence that she worked with Mr Hall before June 2012 and took over his role when he was seconded to become an Animal Management Officer. She said that her role as a Compliance Officer involves
50% office work and 50% field work. She said that officers receive training in handling animals and on occasions they are required to use a pole to control difficult dogs. She told the court that she compiled the records tendered by reference to the animal impoundment documents Mr Hall had completed.
Ms Peric gave evidence that the defendant provides three free medical treatments to employees under its Early Intervention Program for non work related injuries. She said that employees are required to report work injuries via an on-line reporting system. She told the court that she was informed by Ms Van Den Ham on 2 November that Mr Hall had been referred for treatment under the program. She said that on Monday 5 November she spoke to Mr Hall after he had attended the physiotherapist appointment that morning and she asked him how the injury occurred. She told the court that he said his injury and pain started on the weekend at home. She told the court that during a meeting she had with Mr Hall and Ms Van Den Ham on 16 November she discussed his leave options and he mentioned that other family members had back problems due to their height. She said at no stage prior to receiving the workcover claim in her meetings with Mr Hall did he mention that it was a work injury or that the defendant should pay his time off under workcover. She confirmed that she completed the Employer Injury Claim Report dated 21 May
2013 noting that the employer disputed liability because Mr Hall reported he had sustained a personal injury on the weekend. In cross examination, she denied telling Mr Hall that he was too much of a liability because of his injury but agreed that her conversation with him on 5 November was in a casual context and it took place as he was leaving to go home. She did agree that she told Mr Hall she was managing his claim as a ‘personal injury’ as that was what he said it was and on that basis told him he was not entitled to workcover but denied telling him he was not entitled to lodge a workcover claim. In response to a question asked by me Ms Peric gave evidence that if Mr Hall had said his injury was work related she would have told him of his rights to make a workcover claim.
The reports from Mr Fankhauser, Physiotherapist, dated 2, 5 and 9
November 2012, were tendered. Mr Fankhauser reported that he saw Mr Hall on 2 November 2012 and diagnosed him as suffering lower back muscle spasming due to an acute disc injury. On 5 November, he noted that Mr Hall was experiencing right sided lower back pain and leg pain and that he was told by Mr Hall that he did not recall an event that triggered his pain but that sitting at work and in his car aggravated his condition. He also recorded that Mr Hall told him that the pain in his back, thigh and leg and foot numbness progressed over the weekend despite rest and the use of medication. In a more comprehensive report dated 9 November, Mr Fankhauser recorded a history of insidious onset of pain with no clear mechanism of injury. He also recorded that Mr Hall told him that he had a significant family history of low back pain and Mr Fankhauser commented that Mr Hall has a very flat thoracic spine and low tone around his hips making him prone to lower back injuries.
Dr Wang, General Practitioner, reported on 4 June 2014 that Mr Hall first presented to the Longbeach Medical Centre on Monday 5 November 2012, with no history provided of injury and that subsequent radiological investigations confirmed a large L5/S1 disc herniation. A Medical Questionnaire completed by Dr Wang on 12 August 2013 was tendered and stated; “Jason does not recall an event that triggered his pain but sitting at work and in the car has been main aggravating factor. According to patient medical history there has no pre-existing back pain history, his work involved sitting 80% of the time”.
Mr Cunningham, Orthopaedic Surgeon, reported on 18 June 2014 that he first saw Mr Hall on 12 November 2012 complaining of back pain for about two weeks and right leg sciatic pain down to his foot for one week. He reported that he was told by Mr Hall of a long history of left hip clicking and locking. In evidence Mr Hall told the court that he told Mr Cunningham that he had previously experienced a pinched nerve in his hip which may have “locked”
but otherwise disputed that he had a long history of left hip problems. In his report, Mr Cunningham confirmed that Mr Hall had a disc prolapse at L5/S1, that he performed a discectomy in December 2012 and developed a L4/5 prolapse in 2013 for which he performed a further discectomy. He reported in May 2013 that Mr Hall would be fit for suitable duties.
Mr Brearley, General Surgeon, gave evidence and a report prepared by him based on his assessment of Mr Hall for his lawyers on 28 May 2014 was tendered. Prior to giving evidence, a voir dire was conducted at the request of Mr Batten concerning whether Mr Brearley possessed the necessary qualifications to express an expert opinion on orthopaedic issues. After hearing evidence from Mr Brearley, I concluded that despite him not practising as an orthopaedic surgeon and not performing any spinal surgery he did possess the necessary expertise based on his training and experience over
30 or more years to give evidence as an expert witness in accordance with s
79 of the Evidence Act 2008.
Mr Brearley obtained a history from Mr Hall (subsequently conceded by Mr Hall as being incorrect) that his duties included picking up stray animals involving frequently being required to lift dogs weighing up to 50kg and other animals including sheep and cats which would be in cages and horses. He reported that Mr Hall told him that often it was difficult to put dogs into the back of his van and he would have to push hard to get them in. He also noted that Mr Hall would spend a lot of time seated in his car or in the office. He reported that Mr Hall told him that on 29 October 2012, he was sitting in the office when he felt some slight pain in his lower back, kept working but then developed quite severe back and right leg pain. Mr Brearley recorded the subsequent treatment performed, that he complains of constant back pain of variable severity, receives ongoing physiotherapy and takes medication.
Mr Brearley concluded that it was unfortunate Mr Hall did not make his workcover claim when he suffered the injury because he is in no doubt that
employment was at least a significant contributing factor to the injury. In cross examination, Mr Brearley agreed that his opinion is “100% dependent” on obtaining an accurate history and that he did not obtain any history of Mr Hall suffering previous episodes of back pain. He also agreed that back pain is a symptom. Mr Brearley said that in his opinion Mr Hall suffered a rupture of his disc whilst sitting down which was caused by the heavy lifting of dogs over a period, that activity resulting in minor damage to his discs and leading to rupture. He said that in his opinion there was a gradual onset of minor damage leading to rupture and disagreed his opinion was speculative. He agreed that there is no evidence of pathology prior to 29 October 2012. He disagreed that a prolapse can occur from a cough or a simple bend without there being underlying pathology but acknowledged that the second prolapse occurred in 2013 whilst Mr Hall was bending in his car at home. Mr Brearley expressed the opinion that Mr Hall has sustained a traumatic injury as it occurred from lifting dogs and sheep into his car. He agreed that his opinion is based on a history that Mr Hall performed a lot of physical work prior to 29
October 2012. He conceded that he was not given an accurate history by Mr Hall but stated that if Mr Hall was frequently required to lift and manually handle dogs and other animals over a two year period before injury and to a lesser extent in the 2 months prior to injury, it would not effect his opinion that work was a significant contributing factor to him sustaining a disc prolapse as the damage to his spine had already occurred adopting what he called a “common sense” approach. Mr Brearley described the mechanism as being a “series of recurrent injuries until final rupture”. On questioning from me, as to whether those recurrent injuries would have caused pain he said; “not really, maybe some pain”.
Submissions
It was submitted on behalf of Mr Hall that his employment was a significant contributing factor to his injury based on the evidence presented being:
His work duties involved both clerical and physical tasks;
Even if he had a susceptibility to back injury because of his height or family history, the employer must take him as it finds him;
Even if he had experienced back pain prior to 29 October 2012, reliance is placed on the opinion of Dr Brearley who stated that it would not change his opinion regarding causation;
The court should adopt a “common sense” approach as done by Dr
Brearley;
The court should find, consistent with Dr Brearley’s opinion, that damage was caused to Mr Hall’s back over time due to the heavy nature of the physical duties performed by him.
The defendant submitted that;
Mr Hall has failed to prove on the balance of probabilities that he sustained injury which arose out of or in the course of his employment;
That as there is no evidence of a pre-existing injury or disease, the concept of significant contributing factor is not relevant;
Mr Hall has been unable to establish any physiological change or damage to his back caused by employment;
Mr Hall has not established any circumstance, event or incident that caused harm or injury of a physical nature;
The court should place weight on the evidence of Ms Peric that Mr Hall told her that his pain and injury commenced on the weekend;
The court should infer that by his conduct in not lodging a workcover claim until after he received union/legal advice indicates that Mr Hall was aware his condition was not work related;
If the manual handling activities performed by Mr Hall were causative of injury, it would be expected that he would have experienced symptoms of back pain whilst performing those tasks;
The opinion of Dr Brearley should carry no weight due to the incorrect history obtained by him;
That what occurred was a spontaneous event of symptoms without a causative relationship to employment.
Conclusion
The core provision relating to entitlement to compensation, is s 82(1) of the
Act. It reads:
82 Entitlement to compensation
(1) If there is caused to a worker an injury arising out of or in the course of any employment, the worker shall be entitled to compensation in accordance with this Act.
Injury is defined in s 5 of the Act to mean any physical or mental injury and, without limiting the generality of that definition, includes –
(b) a disease contracted by a worker in the course of the worker’s employment (whether at, or away from, the place of employment);
(c) a recurrence, aggravation, acceleration, exacerbation or deterioration of any pre-existing injury or disease.
Where it is alleged or proven that a worker suffers from a disease or a recurrence, aggravation, acceleration, exacerbation or deterioration of any pre-existing injury or disease, it must be established that the worker’s employment was a significant contributing factor and in determining this issue regard must be had to the factors listed in s 5(1B).
In this case, it is not suggested, and the evidence does not indicate, that Mr
Hall suffered from a pre-existing disease or that employment resulted in the
aggravation etc of a pre-existing disease or injury. On this basis, the issue of whether employment was a significant contributing factor does not arise. However, what must be demonstrated is that there is a nexus or temporal relationship between the work performed or activity engaged in with the occurrence of the injury. It requires a “common sense” approach.
Although I found Mr Hall attempted to give an honest account of what occurred, I did find that there was a degree of re-construction in his evidence. I find that the physical aspects of his duties involving the lifting and manoeuvring of animals into his work vehicle would have been difficult at times, particularly with those animals who were non compliant. However, the statistics produced by the defendant indicate that the amount of time spent on this activity was somewhat less than he tried to convey to the court. In particular, in the four days leading up to 29 October 2012, he only collected 4 domestic animals. More importantly, Mr Hall at no time alleged that he experienced any back symptoms when performing these duties in the days or weeks leading up to 29 October, or for that matter, at any time when performing this aspect of his work duties. He did not identify previous episodes of experiencing low back pain with employment and said previous pain was in the form of a “sore muscle” but not in his lower back. He did not give evidence as to what activity he was performing when he experienced the “odd sore back”. Although the break up of his work duties varied, it appears the collection and transportation of livestock and domestic animals was regularly less than 50% of his workload.
I found both Ms Van Den Ham and Ms Peric to be honest and credible witnesses. I accept the evidence of Ms Van Den Ham that Mr Hall never indicated to her that his condition was work related and that he had been previously made aware through the defendant’s induction process, OHS meetings and notice boards displayed throughout the office of workcover entitlements and procedures. I accept as truthful the evidence of Ms Peric that
Mr Hall told her that his back pain and injury occurred over the weekend at home.
Although accepting his evidence that he “felt a twinge” in his lower back whilst at work on Monday 29 October, that symptom, on its own and taking into account the history he gave to Ms Peric and Ms McClellan does not lead to a conclusion that he sustained injury arising out of or in the course of his employment. Mr Hall gave evidence that he first experienced right leg pain, numbness and pins and needles when he woke at home on Friday 2
November. Those symptoms are indicative of a disc bulge or prolapse occurring overnight or on wakening. The evidence does not indicate that the work performed by him between 29 October and 2 November was causative of injury.
I do not place weight on the opinion of Mr Brearley on the basis that it is based on an incorrect history concerning the nature and frequency that Mr Hall was required to lift and manoeuvre heavy animals and the absence of him obtaining a previous history of suffering isolated episodes of back pain. I do not accept his opinion that Mr Hall experienced a gradual onset of damage to his back as a result of his work activities culminating in a disc prolapse. I find that if that is what occurred it is probable that Mr Hall would have experienced some degree of back pain when these ‘recurrent injuries’ occurred. In reaching my conclusion, I have also taken into account the fact that Mr Cunningham, treating surgeon, was not called to give evidence relating to causation and apparently was not asked for his opinion concerning this critical issue.
Although I accept as reasonable the explanation given by Mr Hall as to the reasons he did not lodge a workcover claim until 16 May 2013, after receiving union and legal advice as to his legal entitlements, it is also indicative that he did not believe that his work duties were implicated. This is also consistent with his explanation to Ms Peric on 5 November 2012, that he first
experienced back pain at home on the weekend and to Ms McClellan on 7
November, that he had hurt his back at home.
Mr Hall has failed to discharge the onus that on the balance of probabilities he sustained injury which arose out of or in the course of his employment with the defendant.
Accordingly, the proceedings will be dismissed.
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