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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. DeYonge v. Nana/Marriott (4/21/00) sp-5265

DeYonge v. Nana/Marriott (4/21/00) sp-5265

Notice:  This opinion is subject to correction before publication in 
the Pacific Reporter.  Readers are requested to bring errors to the 
attention of the Clerk of the Appellate Courts, 303 K Street, 
Anchorage, Alaska 99501, phone (907) 264-0608, fax (907) 264-0878.



	THE SUPREME COURT OF THE STATE OF ALASKA
	

JUDY L. DEYONGE,			)
)	Supreme Court No. S-9060
   Appellant,		)
)	Superior Court No.
v.					)	3AN-98-4157 CI
)
NANA/MARRIOTT and ALASKA		)	O P I N I O N
NATIONAL INSURANCE COMPANY,	)
)	[No. 5265 - April 21, 2000]
   Appellees.		)
______________________________)




Appeal from the Superior Court of the State of 
Alaska, Third Judicial District, Anchorage,
	Sigurd E. Murphy, Judge pro tem.


Appearances: Charles W. Coe, Anchorage, for 
Appellant.  Theresa Hennemann and William W. 
Whitaker, Holmes, Weddle & Barcott, Anchorage, 
for Appellees.


Before:  Matthews, Chief Justice, Eastaugh, 
Fabe, Bryner, and Carpeneti, Justices.  


FABE, Justice.


I.	INTRODUCTION


This case presents the question of whether a worker who 
suffers increased symptoms due to the physical requirements of her 
job is entitled to workers' compensation.  Judy DeYonge, who had a 
preexisting arthritic condition, claims that working as a 
housekeeper for NANA/Marriott aggravated her condition to the point 
where she could no longer perform her job.  The Workers' 
Compensation Board denied her claim for benefits and compensation 
because it concluded that, although her symptoms may have worsened 
as a result of her job, her underlying condition did not.  Because 
we have rejected the distinction between aggravation of symptoms 
and aggravation of the underlying impairment, we reverse the 
Board's decision and remand for a determination of the extent and 
compensability of DeYonge's injury.
II.	FACTS AND PROCEEDINGS
A.	Factual History
Judy DeYonge began working as a housekeeper for 
NANA/Marriott on the North Slope in 1992.  DeYonge's job required 
her to kneel, bend, and stoop when performing such tasks as 
scrubbing floors or showers.  DeYonge also carried buckets of water 
up and down flights of stairs as part of her job.  In March of 1995 
DeYonge informed her supervisor that she was suffering from pain in 
her knees.  A couple of weeks later, the pain became so unbearable 
that DeYonge sought leave from work.
DeYonge's treating physician in Kenai, Dr. Marguerite 
McIntosh, initially diagnosed DeYonge with patellar tracking 
syndrome caused by damaged cartilage under the kneecap.  Dr. 
McIntosh referred DeYonge to Dr. Timothy Powers for further 
evaluation.


Dr. Powers diagnosed DeYonge's condition as "[r]ight 
knee, patella femoral pain, possibly [arising from] a degenerative 
meniscus tear or degenerative arthritis. . . .  Left knee is much 
the same."  In Dr. Powers's opinion, DeYonge's condition "may be 
[due] to overuse and prolonged squatting and kneeling as described 
by the patient."   DeYonge also informed Dr. Powers that she had 
been having trouble with her knees since the 1970s, and that her 
mother and grandmother both had rheumatoid arthritis.  Dr. Powers 
recommended strengthening and stretching exercises for DeYonge and 
restricted her from kneeling, repetitively climbing stairs, and 
repetitively squatting.  Since DeYonge was no longer working as a 
housekeeper for NANA/Marriott at this time, she managed to avoid 
such activities to a large extent.
At NANA/Marriott's request, DeYonge was next examined by 
Dr. Frost, an orthopedic specialist.  Dr. Frost diagnosed her as 
having "mild bilateral arthritis, probably osteoarthritis, with 
some patellofemoral chondrosis."  He believed that this condition 
had "probably been developing slowly for years," and that it "was 
not specifically caused by her job."


Dr. Frost did believe, however, that DeYonge's duties as 
a housekeeper worsened her symptoms, even if they did not actually 
worsen her underlying condition.  He stated in his report that 
"[c]ertainly the type of duties which she performed as a 
housekeeper for NANA/Marriott would have been a substantial factor 
in increasing her symptoms, but not necessarily in either causing 
or making her condition progress any more rapidly than it might 
otherwise have."  Also, Dr. Frost stated that although he felt that 
DeYonge suffered from a "legitimate permanent physical impairment," 
he "would not necessarily say that the impairment was caused by her 
work as opposed to being merely pointed out by her work."
In his recommendations, Dr. Frost believed that it would 
be "unwise" for DeYonge to continue working as a housekeeper.  He 
concluded she should have "permanent restrictions against any 
activities which require her to do a significant amount of 
kneeling, squatting, twisting, jumping, climbing, or carrying 
greater than [twenty] pounds."  He suggested that DeYonge was best 
suited for a "desk-type job or very light standing work . . . 
particularly in a situation where she can intermittently rest by 
sitting on a stool."
B.	Procedural History
The Workers' Compensation Board first heard DeYonge's 
claim for benefits in April of 1996.  The Board concluded that, 
through Dr. Frost's opinion, NANA/Marriott had overcome the 
presumption in favor of DeYonge.  In reaching this decision, the 
Board "rel[ied] heavily on the opinion of Dr. Frost," stating that 
Dr. Frost "based his opinion regarding causation on the objective 
medical record, not the subjective complaints as described by the 
employee."  The Board failed to address the opinion of DeYonge's 
treating physician, Dr. McIntosh.  Ultimately, the Board concluded 
that DeYonge failed to prove her case by a preponderance of the 
evidence and therefore denied her benefits.


DeYonge appealed the Board's decision to the superior 
court (DeYonge I).  Superior Court Judge Harold M. Brown determined 
that the Board had incorrectly applied the evidentiary standards by 
focusing on whether DeYonge's work caused her condition and failing 
to address whether her work aggravated or accelerated it.  Judge 
Brown therefore remanded the case and directed the Board to apply 
the substantial factor test to DeYonge's aggravation claim.  
Additionally, Judge Brown determined that the Board erred in 
failing to discuss Dr. McIntosh's medical opinion.  Thus, Judge 
Brown directed the Board to "modify its decision to include at 
least a cursory discussion of all significant evidence, 
particularly expert medical testimony, and the . . . reasons for 
giving greater or lesser weight to that evidence."
Prior to the hearing on remand, DeYonge requested that 
the same Board panel decide the case and that she be allowed to 
introduce new evidence.  The Board dismissed DeYonge's request to 
introduce additional evidence and granted her request to empanel 
the same Board members.


At the hearing on remand, the Board addressed DeYonge's 
underlying claim for compensation and medical benefits, employing 
the "substantial factor" test in compliance with the superior 
court's order.  In applying this test, the Board found that DeYonge 
failed to prove "but for" causation on aggravation, and that even 
if she did, NANA/Marriott rebutted the presumption through Dr. 
Frost's opinion that DeYonge's work did not aggravate her 
underlying condition.  The Board based this conclusion on the 
premise that a job must worsen the worker's underlying condition -- 
not merely the symptoms of that condition -- in order to be 
compensable.  The Board then found that DeYonge failed to prove her 
claim by a preponderance of the evidence.  Thus, it denied 
DeYonge's claim for compensation, medical benefits, and legal fees 
and costs.
DeYonge then appealed the Board's decision to deny her a 
new evidentiary hearing as well as its decision to deny her 
compensation and benefits (DeYonge II).  Judge Sigurd E. Murphy for 
the superior court concluded that the Board correctly denied 
DeYonge's request to present new evidence, but improperly required 
DeYonge to prove "but for" causation on aggravation.  Judge Murphy 
ultimately concluded that although DeYonge established the 
preliminary link, NANA/Marriott produced substantial evidence to 
rebut the presumption.  The superior court thus affirmed the 
Board's conclusion that DeYonge "was not disabled by her work with 
the employer" and affirmed the denial of her benefits claim.  
DeYonge appealed to this court shortly thereafter.
III.	STANDARD OF REVIEW


When the superior court has acted as an intermediate 
court of appeal, we independently review the merits of the 
administrative determination.   We review the administrative 
agency's findings to determine whether they are supported by 
substantial evidence.   Substantial evidence is "such relevant 
evidence as a reasonable mind might accept as adequate to support a 
conclusion."  
 	The Board has the sole power to determine the credibility 
of witnesses.   Thus, even where there is conflicting evidence, the 
reviewing court will uphold the Board's decision if it is supported 
by substantial evidence.    It is not this court's role to reweigh 
the evidence.   
Finally, we review the Board's exclusion of evidence on 
remand for an abuse of discretion.   "An abuse of discretion exists 
only if the reviewing court is left with the definite and firm 
conviction, after reviewing the whole record, that the [Board] 
erred in its [finding]."  


IV.	DISCUSSION
A.	Background: Legal Framework Under the Alaska Workers' 
Compensation Act	

The Alaska Workers' Compensation Act presumes that an 
employee's claim is compensable.   Applying this statutory 
presumption requires a three-step analysis.   First, the employee 
must establish the preliminary link between her employment and her 
alleged injury.   Once the employee establishes that link, it is 
the employer's burden to overcome the presumption of compensability 
by coming forward with substantial evidence that the injury was not 
work related.   If the employer meets this burden then the 
presumption disappears and the employee must prove her claim by a 
preponderance of the evidence. 
B.	The Board Erred in Finding that DeYonge Did Not Trigger 
the Compensability Presumption.
 
1.	The Board erred in requiring DeYonge to present 
substantial evidence that her job caused her 
injury.



The Board determined that DeYonge failed to trigger the 
preliminary link, concluding that she had not presented 
"substantial evidence" that her work caused her injury.  The 
superior court, Judge Sigurd E. Murphy, acting as an intermediate 
court of appeal, correctly determined that this threshold standard 
set by the Board was too high.  As the superior court observed, 
"DeYonge did not need to present substantial evidence that her 
employment was a substantial cause of the alleged disability."  
Instead, to establish the preliminary link, "an offer of 'some 
evidence' that the claim arose out of the worker's employment is 
sufficient."   Thus, we conclude that the Board erred in the first 
stage of its analysis.


Moreover, in determining whether DeYonge established the 
preliminary link, the Board improperly weighed the evidence.  In 
deciding whether a worker has triggered the presumption of 
compensability, the Board should consider "only evidence that tends 
to establish the link -- competing evidence is disregarded."   We 
have observed that in determining whether the presumption attaches, 
the Board should not weigh witness credibility.   In this case, 
however, in finding that DeYonge failed to present substantial 
evidence that her employment caused her injury, the Board weighed 
the credibility of Drs. McIntosh, Powers, and Frost.  The Board 
gave most weight to Dr. Frost's opinion, finding it "more 
plausible" and "definite" than the opinions of either Dr. McIntosh 
or Dr. Powers.  But the Board should not have weighed the doctors' 
testimony at this stage of the analysis.  For this reason, too, we 
conclude that the Board erred in its analysis of whether DeYonge 
triggered the presumption of compensability.
2.	DeYonge offered "some evidence" that her injury was 
work related, and she therefore triggered the 
presumption of compensability.

Because we conclude, as a matter of law, that DeYonge did 
offer some evidence that her injury arose out of her employment, we 
need not remand for a determination of whether DeYonge triggered 
the presumption.  In this case DeYonge's treating physician, Dr. 
McIntosh, supplied the requisite evidence to raise the presumption. 
 Dr. McIntosh testified that DeYonge's job aggravated and worsened 
her condition.  That constitutes "some evidence" that DeYonge's 
employment with NANA/Marriott aggravated her arthritis and is alone 
enough to support the preliminary link.
Although Dr. McIntosh's opinion suffices to trigger the 
presumption, all three doctors' opinions in fact support DeYonge's 
claim.  Dr. Powers stated that DeYonge's knees suffered from a 
"possible degenerative meniscus tear or degenerative arthritis," 
and that she had "prominent" symptoms which "may be [due] to 
overuse and prolonged squatting and kneeling as described by the 
patient."  Dr. Frost stated that DeYonge's job "has caused the 
increase in symptoms," and that "[c]ertainly the type of duties 
which she performed as a housekeeper for NANA/Marriott would have 
been a substantial factor in increasing her symptoms."  These three 
opinions certainly amount to "some evidence" that DeYonge's claim 
arose out of her employment.  We therefore conclude that DeYonge 
triggered the presumption of compensability.


C.	The Board Erred in Concluding that NANA/Marriott Produced 
Substantial Evidence to Rebut the Presumption of 
Compensability.

Although the Board erred in determining that DeYonge 
failed to trigger the compensability presumption, the Board did 
undertake an alternative analysis based on the assumption that the 
presumption attached.  It was on this basis that the superior court 
affirmed the Board's decision to deny DeYonge's claim.  In a recent 
decision we held that although the Board erred in failing to attach 
the compensability presumption to a worker's claim for 
compensation, it properly denied the claim by undertaking an 
alternative analysis and determining that the employer had rebutted 
the presumption in any event.   Thus, in that case, we concluded 
that the Board's failure to attach the compensability presumption 
was harmless.   We must therefore determine whether, despite its 
error in failing to attach the presumption, the Board appropriately 
concluded that NANA/Marriott rebutted the presumption through 
substantial evidence.
In order to rebut the presumption of compensability, the 
employer must produce substantial evidence that the injury was not 
work related.   The employer may do this in two ways: by producing 
substantial evidence that


(1)	provides an alternative explanation 
which, if accepted, would exclude work related 
factors as a substantial cause of the 
disability; or (2) directly eliminates any 
reasonable possibility that employment was a 
factor in causing the disability.[ ]

Thus, to rebut the compensability presumption, NANA/Marriott must 
produce substantial evidence that either (1) non-work-related 
events alone caused DeYonge's worsened condition, or (2) there was 
no possibility that DeYonge's work caused the aggravation.  
1.	The Board erred in concluding that Dr. Frost's 
opinion rebutted the presumption of compensability.



After weighing the three doctors' opinions, the Board 
concluded that Dr. Frost's report constituted affirmative evidence 
that DeYonge's condition was not "aggravated or accelerated by her 
work."  In his report, Dr. Frost suggested that DeYonge's arthritic 
condition had "probably been developing slowly for years and . . . 
was not specifically caused by her job."  He also suggested that 
"any stressful use of her knees would have increased her symptoms." 
 These statements tend to demonstrate that a non-work-related 
factor -- DeYonge's genetic predisposition for arthritis and its 
natural degenerative progression -- caused DeYonge's underlying 
impairment.  But we have established "that a preexisting . . . 
infirmity does not disqualify a claim under the work-connection 
requirement if the employment aggravated, accelerated, or combined 
with the . . . infirmity to produce the . . . disability for which 
compensation is sought."   Dr. Frost's explanation does not exclude 
DeYonge's employment as a substantial factor in the aggravation of 
her arthritis.  On the contrary, Dr. Frost believed that DeYonge's 
employment with NANA/Marriott did worsen her symptoms:  "Certainly 
the type of duties which she performed as a housekeeper . . . would 
have been a substantial factor in increasing her symptoms."


In his conclusions, Dr. Frost distinguished between 
aggravation of DeYonge's symptoms and aggravation of her underlying 
condition.  But in Hester v. State, Public Employees' Retirement 
Board, we explicitly declined to differentiate between the 
aggravation of symptoms and the aggravation of an underlying 
condition in the context of a claim for occupational disability 
benefits.   "We reject the distinction . . . between worsening of 
the underlying disease process and worsening of the symptoms of a 
disease."   Noting the difficulty in separating an aggravation of 
symptoms from aggravation of the underlying disability, we observed 
that "increased pain or other symptoms can be as disabling as 
deterioration of the underlying disease itself."   Although Hester 
arose under a different statutory scheme,  the principle that we 
enunciated there -- that worsened symptoms may be compensable -- is 
equally persuasive in the context of workers' compensation.
Thus, for an employee to establish an aggravation claim 
under workers' compensation law, the employment need only have been 
"a substantial factor in bringing about the disability."   Hester 
suggests that when a job worsens an employee's symptoms such that 
she can no longer perform her job functions, that constitutes an 
"aggravation" -- even when the job does not actually worsen the 
underlying condition. 
Based on Hester, it was error for the Board to conclude 
that Dr. Frost's opinion rebutted the presumption of 
compensability.  The Board acknowledged Dr. Frost's opinion that 
DeYonge's job worsened her symptoms.  The Board stated:


We find Dr. Frost states that the 
employee may have an increase in symptoms.  We 
do not find any evidence to support a 
conclusion that an increase in symptoms is the 
equivalent of a permanent aggravation or 
acceleration of the pre-existing condition.  
We find that the employee temporarily 
experienced an increase in her symptoms, i.e., 
discomfort while working.  In summary, we find 
no acceleration of the employee's pre-existing 
degenerative condition and we find no 
permanent worsening of her knee condition.  We 
find no indication of work-related disability 
from this discomfort.  We conclude the 
employee was not disabled by her work with the 
employer; therefore we must deny and dismiss 
her claims for benefits.

The Board erred by focusing on whether DeYonge suffered 
"a permanent aggravation or acceleration" and a "permanent 
worsening" of her knee condition, for DeYonge did not bring a claim 
for permanent total disability.  DeYonge only brought claims for 
medical benefits and temporary total disability (TTD).  And with 
respect to both of these claims, we only require that the 
employment cause a temporary increase in symptoms aggravating the 
disability.  Because the Board failed to recognize the principle we 
explicitly enunciated in Hester, it erred in concluding that 
NANA/Marriott rebutted the presumption of compensability through 
Dr. Frost's report.
2.	NANA/Marriott also failed to rebut the presumption 
by offering an "alternative explanation" for 
DeYonge's worsened condition.



NANA/Marriott also attempted to produce an alternative 
explanation for DeYonge's worsened condition.  Specifically, 
NANA/Marriott produced evidence to suggest that DeYonge injured her 
knees while "working-out" on the treadmill or doing "weight work" 
such as leg presses.  NANA/Marriott asserts that these alternative 
explanations for DeYonge's disability supplied the requisite 
"affirmative evidence"  that her job did not aggravate her 
preexisting condition.  Thus, NANA/Marriott argues that even if 
DeYonge had raised the compensability presumption, it successfully 
rebutted it.
We have noted that an employer does not provide a 
sufficient "alternative explanation" simply by pointing to other 
factors that likely aggravated a preexisting condition.   Thus, in 
Williams v. State, Department of Revenue, although the employer 
presented evidence demonstrating "that genetics and emotional 
factors played a significant role" in the employee's illness, the 
employer did not "eliminate all possibilities that the injury was 
work-connected."   Because the employer "did not offer evidence 
that other factors were the exclusive cause of [the employee's] 
aggravated condition," nor did it produce evidence to eliminate the 
employee's job as "another causal factor [among others]," this 
court determined that the employee was entitled to workers' 
compensation. 


Similarly here, it may be true that DeYonge's "working-
out" on the treadmill or doing "weight work" contributed to her 
worsened symptoms.  But NANA/Marriott's attempt to attribute 
DeYonge's aggravation to these activities does not "eliminate all 
possibilities"  that her condition was work related.  That is, this 
evidence does not exclude DeYonge's work as "another causal 
factor"  in the aggravation of her symptoms.  And we have noted 
that an employee is entitled to benefits whenever the work-related 
aggravation "is a substantial factor" in the employee's impairment, 
"regardless of whether a non-work-related injury could 
independently have caused" that impairment. 
Because NANA/Marriott did not offer evidence "that other 
factors were the exclusive cause of her aggravated condition" or 
that DeYonge's work "was not another causal factor" among others,  
we disagree with the Board's and the superior court's 
determinations that NANA/Marriott rebutted the presumption of 
compensability.  Because we reach this conclusion, we need not 
address whether DeYonge proved her claim by a preponderance of 
evidence. 
D.	Scope of Remand

DeYonge asserts that she is entitled to medical and 
compensation benefits "at a minimum for temporary periods until her 
knee condition returns to its pre-work condition."  We agree that 
she is entitled to TTD for the period during which she suffered 
debilitating work-related symptoms.  We therefore reverse the 
Board's decision in that regard.  


On remand, the Board should determine the amount due 
DeYonge under AS 23.30.185 for TTD.  Our conclusion that DeYonge 
triggered the compensability presumption and that NANA/Marriott 
failed as a matter of law to rebut it moots DeYonge's request for a 
new evidentiary hearing on those issues.  But in determining the 
amount of TTD due DeYonge, the Board may choose to hear new 
evidence or simply to rely on the existing record.   We also remand 
for an appropriate award of attorney's fees for DeYonge under AS 
23.30.145.
V.	CONCLUSION
The Board improperly declined to apply the presumption of 
compensability and incorrectly distinguished between aggravation of 
symptoms and aggravation of the underlying condition.  Thus, the 
Board's determinations regarding DeYonge's claims were erroneous.  
Because DeYonge successfully triggered the presumption of 
compensability and NANA/Marriott failed to rebut it, we REVERSE the 
Board's decision with respect to TTD and REMAND for a determination 
of the amount due DeYonge in benefits, compensation, and attorney's 
fees.
 	See Tolbert v. Alascom, Inc., 973 P.3d 603, 606-07 
(Alaska 1999).
 	See Grove v. Alaska Constr. & Erectors, 948 P.2d 454, 456 
(Alaska 1997).
 	Id. (quoting Miller v. ITT Arctic Servs., 577 P.2d 1044, 
1046 (Alaska 1978)).
 	See AS 23.30.122; Resler v. Universal Servs., Inc., 778 
P.2d 1146, 1149 (Alaska 1989).
 	See Williams v. State, Dep't of Revenue, 938 P.2d 1065, 
1069 (Alaska 1997).
 	See Miller v. ITT Arctic Servs., 577 P.2d 1044, 1049 
(Alaska 1978).
 	See Schmidt v. Beeson Plumbing & Heating, Inc., 869 P.2d 
1170, 1179 (Alaska 1994).
 	Harris v. Keys, 948 P.2d 460, 466 (Alaska 1997) 
(citations omitted).
 	See AS 23.30.120(a)(1); Tolbert, 973 P.2d at 610. 
 	See Osborne Constr. Co. v. Jordan, 904 P.2d 386, 389 
(Alaska 1995).
 	See id.
 	See Burgess Constr. Co. v. Smallwood, 623 P.2d 312, 316 
(Alaska 1981).
 	See Osborne, 904 P.2d at 390.
   Tolbert, 973 P.2d at 610 (emphasis added) (quoting 
Gillispie v. B & B Foodland, 881 P.2d 1106, 1109 (Alaska 1994)).
 	Id.
 	See id. 
 	See Carlson v. Doyon Universal-Ogden Servs., 995 P.2d 
224, 229 (Alaska 2000).
 	See id.
 	See Tolbert, 973 P.2d at 611.
 	Gillispie, 881 P.2d at 1109 (citations omitted).
 	See Veco, Inc. v. Wolfer, 693 P.2d 865, 872 (Alaska 
1985).
 	Burgess Constr. Co. v. Smallwood, 623 P.2d 312, 315 
(Alaska 1981) (quoting Thornton v. Alaska Workmen's Compensation 
Bd., 411 P.2d 209, 210 (Alaska 1966)).
 	817 P.2d 472, 476 n.7 (Alaska 1991).
 	Id.
 	Id.
 	Hester arose under the Public Employees' Retirement 
System, AS 39.35.
 	Hester, 817 P.2d at 476 n.7 (quotations omitted).
 	Other jurisdictions agree with this approach.  See 
Hensley v. Washington Metro. Area Transit Auth., 655 F.2d 264, 274 
(D.C. Cir. 1981) (holding that the increased symptomatology of bus 
driver's psoriatic condition was due to physical trauma of driving 
and was therefore compensable); McDonald v. Meijer, Inc., 469 
N.W.2d 27, 30 (Mich. App. 1991) (holding that disability based only 
on increased symptoms is compensable within meaning of Michigan 
workers' compensation statute); Geck v. North Dakota Workers 
Compensation Bureau, 583 N.W.2d 621, 624 (N.D. 1998) (stating that 
"[p]ain can be an aggravation of an underlying condition of 
arthritis").
 	Wolfer, 693 P.2d at 872.
 	See Williams v. State, Dep't of Revenue, 938 P.2d 1065, 
1074-75 (Alaska 1997).
 	Id. at 1075.
 	Id. at 1075-76.
 	Id. at 1075.
 	Id. 
 	Tolbert, 973 P.2d at 612 (internal punctuation and 
quotations omitted).
 	Williams, 938 P.2d at 1075.
 	AS 23.30.135(a) authorizes the Board to "conduct its 
hearing in the manner by which it may best ascertain the rights of 
the parties."

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