Michael Murray and Repatriation Commission
[2014] AATA 433
[2014] AATA 433
Division VETERANS' APPEALS DIVISION File Number
2012/5610
Re
Michael Murray
APPLICANT
And
Repatriation Commission
RESPONDENT
DECISION
Tribunal Mr R G Kenny, Senior Member
Date 2 July 2014 Place Brisbane The Tribunal sets aside the decision under review and substitutes its decision that the applicant is eligible to be paid the special rate of pension under s 24 of the Veterans’ Entitlements Act 1986 (Cth) with effect from 8 August 2010.
........................Sgd.............................................
Mr R G Kenny, Senior Member
CATCHWORDS
VETERANS’ AFFAIRS – Benefits and entitlements – Disability pension payable at 100% of general rate – Eligibility for intermediate or special rate of pension – Defence-caused disabilities sufficient to prevent applicant from working eight hours per week – Incapacity from defence-caused conditions sufficient, alone, to prevent undertaking remunerative work for more than 8 hours per week – Special rate payable – Date of effect – Assessment decision under review set aside.
LEGISLATION
Veterans’ Entitlements Act 1986 (Cth) ss 14, 19, 22, 23, 24, 24A, 28, 120
CASES
Banovich v Repatriation Commission (1986) 69 ALR 395
Flentjar v Repatriation Commission (1997) 26 AAR 93; (1997) 48 ALD 1
Fogarty v Repatriation Commission [2003] FCAFC 136; (2003) 37 AAR 363
Repatriation Commission v Alexander (2003) 75 ALD 329
Repatriation Commission v Hendy (2002) 76 ALD 47
Repatriation Commission v Butcher (2007) 94 ALD 364
Richmond v Repatriation Commission [2014] FCA 272
Smith v Repatriation Commission [2014] FCAFC 53
Willis v Repatriation Commission [2012] FCA 399
REASONS FOR DECISION
Mr R G Kenny, Senior Member
2 July 2014
BACKGROUND
On 8 November 2010, Michael Murray (“the applicant”), who was aged 37 at that time, lodged with the Repatriation Commission (“the respondent”), in accordance with s 14 of the Veterans’ Entitlements Act 1986 (Cth) (“the Act”), a claim for a disability pension in respect of “major depressive disorder”. On 29 March 2011, the respondent determined that the depressive disorder was related to the applicant’s army service and assessed the applicant’s pension at 100% of the general rate under s 22 of the Act with effect from
8 August 2010. On 20 August 2012, the Veterans’ Review Board (“the Board”) affirmed the decision in respect of the assessment of the rate of pension. The assessment took into account the incapacity from the following conditions which have been accepted as being related to the applicant’s defence force service: tenosynovitis of foot and ankle, thoracic sprain, chondromalacia patellae, other tenosynovitis of hand and wrist (left), burn of upper limb except wrist and hand (right), intervertebral disc prolapse at L5-S1, burn of trunk, rotator cuff syndrome of the left shoulder, depressive disorder and lumbar spondylosis.
SERVICE, LEGISLATION AND ISSUES
The applicant served in the Australian Army from 14 February 1990 until he was medically discharged on 14 August 1995.
The
procedure to be followed in assessing a rate of pension under the Act is set out in
s 19 thereof. It requires the rate of pension to be determined during the “assessment period” which is defined as meaning the period starting on the application day, in this case 8 November 2010, and ending when the claim or application is determined.[1][1] Sections 19(5C)(a) and 19(9) of the Act.
The standard of proof to be used in determining assessment matters under the Act is provided for in s 120(4) thereof. This requires that such matters be determined on the balance of probabilities.[2]
[2] Fogarty v Repatriation Commission [2003] FCAFC 136, [34]-[35]; (2003) 37 AAR 363 at 373.
It is not disputed that the general rate of pension payable to the veteran was correctly assessed at 100% of the general rate. The issue raised by the applicant is whether he meets the criteria for payment of the special rate of pension under s 24 of the Act.
For the special rate, the matters that need to be determined are whether or not the veteran meets the requirements of s 24(1) of the Act. These read:
(1) This section applies to a veteran if:
(aa) the veteran has made a claim under section 14 for a pension, or an application under section 15 for an increase in the rate of the pension that he or she is receiving; and
(aab) the veteran had not yet turned 65 when the claim or application was made; and
(a) either:
(i) the degree of incapacity of the veteran from war-caused injury or war-caused disease, or both, is determined under section 21A to be at least 70% or has been so determined by a determination that is in force; or
…
(b) the veteran is totally and permanently incapacitated, that is to say, the veteran’s incapacity from war-caused injury or war-caused disease, or both, is of such a nature as, of itself alone, to render the veteran incapable of undertaking remunerative work for periods aggregating more than 8 hours per week; and
(c) the veteran is, by reason of incapacity from that war-caused injury or war-caused disease, or both, alone, prevented from continuing to undertake remunerative work that the veteran was undertaking and is, by reason thereof, suffering a loss of salary or wages, or of earnings on his or her own account, that the veteran would not be suffering if the veteran were free of that incapacity
EVIDENCE
The applicant
During his army service, the applicant was employed as a storeman and an occasional driver. He was discharged in 1995 because of the impact of his accepted orthopaedic conditions. In 1996, these also caused him to cease a brief period of work as a delivery driver. He applied unsuccessfully for work until he commenced training in security work. This lasted for about nine months when he ceased his training because his accepted orthopaedic conditions limited him, in particular, in negotiating stairs. These continued to bother him and resulted in his being taken from work to Campbelltown Hospital by ambulance. His treating doctor advised him to move to a warmer climate and he did this in 2001 when he moved to Brisbane.
From 1997, he and his first wife had experienced marital difficulties. She accompanied him to Brisbane initially but, after a few days, she returned to Sydney leaving him to look after their two children who were aged 3 and 5 years, respectively, at that time. He had assistance in minding the children from family members and remained in Brisbane for two years before returning to Sydney. There, he continued to seek work and had occasional interviews which did not mature into employment. He consulted with Centrelink for assistance and completed Activity Agreements in 2008. He recalled being tested for a telephone ordering position with a pizza outlet but was not successful as he was unable to master the standard oral responses he was to give to customers. Other prospects of work proved unsuccessful because of his orthopaedic problems and he also believed that he was suffering the effects of depression at that time, in particular, in respect of memory and concentration. In 2009, to again seek a warmer climate, the applicant and his children moved to Bundaberg where he continues to reside. He made attempts to obtain work when he first went to Bundaberg but ceased to do so when Centrelink granted him the disability support pension. He has not been in remunerative work since then. The applicant remarried in 2009 but he and his second wife separated in 2011.
The applicant is limited in his physical activity by his orthopaedic conditions, particularly his back. He spends a lot of time during a typical day resting on a hard surface. He is unable to undertake the household chores for which responsibility is assumed by his 16 year old daughter. Her friend assists by looking after outside duties such as lawn mowing. The applicant is able to drive his car for short distances only due to pain from sitting for long periods. He is assisted in that by his son who drove him to the hearing from Bundaberg over two days. His treatment has comprised physiotherapy, pain killing medication and injections for his orthopaedic conditions and many forms of medication as well as cognitive behavioural therapy from a psychologist for his depression. These treatment regimens have not been successful in preventing pain or ameliorating his symptoms of depressive disorder. Since he has been in Bundaberg, he has been treated at the Bundaberg Hospital for back pain and, on one such occasion, he remained there for seven days.
The applicant recalled his consultation with orthopaedic surgeon, Dr Bruce Martin. He described a complete lack of rapport with him. He rejected the adverse comments made by Dr Martin about him exaggerating his symptoms.
The applicant denied that he had ever suffered or been treated for asthma although he conceded that he may have had a breathing problem when he suffered a chest infection on service.
Medical evidence
Evidence was given in this matter by the applicant’s treating psychiatrist since 2011,
Dr Scott Jenkins, and by orthopaedic surgeon, Dr Habibullah Khursandi. Dr Jenkins completed reports on 9 March 2011, 13 December 2011 and 10 February 2014.
Dr Khursandi’s report was dated 12 September 2013. Dr Martin’s report, dated
2 April 2009, was also in evidence.
Dr Martin
In his report, Dr Martin described symptoms referable to the applicant’s orthopaedic conditions. These include pain and limitations of movement. However, his conclusion was that the applicant was “clearly exaggerating a reported level of disability”.
Dr Jenkins
Dr Jenkins confirmed the diagnosis in the applicant of depressive disorder which he considered was related directly to his accepted orthopaedic conditions. He had treated him with a continually changing medication regimen comprising Efexor, Lovan, Endep, Avanza, Valdoxon, Laxapro and Aurorix. He said that these did not prevent the applicant from experiencing depressive symptoms on a daily basis. These included depressed mood, loss of interests, fatigue, poor concentration, sleep disturbance, anergia and severe irritability. Dr Jenkins noted that these symptoms had commenced before 2009 and said that it was typical for patients who suffer from chronic pain to experience depression within 12 months thereof.
Dr Jenkins was aware of attempts by the applicant to undertake remunerative work in the past and his opinion was that these were abandoned by him because of chronic pain from his accepted disabilities and also his depression which, taken together, make it impossible for him to work in any capacity. His opinion was that the depressive disorder by itself would seriously impair his ability to work in any capacity. He considered that, by reason of the applicant’s training, education and experience, he is unable to work even eight hours per week because of his accepted disabilities.
Dr Jenkins noted that Dr Martin had expressed the opinion that the applicant had exaggerated the symptoms from his orthopaedic conditions. He said that his specialty was in psychiatry and that, accordingly, he had not tested the applicant in the manner done by Dr Martin. Nonetheless, Dr Jenkins said that it was not unusual for patients to present in that way and he accepted the applicant’s evidence as he saw it. He said that
Dr Martin’s opinion would not change the way in which he rendered psychiatric treatment to the applicant. In particular, Dr Jenkins noted that his last report was completed by him some five years after that of Dr Martin. Dr Jenkins said that he had known of the applicant’s marital breakdowns when he completed his later reports.
Dr Khursandi
In the Summary and Assessment in his report, Dr Khursandi wrote that the applicant suffered from supraspinatus tendonitis of the left shoulder which accounted for pain when lifting and overhead use of the left upper extremity; degeneration of disc and facet joints at L4/5 and L5/S1 levels which would account for his chronic back pain; backache attributable to chronic soft tissue strain; bilateral anterior pain of both knees due to degeneration of the patellofemoral compartments; and residual ache in the second, third and fourth toes when wearing enclosed shoes, following bilateral arthrodeses thereof done for the correction of hammertoe deformities. Dr Khursandi described limitations from the applicant’s spinal conditions in relation to bending, lifting, pushing, pulling or maintaining the back in certain postures for long periods. Additionally, Dr Khursandi described the applicant’s knee conditions as preventing him from participating in repetitive and prolonged flexion under loading. Dr Khursandi considered the orthopaedic conditions to be permanent.
Dr Khursandi’s opinion was that the applicant’s orthopaedic conditions would not prevent the applicant from seeking remunerative work provided the work was sedentary and precluded heavy use of the upper left extremity, both knees and the back. However, he also stated that he was unaware of any other condition which contributed to incapacity to work.
In his evidence, Dr Khursandi confirmed his opinion that the applicant could undertake full-time employment if the limitations described in his report were taken into account. His opinion was that there was no evidence during his examination of the applicant of an exaggeration of symptoms.
Other evidence
The applicant’s service documents record that he was injured in 1990, 1991, 1992, 1993 and 1995. A Medical Board Examination Record and a Final Medical Board Report, dated 26 July 1995, provide some detail of the nature of the injuries sustained and treatments given. As well as the various orthopaedic injuries, he is recorded as suffering from “mild exercise induced asthma”. The record also refers to “asthma” with symptoms occurring in the presence of upper respiratory tract infection (URTI). The applicant’s service documents also record him as being promoted in rank to Lance Corporal in 1993. He is recorded as being discharged on the basis that he was “medically unfit”.
In evidence were parts of Centrelink Activity Agreements entered into by the applicant and Centrelink on 4 September 2007 and his job service provider, Campbell Page, on
12 November 2008. These set out the obligations accepted by the applicant in relation to seeking work from September 2007 to March 2008 and from November 2008 until February 2009, respectively.
The applicant’s mother, Mrs Janice O’Keefe, completed a statutory declaration on
11 March 2012. Therein, she wrote that she had assisted him to find work after he was discharged from the army by helping him with letters and driving him to interviews. This lasted until the applicant was offered a security traineeship with a security company. She described him as suffering chronic pain at that time and reported that he had been taken, on one occasion, to the Campbelltown Hospital. There, she wrote, he was given a certificate excusing from work for three months. She confirmed that the applicant had then moved, on medical advice, to Brisbane for the warmer weather and wrote that, whilst there, she assisted him with writing job applications and conducting trial interviews to assist him in finding work. She noted his complaints of pain at that time. Mrs O’Keefe referred to his return to Sydney, his contact with Centrelink at that time and his many attempts to find work through attendances at Centrelink offices where he looked through job prospects on the Centrelink computer. Mrs O’Keefe wrote that, because the applicant was unsuccessful in finding work, he signed successive agreements with a job service provider to further assist him in that search. Again, this proved unsuccessful. Her opinion was that the applicant had been depressed and lacking in self-confidence over the years.
SUBMISSIONS
For the respondent, Mr Bruce Williams conceded that the terms of s 24(1)(aa), (aab), (a) and (b) of the Act were met by the applicant. He submitted that the applicant did not meet the terms of s 24(1)(c) thereof. To that end, Mr Williams submitted that, in assessing whether the applicant’s accepted disabilities were the only factor preventing the applicant from working, reliance should be placed on the reports of Dr Martin and
Dr Khursandi. The report of the former should result, he submitted, in a discounting of the level of incapacity associated with the applicant’s accepted orthopaedic conditions because he had exaggerated his symptoms when examined by Dr Martin. As to the latter, he noted that Dr Khursandi’s evidence was that the applicant was capable of a wide range of work options provided the safeguards identified by him were adhered to. Mr Williams also submitted that the period of time out of the work place before the commencement of the assessment period and the need for the applicant to look after his children for much of that time would have contributed to his being prevented from engaging in remunerative work as at the start of the assessment period. He submitted that the decision under review ought be affirmed.
Mr Matt Black, for the applicant, noted the concessions by Mr Williams in relation to
s 24(1)(aa), (aab), (a) and (b) of the Act. On that basis, he submitted that the intermediate rate under s 23 of the Act was not relevant in this matter. He agreed that the issue was whether s 24(1)(c) of the Act was satisfied and submitted that, in determining that issue,
s 24(2)(b) of the Act was relevant.
Mr Black referred to the analysis in Flentjar v Repatriation Commission[3] (“Flentjar”) as a useful guide[4] in applying s 24(1)(c) of the Act. He submitted that the four steps identified there were satisfied. He submitted that the relevant remunerative work that the applicant was undertaking within the meaning of s 24(1)(c) of the Act[5] was as a storeman or a driver rather than in security as the applicant had not completed his training program in relation to that work.
[3] (1997) 26 AAR 93; (1997) 48 ALD 1.
[4] Relying on Smith v Repatriation Commission [2014] FCAFC 53 at [45].
[5] Referring also to ss 24A and 28 of the Act.
Mr Black submitted that the applicant was prevented from continuing to undertake that work by reason of accepted disabilities alone. Further, he submitted that there was no other factor which prevented him from continuing to undertake that work. He noted the references to asthma in the applicant’s service records but submitted that there was no evidence that this impacted on his work capacity. Mr Black accepted that the applicant had not sought work since 2009 and that, at the start of the assessment period, he had been out of the work force for over a year. However, he submitted that the applicant had endeavoured to find work since his army discharge and that his inability to do so was due to the combined effect of his accepted disabilities, both orthopaedic and psychiatric. He submitted that this had been recognised in the grant by Centrelink of the disability support pension to him in 2009. He submitted that regard should not be had to the opinion of Dr Martin that the applicant was exaggerating his symptoms from his orthopaedic conditions as this had not been the conclusion of Dr Jenkins or
Dr Khursandi. Mr Black also submitted that, although not necessary on the facts, regard could be had to the ameliorating terms of s 24(2)(b) of the Act whereby, because of the applicant‘s age, his accepted disabilities are the substantial reason for his inability to obtain remunerative work. In that regard, he submitted that the applicant had been genuinely seeking to engage in remunerative work, without success, ever since his army service. Indeed, he submitted, it was his disabilities incurred during his army service and subsequently accepted as being defence-caused which were responsible for the cessation of that service.
Mr Black submitted that the prevention of the applicant from being in remunerative work since his service ended resulted in a loss of salary, wages or earnings on his own account during that time which includes the assessment period.
On the basis that all of the requirements of s 24 were met, Mr Black submitted that the decision under review ought be set aside and, in substitution, the Tribunal ought determine that the special rate of pension was payable to the applicant with effect from
8 August 2010.
CONSIDERATION
There is no dispute about the concession by Mr Williams concerning the terms of
s 24(1)(aa), (aab), (a) of the Act. In relation to s 24(1)(b) of the Act, I am satisfied that his concession was properly made. In particular, that is on the basis of the evidence of
Dr Jenkins. His opinion was that the incapacity from the applicant’s depressive disorder, even without the orthopaedic conditions, was sufficient to render the applicant incapable of working more than eight hours per week.
The analysis under s 24(1)(c) of the Act involves a consideration of what the applicant would probably have done in the assessment period in the absence of his accepted disabilities.[6] Typically, the analysis of s 24(1(c) of the Act is considered through the procedural summary advanced in Flentjar. While this may not be appropriate in every consideration of s 24(1)(c) of the Act,[7] I am satisfied that it is in this matter. In Flentjar, the Federal Court said that a proper consideration requires responses to the following questions:[8]
1. “What was the relevant “remunerative work that the veteran was undertaking” within the meaning of s 24(1)(c) of the Act?”
2. Is the veteran, “by reason of war-caused injury or war-caused disease, or both, prevented from continuing to undertake that work?”
3. If the answer to question 2 is yes, is “the war-caused injury or war-caused disease, or both, the only factor or factors preventing [the veteran] from continuing to undertake that work?”
4. If the answers to questions 2 and 3 are, in each case, yes, is the veteran, “by reason of being prevented from continuing to undertake that work, suffering a loss of salary, wages or earnings on his own account that he would not be suffering if he were free of that incapacity?”
[6] See Repatriation Commission v Hendy (2002) 76 ALD 47 at 54.
[7] See Smith v Repatriation Commission (supra) per Buchanan J at [45].
[8] See Flentjar v Repatriation Commission (supra) at 2.
The relevant work is the type of work which the member previously undertook and not “a particular job”.[9] I accept Mr Black’s characterisation of the relevant remunerative work in the applicant’s case with his reference to storeman, which the applicant performed in the Army, and driver, which he performed in the Army and in his first post-service employment. This was not disputed by Mr Williams.
[9] See Banovich v Repatriation Commission (1986) 69 ALR 395 at 402 and Repatriation Commission v Butcher (2007) 94 ALD 364 at 366.
For the second Flentjar question, as noted above, it is common ground that by reason of the applicant’s accepted disabilities, he is prevented from continuing to undertake that work.
The third of the Flentjar questions above raises in issue the first part of s 24(1)(c) of the Act through what is referred to as the “alone test”. In Willis v Repatriation Commission,[10] Bromberg J said:
[23] The question raised by the “alone test” is not whether, on its own, the war- caused incapacity prevents the veteran’s continued employment. The question is whether apart from the war-caused incapacity, there is another factor or factors which prevent employment. The existence of other factors which prevent the veteran from working has a disqualifying result for an application for a pension at the special rate. The war-related incapacity must be the lone factor which prevents continued employment. That is what is meant by “alone”.
[24] Another way of re-stating that proposition, which more closely focuses upon the language of s 24(1)(c), is that the alone test requires that the war-caused incapacity is the reason, rather than merely a reason, for the veteran’s inability to engage in the remunerative work which the veteran had previously done. If there is another reason which, independently of the war-caused reason, is preventing the veteran from working, the inability of the veteran to engage in remunerative work is not “by reason” of the war-caused incapacity “alone”.
[10] [2012] FCA 399 (emphasis in original).
There must be no factor, apart from the conditions accepted under the Act, which would impact upon the applicant’s capacity to undertake the relevant remunerative work at the start of, or during, the assessment period. Such a factor may be associated with a wide variety of considerations, such as incapacity from a non-service-related medical condition, the effects of age, relocation (for reasons not associated with accepted disabilities)[11] to a locality distant from work opportunities or the impact of the length of time out of the workforce. Such factors, individually or in combination with each other or with accepted disabilities, may serve to prevent a person from continuing to undertake relevant remunerative work.[12] In the event that they would have contributed to preventing the applicant from doing so in the assessment period, s 24(1)(c) of the Act will not be satisfied. In this, I accept as correct the submission of Mr Black.
[11] See Richmond v Repatriation Commission [2014] FCA 272 at [109], [173].
[12] See Repatriation Commission v Hendy (supra) at 54-55; Repatriation Commission v Alexander (2003) 75 ALD 329 at 334.
I am satisfied that the applicant ceased work and has been prevented from undertaking remunerative work throughout the assessment period by a combination of health conditions. Though asthma is noted in the applicant’s service records, there is no evidence that this was manifest in post-service years or that it played any role in preventing him from gaining remunerative work in post-service years. Dr Khursandi considered that, while there were limitations on the applicant’s work capacity because of his orthopaedic conditions, there was, nonetheless, a capacity to undertake employment of the limited types he identified. In his evidence, he said that he was unaware of any other condition which contributed to incapacity to work. Of course, Dr Jenkins makes it very clear that the applicant’s psychiatric condition does precisely that. Moreover,
Dr Jenkins concluded that depressive disorder renders the applicant incapable of working. He described the onset as being before 2009 and he inferred that it may have been much earlier based on his experience that persons with chronic pain may develop depressive disorder within 12 months thereof.
No factors preventing remunerative work other than the applicant’s accepted disabilities were pressed by Mr Williams. There were times when the applicant had sole responsibility for his children but this was not the subject of cross-examination of the applicant by Mr Williams or of submissions by him. By 2009, when he was on the disability support pension, the applicant had moved to Bundaberg but, again, employment propensity in the area was not the subject of evidence or submissions by
Mr Williams. In any event, I accept his reason for moving to a warmer climate on medical advice to assist in the management of his accepted orthopaedic conditions and, accordingly, this does not constitute “an independent preventative factor for the purposes of defeating the ‘alone’ requirement in s 24(1)(c)”[13] of the Act. I am satisfied that, during the assessment period, the applicant was prevented, by reason of incapacity from accepted disabilities, alone, from continuing to undertake remunerative work that he had been undertaking. The third question is answered in the positive.
[13] See Richmond v Repatriation Commission (supra) at [109].
Even if that provision were not satisfied in its own right, I am reasonably satisfied that the applicant would gain the benefit of the ameliorating terms of s 24(2)(b) of the Act which reads:
(2) For the purpose of paragraph (1)(c):
…
(b) where a veteran, not being a veteran who has attained the age of 65 years, who has not been engaged in remunerative work satisfies the Commission that he or she has been genuinely seeking to engage in remunerative work, that he or she would, but for that incapacity, be continuing so to seek to engage in remunerative work and that that incapacity is the substantial cause of his or her inability to obtain remunerative work in which to engage, the veteran shall be treated as having been prevented by reason of that incapacity from continuing to undertake remunerative work that the veteran was undertaking.
The applicant was 37 years of age at the date of his application. The evidence is that, subjectively,[14] he wanted to return to remunerative work and that he earnestly endeavoured to do so. These attempts ceased when he was granted the disability support pension in 2009 by Centrelink and, accordingly, took place before the commencement of the assessment period. That, in itself, does not serve to disentitle him from the benefit of the provision.[15]
[14] See Smith v Repatriation Commission (supra) at [23] per Rares J.
[15] See Smith v Repatriation Commission (supra) at [70] per Buchanan J.
As to the fourth of the Flentjar question, it was common ground that the applicant is, by reason of being prevented from remunerative work, suffering a loss of salary or wages, or of earnings on his own account, that he would not be suffering if he were free of that incapacity. Accordingly, that question is also answered in the affirmative.
The applicant is entitled to be paid the special rate of pension under s 24 of the Act.
DECISION
The Tribunal sets aside the decision under review and substitutes its decision that the applicant is eligible be paid the special rate of pension under s 24 of the Act with effect from 8 August 2010.
I certify that the preceding 42 (forty -two) paragraphs are a true copy of the reasons for the decision herein of
Mr R G Kenny, Senior Member...........................Sgd..........................................
Associate
Dated 2 July 2014
Date of hearing 26 May 2014 Counsel for the Applicant Mr Matt Black Solicitors for the Applicant KCI Lawyers Solicitors for the Respondent Mr Bruce Williams, Department of Veterans' Affairs
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