VIKKI MURPHY and SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS
[2012] AATA 165
•16 March 2012
[2012] AATA 165
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2011/1200
Re
VIKKI MURPHY
APPLICANT
And
SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS
RESPONDENT
DECISION
Tribunal Senior Member R W Dunne
Date 16 March 2012 Place Adelaide The Tribunal affirms the decision under review.
........................[sgd]................................................
Senior Member R W Dunne
CATCHWORDS
SOCIAL SECURITY - pensions, benefits and allowances - entitlement to Disability Support Pension - physical, intellectual or psychiatric impairment - whether impairment rating of 20 points or more existed under the Impairment Tables - whether there was a "continuing inability to work" - Job Capacity Assessments conducted - reports of medical practitioners - decision under review affirmed.
LEGISLATION
Social Security Act 1991 (Cth), ss 94(1), (2), (3), (5), Schedule 1B
CASES
Secretary, Department of Employment and Workplace Relations v Parry [2007] FCA 1606
Secretary, Department of Social Security v Pusnjak [1999] FCA 994
Re Crossland and Secretary, Department of Family and Community Services [2004]AATA 864
Croker v Secretary, Department of Employment and Workplace Relations [2007] FCA 1635REASONS FOR DECISION
Senior Member R W Dunne
16 March 2012
INTRODUCTION
Ms Vikki Murphy (“applicant”) suffers from a number of medical conditions which prevent her from being in regular employment. This situation led her to claim Disability Support Pension (“DSP”) from Centrelink (“respondent”) on 29 March 2010, and her claim was accompanied by a medical certificate from Dr David Ghan dated 26 March 2010. In addition, a medical report dated 7 May 2010 from Dr Andrew Lok was forwarded. His findings were that Ms Murphy suffered from chronic neck pain, degenerative disc and osteoarthritis, and depression. At a face-to-face Job Capacity Assessment conducted on 17 May 2010, the medical conditions presented by Ms Murphy were depression and spinal disorder.A rating of 10 points was assigned for depression under Table 6 of the Impairment Tables. Ms Murphy’s claim for DSP was rejected on 7 June 2010. On 18 December 2010, the original decision-maker decided to affirm the decision to reject the applicant’s claim for DSP. The applicant requested a review of that decision by an Authorised Review Officer (“ARO”) and the Social Security Appeals Tribunal (“SSAT”). They both affirmed the original decision-maker’s decision. Ms Murphy has applied to this Tribunal for review of the decision of the SSAT.
At the hearing, Ms Murphy represented herself and was assisted by her partner, Mr Gerald Murphy. The respondent was represented by Ms Lee-Anne Odgers (from Centrelink Program Litigation and Review Branch). I admitted the T-documents, lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975, into evidence as Exhibit R1, together with the following exhibits:
·Job Capacity Assessment Report of Ms Tanya Parhas dated 9 August 2011 (Exhibit R2);
·Job Capacity Assessment Report of Ms Tanya Parhas dated 4 August 2011 (Exhibit R3);
·Letter from Dr Andrew Lok dated 11 July 2011 (Exhibit R4); and
·Medical report of Dr Andrew Lok dated 21 July 2011 (Exhibit R5).
ISSUE FOR THE TRIBUNAL
The issue for the Tribunal, in relevantly considering s 94 of the Social Security Act 1991 (“Act”), is whether Ms Murphy was qualified to receive DSP during the period from 29 March 2010 or within 13 weeks thereafter, namely 28 June 2010 (“Claim Period”). In respect of the Claim Period, the respondent accepted that Ms Murphy had a physical, intellectual or psychiatric impairment. The respondent did not accept:
(a)that the impairment attracted an impairment rating of at least 20 points under the Impairment Tables contained in Schedule 1B of the Act; and
(b)that Ms Murphy had a “continuing inability to work”, because of her impairment, within the meaning of s 94(1)(c)(i) and s 94(2), (3) and (5) of the Act.
LEGISLATION
Entitlement to DSP is to be found in the provisions of s 94 of the Act and those provisions are reproduced relevantly as follows:
“94 Qualification for DSP
(1) A person is qualified for disability support pension if:
(a)the person has a physical, intellectual or psychiatric impairment; and
(b)the person’s impairment is of 20 points or more under the Impairment Tables; and
(c) one of the following applies:
(i) the person has a continuing inability to work;
(ii)the Health Secretary has informed the Secretary that the person is participating in the supported wage system administered by the Health Department, stating the period for which the person is to participate in the system; and
(d) the person has turned 16; and
(e) the person either:
(i)is an Australian resident at the time when the person first satisfies paragraph (c); or
(ii)has 10 years qualifying Australian residence, or has a qualifying residence exemption for a DSP; or
(iii)is born outside Australia and, at the time when the person first satisfies paragraph (c) the person:
(A) is not an Australian resident; and
(B) is a dependent child of an Australian resident;
and the person becomes an Australian resident while a dependent child of an Australian resident; and
(f)the person is not qualified for disability support pension under section 94A.
(2)A person has a continuing inability to work because of an impairment if the Secretary is satisfied that:
(a)the impairment is of itself sufficient to prevent the person from doing any work independently of a program of support within the next 2 years; and
(b) either:
(i)the impairment is of itself sufficient to prevent the person from undertaking a training activity during the next 2 years; or
(ii)if the impairment does not prevent the person from undertaking a training activity—such activity is unlikely (because of the impairment) to enable the person to do any work independently of a program of support within the next 2 years.
Note: For work see subsection (5).
(3)In deciding whether or not a person has a continuing inability to work because of an impairment, the Secretary is not to have regard to:
(a) the availability to the person of a training activity; or
(b)the availability to the person of work in the person’s locally accessible labour market.
…
(5) In this section:
training activity means one or more of the following activities, whether or not the activity is designed specifically for people with physical, intellectual or psychiatric impairments:
(a) education;
(b) pre vocational training;
(c) vocational training;
(d) vocational rehabilitation;
(e) work related training (including on the job training).
work means work:
(a)that is for at least 15 hours per week on wages that are at or above the relevant minimum wage; and
(b)that exists in Australia, even if not within the person’s locally accessible labour market.
…”
IMPAIRMENT TABLES
The Impairment Tables, under which impairment point ratings appear, are contained in Schedule 1B of the Act. The introduction to those Tables relevantly states:
“4. A rating is only to be assigned after a comprehensive history and examination. For a rating to be assigned the condition must be a fully documented, diagnosed condition which has been investigated, treated and stabilised. The first step is thus to establish a working diagnosis based on the best available evidence. Arrangements should be made for investigation of poorly defined conditions before considering assigning an impairment rating. In particular where the nature or severity of a psychiatric (or intellectual) disorder is unclear appropriate investigation should be arranged.
5. The condition must be considered to be permanent. Once a condition has been diagnosed, treated and stabilised, it is accepted as being permanent if in the light of available evidence it is more likely than not that it will persist for the foreseeable future. This will be taken as lasting for more than two years. A condition may be considered fully stabilised if it is unlikely that there will be any significant functional improvement, with or without reasonable treatment, within the next 2 years.
6. In order to assess whether a condition is fully diagnosed, treated and stabilised, one must consider:
Ÿ what treatment or rehabilitation has occurred;
Ÿ whether treatment is still continuing or is planned in the near future;
Ÿwhether any further reasonable medical treatment is likely to lead to significant functional improvement within the next 2 years.
In this context, reasonable treatment is taken to be:
Ÿtreatment that is feasible and accessible ie, available locally at a reasonable cost;
Ÿwhere a substantial improvement can reliably be expected and where the treatment or procedure is of a type regularly undertaken or performed, with a high success rate and low risk to the patient.
It is assumed that a person will generally wish to pursue any reasonable treatment that will improve or alleviate an impairment, unless that treatment has associated risks or side effects which are unacceptable to the person. …”
BACKGROUND AND EVIDENCE OF APPLICANT
The material facts in this case are set out in the Reasons for Decision of the SSAT and are largely not in dispute. Ms Murphy is 46 years of age and is separated from her husband. She has lodged several claims for DSP. Following the claim that is presently in dispute, she lodged a further claim on 18 August 2010 and provided a medical report from Dr Lok dated 16 August 2010. This claim was treated as a request for review of the rejection decision made on 7 June 2010. On 1 October 2010, Ms Murphy produced a musculoskeletal assessment report by Mr Chad Harper concerning her upper limb conditions. On 15 October 2010, she provided a copy of a report dated 2 August 2010 from Dr Grant Purdie, neurologist, to Dr Lok. Dr Purdie’s report read, in part:
“Vikki walked in an unremarkable fashion. Neck movements were full with some sub occipital muscle tenderness. The reflexes were generally brisk but both plantars were convincingly flexor. Tone, coordination and power were normal in the limbs and I could not detect any impairment of joint position sense or pain in the arms or legs.
Vikki’s MRI of the brain and cervical spine revealed some degenerative changes at the C4-5 and C5-6 levels without evidence of focal pathology within the brain or cervical cord. Such changes are unlikely to be responsible for Vikki’s ongoing symptoms but unfortunately I am unable to offer a definite neurological explanation for them.”
On 27 October 2010, a face-to-face Job Capacity Assessment was conducted by Ms Andrea Zoontjens, conditionally registered psychologist, and Mr Adam Gruchot, accredited exercise psychologist. The medical conditions presented by Ms Murphy at this assessment were osteoarthritis, depression and spinal disorder. A rating of 10 points was assigned for osteoarthritis (spinal function) under Table 5.1 of the Impairment Tables, and a rating of 5 points was assigned for osteoarthritis (upper limb function) under Table 3 of the Impairment Tables.
Ms Murphy subsequently provided a letter from Dr Lok dated 11 July 2011 in support of her claim made on 29 March 2010. Dr Lok’s letter was written in response to a request letter from Ms Murphy dated 14 June 2011. Dr Lok’s letter read, in part:
“She has been consulting Dr Barbara True who is a rheumatologist and pain specialist. As a result, an additional diagnosis of fibromyalgia syndrome has been made to account for her neck, back, shoulder pain, and overall functional impairment. This is in addition to the initial diagnosis of osteoarthritis stated on the initial DSP applications.
…
In my opinion, she would receive fifteen points from the impairment table.
…
With regards to her mental health conditions, depression and anxiety. I have been treating her for this since January 2010. She reports that she was initially diagnosed ten years ago and that she has been on anti-depressant medication every since.
In my opinion, she would receive ten points from the impairment table for depression and anxiety.”
On the basis of this additional medical information, another face-to-face Job Capacity Assessment was conducted by Ms Tanya Parhas, registered occupational therapist, on 4 August 2011. In her assessment, Ms Parhas referred to the applicant’s condition of fibromyalgia. She contrasted the report of Mr Chad Harper and the report of Dr Grant Purdie. As further treatment options were to be explored and the applicant’s medication was still to be reviewed to achieve stabilisation of symptoms, Ms Parhas considered that the fibromyalgia was not being fully treated and stabilised. As to the applicant’s depression and anxiety, these conditions were also not considered as being fully treated and stabilised. The applicant’s osteoarthritis was considered as fully diagnosed, treated and stabilised, but in contrasting the musculoskeletal assessment of Mr Harper with the report of Dr Purdie, a nil rating was assigned under Table 5.1 of the Impairment Tables.
On 9 August 2011, a further Job Capacity Assessment (file assessment) was conducted by Ms Parhas. She determined that each of the applicant’s conditions of fibromyalgia, depression and anxiety were not fully diagnosed, treated and stabilised and so could not be assigned a rating under the Impairment Tables. Ms Parhas determined that the applicant’s condition of osteoarthritis was fully diagnosed, treated and stabilised. However, as the applicant’s upper limb difficulties were related to fibromyalgia, as indicated in Dr Lok’s letter of 11 July 2011, her osteoarthritis could not be rated as the fibromyalgia was not deemed to be a permanent, fully diagnosed, treated and stabilised condition.
In giving her brief evidence, Ms Murphy said that she had suffered depression and anxiety all her life. She had been diagnosed with depression by Dr Crea 24 years ago. However, she had nothing in writing which evidenced the diagnosis.
In cross-examination by Ms Odgers, Ms Murphy said that at the time of the Claim Period, she was suffering pain and was grieving because of the death of her father and her separation from her husband. When asked about her condition at the time of the Claim Period, she said “No-one knew what was wrong with me in a physical sense in March 2010.”
CONSIDERATION
Was Ms Murphy qualified to receive DSP during the period from 29 March 2010 or within 13 weeks thereafter, namely 28 June 2010?
In order to qualify for DSP, Ms Murphy must satisfy the relevant requirements of s 94(1) of the Act. It is accepted by the respondent (and I am satisfied) that, during the Claim Period, Ms Murphy satisfied paragraphs (a), (d), (e) and (f) of s 94(1) of the Act. It follows that she will qualify for DSP if, pursuant to s 94(1)(b) and (c):
(a)her impairment is (or her impairments are) of 20 points or more under the Impairment Tables; and
(b)she has a continuing inability to work.
Section 94(1)(b): Impairment Rating
Paragraphs 4 to 6 of the Introduction to the Impairment Tables in Schedule 1B of the Act set out a number of "mandatory requirements" that must be considered and satisfied before any impairment rating can be assigned to a condition (see Secretary, Department of Employment and Workplace Relations v Parry [2007] FCA 1606). Due to the operation of the Introduction, a physical, intellectual or psychiatric impairment can only be assigned impairment points if the medical condition is "permanent", that is, a "fully documented, diagnosed condition which has been investigated, treated and stabilised" and "if in the light of available evidence it is more likely than not that it will persist for the foreseeable future". The Impairment Tables give particular emphasis to the loss of functional capacity that a person experiences in relation to work. In using the Tables, ratings "can only be assigned for conditions where there is an associated current loss of function or where prolonged loss of function would be expected in most work situations".
At the time of Ms Murphy’s claim for DSP, the conditions reported by Dr Lok in his medical report dated 7 May 2010 were that she suffered from chronic neck pain, degenerative disc disease and osteoarthritis, and depression. In his report, he noted that there had been a “recent exacerbation of mood disturbance. Recent separation from spouse + death of father + physical problems.” Ms Murphy had also provided a medical certificate from Dr David Ghan dated 26 March 2010 in which he said her condition of depression was “temporary”. In a subsequent letter dated 7 February 2011, he stated:
“I have been treating Ms Vikki Murphy aged 45 years for anxiety and depression. She is currently on medication and is stable.”
I note that, in medical certificates from Dr Lok dated 17 January 2011, 3 May 2011 and 21 June 2011, which had been provided by Ms Murphy, Dr Lok made no mention of her depression.
In her 9 August 2011 Job Capacity Assessment report, Ms Parhas reported that Ms Murphy had been referred to Dr Barbara True, rheumatologist. Dr True had diagnosed her as having fibromyalgia, but advised that some of her symptomatology could be consistent with multiple sclerosis, which could not be ruled out at that stage. Ms Murphy and Dr True were likely to be considering further physiotherapy intervention, but Ms Murphy was still concerned as to how she would be able to afford it. As further treatment options were to be explored and Ms Murphy’s medication was still to be reviewed to achieve improvement and stabilisation of symptoms, Ms Parhas considered that the fibromyalgia was not fully treated and stabilised.
Ms Parhas noted that, in his letter dated 11 July 2011, Dr Lok had stated that Ms Murphy’s fibromyalgia symptoms were exacerbated by emotional stress, minimal physical activity and cold weather. It was likely that, with further treatment of her depression/anxiety condition and engagement in meaningful activity and an exercise program, an improvement of her symptoms was likely to occur. In relation to Ms Murphy’s condition of depression, Ms Parhas had consulted with Dr Sandra Armstrong, HPAU medical adviser, who had advised that:
“... given the long standing nature of this condition, it is likely that symptoms will persist for more than 24 months and is considered to be permanent in nature. However as Ms Murphy has experienced an exacerbation of symptoms and all reasonable options of treatment have not been undertaken to date this condition is not considered as being fully treated and stabilised. Furthermore, Ms Murphy’s response to psychological treatment in the past has been positive, and given the apparent reactive nature of this current exacerbation, it is expected that there would be likely to be a positive response to psychological treatment in the future. Ms Murphy would benefit from further psychiatric and psychological intervention and review of her medication.” [emphasis added]
In relation to Ms Murphy’s condition of anxiety, Ms Parhas again referred to her consultation with Dr Sandra Armstrong and determined that the condition was not considered as being fully treated and stabilised.
As to Ms Murphy’s condition of osteoarthritis, Ms Parhas again referred to the view expressed by Dr True who explained that Ms Murphy’s symptoms were more related to her fibromyalgia, not her osteoarthritis. In these circumstances, the condition of osteoarthritis was not considered to be fully diagnosed, treated and stabilised. In these circumstances, Ms Parhas assigned a nil rating under Table 5.1 of the Impairment Tables for the condition of osteoarthritis.
I note that Ms Murphy lodged a new claim for DSP on 18 August 2010 and provided a medical report from Dr Lok dated 16 August 2010. The new claim was treated as a request for review of the respondent’s decision on 7 June 2010. On 30 June 2011, Ms Murphy lodged a further new claim for DSP. This new claim was rejected on the basis that she was not medically qualified for DSP. It appears that, in the course of rejecting this new claim, an ARO issued a determination which found that Ms Murphy should be assigned a rating of 10 points for the condition of osteoarthritis under the Impairment Tables. Notwithstanding this determination by the ARO, it did not relate to the Claim Period and the findings by Ms Parhas must prevail.
It was Ms Murphy’s contention that, as she had been assigned a rating of 10 points for her condition of depression in the Job Capacity Assessment of Ms Hooper on 17 May 2010, and a rating of 15 points for osteoarthritis in the Job Capacity Assessment of Ms Zoontjen and Mr Gruchot on 27 October 2010, this combined total would entitle her to more than 20 impairments points and thus the DSP. When this contention was put to Ms Parhas, she submitted that her later assessment should prevail because she had had the benefit of the additional medical information regarding Ms Murphy’s depression and osteoarthritis. This additional medical information enabled her to reach the determinations she made in her Job Capacity Assessment report dated 9 August 2011.
It is Centrelink’s contention (which I accept, having regard to all the material available) that the weight of medical evidence indicates that Ms Murphy’s conditions of osteoarthritis, depression and anxiety have not been fully investigated, treated and stabilised in, or in respect of, the Claim Period. Moreover, as the condition of fibromyalgia was not diagnosed until 2011, it could not be said to be a condition which was fully diagnosed, investigated, treated and stabilised in, or in respect of, the Claim Period.
Section 94(1)(c): Continuing Inability to Work
It is only necessary for me to consider whether Ms Murphy had a continuing inability to work at the time of her claim or within 13 weeks thereafter if I am satisfied that her impairments rated at least 20 points under the Impairment Tables. As I have not done this, it is strictly not necessary for me to consider whether Ms Murphy had a continuing inability to work during the Claim Period. However, for completeness, I will express my view. I note that, in considering this issue, I am not (upon review) to have regard to the availability to Ms Murphy of work in her locally assessable labour market (s 94(3)(b) of the Act), and “work” means work that exists in Australia, even if not within Ms Murphy’s locally accessible labour market.
Under s 94(1)(c)(i) of the Act, when read with s 94(2), a person has a continuing inability to work because of an impairment if the Secretary (or the Tribunal, upon review) is satisfied that the impairment was of itself sufficient to prevent a person from doing any work within the next two years, and the impairment was of itself sufficient to prevent the person from undertaking educational or vocational training or on-the-job training during the next two years. Under s 94(5) and in Ms Murphy’s case, "work" means work that is for at least 15 hours per week in Australia at award wages or above. In Secretary, Department of Social Security v Pusnjak [1999] FCA 994, Drummond J (in the Federal Court) considered the operation of s 94(2) of the Act. At paragraphs 31 and 32 of his decision, the learned Judge said:
"31 If, as I think it should be, s 94(2)(a) directs the Secretary to confine his determination to whether the impairment of itself is sufficient to prevent the person from doing any work that may be available anywhere in Australia, being work for which that particular person is already fitted without first requiring some form of occupational retraining, s 94(2)(b) then, logically enough, moves on to identifying what impact the availability of occupational retraining is to have on the eligibility of the particular applicant for a disability support pension who surmounts the first hurdle of s 94(2)(a).
32 Effect will be given to the intention of legislation if the Secretary asks the following questions as he works his way through the various paragraphs of s 94(2):
As to s 94(2)(a) Does the impairment of itself, ie, considered in isolation from other matters that may influence his attitude to working, have such an impact on the particular claimant's capacity for work that it prevents him from doing work available anywhere in Australia, being work of a kind which the particular applicant is, by reason of his existing work skills and experience, capable of performing, without the need for retraining? If so:
As to s 94(2)(b)(i) Is the impairment of itself sufficient to prevent the particular pension claimant undertaking, ie, commencing, during the next two years, retraining of a kind that is available to him and which would fit him for a class of work available in Australia that he currently lacks the skills or experience to perform, even if unimpaired?
If so, the applicant will satisfy the Secretary that he has the requisite continuing inability to work. …"
The concept of continuing inability to work is not confined to a claimant's ability to undertake work for which they are trained and skilled, but rather their capacity to undertake "any work". In relation to the phrase "any work" in s 94(2)(a) of the Act, I note that this phrase ought not be qualified to meet "suitable work" (see Re Crossland and Secretary, Department of Family and Community Services [2004] AATA 864 at paragraph [34]), and the phrase does not exclude types of employment that a person might consider insufficiently intellectually challenging or are, in the person's view, insufficiently challenging (see Croker v Secretary, Department of Employment and Workplace Relations [2007] FCA 1635 at paragraph [27]).
In Ms Murphy’s case, in relation to her claim for DSP, assessments of work capacity in Job Capacity Assessments were carried out. I recognise that a Job Capacity Assessment is not about diagnosis or prognosis of a person’s medical condition. Rather, its focus is about drawing on the information provided by treating doctors and specialists when making assessments and applying the assessor’s specialised knowledge and experience in identifying barriers to employment, interventions, available programs and suitable occupations to determine a person’s impairment rating and work capacity. The Job Capacity Assessment report of Ms Hooper dated 17 May 2010 indicates that Ms Murphy had an assessed future capacity for work with intervention of 15-22 hours per week. Ms Hooper recommended that the applicant would benefit from a referral to Disability Management Service (DMS) for assistance with investigation of alternative work and retraining options. DMS could also provide ongoing support for continuing with medical and health interventions and gradual return to work in a suitable environment. The Job Capacity Assessment report by Ms Parhas also indicated that Ms Murphy had capacity for work with intervention of 15-22 hours per week. A deferred referral to a DES-DMS provider was recommended to assist her with finding suitable and sustainable employment with post-placement support.
I note that there is little medical evidence about Ms Murphy’s work capacity. In his letter to Dr Lok dated 2 August 2010, Dr Purdie said that Ms Murphy’s degenerative changes at the C4-5 and C5-6 levels were unlikely to be responsible for her ongoing symptoms, but he was unable to offer a definite neurological explanation for them. In his letter dated 11 July 2011, having referred to her fully diagnosed, treated and stabilised conditions of fibromyalgia/osteoarthritis and depression, he said that she would be unable to work for 15 hours or more per week or undertake training that would enable her to do so within two years. Given the medical bases for reaching this work capacity assessment, I prefer the findings reached by Ms Hooper and Ms Parhas. Having regard to all the evidence, I am satisfied that Ms Murphy had the capacity within two years with intervention to work for at least 15 hours per week on wages that are at or above the relevant minimum wage.
CONCLUSION
In my view, as Ms Murphy’s conditions of fibromyalgia/osteoarthritis, depression and anxiety were not fully diagnosed, treated and stabilised when she lodged her claim for DSP and during the Claim Period, the requirements of Schedule 1B of the Act are not satisfied and it is not possible to assign an impairment rating under the Impairment Tables pursuant to s 94(1)(b) of the Act. Moreover, in respect of Ms Murphy’s claim that is before me, I find that she does not have a continuing inability to work and thus does not satisfy the requirements of s 94(1)(c)(i) of the Act.
It follows that she was not qualified for DSP at the time she made her claim and during the Claim Period.
DECISION
For the reasons set out above, the Tribunal affirms the decision under review.
I certify that the preceding 29 (twenty nine) paragraphs are a true copy of the reasons for the decision herein of Senior Member R W Dunne.
J Scobie
Administrative Assistant
Dated 16 March 2012
Date of hearing 20 December 2011 Applicant In person Advocate for the Respondent Lee-Anne Odgers Solicitors for the Respondent Program Litigation and Review Branch
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