Radley and Comcare (Compensation)
[2022] AATA 3405
•20 October 2022
Radley and Comcare (Compensation) [2022] AATA 3405 (20 October 2022)
Division:GENERAL DIVISION
File Number(s): 2019/0222, 2019/2774, 2020/3999
Re:Elizabeth Radley
APPLICANT
AndComcare
RESPONDENT
Decision
Tribunal:Senior Member A Poljak
Date:20 October 2022
Place:Sydney
The decisions under review are affirmed.
................................[SGD]........................................
Senior Member A Poljak
Catchwords
COMPENSATION – whether Comcare is liable for compensation pursuant to section 14 and 16 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) – relevant law and material considered – decisions under review affirmed.
Legislation
Safety, Rehabilitation and Compensation Act 1988 (Cth)
REASONS FOR DECISION
Senior Member A Poljak
20 October 2022
Ms Elizabeth Radley, the applicant, at all relevant times was employed on a contract basis by the Australian Bureau of Statistics (ABS) as a census collector. Her duties involved the delivery and collection of census forms. Her employment with the ABS commenced on 30 June 2006 and ceased on 8 September 2011.
Throughout the relevant period she was also self-employed as an athletics coach. This was in addition to part-time work delivering advertising material and employment as a receptionist at a doctor’s surgery.
Prior to 9 August 2006, the applicant was a master’s athlete in hurdling and competed in major championships and regional competitions. She also volunteered as an officiate for Athletics NSW and Athletics Australia.
The applicant has an accepted claim under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (SRC Act) for injuries described as:
(a)an ankle sprain (left) and Achilles’ bursitis/tendonitis (right) sustained on 9 August 2006; and
(b)supraspinatus (muscle) (tendon) strain (left) sustained on 3 June 2011.
There are three applications before the Tribunal.
AAT no. 2019/0222
The applicant has applied for a review of a reviewable decision dated 9 January 2019, which affirmed an earlier determination dated 5 December 2018. By that determination, the respondent denied liability to compensate the applicant pursuant to section 14 of the SRC Act for the claimed condition of secondary right partial tear of rotator cuff (the claimed right shoulder condition).
AAT no. 2019/2774
The applicant has applied for a review of a reviewable decision dated 6 May 2019, which affirmed an earlier determination dated 12 February 2019. By that determination, the respondent denied liability to compensate the applicant pursuant to section 14 of the SRC Act for a secondary condition of left talar dome avulsion fracture sustained on 29 November 2018 (the claimed left foot condition). In the same determination the respondent also denied liability to pay compensation under section 16 of the SRC Act for medical expenses for the claimed left foot condition.
AAT no. 2020/3999
The applicant has applied for a review of a reviewable decision dated 2 July 2020, which affirmed an earlier determination dated 23 March 2020. By that determination, the respondent denied liability to compensate the applicant under section 16 of the SRC Act for medical expenses because the claimed expenses were associated with the claimed left foot condition.
Applicant’s evidence
The applicant’s credibility as a reliable historian is questionable. It appears that she has not always disclosed her extensive relevant medical history. In a report dated 30 August 2006, Dr Negrine recorded that the applicant ‘denies any prior injury to the left ankle’. This is contrary to the available evidence which indicates a lengthy history of injury in the left ankle. The applicant also failed to disclose a history of injury in her left ankle in her claim for workers’ compensation that she completed on 30 August 2006.
It also appears from a record of the applicant’s consultation with general practitioner Dr Asawa on 22 March 2005, that he discussed with the applicant her decision to not disclose her history of musculoskeletal problems in a pre-employment health check. The consultation record states, ‘…patient understands has not disclosed her musculoskeltal (sic) problem feels it is not necessary as there is no lifting …. [E]xplained needs to inform does not sih (sic) to otherwise all clear.’ In cross-examination the applicant said she could not recall the consultation and was not able to explain the notes made by Dr Asawa but refused to accept that she asked Dr Asawa to exclude specific information.
Some evidence also demonstrates that the applicant was not always forthcoming about her level of involvement in athletics. In a response dated 27 March 2019 to a request for further particulars from the Australian Government Solicitor, the applicant said she ‘stopped competing [in athletics competitions] due to the injury to her left ankle… . She competed in one [discus] throwing [event] at the Sydney World Masters [Games] in 2009 however, she struggled as she could not do the required turns due to her ankle injury.’ In cross-examination the applicant accepted that she in fact competed in several events at the Sydney World Masters Games in 2009, namely, pentathlon, shotput, long jump, and discus, which is consistent with her statement dated 1 June 2020. She could not provide an explanation as to why her lawyer provided incorrect information in the response to the request for particulars, and stated: ‘Yes, I think it was just overlooked’.
As such, I am cautious about the reliability of the applicant’s evidence. Particularly, when medical opinions are reliant on her self-reporting.
Claimed right shoulder condition
In a written statement dated 28 March 2019, the applicant stated that at the start of 2018, she noticed that her right shoulder was becoming painful. She said she was having pain when lifting her right arm above shoulder height and her right shoulder would be more painful at night after using the shoulder for the day. The applicant said the pain in her right shoulder was gradually increasing.
The applicant contends that her right shoulder condition is the result of overuse due to limitations in her left shoulder caused by a work-related injury. In making her claim, the applicant relies on the opinions expressed by her treating surgeon Professor George Murrell, rehabilitation specialist Dr Mohammed Assem, and treating general practitioner Dr Andrew Roxburgh.
I note that the applicant underwent surgery on her left shoulder in December 2011. At hearing, the applicant claimed that she had limitations and some pain in the left shoulder, intermittently, following the surgery in 2011. She claimed that she managed these symptoms as they arose and used her right hand to do activities she normally did with her left hand, such as chores.
However, in a report dated 10 September 2012, Professor Murrell said:
I reviewed [the applicant] today. It is six months since rotator cuff repair of her left shoulder. She is very happy with the shoulder, and is back to full activities.
Examination today shows the shoulder has a good range of motion, and is strong in strength testing. There is mild mechanical impingement.
Ultrasound is very helpful, it shows the rotator cuff to be: Intact - normal post-op appearance.
Assessment: Good outcome from rotator cuff repair, left shoulder.
Noting the applicant had some physiotherapy on her left shoulder in 2013, there is no other contemporaneous medical evidence of the applicant having obtained treatment in 2014 or 2015 for her left shoulder nor is there contemporaneous evidence of the applicant making a complaint of left shoulder pain in 2013 to 2015.
In a report by Professor Murrell dated 15 December 2016, he reported:
Thanks for sending [the applicant] back to see me today. She's about four years now since rotator cuff repair of her left shoulder. She has been doing well but in recent times had noticed some pain in that shoulder, particularly when pulling up her trousers.
[Emphasis added]
Under assessment, Professor Murrell recorded:
Impingement, left shoulder
At hearing, Professor Murrell stated that if the applicant had told him during his examination that she had experienced pain continuously in her left shoulder since 2011, it is likely he would have included that in his report dated 15 December 2016. At hearing he stated that this does not mean that the applicant did not have pain, it was probably mild and not severe enough to report or seek treatment. While this is a theoretically possible, there is no reliable evidence to suggest that this is the case.
Based on the available contemporaneous medical evidence, it appears that in or around late 2012, but no later than December 2016, the left shoulder condition for which the respondent accepted liability to compensate the applicant in December 2011 had likely resolved.
The evidence contained in summonsed material demonstrates that the applicant has a history of right shoulder problems dating back to 2002. Relevant aspects of the evidence are as follows:
(a)In a report dated 12 September 2002, Dr Manuel Cusi, sports physician, noted that the applicant had ‘recently started training for a pentathlon which requires hammer throws among other events’. He noted that the applicant now has ‘pain and clicking of the right shoulder when she brings the hammer around the right side in preparation for throwing. This is associated with a loud clunk.’ On examination, Dr Cusi noted that the applicant has a full range of motion of the shoulder and has reasonable scapular rhythm but had ‘tenderness at the tip of the shoulder with passive extreme abduction and elevation’ and that there was ‘a loud clunk when bringing her shoulder back from elevation into the normal position combined with internal rotation and abduction’. Dr Cusi noted an x-ray of the shoulder which showed a ‘Type II acromion’. He opined that the applicant was developing mild subacromial impingement which would respond to cortisone injections and physiotherapy. Dr Cusi noted however that ‘cortisone injection with intensive training in the short term would be counterproductive’. He recorded that he had informed the applicant of this and she advised that she would train without weight on the hammer throw.
(b)The clinical records of the applicant’s general practitioner, Dr Asha Asawa, record on 10 September 2002, the applicant presented with right shoulder pain. Examination notes record, ‘rt shoulder. rotator cuff tenderness worse with overhead rotatory movement’. On 12 May 2003, the clinical notes record, ‘impingement +ve. worse with hammer throw. Pain Xrays rt shoulder. week before 21 st march when was doing the hammer throw comp, could not throw javelin or hammer throw’. On 29 September 2003, the clinical notes refer to a bone scan of the right shoulder revealing mild tendonitis.
(c)On 4 September 2003, the applicant underwent an assessment by Dr Surjit Singh-Wadhwa from Nuclear Medicine at St George Private Hospital for pain in her right shoulder. Dr Singh-Wadhwa reported ‘there is a minor focal abnormality in the antero lateral aspect of the right humeral head, which is best explained on the basis of supra-spinatus tendonitis’.
(d)Dr John Orchard, from South Sydney Sports Medicine, noted in a report dated 28 February 2006, that the applicant was ‘not keen on cortisone (having used it a lot in the past for shoulder and back)”.
(e)Medical notes from the South Eastern Sydney Local Health District record that the applicant was triaged in the emergency department on 14 August 2015. Presenting information records, inter alia, ‘Tripped over yesterday, landed onto RT hip and arm. Some tenderness over R hip and arm’. The Discharge Referral records, ‘Ambulatory, complaining of pain in right lateral thigh, right shoulder.’
(f)On 10 September 2015, the applicant had an x-ray and ultrasound of her right shoulder. The report recorded:
There is calcific tendinopathy involving the subscapularis and supraspinatus tendons.
There is a partial tear at the insertion of the supraspinatus tendon measuring 2x4mm.
There is bursitis.
(g)On 30 September 2015, had an injection of Celestone and Marcain into her right shoulder ‘into the subacromial subdeltoid bursa under ultrasound guidance’.
In a report date 29 July 2019, Dr Mohammed Assem, rehabilitation specialist, noted the applicant ‘began to develop pain in her right shoulder in around August 2018 with radiological evidence of a partial thickness tear to the rotator cuff’ and opined, the applicant ‘developed secondary pain in her right shoulder due to overuse. Prior to that time, there was no evidence of any pre-existing injury, condition or abnormality that could be of any relevance to this matter’. On 20 February 2020, Dr Assem was provided with further medical evidence obtained by way of summons (relevant aspects of which are detailed above). In a report of the same date, Dr Assem advised that the material had not caused him to alter his opinions expressed in his report dated 29 July 2019. He stated, ‘there is a clear temporal relationship between the injury to her left shoulder and the later development of symptoms to her right shoulder’. Dr Assem commented on the relevance of the report of Dr Cusi dated 12 September 2002, as follows:
Degenerative processes inside the rotator cuff can be made worse by repeated activities with the hands at shoulder level or above it. Such an activity, when performed repeatedly over a period lasting years may also affect the acromioclavicular joint leading to a joint degeneration and the formation of osteophytes that can result in worsening of subacromial impingement. It is therefore reasonable to accept an aggravation of underlying degenerative pathology.
At hearing, Dr Assem maintained the view that he expressed in his report, however, he also conceded that his speciality is in rehabilitation and the questions of diagnosis in some cases ought best to be put to orthopaedic surgeons. He also admitted that the issues around the causation of both the ankle and the right shoulder are complicated. He accepted as one possibility that the applicant left shoulder condition resolved before 2016.
In a report dated 9 May 2019, Professor Murrell assessed the applicant as having a rotator cuff tear, right shoulder. He was of the view that the right rotator cuff tear was likely ‘secondary to overuse of that shoulder secondary to the tear on the left shoulder, which is secondary to the work-related ankle injury’.
At hearing, Professor Murrell said he was unaware of a history of injury in the applicant’s right shoulder prior to August 2018. In cross-examination, Professor Murrell agreed that if the applicant had a history of right shoulder injury that predated April 2018, it would be relevant to identify the cause of the current problem in the right shoulder. He said that ‘if she had an injury of that right shoulder, that may well predispose to further injury’.
Dr Andrew Roxburgh opined in a report dated 12 June 2019, that due to the injury to the contralateral shoulder, an increased load to the right shoulder has contributed greatly to the supraspinatus tendon tear. At hearing, he confirmed that it his understanding that even after the applicant had the surgery on the left shoulder, she continued to have symptoms on that side such that by August 2018, signs of overuse on the right began to emerge in the right shoulder. Dr Roxburgh was then taken in cross-examination to medical reports and notes detailing the applicant history of right shoulder complaints and treatment. He accepted that the evidence showed a history of injury in the right shoulder pre-dating the symptoms she complained of in August 2018. However, he maintained that overuse of the right shoulder caused any previous underlying tear to become symptomatic.
Neither Professor Murrell nor Dr Roxburgh appears to have considered the possibility that the applicant’s history of problems in her right shoulder might explain the symptoms she presented with in 2018. Further, neither Professor Murrell, Dr Roxburgh nor Dr Assem could provide any compelling explanation for why the applicant’s medical history should not presume at least some significance or some relevance when it comes to identifying the cause of the condition that emerges in 2018. For these reasons, I prefer the evidence of orthopaedic surgeon Dr Robert Breit.
Dr Breit diagnosed the applicant with a right rotator cuff tear, which was confirmed on a subsequent MRI. He also stated in his report dated 24 January 2020:
[W]ith the added information of a past history of right shoulder problems and that she has been undertaking activities such as hammer throw and javelin where there is a risk of rotator cuff injury (a classical cause) the pathology is overwhelmingly due to her previous activities and degeneration rather than overuse secondary to the left shoulder.
…
That there was evidence of impingement in 2002, that she was doing high risk sporting activities and that she now has a rotator cuff tear is in keeping with that which one would expect.
…
As I have indicated above javelin and shotput are high risk sporting activities with respect to rotator cuff pathology. I have previously indicated that 50% of 70-year-olds have been shown to have rotator cuff tears. This lady also has had a number of falls which may have contributed to a variety of pathologies including the shoulder.
In my opinion the pathology in the right shoulder is overwhelmingly constitutional and due to her sporting activities.
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… I would consider there is very little probability that the right shoulder problem is secondary to overuse but rather due to the factors as indicated above.
At hearing, Dr Breit conceded it was difficult to be definitive about the cause of the applicant’s right shoulder problems and conceded that an asymptomatic shoulder condition can be made symptomatic as a result of overuse after surgery on the opposite shoulder, However, Dr Breit rejected the proposition that the applicant’s right shoulder pathology could be explained entirely by overuse. As Dr Breit said in his cross-examination:
You know, you have a seven year hiatus before it becomes symptomatic. The vast majority of people who have complaints secondary to overuse present very early. So within the first year or so is when they tend to present with overuse symptomatology. At this hiatus, you cannot say whether or not her presentation in 2018 is actually due to the overuse, or due to the underlying pathology that would have occurred anyway - with that sort of a gap.
For all these reasons, I find that the claimed right shoulder condition is not a ‘disease’ or ‘injury’ for the purposes of the SRC Act because it has no causal connection with the applicant’s former employment with the ABS or with her existing compensable injuries.
Claimed left foot condition
As already accepted, on 9 August 2006 the applicant suffered an injury to her left ankle/foot, during her employment with the ABS. She was collecting the Census forms from a house when she fell down the steps. The applicant contends that the left foot condition she suffered in August 2006 left her with continuing instability in her left ankle, and but for the residual instability in her let ankle, she would not have suffered a further injury in her left foot on 29 November 2018.
The applicant details her treatment history in her written statement dated 28 March 2019 as follows:
(a)On 10 August 2006, she attended the Sutherland Hospital as her foot/ankle was very swollen and painful. She was seen by Dr Michael Kleir, underwent an x-ray and was provided with crutches.
(b)The applicant was then seen by GP Dr M Patterson who referred her to orthopaedic surgeon Dr J Negrine. On 23 October 2006 Dr Negrine referred the applicant to Dr John Best of Sydney Sports Medicine. She first saw Dr Best in 2007 and underwent a further MRI on 25 July 2007.
(c)In 2008 the applicant underwent arthroscopic surgery with Dr Negrine at Prince of Wales Hospital.
(d)In February 2011 she underwent ankle ligament reconstruction surgery with Dr M Sullivan at St Vincent’s Private Hospital.
(e)On 12 March 2013 the applicant underwent an ultrasound guided steroid injection for plantar fasciitis.
(f)On 12 August 2013 the applicant attended North Shore Foot and Ankle Physio due to her plantar fasciitis. She was required to use crutches for about four weeks and wear a cam boot for approximately 2 months. She claims that using the crutches during this time put additional pressure on her shoulders.
(g)From 2013, the applicant continued with physiotherapy and self-rehab at the gym. She has undergone acupuncture, massage therapy, used orthotics and undergone adjustments by podiatrist Dr Najjarine up until the incident on 29 November 2018.
The applicant has a history of injury in her left foot and ankle that pre-dates her work-related injury in August 2006. Significantly, on 20 April 2002, the applicant injured her left ankle while climbing Uluru. According to treating surgeon Dr John Negrine, the applicant described ‘an inversion type injury’ and presented with ‘pain and tenderness in the anterolateral gutter and to some extent on the dorsum of the talus.’ Dr Negrine also observed a ‘very mild laxity of the lateral ligaments’.
It is significant that in August 2006 the applicant suffered an acute transverse tarsal injury and not an acute lateral ligamentous disruption. That is because an injury of the type sustained by the applicant in August 2006 would not have caused ligament laxity or other instability in the ankle, or an increased risk of injury in the ankle, contrary to the applicant’s claims.
The MRI of the applicant’s left foot and ankle on 22 September 2006, revealed ‘significant strain affecting the dorsal intra-osseous ligament traversing the talonavicular joint’, ‘significant bone marrow oedema in the neck and inferior head of the talus in keeping with micro-trabecular injury’ and ‘some low grade strain of the anterior talofibular ligament’.
In a supplementary report dated 9 September 2020, Dr Breit diagnosed the applicant left foot injury suffered in August 2006 as a ‘minor avulsion fracture from the region of the talonavicular joint’. He stated that the only injury sustained was to the talonavicular joint and opined that any subsequent problems are not related to the injury of August 2006. Dr Breit also added that the injury of August 2006 also damaged some soft tissue but did ‘not create any instability or any increased risk of fracture or other injury’. He opined that there is no relationship between the August 2006 injury and the applicant’s claimed left foot injury in 2018. He considered that the August 2006 injury was simple and straightforward and would have resolved in six months. At hearing, Dr Breit said if there was a ligament reconstruction in 2011, you would not expect to see laxity or instability after that surgery unless the surgery had failed, which, based on Dr Sullivan's reports, it had not failed. Or, opined, you might see laxity or instability if there's been another injury thereafter. Dr Breit did not consider the proposed treatment was reasonable and would have no effect for both the August 2006 and 2018 injury as the injury had already healed.
Dr Roxburgh recorded in his report dated 28 March 2019, that the applicant said her left ankle, after her surgery in 2011, remained feeling weak and unstable. She explained that she had to be ‘very careful of uneven ground’. Dr Roxburgh said, ‘her proprioception and balance are affected’. He opined that the applicant’s injury in November 2018 is ‘strongly related’ to her previous injury from 2006 on the basis ‘that because of her ankle instability the ankle was not stabilized within the usual range and there was excessive eversion’. In a further report dated 12 June 2019, Dr Roxburgh reiterated what the applicant had previously reported to him about her ankle instability. He diagnosed the applicant’s left ankle as ‘of a talar avulsion fracture on the background of chronic left ankle instability and pain’.
At hearing, Dr Roxburgh said he could not definitively comment about whether a fracture to the talar head could affect stability as it was ‘not quite in [his] field to comment on that’. Nevertheless, he was unwilling to reconsider his opinion based on the report of orthopaedic surgeon Dr Breit. Dr Roxburgh stated that he though ‘it was more the ligamentous - lack of proprioception that predisposed the injury in 2018’ but also accepted that in May 2012 Dr Sullivan found no ligament problem of instability in his examination findings. At hearing it was evident that Dr Roxburgh relied heavily on the applicant’s own reporting and history she gave to form his opinion on instability and pain in the applicant’s left ankle. He said, ‘I rely quite significantly on the patient history’, and ‘I just accepted her history there was a significant amount of pain’. As already stated, I do not find the applicant to be a reliable historian and am cautious about the accuracy of her reporting to medical professionals. For these reasons, I prefer the evidence of the radiologists and orthopaedic surgeon, Dr Breit.
Dr Michael Symes, orthopaedic surgeon, stated in his amended report dated 12 December 2018, that the applicant’s injury in November 2018 was ‘strongly related to her previous injury from 2006. Her persisting instability and intermittent pain was the direct cause of her injury’. He believed that if they were not present, ‘the injury would not have occurred at all’. I note however, that Dr Symes’ opinion is based on assumptions that the applicant’s 2006 injury resulted in persisting instability and swelling, and that the injury suffered in 2006 was a lateral ligament injury. This is inconsistent with the medical evidence, particularly that of the radiologists.
Dr Korber, radiologist, reviewed multiple hard copy imaging and one soft copy 2009 MRI scan. In a report dated 10 August 2021, he noted that the applicant had significant issues with both lower limbs before and after the 2006 injury. He opined that the 2006 injury was ‘a transverse tarsal injury and not an acute lateral ligamentous disruption’. This is consistent with the view of radiologist Dr Ronald Shnier. He also noted that ‘[t]he ATFL is not entirely normal in 2006 (probably leading to the report of “low grade strain”) demonstrating some thickening suggestive of previous injury, which would not be abnormal for such an athlete and indeed common in asymptomatic patients of this age. Indeed multiple xrays have been performed pre-injury’.
Dr Shnier said in his report dated 2 November 2021:
[The applicant] appears to have had a significant number of issues and injuries related to her left ankle both before and after the injury of 9 August 2006. Having reviewed the radiological material, the 2006 injury was a transverse tarsal injury and not an acute lateral ligamentous disruption. This was confirmed on the initial MRI scan following injury… The initial MRI scan following injury showed oedema in the talus which was the site of the capsular injury and not in the fibula which would be expected had there been a lateral ligamentous injury.
…
I agree with Dr Symes that seemingly a scarred but intact lateral ligamentous complex can be unstable clinically and as such the clinical evaluation is more important in that setting than the MRI scan. I do not agree that there is evidence on the MRI scan on any of the imaging that there was an acute lateral ligamentous injury in 2006.
It would be most unusual for swelling to be found clinically but not on an MRI scan, on the assumption that both examinations were performed on the same day. As there was some delay between the acute injury and the first MRI scan it is possible that the soft tissue swelling had resolved.
…
I agree with the opinions provided by Dr Korber in his report dated 10 August 2021 that there is no radiological evidence of acute lateral ligamentous complex injury and that there was a transverse tarsal injury which subsequently healed…
Both Dr Korber and Dr Shnier appear to agree that any injury to the ATFL that is seen in the September 2006 MRI is not acute.
I am not convinced that there was instability in the left ankle because of the 2006 injury, however, even if there had been some instability in the left ankle, following a lateral ligament ankle reconstruction in February 2011, the applicant’s treating surgeon Dr Martin Sullivan described the applicant’s ankle as ‘clinically stable’. This is consistent with the findings of an MRI on 26 July 2013, which revealed an intact lateral ligament reconstruction. If the applicant had instability in her left ankle in November 2018, that instability is likely to have been the result of her long history of issues in her left foot and ankle and/or a condition that she sustained in her left foot or ankle at some point after August 2006.
Medical Treatment
It is not necessary for me to consider or determine proceedings no. 2020/3999.
Decision
The decisions under review are affirmed.
I certify that the preceding 46 (forty-six) paragraphs are a true copy of the reasons for the decision herein of Senior Member A Poljak
..................................[SGD]......................................
Associate
Dated: 20 October 2022
Date(s) of hearing: 27 - 29 January 2021 & 14 December 2021 Date final submissions received: 20 December 2021 Counsel for the Applicant: Mr K Pattenden Solicitors for the Applicant: Ms K Harley & Mr C Santone, Santone Lawyers Counsel for the Respondent: Mr B Dean Solicitor for the Respondent: Ms N Donaghy, AGS
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Employment Law
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Administrative Law
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Causation
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