Tran v Allianz Australia Insurance Limited
[2023] NSWPICMP 680
•19 December 2023
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | Tran v Allianz Australia Insurance Limited [2023] NSWPICMP 680 |
| CLAIMANT: | Helen Tran |
| INSURER: | Allianz Insurance Australia Limited |
| REVIEW PANEL | |
| MEMBER: | Alexander Bolton |
| MEDICAL ASSESSOR: | Christopher Oates |
| MEDICAL ASSESSOR: | Margaret Gibson |
| DATE OF DECISION: | 19 December 2023 |
| CATCHWORDS: | MOTOR ACCIDENTS – Review of certificate of Medical Assessor (MA) Cameron dated 7 March 2023 by claimant for determination of threshold injuries concerning claimant’s cervical spine, closed head injury, chondral impact injury to right knee and chondral impact injury to left knee; the MA had found all injuries to be threshold injuries; claimant raised issue that a right posterior proximal tibial osteochondroma was caused by the accident but this was not accepted by the Panel as it was a coincidental constitutional condition and mechanism of accident could not have caused the condition; no evidence of radiculopathy to cervical spine; Panel determined that the claimant had suffered threshold injuries; Held – that the claimant had suffered threshold injuries to her cervical spine, head, right knee and leg, left knee and leg and certificate of MA Cameron affirmed. |
| DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION 1. The Review Panel affirms the certificate and reasons of Medical Assessor Cameron dated 7 March 2023. 2. The following injuries caused by the motor accident: (a) cervical spine – soft tissue injury; (b) head – soft tissue injury; (c) right knee and leg – soft tissue injury, and (d) left knee and leg – soft tissue injury. are threshold injuries for the purposes of the Motor Accident Injuries Act. 3. The following injury was not caused by the motor accident; (a) proximal tibial osteochondroma of the posterior aspect of the right knee. |
STATEMENT OF REASONS
INTRODUCTION
This is a review of the certificate and reasons of Medical Assessor Cameron (the Medical Assessor) dated 21 March 2023. The dispute is whether the injuries caused by the accident were threshold injuries.
The Medical Assessor found the following injuries caused by the motor accident:
(a) cervical spine – soft tissue injury;
(b) head – soft tissue injury;
(c) right knee and leg – soft tissue injury, and
(d) left knee and leg – soft tissue injury
were threshold injuries for the purposes of the Motor Accident Injuries Act 2017 (the Act).
Helen Tran (the claimant) has sought a review of this decision.
The following injuries were referred by the Personal Injury Commission (Commission) for assessment:
(a) cervical spine – neck strain;
(b) head – closed head injury;
(c) right knee and leg – chondral impaction injury of the right knee, and
(d) left knee and leg – chondral impaction injury of the left knee.
Bundles of documents
The parties have each presented their respective bundles of documents upon which they rely. The Review Panel (Panel) have read all the documentation. If a particular document is not referred to by the Panel, this does not mean that the Panel or a Panel Member has not read it, in much the same manner as parties not referring to or not specifically relying on a document in their own bundle and submissions.
The accident
On 13 March 2020, the claimant was a front seat passenger in a vehicle when an object hit the windscreen. The driver swerved. The car left the road and hit a pole. The airbags were deployed. The claimant said that she hit her head and thought she had a brief loss of consciousness.
LEGISLATIVE BACKGROUND
The legislation
Part 7 of the Act contains provisions relevant to the resolution of disputes. Division 7.5 provides for the internal review by insurers of medical disputes before a matter can be referred for medical assessment, procedures for medical assessment and the ability for a party to seek one further medical assessment and the review of medical assessments.
The insurer’s application for review is made under s 7.26 of the Act. Pursuant to s 7.26(5A) the Panel is to be constituted of a Member of the Commission and two Medical Assessors. Section 7.26(6) provides that the review is a fresh assessment of all matters before the original assessor and is not limited to a reconsideration of only the matters alleged in the application to be incorrect.
9.Part 5 of the Personal Injury Commission Act 2020 (the PIC Act) enables the Commission to make rules with respect to the practice and procedure before the Commission including proceedings before the Panel.
The Personal Injury Commission Rules 2021 (PIC Rules) are made pursuant to Part 5 of the PIC Act and Rule 128 provides that a Review Panel can determine how it conducts and determines the proceedings before it.
Consideration of the issues by the Panel
Clause 5.6 of the Motor Accident Guidelines (Guidelines) provides guidance to treating practitioners, medico-legal practitioners and medical assessors as to how to conduct a medical assessment and is set out below:
“5.6 The assessment of whether an injury caused by the accident is a minor injury for the purposes of the Act should be based on the evidence available and include all relevant findings derived from:
(a) a comprehensive accurate history, including pre-accident history and pre-existing conditions
(b) a review of all relevant records available at the assessment
(c) a comprehensive description of the injured person’s current symptoms
(d) a careful and thorough physical and/or psychological examination
(e) diagnostic tests available at the assessment. Imaging findings that are used to support the assessment should correspond with symptoms and findings on examination.”
Does the claimant have cervical and/or lumbar radiculopathy?
Radiculopathy is a medical term used by treating doctors, medico-legal examiners and Medical Assessors alike. Radiculopathy is used within the Guidelines in both the assessment of whole person impairment (to distinguish between categories II and III) and in minor injury assessments.
In Chapter 5 of the Guidelines, the heading “Soft issue assessment – injury to a spinal nerve root” appears above the definition of radiculopathy in clause 5.6 as follows:
“Radiculopathy means the impairment caused by dysfunction of a spinal nerve root or nerve roots when two or more of the following clinical signs are found on examination ...
(a) loss or asymmetry of reflexes (see the definitions of clinical findings in Table 6.8 in these Guidelines)
(b) positive sciatic nerve root tension signs (see the definitions of clinical findings in Table 6.8 in these Guidelines)
(c) muscle atrophy and/or decreased limb circumference (see the definitions of clinical findings in Table 6.8 in these Guidelines)
(d) muscle weakness that is anatomically localised to an appropriate spinal nerve root distribution
(e) reproducible sensory loss that is anatomically localised to an appropriate spinal nerve root distribution.”
For the claimant’s injuries to fall outside the definition of minor injury in s 1.6, he would need to have two of the above signs. Pain is not one of the five signs of radiculopathy which might indicate an injury to a spinal nerve root.
The Motor Accident Injuries Amendment Act 2022 (MAI Amendment Act) was assented on 28 November 2022 with various amendments commencing on 1 April 2023. From 1 April 2023 the MAI Amendment Act provides that a “minor injury” is known as a “threshold injury” and “minor injuries” are known as “threshold injuries”.
The definition of what constitutes a minor injury has not been amended and continues to apply to a threshold injury.
For motor accidents occurring on or after 1 April 2023, the entitlement to statutory benefits for a threshold injury have increased from 26 weeks to 52 weeks.
Accordingly, an injury which does not fall within the definition of a threshold injury (“a non-threshold injury”) means that a claimant has an entitlement to claim damages and, subject to other exclusions, receive statutory entitlements beyond either the 26 week or 52 week limitation period.
It should also be noted that in a common law damages claim, no damages are recoverable if the claimant’s injuries are “minor” injuries.
Pursuant to Schedule 2, cl 2 of the Act, various matters are declared to be medical assessment matters, including (e) “whether the injury caused by the motor accident is a minor injury for the purposes of the Act”.
Threshold injury
A threshold injury is defined in s 1.6 of the Act as a “soft tissue injury” and a “minor psychological or psychiatric injury”. Section 1.6(2) of the Act defines a soft tissue injury to mean:
“[A]n injury to tissue that connects, supports or surrounds other structures or organs of the body (such as muscles, tendons, ligaments, menisci, cartilage, fascia, fibrous tissues, fat, blood vessels and synovial membranes), but not an injury to nerves or a complete or partial rupture of tendons, ligaments, menisci or cartilage.”
In summary, if a person injured in a car accident has soft tissue injuries only then, unless one of those soft tissue injuries falls within the excluding clause of s 1.6(2) the injured person’s statutory benefits cease in accordance with ss 3.11 and 3.28. If a person injured in a car accident has an injury to a structure (such as a bone) or an injury to an organ, that injury will not be a non-threshold injury.
Section 1.6(4) provides that regulations may be made to exclude or include a specified injury from being a soft tissue injury or a minor psychological or psychiatric injury. Part 1, cl 4 of the Motor Accident Injuries Regulation 2017 (the MAI Regulation) further defines threshold injury to include “an injury to the spinal nerve root that manifests in neurological signs (other than radiculopathy)” and an acute stress disorder and an adjustment disorder (in terms of psychiatric or psychological injuries).
Section 1.6(5) says that the Guidelines may provide for the assessment of whether an injury is a minor injury. Relevantly to the matters in issue in the claimant’s claim, cls 5.7 to 5.9 of the Guidelines are headed “soft tissue assessment – injury to a spinal nerve root” and cl 5.7 provides:
“In assessing whether an injury to the neck or spine is a soft tissue injury, an assessment of whether or not radiculopathy is present is essential.”
Clause 5.8 defines radiculopathy and adopts the method of assessment provided for in the whole person impairment chapter of Part 6 of the Guidelines. Clause 5.9 then provides:
“Where the neurological symptoms associated with the injured person’s injury of the neck or spine do not meet the assessment criteria for radiculopathy, the injury will be assessed as a minor injury”.
Clauses 5.10 to 5.12 are not relevant to the matter before the Panel as they deal with psychological or psychiatric injuries.
Method of assessment
Part 5 of the Guidelines contain the procedure for assessing whether an injury resulting from the motor accident is a “minor injury” for the purposes of the Act. In respect of the medical assessment of whether an injury is a minor injury or not, the Guidelines relevantly provide:
“5.3 The assessment will determine whether the injury related to the claim is a soft tissue injury or a minor psychological or psychiatric injury caused by the motor accident.
5.5 Diagnostic imaging is not considered necessary to assess minor injury.
5.5 A diagnosis for the purpose of a minor injury decision must be based on a clinical assessment by a medical practitioner or other suitably qualified person independent from the insurer.
5.6 The assessment of whether an injury caused by the accident is a minor injury for the purposes of the Act should be based on the evidence available and include all relevant findings derived from:
(a) a comprehensive accurate history, including pre-accident history and pre-existing conditions
(b) a review of all relevant records available at the assessment
(c) a comprehensive description of the injured person’s current symptoms
(d) a careful and thorough physical and/or psychological examination
(e) diagnostic tests available at the assessment. Imaging findings that are used to support the assessment should correspond with symptoms and findings on examination.”
Claimant’s submissions
The claimant referred to and relied on a report of Dr Rahme dated 1 May 2020.
Dr Rahme, the claimant’s treating surgeon, recorded that there was chondral bruising and a chondral impaction injury of the claimant’s right knee. Dr Rahme said:
“The symptoms in both knees have failed to settle and further investigations have revealed chondral impaction injury of the right knee of the retropatellar and trochlear surfaces. There is chondral bruising and swelling involving primarily the lateral patella and trochlear facets on MRI. There is an incidental finding of a proximal tibial osteochondroma of the posterior aspect. The mechanism of injury is in keeping with the patellofemoral chondral damage.”
In response to this, the claimant submits that chondral tissue or cartilage is hard tissue. Therefore, the claimant submits, an injury to the cartilage is not a soft tissue injury and is a non-threshold injury as defined by the legislation.
The claimant makes reference to s 1.6(2) of the Act which states:
“A soft tissue injury is (subject to this section) an injury to tissue that connects, supports or surrounds, other structures or organs of the body (such as muscles, tendons, ligaments,
menisci, cartilage, fascia, fibrous tissues, fat, blood vessels and synovial membranes), but not an injury to nerves or a complete or partial rupture of tendons, ligaments, menisci or cartilage” (claimant’s emphasis added).
The claimant says that the Medical Assessor failed to address Dr Rahme’s report of 1 May 2020 in his Medical Assessment Certificate.
The claimant submits that on page 5 of the Medical Assessment Certificate the Medical Assessor stated “There is no proven injury involving disruption of cartilage”. The claimant says that this is not the proper definition of a non-threshold injury. The claimant says that there is no reference to disruption of the cartilage in the threshold injury definition. Dr Rahme in his report dated 1 May 2020 recorded that there was patellofemoral chondral damage and accordingly, the claimant says that her injuries would fall outside the definition of a threshold injury.
The claimant submits that the Medical Assessor has erred and made a demonstrable error and applied incorrect criteria in his assessment of whether the injuries sustained by the claimant are a threshold injury as defined by the legislation.
Insurers submissions
The insurer refers to the claimant’s submission that she sustained a cervical spine strain as a result of the accident. The insurer noted that the claimant’s general practitioner (GP) provided a diagnosis of “whiplash neck pain” in a clinical note dated 11 May 2020.
The insurer submits that as per s 1.6(2) of the Act, the cervical spine diagnosis of whiplash associated disorder is related to soft tissue injury and strain to muscles and ligaments and fibrous tissues around the cervical spine. The insurer says that this does not involve a disc, nerves or tendons. Therefore, the insurer submits that by definition, this is considered a “threshold injury”.
Regarding the injury to the claimant’s head, the insurer referred to her submission that she sustained a closed head injury as a result of the accident.
The insurer referred to the claimant saying that her GP had diagnosed her with “head concussion” in a clinical note dated 11 May 2020. The claimant said that furthermore, in a clinical note dated 23 April 2020 there was mention that “She said the she had loss of consciousness (LOC) for few seconds, she felt dizzy (blacked out) with head concussion.”
However, in response to this, the insurer says that the claimant’s Glasgow Coma Scale (GCS) score was 15/15, there was no vomiting, no seizure and the claimant was able to recall the accident, as was all recorded in the emergency discharge summary. Furthermore, the insurer says that a CT of brain dated 30 March 2020 confirmed, “No significant abnormalities visualised”.
The insurer says that in the absence of abnormal radiological or examination findings, it is submitted that the claimant sustained a “soft tissue injury” to the head as a result of the accident noting there is no evidence of an underlying structural injury to bone, organ or nerves as required by the legislation.
Regarding the injury to the claimant’s right knee, the insurer referred to her submission that she sustained a chondral impaction injury of the right knee as a result of the accident.
The insurer says that the claimants GP provided a diagnosis of “Post MVA - Mechanical bilateral right>left knee pain (severe) - tibial/patellar ligamentous strain” in a clinical note dated 11 May 2020. The insurer says that this diagnosis of strain is a “soft tissue injury” as it does not involve a rupture of tendons, ligaments, cartilage or menisci. Therefore, it is submitted that the left knee injury is a “threshold injury” for the purposes of the Act.
The insurer referred to an MRI of the right knee dated 9 April 2020. The findings reported were:
“Intact ACL, PCL, MCL and LCL.
Intact medial and lateral menisci.
Normal appearance of articular cartilage.
Intact quadriceps and patellar tendons and patellar retinacula.
Intact posterolateral comer complex.
Normal appearance of bone marrow with no focal signal alterations.
Normal appearance of surrounding muscles.
CONCLUSION:Mild joint effusion. Otherwise an unremarkable study of the knee joint.”
The insurer says that the above MRI scanning confirms no underlying structural damage in the right knee. There was evidence of joint effusion, however, it is submitted that joint effusion is considered a “soft tissue injury” only as it involves accumulation of fluid which does not involve an injury to nerves or a complete or partial rupture to tendons, ligaments, cartilage or menisci.
Furthermore, the insurer says that the claimant’s physiotherapist provided a diagnosis of “Chondromalacia patella and insidious posterior proximal tibia osteochondroma on background of MVA on the 18/3/2020” in Allied Health Recovery Request (AHRR) dated 26 August 2020. Similarly, a CT of right knee dated 30 March 2020 revealed, “A pedunculated osteochondroma is incidentally noted in the posterior aspect of the upper tibia which is unlikely to be of clinical relevance. No other significant abnormalities are demonstrated.” The insurer says that Dr Rahme reported on 19 June 2020 that “Helen is having symptoms related to the right tibial osteochondroma which is unrelated to her recent injury”.
It is submitted by the insurer, that the finding of pedunculated osteochondroma is not related to the accident but rather is an incidental finding only. The insurer says that the submission that the accident has worsened this condition made by the claimant is not supported by the opinions of the treating practitioners.
In light of the above, the insurer submits that the claimant sustained a “soft tissue injury” to the right knee as a result of the motor vehicle accident which is a “threshold injury” for the purposes of the Act
Concerning the claimant’s left knee, the insurer refers to the claimant’s submission that she sustained a chondral impaction injury of the left knee as a result of the accident. In response to this the insurer says the claimants GP has provided a diagnosis of “Post MVA - Mechanical bilateral right>left knee pain (severe) - tibial/patellar ligamentous strain” in a clinical note dated 11 May 2020. The insurer says that the diagnosis of strain is a “soft tissue injury” as it does not involve a rupture of tendons, ligaments, cartilage or menisci.
Finally, the insurer submits that the claimant’s injuries fall within the definition of a “threshold injury” under Section 1.6 of the Act.
Medical evidence
The Emergency Department discharge summary from Liverpool Hospital shows an assessment on 19 March 2020. It noted contusions to both knees. There was assessment and discharge was arranged.
General practitioner records from Dr Tran were noted. These showed an assessment by Dr Whittaker on 26 March 2020.
A CT of the right knee on 30 March 2020 noted an osteochondroma in the posterior aspect of the upper tibia. This was reported by the Medical Assessor as not motor vehicle related.
An MRI of the right knee on 9 April 2020 is reported as showing mild joint effusion but no abnormality otherwise.
A Certificate of Capacity from Dr Tran listed the injuries as, “Whiplash neck pain, headconcussion, mechanical right knee pain, post-traumatic stress disorder.”
General practitioner reports from Med Life Family Medical Centre at Lansvale have been provided. The first consultation with Dr Tran was on 23 April 2020. It noted the motor vehicle crash approximately one month previously. It noted there had been a previous general practitioner consultation. The diagnoses listed were as on the medical certificate.
Allied Health Recovery Requests were noted. These were to the psychologist and physiotherapist.
An MRI of the right knee on 8 April 2020 was reported as showing a mild joint effusion.
A bone scan on 30 April 2020 was reported as showing no significant injury.
A report of Dr Rahme, orthopaedic surgeon, dated 19 June 2020 is a treating orthopaedic surgeon’s report. It said the right tibial osteochondroma was not related to the motor accident.
Dr Rahme in his report dated 1 May 2020 said that:
"The symptoms in both knees have failed to settle and further investigations have revealed chondral impaction injury of the right knee of the retropatellar and trochlear surfaces. There is chondral bruising and swelling involving primarily the lateral patella and trochlear facets on MRI. There is an incidental finding of a proximal tibia/ osteochondroma of the posterior aspect. The mechanism of injury is in keeping with the patellofemoral chondral damage."
The Medical Assessor examined the claimant on 7 March 2023.
On examination, at the cervical spine there was moderately and symmetrically reduced range of motion (to 70% normal) in all planes, with no muscle spasm, no muscle guarding, no dysmetria, no non-verifiable radicular complaints present. Nerve tension signs were negative.
There was a full range of motion at both shoulders. There was pain at extremes of movement. There was a full range of motion at other upper extremity joints. There were no neurological abnormalities in the upper extremities. Circumferences of the upper extremities were right 22cm and left 22cm.
At the thoracic spine there was mildly and symmetrically reduced range of motion (to 80% normal) in all planes, with no muscle spasm, no muscle guarding, no dysmetria, no non-verifiable radicular complaints present.
At the lumbar spine there was mildly and symmetrically reduced range of motion (to 80% normal) in all planes, with no muscle spasm, no muscle guarding, no dysmetria, no non-verifiable radicular complaints present. Nerve tension signs were negative.
At the right knee range of motion was 0 to 140°. At the left knee range of motion was 0 to 140°. No crepitus or instability was present at either knee. There was a full range of motion at other lower extremity joints. There were no neurological abnormalities in the lower extremities. Circumferences of the lower extremities were right 33cm and left 33cm. The claimant walked with a normal gait.
The Medical Assessor said that there was no evidence of a closed head injury or traumatic brain injury because there were no medically verified abnormalities in level of consciousness or brain imaging abnormalities. He said that there was no proven injury involving disruption of cartilage.
The Medical Assessor found that the claimant had suffered threshold injuries only to her cervical spine, head, right knee and leg and her left knee and leg.
Medical examination
The claimant did not require a physical examination. Medical Assessor Oates has prepared a report on the papers regarding the claimant’s injuries. This report follows.
“CAUSATION
Left knee
The left knee injury was caused by the accident because this body part is mentioned in the PICF and the hospital record from the date of accident. There is no medical evidence in the file to indicate anything other than a soft tissue injury to this part.
Both knees had bruising over them but no effusion, according to the hospital records, although there was minimal swelling to both knees noted and full range of movement. X-ray both knees showed no acute fracture.
Cervical spine
The cervical spine injury was related to the motor vehicle accident, as it is also mentioned on the PICF and the hospital records, with complaint of pain over the right lateral muscles of the neck, with full range of movement of neck with pain over right lateral muscles.
Head injury
This injury is related to the accident, as it is also mentioned on the PICF. The hospital record refers to her history that she hit her head on ? window and complained of a headache. Head injury advice was issued by the hospital ED staff.
Right knee
A right knee injury is related to the motor vehicle accident, as this body part is mentioned on the PICF and the hospital record with complaint of pain in both knees, with bruising over both knees but no effusion, however minimal swelling was noted and full range of movement of both knees.
X-ray of the right knee showed no acute fracture.
THRESHOLD INJURY
Left knee
Based on the evidence available to the Panel, this is a threshold injury. X-ray showed no bony fracture. No other investigations were undertaken to indicate there was any injury to nerves or a complete or partial rupture of tendons, ligaments, menisci or cartilage.
Cervical spine
This is a threshold injury based on the evidence available to the Panel. Assessor Cameron’s report did not find any of the criteria which are required to make a diagnosis of cervical radiculopathy and there was no evidence of radiculopathic criteria present in the GP records or hospital record. There was no imaging for the cervical spine, and no evidence of injury to nerves or a complete or partial rupture of tendons, ligaments, menisci or cartilage.
Head injury
This is a threshold injury based on the available evidence. There was no documented medical record of loss of consciousness or reduction of Glasgow Coma Scale (GCS), nor of post-traumatic amnesia, nor any brain lesion on the imaging undertaken, namely a CT scan of the brain. There was no evidence of a traumatic brain injury and the head injury would be diagnosed as a soft tissue injury and is therefore a threshold injury.
Right knee
This is a threshold injury. MRI scan of the right knee did not show partial or complete rupture of tendons, ligaments, menisci or cartilage, and no injury to nerves. CT scan was clear. MRI findings referred to cartilage bruising and swelling, which is soft tissue injury, rather than partial or complete rupture of cartilage. MRI scan also did not refer to any bone injury.
With respect to the incidental finding of right posterior proximal tibial osteochondroma, the Panel determined that this is not related to the motor vehicle accident. It is a coincidental constitutional condition consisting of an overgrowth of cartilage and bone that occurs at the end of a bone near the growth plate. It is a non-cancerous bone growth mainly affecting the long bones. The orthopaedic surgeon, Dr Rahme, also stated that the osteochondroma is not related to the motor vehicle accident.
The Panel does not believe that the mechanism of the accident would have caused exacerbation or aggravation of the osteochondroma. This lesion is situated at the back of the knee and was palpable in that area, whereas the impact from the accident was to the front of the knee from contract of the knee with the dashboard at the time of the crash.
A frontal impact to the knee would not have affected a lesion at the back of the knee because of the anatomical arrangement of the knee. This is not medically plausible.
With regard to the medical evidence on file, tenderness was noted at the medial patella and medial joint line at the anterior aspect of the right knee and no posterior knee tenderness was specifically referred to. A follow-up appointment with Dr Rahme reported in June 2020, three months post-accident, stated that the osteochondroma had become symptomatic and would most likely require surgical excision.
Clinical considerations of the anatomy and crash mechanism plus the long time delay between the date of the accident and the date of symptoms in the region of the osteochondroma does not support a causal relationship.
The Panel considers that the accident is not a cause of the need for surgical excision of the osteochondroma.”
The Panel adopts the report and assessment of Medical Assessor Oates.
CONCLUSION
The claimant has suffered soft tissue injuries only as a result of the accident on 18 March 2020.
DETERMINATION
The Panel affirms the certificate and reasons of Medical Assessor Cameron dated 7 March 2023,
The following injury caused by the motor accident:
(a) Cervical spine – soft tissue injury;
(b) Head – soft tissue injury;
(c) Right knee and leg – soft tissue injury, and
(d) left knee and leg – soft tissue injury
are threshold injuries for the purposes of the Act.
The following injury was not caused by the motor accident;
(a) proximal tibial osteochondroma of the posterior aspect of the right knee.
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