Daley v Secretary, Department of Social Services

Federal Court of Australia|2015-10-29|Before: Katzmann J

REASONS FOR JUDGMENT 1 On 10 June 2014 Glenn Daley applied for a disability support pension. His application was rejected by Centrelink, and an internal review affirmed the initial refusal. Mr Daley sought review of Centrelink's decisions in the Social Security Tribunal and, when that failed to achieve the desired result, in the Administrative Appeals Tribunal ("AAT" or "Tribunal"). The effect of the Social Security (Administration) Act 1999 (Cth) ("Administration Act") is that the application concerned a 13 week period from 10 June 2014 to 9 September 2014 ("claim period"). On each occasion Mr Daley's application was unsuccessful because the decision-maker determined that his impairment rating under the Impairment Tables was not 20 points or more, one of the conditions applying to the grant of the disability support pension under s 94(1) of the Social Security Act 1991 (Cth). 2 In this appeal Mr Daley alleged (in a notice of appeal filed on 13 July 2015) that the AAT erred in two respects: first, by failing to provide an impairment rating despite finding that he suffered symptoms consistent with a mental health condition; and secondly, by failing to consider a purportedly similar case of Jansen v Secretary, Department of Employment and Workplace Relations [2007] FCA 1358 ("Jansen"), although a copy had been given to the Tribunal. 3 Appeals from the AAT lie on a question of law: Administrative Appeals Tribunal Act 1975 (Cth) ("AAT Act"), s 44(1). The notice of appeal identifies the question of law as: The Administrative Appeals Tribunal erred in not applying the objective test to the condition of alcohol dependence and assigning a rating under Impairment Table 6. 4 The Secretary filed an objection to competency, although he accepted that an error of law may arise from an erroneous application of a statutory test to facts which are not in dispute: Seven Network Ltd v Australian Competition and Consumer Commission (2007) 164 FCR 127. There was, however, no application that this question be determined in advance of the hearing and his submissions extended beyond the competency of the appeal to the substance of the appeal. 5 At the hearing, in light of the judgments of the Full Court in Haritos v Commissioner of Taxation [2015] FCAFC 92; 66 AAR 403 (in which Birdseye v Australian Securities and Investments Commission [2003] FCA 232; 76 ALD 32 and the Full Court judgments which followed it were overruled) and May v Military Rehabilitation and Compensation Commission [2015] FCAFC 93, the Secretary withdrew his objection to competency. 6 As it turned out, the question of law identified in the notice of appeal was misconceived and there was no merit in either of the two grounds.

The statutory scheme 7 At all material times (and now) s 94 of the Social Security Act relevantly provided: 94 Qualification for disability support pension (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 ability to work; … 8 The reference to Impairment Tables in s 94(1) is a reference to the Impairment Tables contained in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth), a legislative instrument made by the Minister under s 26(1) of the Act. If a person makes a claim for a disability support pension, in determining the claim the Secretary must apply the instrument in force under s 26 on the day the claim was made or taken to have been made (s 27). The 2011 Determination came into force on 1 January 2012 and remained in force at all relevant times. 9 Section 6 of the Impairment Tables sets out the rules governing the determination of impairment: 6 Applying the Tables Assessing functional capacity (1) The impairment of a person must be assessed on the basis of what the person can, or could do, not on the basis of what the person chooses to do or what others do for the person. Applying the Tables (2) The Tables may only be applied to a person's impairment after the person's medical history, in relation to the condition causing the impairment, has been considered. Note: For additional information that must be taken into account in applying the Tables see section 7. Impairment ratings (3) An impairment rating can only be assigned to an impairment if: (a) the person's condition causing that impairment is permanent; and Note: For permanent see subsection 6(4). (b) the impairment that results from that condition is more likely than not, in light of available evidence, to persist for more than 2 years. Example: A condition may last for more than 2 years, but the impairment resulting from that condition may be assessed as likely to improve or cease within 2 years - if this is the case, an impairment rating under the Tables cannot be assigned to the impairment. Permanency of conditions (4) For the purposes of paragraph 6(3)(a) a condition is permanent if: (a) the condition has been fully diagnosed by an appropriately qualified medical practitioner; and (b) the condition has been fully treated; and Note: For fully diagnosed and fully treated see subsection 6(5). (c) the condition has been fully stabilised; and Note: For fully stabilised see subsection 6(6). (d) the condition is more likely than not, in light of available evidence, to persist for more than 2 years. Fully diagnosed and fully treated (5) In determining whether a condition has been fully diagnosed by an appropriately qualified medical practitioner and whether it has been fully treated for the purposes of paragraphs 6(4)(a) and (b), the following is to be considered: (a) whether there is corroborating evidence of the condition; and (b) what treatment or rehabilitation has occurred in relation to the condition; and (c) whether treatment is continuing or is planned in the next 2 years. Fully stabilised (6) For the purposes of paragraph 6(4)(c) and subsection 11(4) a condition is fully stabilised if: (a) either the person has undertaken reasonable treatment for the condition and any further reasonable treatment is unlikely to result in significant functional improvement to a level enabling the person to undertake work in the next 2 years; or (b) the person has not undertaken reasonable treatment for the condition and: (i) significant functional improvement to a level enabling the person to undertake work in the next 2 years is not expected to result, even if the person undertakes reasonable treatment; or (ii) there is a medical or other compelling reason for the person not to undertake reasonable treatment. Note: For reasonable treatment see subsection 6(7). Reasonable treatment (7) For the purposes of subsection 6(6), reasonable treatment is treatment that: (a) is available at a location reasonably accessible to the person; and (b) is at a reasonable cost; and (c) can reliably be expected to result in a substantial improvement in functional capacity; and (d) is regularly undertaken or performed; and (e) has a high success rate; and (f) carries a low risk to the person. Impairment has no functional impact (8) The presence of a diagnosed condition does not necessarily mean that there will be an impairment to which an impairment rating may be assigned. Example: A person may be diagnosed with hypertension but with appropriate treatment the impairment resulting from this condition may not result in any functional impact. Assessing functional impact of pain (9) There is no Table dealing specifically with pain and when assessing pain the following must be considered: (a) acute pain is a symptom which may result in short term loss of functional capacity in more than one area of the body; and (b) chronic pain is a condition and, where it has been diagnosed, any resulting impairment should be assessed using the Table relevant to the area of function affected; and (c) whether the condition causing pain has been fully diagnosed, fully treated and fully stabilised for the purposes of subsections 6(5) and (6). (Original emphasis.) 10 Table 5 of the Impairment Tables, set out in that Determination, applies to cases where the person has a permanent condition resulting in functional impairment due to a mental health condition (including recurring episodes of mental health impairment). Table 5 requires that the diagnosis of a mental health condition be made by an appropriately qualified medical practitioner (this includes a psychiatrist) with evidence from a clinical psychologist (if the diagnosis has not been made by a psychiatrist). 11 Other conditions are covered by other Tables.

The issue below 12 In his application, Mr Daley claimed to have a number of medical conditions which affected his ability to function. Having regard to the relevant provisions of the Administration Act, the issue for the AAT was whether he was qualified for the pension during the claim period. That in turn depended on whether he had a permanent physical, intellectual or psychiatric impairment, an impairment of 20 points or more under the Impairment Tables, and a continuing inability to work. The medical conditions were not identified in Mr Daley's claim form but they were listed in two medical reports, both provided by Mr Daley's general practitioner, Dr Choueifati. They were: anxiety disorder; depression; alcohol dependence; total blindness in the left eye; cervical and lumbar degeneration of vertebrae; arthritis; back/neck pain; knee pain; vertigo; chronic headaches; neurological dysfunction; poor dental work; and skin sun damage. 13 The reports were dated 29 April 2014 and 3 July 2014. In the second report Dr Choueifati expressed the opinion that Mr Daley's depression and anxiety and his visual impairment were having the greatest functional impact and the other conditions were generally well managed and caused minimal or limited impact. 14 Evidence was given that Mr Daley had seen a psychiatrist three times in 2010 (see [27]) and a clinical psychologist on seven occasions between 18 November 2014 and 5 March 2015 (see [30]-[34]) - outside the claim period. But no report was produced from the psychiatrist and, according to the AAT (at [35]), no definitive diagnosis was provided by the clinical psychologist.

The AAT decision 15 The Tribunal dealt with the application by examining the evidence in relation to the various complaints under the headings "mental health disorder and alcohol dependence", "the left eye condition", "spine condition" and "other conditions". 16 The Tribunal found that "during the claim period Mr Daley suffered symptoms consistent with a mental health condition". The Secretary accepted that this was a finding that Mr Daley had an impairment within the meaning of s 94(1)(a) of the Social Security Act during the claim period and there was no issue that Mr Daley had a continuing inability to work so that he satisfied s 94(1)(c). The dispute turned on whether Mr Daley's impairment was "20 points or more under the Impairment Tables" as required by s 94(1)(b). 17 Turning first to the mental health condition, while there was evidence of a diagnosis by Dr Choueifati, the only evidence of his qualifications was that he had an MBBS and was a Fellow of the Australian College of General Practitioners. There was no evidence of a diagnosis having been made by a psychiatrist and no evidence of a diagnosis from a clinical psychologist. The Tribunal said at [37]: [A]s there is no evidence of a diagnosis being made by a psychiatrist or clinical psychologist prior to or during the claim period, the requirements of Impairment Table 5 have not been satisfied, and a rating for functional impact on activities involving mental health function cannot be assigned. 18 In relation to the condition of alcohol dependence, the Tribunal referred to Dr Choueifati's report of 3 July 2014 in which it was listed as a condition that is "generally well managed and causing minimal or limited impact on function". This was the only mention of the condition in the medical reports. The Tribunal observed (at [39]-[40]) that the doctor did not provide any reasons to support the diagnosis, no details as to its onset, treatment - "current (scil.) or planned" - no prognosis, nor any assessment of Mr Daley's resulting impairment. The Tribunal said that the reports of the clinical psychologist (Mr Tsomis) were of no assistance because he did not see Mr Daley until after the end of the claim period and he did not provide a diagnosis or treatment plan. 19 Consequently, the Tribunal concluded that during the claim period the condition of alcohol dependence had not been fully treated and stabilised with the result that a rating under Impairment Table 6 could not be assigned. 20 In relation to the other conditions, it is sufficient to note at this point that the Tribunal considered the evidence and concluded that the appropriate impairment rating for Mr Daley's eye condition was 5 points. It said that "[t]he medical evidence before the Tribunal provided no diagnosis of [hi]s claimed spine condition and no meaningful assessment of the functional impact of these conditions" so that no rating under the Impairment Tables could be assigned. In relation to the remaining conditions, the Tribunal said that there was insufficient evidence as to diagnosis, treatment or functional impact to enable any rating under the Tables to be assigned. 21 As Mr Daley's rating under the Tables was not 20 points or more, the Tribunal found that he did not satisfy s 94(1)(b) of the Social Security Act and was not therefore qualified to receive a disability support pension.

Mr Daley's submissions 22 It is convenient at this point to turn to Mr Daley's submissions. The written submissions were very brief and did not address the grounds of appeal. For the most part they dealt with irrelevant matters. Mr Daley had earlier filed an affidavit in which he made more extensive submissions to similar effect. Mr Daley's submissions were as follows (without alteration): 1. I believe that the AAT erred under 103N of the Registrations and Collections Act, as I had provided evidence regarding my anxiety to the tribunal. This was disregarded by the AAT. This is an error of fact. 2. I also believe that the AAT erred under Section 94.1B of the Social Security Act, where they relied on the impairment tables. I believe that this would be a complete breach of the Workplace Health and Safety Regulations. 3. I can only ask me learned friend Mr Stephen Thompson to request the respondent to confirm how they are collecting monies from the appellant's benefit without judicial confirmation of the child support debt raised in New Zealand. The registration by Child Support Australia (CSA) is also invalid due to the lack of judicial confirmation and the altering of the child's date of birth. The lack of judicial confirmation would make it an error of law under Section 378 of the Registration and Collections Act. 4. The interpretation of the Australia and New Zealand agreement by CSA has been inappropriate and the application many Sections of the said agreement are incorrect. 5. The AAT has been provided with all of the evidence and they should provide said evidence to the court for evaluation. 23 The reference to the "Registrations and Collections Act" is a reference to the Child Support (Registration and Collection) Act 1988 (Cth), which self-evidently deals with issues relating to child support. At the time of the AAT hearing, s 103N was concerned with the procedures at a hearing in the SSAT. It provided, amongst other things, that in reviewing a decision under Pt VIIA of that Act, the SSAT is not bound by legal technicalities, legal forms or rules of evidence. A decision under Pt VIIA of that Act is a decision of the Child Support Registrar on a reconsideration of a decision of the kind listed in the table to s 80 of that Act. It follows that s 103N of the Registration and Collection Act was irrelevant to the hearing before the AAT. The AAT did not err by failing to apply it. 24 Furthermore, the complaints about the Department's collection of monies are well outside the scope of the appeal, as is the conduct of the Child Support Agency. 25 Section 94.1B of the Social Security Act is apparently a reference to s 94(1)(b). The submission that it would be a complete breach of the Workplace Health and Safety Regulations for the Tribunal to rely on s 94(1)(b) of the Social Security Act is plainly wrong. Not only was it not an error to rely on it, the Tribunal would have erred if it did. 26 To the extent that the submissions dealt with irrelevant matters, these submissions and those to the same effect propounded in the affidavit were misconceived. An appeal from the Tribunal on a question of law arising from a dispute about whether a person is eligible to receive a disability support pension is not the occasion to ventilate all one's grievances with government departments and agencies. To the extent that the submissions dealt with potentially relevant matters, however, they were also misconceived, as the following analysis demonstrates. 27 Mr Daley's oral argument focussed on the last of the written submissions. He took me to numerous documents in the amended appeal book which, he submitted, the Tribunal had ignored. Those documents were: two reports from Dr Allan Rosenberg, an ophthalmic surgeon, dated 4 April 2013 and 6 June 2013 (T9, T11); the decision of the SSAT dated 14 October 2014 affirming the decision not to grant Mr Daley a disability support pension (T2); a medical certificate from Mr Daley's GP, Dr Choueifati, dated 1 April 2014 for the period 1 April to 1 July 2014 in which, under the heading "diagnosis", was recorded "blind in left eye" and "anxiety disorder"; both conditions were described as "permanent"; symptoms in the left eye was said to have "stabilised" but the prognosis with respect to the anxiety condition was said to be "uncertain" (T13); a medical report from Dr Choueifati dated 3 July 2014 relating to Mr Daley's various conditions (T19); a Job Capacity Assessment Report by a registered psychologist to whom Mr Daley had been referred by Centrelink dated 30 May 2014 in which the conditions were described by type as "permanent" (T15); a computer printout (described in the index to Pt B of the appeal book as Centrelink letter to Mr Daley) advising that a decision had been made that he was not eligible for a disability support pension because he had been assessed as not having an impairment rating of 20 points or more and notifying him of his right to seek review of the decision (T18); a letter to Mr Daley dated 28 August 2014 from the Authorised Review Officer ("ARO") advising him that his application to review the decision to reject his claim for a disability support pension was unsuccessful, together with the ARO's reasons (T22); notes made by the ARO (T23); other medical evidence, including a report of an MRI by a neurosurgeon, Dr Mark Davies, dated 28 March 2013 (T24); and two letters from Mr Tsomis, the clinical psychologist who first saw Mr Daley after the claim period had expired, dated respectively 27 November 2014 (T25) and 30 March 2015 (Ex A1). 28 In the course of argument Mr Daley claimed that Dr Choueifati had put a percentage figure on his loss of sight. At the same time he volunteered that the evidence to support his claim was not in the appeal book. Mr Daley also complained that the legislation required the application of the Impairment Tables. It was his opinion that whether or not a condition was "permanent" should not depend upon the conditions set out in the Impairment Tables. 29 The mere fact that documents in evidence are not mentioned in the decision does not mean that the Tribunal did not have regard to them. I am not persuaded that the Tribunal failed to have regard to these documents. In some cases, such as the reports of Dr Choueifati, Dr Rosenberg and Mr Tsomis, the Tribunal expressly referred to them in its reasons: see [28]-[29] (Dr Choueifati), [31]-[34] (Mr Tsomis); and [44] (Dr Rosenberg). 30 In any case it was no part of the notice of appeal that the Tribunal erred in law by failing to take into account relevant evidence. Moreover, unless the Tribunal was bound (expressly or by implication) to have regard to the evidence Mr Daley claimed the Tribunal overlooked, there would be no error of law: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39. 31 The decision of the SSAT was irrelevant. The appeal to the AAT was in the nature of a hearing de novo. The AAT has all the powers and discretions conferred by the Social Security legislation on the original decision-maker: AAT Act, s 43(1). 32 To the extent that the documents were relevant to the issues before the Tribunal, they did not assist Mr Daley. Mr Daley referred to the certificate from Dr Choueifati and the Job Capacity Assessment Report, pointing to the word "permanent" appearing beside his ailments. But Dr Choueifati did not address the criteria for permanence in the Impairment Tables and the Job Capacity Assessment Report, which did, stated with respect to all conditions apart from the blindness in the left eye, that the conditions were not fully diagnosed, treated or stabilised. Consequently, the author's opinion was that criteria in the Impairment Tables had not been met. When these matters were drawn to Mr Daley's attention, he had no answer, saying that he was only trying to do the best he could. 33 Although the relevance of it to the issues raised by the notice of appeal is obscure, Mr Daley also complained about the percentage impairment allocated to his visual impairment. He argued that the figure of 5 points was wrong and that at between 10 and 20 points were warranted, although he did not explain why. Assuming this complaint is indeed captured by the notice of appeal, which I very much doubt, any error of this kind would be an error of fact, rather than law, and therefore beyond the Court's powers to correct.

Did the AAT err in law as alleged? 34 The Tribunal did not err in law in failing to provide an impairment rating for either the mental health condition or the condition of alcohol dependence. 35 The difficulty for Mr Daley was that there was no evidence before the Tribunal that a diagnosis of his condition had been made by a psychiatrist or a clinical psychologist before or during the claim period (or at all, for that matter). Mr Daley claimed to have seen a psychiatrist three times in 2010 but presented no evidence from the psychiatrist. He did see a clinical psychologist, Mr Tsomis, but not until November 2014, some two months after the claim period. Even so, he could have provided a diagnosis and an opinion on Mr Daley's impairment during the claim period based on the history he had received. But the letters submitted to the Tribunal from Mr Tsomis contained neither. 36 That was the reason the Tribunal held that the requirements of Impairment Table 5 had not been satisfied and a rating for functional impact on activities involving mental health function could not be assigned. Unless the Tribunal was satisfied that the mental health condition was fully diagnosed, treated and stabilised, the effect of s 94 of the Act when read with Impairment Table 5 is that the Tribunal was not entitled to assign a rating under the Table. 37 A similar obstacle stands in Mr Daley's way in relation to the condition of alcohol dependence. In the absence of evidence that the condition had been fully treated and stabilised, the Tribunal was right in law to conclude that a rating under Impairment Table 6 could not be assigned. 38 Consequently, as a matter of law the Tribunal was precluded from providing impairment ratings under the Tables. 39 That brings me to the second ground upon which Mr Daley alleged in his notice of appeal that the Tribunal had erred. 40 There are two broad answers to Mr Daley's complaint that the Tribunal failed to consider Jansen. First, Jansen was overturned by a Full Court on appeal: see Secretary, Department of Families, Housing, Community Services and Indigenous Affairs v Jansen (2008) 166 FCR 428. Secondly, and in any event, Jansen is distinguishable on its facts. The issues are different and unlike in this case, in Jansen there was evidence as to diagnosis which was not disputed and the evidence included a report from a consultant psychiatrist. 41 Mr Jansen had also applied for a disability support pension without success and his review application in the Tribunal had also been dismissed. His claimed disabilities were "[a]nxiety and [d]epression, [p]anic attacks, [and] [s]tomach problems". The Tribunal dismissed his application because he refused to undergo treatment after determining for himself that the treatment was unhelpful and in some instances caused serious side-effects. At the time of the hearing, he (like Mr Daley) self-medicated on alcohol, although he occasionally and reluctantly took Murelax, an anti-depressant. 42 The Full Court referred in some detail to the evidence of the psychiatrist, Dr Katz, at [4]-[6]. Dr Katz was optimistic about Mr Jansen's prognosis if he received appropriate treatment. He said that Mr Jansen required alcohol detoxification and treatment for his anxiety and depression, the former being "fundamental to the treatment of [his] other conditions". But Mr Jansen refused the treatment. The Tribunal accepted that Mr Jansen had a genuine concern about the possible side-effects of medication but considered that he had not demonstrated a genuine reason for refusing other treatment options. In the circumstances, the Tribunal found that: Mr Jansen's refusal to undertake the range of treatment options [was] not genuinely based on grounds that compel him, acting honestly, to refuse. Therefore his conditions are not fully documented, diagnosed conditions which have been investigated, treated and stabilised, and could not be assigned an impairment rating under the Impairment Tables, and he does not satisfy the qualification requirements of s 94(1)(b) of the Act. 43 The Impairment Tables to which the Tribunal was referring were not the 2012 Impairment Tables with which the present case is concerned. They were Impairment Tables included in sch 1B of the Social Security Act. 44 The issue in Jansen was whether the Tribunal erred in not applying a subjective test to the refusal of medical treatment: see Jansen at [16]. The primary judge considered that the test was subjective (at [17] - [22]), applying Dragojlovic v Director General of Social Security (1984) 1 FCR 301 ("Dragojlovic") (Smithers J) and Koutsakis v Director-General of Social Security (1985) 10 FCR 42 in which a Full Court adopted what was said in Dragojlovic and held that "the mere fact that [an applicant's] fears are groundless does not make them unreasonable if they are genuine". His Honour held that the Tribunal's emphasis in Mr Jansen's case on the lack of "grounds" indicated that it was treating the test as objective (at [24]) and that, accordingly, the Tribunal erred in law. 45 The issue arose in the context of determining whether Mr Jansen psychiatric condition was fully diagnosed, treated and stabilised. That required consideration of what treatment or rehabilitation had occurred; whether the treatment was still continuing or planned in the near future; and whether any further reasonable medical treatment was likely to lead to significant functional improvement within the next two years. In cases where significant functional improvement was not expected or where there was "a medical or other compelling reason for a person not undertaking further treatment", sch 1B par 6 provided that "it may be reasonable to consider the condition stabilised". 46 On appeal, the Full Court held that the primary judge had wrongly construed the legislation. It did not, however, decide (as the question of law in the notice of appeal in the present case suggests) that the question of whether there was a compelling reason for a person not undertaking further treatment was to be determined solely by the application of an objective test. The Court accepted a submission to the effect that the question for the decision-maker is whether he or she is satisfied that there is a reason that compels the applicant not to undertake treatment (at [39]). The Court went on to say: Put this way it is not a choice between mutually exclusive objective and subjective tests but a simple formulation which involves some elements of each. We agree that is the correct approach to the construction of cl 6. It follows that the primary judge erred in focusing on the purely subjective aspect of the test in cl 6. 47 The Full Court held (at [40]) that the Tribunal recognised both these elements. In any case, the Full Court said that there was an independent reason upon which the Tribunal's conclusion was based which was unaffected by the error. That was the conclusion that, despite Mr Jansen fear of the side-effects of medication, "he had not demonstrated a genuine fear for refusing other treatment options" (original emphasis). The Court observed that "[t]reatment for alcohol dependence was fundamental to the treatment of the underlying psychological condition. The fact that Mr Jansen did not want to cease drinking could hardly amount to a compelling reason for refusing that treatment". 48 Thus, neither Jansen nor the Full Court decision that overturned it says anything about an objective test "to the condition of alcohol dependence", as the notice of appeal in the present case suggests. Nothing in either judgment assists Mr Daley.

Conclusion 49 Mr Daley has failed to establish any error of law in the Tribunal's decision. It follows that the application must be dismissed. In these circumstances, Mr Daley should pay the Secretary's costs. 50 Before I conclude I would like to make one observation. The criticisms of the Tribunal are entirely unjustified. Having regard to the terms of the legislation and the limited medical evidence, it had no option but to dismiss the application. If, however, Mr Daley had had the assistance of a lawyer or had, himself, been able to prepare his case properly, with evidence that addressed the legislative criteria, the outcome may well have been different. I certify that the preceding fifty (50) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Katzmann.

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