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CRB Case Annotations re: Section 31-294f

Medical examination of injured employee. Medical reports.

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THESE ANNOTATIONS ARE PROVIDED FOR INFORMATIONAL PURPOSES ONLY

Full texts of opinions, statutes and court decisions should be consulted and all citations and references fully researched by the reader.

The Annotations to Compensation Review Board Opinions are presented “as is” and the Commission makes no warranties as to the suitability of this information for any given purpose.
Please note also that Annotations change periodically due to several factors including, but not limited to, Appellate and Supreme Court decisions issued in workers’ compensation cases.

Duntz v. Ales Roofing and Caulking Co., 5772 CRB-6-12-8 (July 22, 2013).

Claimant requested authorization to be examined by authorized treating physician in North Carolina. Respondents objected claiming lapse of time since last examination required a finding of causation before examination. Trial commissioner not persuaded and authorized exam. Respondents appealed and CRB upheld trial commissioner. Lapse of time and relocation out of state do not relieve respondent of obligations under § 31-294d C.G.S. to provide treatment by physician. The trial commissioner is the ultimate judge of what modalities of treatment at what locations constitute reasonable or necessary treatment for the claimant’s injuries. Cervero v. Mory’s Association, Inc., 5357 CRB-3-08-6 (May 19, 2009), aff’d, 122 Conn. App. 82 (2010), cert. denied, 298 Conn. 908 (2010).

Madden v. Danbury Hospital, 5745 CRB-7-12-4 (April 22, 2013).

See also, Madden, § 31-275(1); § 31-275(16); § 31-301 Factual findings.

Martinez-McCord v. State/Judicial Branch, 5647 CRB-7-11-4 (August 1, 2012).

Claimant appealed from denial of claim for temporary total disability benefits from alleged RSD ailment. Trial commissioner concluded medical evidence she found credible and persuasive did not establish claimant had RSD, and that claimant had a work capacity. Claimant appealed, arguing she had moved for trial commissioner to recuse herself at start of the hearing, and this motion should have been granted. Claimant argued that as same trial commissioner had heard case in Martinez-McCord v. State/Judicial Branch, 5275 CRB-7-07-9 (September 12, 2008) commissioner had biased view of claimant’s credibility. CRB affirmed Finding and Dismissal. Precedent disfavors recusal of workers’ compensation commissioners and leaves it to their discretion to ascertain if they believe they have a personal bias in a case. Knowledge from an earlier proceeding does not require recusal under CT law (see State v. Rizzo 303 Conn. 71 (2011)) unless circumstances are “extreme or unusual.” Review of findings indicates trial commissioner reached conclusions entirely consistent with commissioner’s examiner in case; hence, decision well founded. See also, Martinez-McCord, § 31-278; § 31-298; § 31-301 Factual findings; § 31-307; § 31-308(b).

Damon v. VNS of CT/Masonicare, 5413 CRB-4-08-12 (December 15, 2009).

Claimant asserted continued total disability. Respondents filed Form 36’s contesting status. Commissioner’s examiner found work capacity; commissioner granted Form 36. On appeal, CRB upheld; trial commissioner could properly rely on opinion of the commissioner’s examiner. See also, Damon, § 31-301. Appeal procedure, § 31-301. Factual findings, § 31-307, § 31-301-4.

Carroll v. Flattery Landscaping, Inc., 5385 CRB-8-08-10 (September 24, 2009).

CRB upheld trial commissioner who denied claimant’s bid to have cervical spine surgery paid for as part of compensable injury. Commissioner’s examiner opined it was due to degenerative causes; the trial commissioner must usually explain reasoning for not following opinion of commissioner’s examiner; Ben-Eli v. Lowe’s Home Improvement Center, 5006 CRB-3-05-10 (November 16, 2006); See also Carroll § 31-301. Appeal procedure, § 31-301. Factual findings.

Alvarez v. Wal-Mart Stores, Inc., 5378 CRB-5-08-9 (July 27, 2009).

Claimant suffered prior injury in former employer and executed stipulation for lump sum that did not specify level of disability. Claimant later injured worked for Wal-Mart. Respondent’s argued commissioner should have relied on opinion of commissioner’s examiner, who found initial injury was predominant factor in claimant’s condition and apportioned 75% against said injury. CRB upheld trial commissioner, who sufficiently explained grounds for not being persuaded by commissioner’s examiner on that issue. See also Alvarez, § 31- 301. Appeal procedure, § 31-301. Factual findings, § 31-308(b), § 31-349.

Gilbert v. Ansonia, 5342 CRB-4-08-5 (May 14, 2009).

CRB affirmed trial commissioner’s decision to deny Respondents’ Medical Examination. Respondents alleged claimant, a volunteer fireman who was rendered a paraplegic when he fell from a ladder while fighting a fire, no longer satisfied the statutory conditions for collecting total incapacity benefits pursuant to § 31-307(c) C.G.S. Respondents contended that because medical reports indicated claimant’s paralysis was not complete and video surveillance showed claimant was able to walk and ambulate, trial commissioner’s refusal to authorize respondents’ medical examination constituted denial of due process. Trial commissioner found respondents had failed to challenge a prior trial commissioner’s finding in 2004 establishing claimant’s eligibility for permanent total incapacity benefits and also determined respondents had not adduced sufficient evidence of a change in claimant’s disability to warrant opening the voluntary agreement pursuant to § 31-315 C.G.S. See also, Gilbert, § 7-314a, Sec. 31-294d, § 31-301. Factual findings, § 31-307, § 31-315.

Mele v. Hartford, 5286 CRB-1-07-10 (October 10, 2008), rev’d in part, 118 Conn. App. 104 (2009).

Claimant appealed from trial commissioner’s finding on remand that no causal connection exists between claimant’s current hip condition and need for surgery and two compensable injuries which occurred in October of 1996 and December of 2001. [See Mele v. Hartford, 4870 CRB-1-04-10 (September 29, 2005).] Trier also denied claimant’s Motion to Correct and rejected findings of Commissioner’s Examiner. CRB affirmed, concluding trier reasonably relied on expert testimony and drew permissible inferences from the lack of contemporaneous medical records in file which would support claimant’s assertions relative to her hip condition. See also, Mele, § 31-301. Factual findings, § 31-301-4.

Bailey v. State/GHCC, 5144 CRB-1-06-10 (October 15, 2007).

Trial commissioner granted respondent’s Motion to Dismiss when claimant refused to attend examination by respondent’s expert, in contravention of discovery orders in Bailey v. State/GHCC, 4744 CRB 1-03-10 (December 3, 2004) and Bailey v. State, 65 Conn. App. 591 (2001). Claimant appealed, and challenged appropriateness of Appellate Court’s order. CRB cannot provide relief on this basis, as it is obligated to adhere to Appellate Court’s mandate on remand. Nonetheless, trial commissioner’s decision must be reviewed as per Millstone Owners Assn. v. Hamilton Standard, 257 Conn. 1 (2001) to determine if sanction for violating discovery order is a proper remedy. CRB vacated dismissal, finding that statutory suspension of benefits was an adequate penalty. Pietrairoia v. Northeast Utilities, 254 Conn. 60 (2000) requires exhaustion of other remedies prior to dismissing a claim with prejudice for violating discovery orders. Prior decisions in Bailey, 3152 CRB 5-95-8 (September 3, 1996); 3694 CRB 1-97-9 (January 12, 1999) and 3922 CRB 2-98-10 (November 30, 1999).

Carter v. Aramark Corp, 4785 CRB-2-04-2 (April 28, 2005).

CRB found no error in the trier’s assigning less weight to commissioner’s examiner’s opinion when claimant’s credible testimony conflicted with an assumption on which that medical opinion was based. See also, Carter, § 31-301. Factual findings.

Kraemer v. Northeast Utilities, 4562 CRB-7-02-8 (July 29, 2003).

CRB affirmed trier’s denial of Form 36. Held one-time treatment with an out-of-state physician did not trigger suspension of benefits pursuant to § 31-294f or 31-294e(b) where the physical therapy prescribed by the physician was accepted and paid for by the respondents. Claimant’s failure to initially consult an orthopedic specialist in Connecticut as another medical provider directed, did not rise to the level of failing to obtain reasonable medical treatment.

Gagliardi v. Eagle Group, Inc., 4496 CRB-2-02-2 (February 27, 2003), aff’d, 82 Conn. App. 905 (2004)(per curiam).

Trier is not required by law to give reasons for failing to adopt opinion of commissioner’s examiner, though in recognition of traditional role of § 31-294f exam, CRB favors articulation of reasons for disregarding such opinion. See also, Gagliardi, § 31-301. Factual findings. Prior decision at Gagliardi, 4012 CRB-1-99-4 (July 20, 2000).

Bidoae v. Hartford Golf Club, 4424 CRB-6-01-8 (June 27, 2002), appeal dismissed for lack of final judgment, A.C. 23245 (September 11, 2002), later aff’d, 91 Conn. App. 470 (2005).

See, Bidoae, § 31-298. Subsequent decision at Bidoae, 4693 CRB-6-03-7 (June 23, 2004), aff’d, 91 Conn. App. 470 (2005), cert. denied, 276 Conn. 921 (2005), § 31-301. Appeal procedure, § 31-307.

Phaiah v. Danielson Curtain (C.C. Industries), 4409 CRB-2-01-6 (June 7, 2002).

Greater familiarity of treating physicians with claimant’s condition as compared to commissioner’s examiner was valid reason for trier to rely on their opinions regarding wisdom of surgery. See also, Phaiah, § 31-294d, § 31-301. Factual findings.

Carozza v. Aetna/U.S. Healthcare, 4406 CRB-8-01-6 (May 30, 2002).

CRB affirmed trier’s granting of Form 36 effective April 3, 2001 where claimant did not receive updated report of independent medical examiner until May 18, 2001, three days before formal hearing. Though § 31-294f(b) was violated insofar as doctor did not furnish his report to claimant within thirty days and in same time and manner as it was given to the respondent, trier found that claimant was not unfairly prejudiced by this delay. Trier had discretion to accept report into evidence and rely on it in setting April 3, 2001 cutoff date for total disability benefits. See also, Carozza, § 31-296. Voluntary agreements (discontinuance of payments).

Champagne v. O.Z. Gedney, 4425 CRB-5-01-8 (May 16, 2002).

Trier need not credit report of § 31-294f examiner. Though CRB has said that reasons for disregarding commissioner’s exam should be articulated, ultimate decision still lies with trier. No error where trier chose to rely on report of treating physician over that of § 31-294f examiner, as trier believed treater was better positioned to assess and track claimant’s respiratory condition due to familiarity with case. See also, Champagne, § 31-301. Factual findings.

Taylor v. Ron Fournier Builders, 4257 CRB-5-00-6 (July 30, 2001).

See, Taylor, § 31-301. Appeal procedure, § 31-355 (Second Injury Fund required to pay for cost of § 31-294f exam on behalf of uninsured employer even though underlying claim dismissed).

Mosman v. Sikorsky Aircraft Corp., 4180 CRB-4-00-1 (March 1, 2001).

See, Mosman, § 31-298. See also, Mosman, § 31-297, § 31-301. Factual findings.

Faroni v. Country Club of Waterbury, 4175 CRB-5-00-1 (January 25, 2001).

See, Faroni, § 31-308(b).

Manganello v. State/Dept. of Mental Health, 4082 CRB-1-99-7 (November 27, 2000).

CRB affirmed trial commissioner’s decision dismissing claim that claimant sustained reflex sympathetic dystrophy as a result of her compensable carpal tunnel syndrome. Trier adequately explained his reason for not following the opinion of the § 31-294f examiner; specifically, that said opinion was “somewhat conflicting and less reliable [than the other] physicians who rendered opinions on the issue.”

Simmons v. Doran Manufacturing Co., 4121 CRB-4-99-9 (October 11, 2000).

Board affirmed trier’s decision to authorize surgery for claimant’s compensable back injury. Respondents contended that trier failed to provide sufficient reason for not following the opinion of the § 31-294f examiner. CRB held that the trier adequately explained his reasons for not following that opinion: treating physician’s opinion was more persuasive, and examiner’s opinion was not very certain.

Osowiecki v. O & G Industries, 3993 CRB-5-99-3 (April 13, 2000).

CRB affirmed trier’s finding of no permanent partial disability. Trier chose not to follow the opinion of his § 31-294f examiner, explaining that this opinion was based upon the claimant’s significantly exaggerated version of the incident and of his subsequent physical condition. (Santos, C., CONCURRING) Trial commissioner should not be required to state a reason for disregarding opinion of commissioner’s examiner. See also, Osowiecki, § 31-301-9.

Agosto v. Bridgeport, 3967 CRB-4-99-1 (April 12, 2000).

CRB found no error in trier’s finding that claimant continued to be totally disabled. Respondents argued that trial commissioner failed to cite reasons for not accepting the opinion of the § 31-294f examiner, and did not even state in the findings that this physician’s examination was at the request of a commissioner. Board found no error, as trier is not bound by the opinion of any one physician, even where that physician conducted a commissioner’s exam. Moreover, in the instant case, the opinion did not contradict the conclusion that the claimant continued to be totally disabled. (Santos, C., CONCURRING) Trier should not be required to state a reason for disregarding opinion of commissioner’s examiner. See also, Agosto, § 31-307.

Zito v. Stop & Shop, 3929 CRB-3-98-11(February 17, 2000).

CRB affirmed trier’s decision in which he chose to accept some, but not all, of the opinion rendered by the § 31-294f examiner. Trier accepted examiner’s opinion that claimant was capable of sedentary work, but did not agree that the claimant had reached maximum medical improvement. Although board has stressed that a trier should articulate the reasons behind a decision to disregard a § 31-294f examiner’s opinion, the ultimate decision is always with the commissioner. Here, he articulated his reasons for concluding that claimant had not yet reached MMI and still needed medical care. See also, Zito, § 31-308(a).

Barton v. Waterbury Company, 3786 CRB-5-98-3 (June 3, 1999).

Trier was entitled to credit independent medical examination over report of § 31-294f examiner. Trier explained that the former contained a more complete history of claimant’s symptoms, and CRB noted that the commissioner’s examiner drew a questionable connection between injury and disability. See also, Barton, § 31-294d. Prior decision at Barton, 16 Conn. Workers’ Comp. Rev. Op. 216, 3428 CRB-5-96-9 (June 6, 1997).

Harris v. UTC/Pratt & Whitney, 3762 CRB-1-98-1 (February 23, 1999), aff’d, 56 Conn. App. 912 (2000)(per curiam), cert. denied, 253 Conn. 907 (2000).

Trier had authority to order claimant to attend independent medical examination, and to dismiss claim when claimant failed to show up for appointment. See also, Harris, § 31-301-9, § 31-315. Prior decision at Harris, 15 Conn. Workers’ Comp. Rev. Op. 357, 3143 CRB-5-95-8 (June 26, 1996), § 31-275(17), § 31-298.

Patterson v. St. Mary’s Hospital, 3526 CRB-5-97-2 (June 1, 1998).

The respondents contended on appeal that the trier failed to articulate his reasons for not following the opinion of Dr. Fisher, who conducted an examination at the request of a commissioner. CRB found no error, as the trier satisfactorily set forth findings of fact which indicate that he considered Dr. Fisher’s opinion, but chose not to accept it.

Matteau Riley v. ARA Services/County School, 2280 CRB-2-95-1 (May 6, 1998).

Case was originally remanded to trial commissioner for articulation of her reasons for disregarding the report of the commissioner’s examiner. See, Matteau, 16 Conn. Workers’ Comp. Rev. Op. 112 (November 25, 1996). Commissioner provided those reasons. Commissioner was within her discretion to choose report of independent medical examiner over that of commissioner’s examiner. Original decision affirmed.

Rivera v. New Britain, 3501 CRB-6-96-12 (April 28, 1998).

The respondent argued that the trier should have credited the opinion of a physician who reviewed medicals and wrote a report at the request of a trial commissioner at a prior informal hearing. CRB disagreed, as the trier who presided over the formal hearing was not the commissioner who ordered the report, and more importantly, the physician did not examine the claimant, but merely reviewed some of the medicals. See also, § 31-301. Factual findings.

Brown v. Greenwich, 3521 CRB-7-97-2 (March 31, 1998).

Trial commissioner chose to credit treating physician’s report over those of an independent medical examiner and a § 31-294f examiner. CRB affirmed. Trier of fact is not required to accept opinion of commissioner’s examiner just because he ordered the exam.

Carrozelli v. Bridgeport, 3489 CRB-4-96-12 (March 6, 1998).

It was within the discretion of the trial commissioner, as the trier of fact, to accord greater weight to the opinion of the physician who conducted the independent medical examination than to the opinions of the claimant’s treaters. CRB thus affirmed trial commissioner’s conclusion that claimant’s hypertension and arterial occlusion were not caused by his employment.

Diaz v. Robert W. Baker Nursery, Inc., 3309 CRB-1-96-3 (March 5, 1998).

See, Diaz, § 31-298.

Chery v. Community Visiting Nurse & Home Care, 3654 CRB-7-97-7 (February 13, 1998).

Acting commissioner ordered a commissioner’s exam, stating in the process that the respondents could not submit depositions and other records to the physician because only medical reports could be considered by the examining doctor. CRB reversed; there is no categorical prohibition against providing extra information to a § 31-294f medical examiner. Commissioner has discretion to allow other items to be considered if they would be helpful.

Wilson-Shirley v. Yale University, 3355 CRB-3-96-6 (November 4, 1997).

See, Wilson-Shirley, § 31-301. Factual findings.

Gillis v. White Oak Corporation and Waterbury Construction, 3337 CRB-5-96-5 (July 15, 1997), aff’d, 49 Conn. App. 630 (1998), cert. denied, 247 Conn. 919 (1998).

CRB previously remanded case because trier did not explain his disregard of the § 31-294f examiner’s opinion. On remand, trier explained why he felt the claimant’s injuries hastened his need for knee surgery. Respondents argued on appeal that the medical examiner’s opinion that the incident was relatively trivial must be followed absent evidence that he relied on improper facts or that his medical analysis is patently erroneous. Held: adopting respondents’ proposition would shift fact-finding role from commissioner to medical examiner whenever § 31-294f was invoked. Such a result would be improper. Nieves, infra, cited; Iannotti v. Amphenol/Spectra Strip, 13 Conn. Workers’ Comp. Rev. Op. 319, 1829 CRB-3-93-9 (April 25, 1995), aff’d, 40 Conn. App. 918 (1996)(per curiam), distinguished. Note subsequent decision in Gillis, 4080 CRB-5-99-7 (October 20, 2000), rev’d, 73 Conn. App. 523 (2002), cert. granted, 262 Conn. 936 (2003), § 31-349.

Nieves v. SCM Company, 3317 CRB-6-96-4 (July 9, 1997).

The parties reasonably expect that a commissioner-ordered medical examination will provide him with strong guidance, but he is not bound to credit any given medical report when making his findings. CRB’s emphasis of the need for a trier to articulate his reasons for disregarding a § 31-294f exam does not require him to accept it if he finds that other evidence is more credible. There is no legal presumption of credibility for an expert witness in a workers’ compensation case. Sufficient evidence existed to support the outcome here.

Barton v. Waterbury Company, 16 Conn. Workers’ Comp. Rev. Op. 216, 3428 CRB-5-96-9 (June 6, 1997).

Commissioner declined to admit report into evidence as a § 31-294f commissioner’s exam, and ordered that a new exam be scheduled with a different doctor. Respondents appealed. CRB found no error. Respondents communicated ex parte with trier in initial scheduling of exam, and sent a letter to the doctor that was not copied to claimant’s counsel until the day before the examination. Further, respondents’ counsel agreed at the formal hearing to offer the initial examination as an IME and to allow another doctor to perform the commissioner’s examination. CRB noted proper procedure in scheduling commissioner’s exams involves communication and agreement between both parties as to contents of any communication with doctor. Subsequent decision at Barton, 3786 CRB-5-98-3 (June 3, 1999), supra, and at § 31-294d.

Ruilova v. Accurate Electronics, Inc., 3211 CRB-4-95-11 (January 16, 1997).

Commissioner ordered examination, but did not hold a formal hearing on the issue or take exhibits into evidence, even though respondents objected. Thus, CRB had no record to review. Reversed and remanded for formal hearing.

Matteau Riley v. ARA Services/County School, 16 Conn. Workers’ Comp. Rev. Op. 112, 2280 CRB-2-95-1 (November 25, 1996).

Commissioner declined to authorize knee arthroscopy on grounds treatment was not reasonable and necessary. CRB remanded matter to trial commissioner for articulation of findings. Although trial commissioner had discretion to believe any of the conflicting medical opinions in the case, and the respondents’ examiner provided reports that supported the commissioner’s decision, the commissioner was still required to articulate the reasons for her decision to disregard the report of the doctor who examined the claimant at the commissioner’s request. Subsequent decision at Matteau Riley, 2280 CRB-2-95-1 (May 6, 1998), supra.

Gillis v. Waterbury Construction, 15 Conn. Workers’ Comp. Rev. Op. 131, 2182 CRB-5-94-10 (January 17, 1996).

The respondents objected to the commissioner’s failure to accept the medical opinion of the IME who examined the claimant pursuant to a commissioner’s ordered exam. CRB held that when a commissioner orders a medical examination, there is usually an expectation among the parties that said examination will provide strong guidance to the commissioner. Thus, where a commissioner chooses not to adopt the diagnosis of the physician performing that examination, he or she should articulate the reasons behind his or her decision to disregard the examiner’s report. CRB remanded for articulation by trial commissioner. See, Iannotti v. Amphenol/Spectra-Strip, 13 Conn. Workers’ Comp. Rev. Op. 319, 1829 CRB-3-93-9 (April 25, 1995), aff’d, 40 Conn. App. 918 (1996)(per curiam), infra. See also, Gillis v. White Oak Corporation and Waterbury Construction, 3337 CRB-5-96-5 (July 15, 1997), aff’d, 49 Conn. App. 630 (1998).

Iannotti v. Amphenol/Spectra-Strip, 13 Conn. Workers’ Comp. Rev. Op. 319, 1829 CRB-3-93-9 (April 25, 1995), aff’d, 40 Conn. App. 918 (1996)(per curiam).

Commissioner not required to rely on conflicting report of commissioner’s examiner where other medical reports supported finding of permanent partial disability. However, commissioner should articulate reasons for failure to adopt the diagnosis of the physician performing the § 31-305 examination. No harmful error in this case.

Baccielo v. Business Products, Inc., 13 Conn. Workers’ Comp. Rev. Op. 163, 1732 CRB-4-93-5 (March 9, 1995).

Claimant argued examination improper in brief, but did not object to order when given, and did not raise issue in Motion to Correct or Reasons of Appeal. Thus, we declined to address issue further. See also, Baccielo, § 31-275(1) and § 31-301. Appeal procedure.

Lee v. Norwalk, 13 Conn. Workers’ Comp. Rev. Op. 23, 1626 CRB-7-93-1 (November 7, 1994).

Employer must properly introduce results of IME examination into evidence and pay the cost of the subpoena or deposition testimony. Absent the opportunity for cross examination of IME physician, trier’s admission of medical report is improper. See also, Lee, § 31-275(1) and § 31-298.

Casman v. Lego Systems, 12 Conn. Workers’ Comp. Rev. Op. 178, 1520 CRB-3-92-10 (May 2, 1994).

Claimant must attend medical examinations requested by employer even though a third party tort action is pending in superior court. Medical examinations in superior court forum proceed independent of those within the workers’ compensation forum. See also, Casman, § 31-293(a).

Hurley v. Carolina Freight, 12 Conn. Workers’ Comp. Rev. Op. 44, 1406 CRB-6-92-4 (January 26, 1994).

Independent medical examination while reasonable and appropriate when scheduled became unreasonable when claimant waited more than two hours for the examination. Claimant justified in leaving physician’s office after the delay in conducting the examination.

Straub v. Bolt Technology Corporation, 9 Conn. Workers’ Comp. Rev. Op. 212, 1130 CRD-3-90-11 (September 12, 1991).

Trial commissioner’s denial of further medical examination cannot be termed an abuse of discretion where there is substantial medical evidence below to support his conclusion. See also, Straub, § 31-298, § 31-308(b).

Applebee v. State/Southbury Training School, 8 Conn. Workers’ Comp. Rev. Op. 142, 841 CRD-5-89-4 (August 20, 1990).

Benefits cannot be suspended or discontinued without the commissioner’s approval of a Form 36 even if respondents contend claimant failed to submit to a reasonable medical examination.

Garfitt v. Pfizer, Inc., 7 Conn. Workers’ Comp. Rev. Op. 62, 742 CRD-3-88-6 (August 11, 1989).

Section 31-305 sanctions prevail only where a reasonable medical exam is refused.

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