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Thomopoulos v. Tom Cat Restaurant


June 10, 2008


On appeal from the New Jersey Department of Labor and Workforce Development, Division of Workers' Compensation, Docket Nos. 2003-2531, 2003-2684.

Per curiam.


Submitted May 19, 2008

Before Judges S.L. Reisner and Gilroy.

Petitioner Charles J. Thomopoulous appeals from a December 22, 2006 decision of the Division of Workers' Compensation dismissing his compensation claim after a five-day trial. We affirm.


The following evidence was presented at the Workers' Compensation hearing before Judge LaBoy. Petitioner claimed that he suffered a stroke while attempting to lift a heavy grill at the restaurant where he worked. Prior to the stroke at issue in this case, petitioner had a significant medical history. He had been a diabetic for the past fifteen years, and suffered from an eye condition known as diabetic retinopathy. Petitioner was not taking his diabetes medications. He had also smoked two packs of cigarettes per day for thirty years, and was taking Lipitor for his "sky high" cholesterol. However, prior to the incident in question, petitioner had never had a stroke, heart attack, or any other vascular event.

In September 2001, petitioner was laid off from a diner in Manhattan where he worked as a waiter. He was unemployed until April 2002, and while unemployed he engaged in almost no physical activities. Petitioner did not exercise regularly or belong to a gym, and otherwise led a sedentary lifestyle, until he again found employment.

In April 2002, when petitioner was forty-four years old, he began working at the Tom Cat Restaurant in Wildwood. The restaurant, which was owned by petitioner's brother Paul, was only open seasonally from Memorial Day to Labor Day. Its hours of operation were from 10 p.m. until 2 p.m. the next day. Petitioner's duties included running the kitchen, ordering inventory, cooking, cleaning, and washing dishes. In other words, petitioner "did everything." He normally worked from 9:45 p.m. until 9:45 a.m., seven days a week.

According to petitioner's testimony, on the morning of July 2, 2002, around 9 a.m., he became dizzy while unloading a food delivery by himself. After taking a ten minute break, petitioner began to feel better and resumed unloading. He described the unloading process as follows. Boxes, which ranged from 10 to 50 pounds, were taken from a delivery truck by the driver and placed on the floor of the restaurant. Petitioner then either placed the boxes on the shelves in the kitchen, or carried them eight or nine feet to the walk-in freezer.

After petitioner finished his shift, he returned to his brother's home, where he lived while working at the restaurant. Since he was feeling very tired, he went straight to bed, without showering, which was unusual. Around 8 p.m., petitioner woke up, took a shower, and headed for the restaurant at about 9:45 p.m. According to petitioner, he did not take the night off from work because it was the busiest weekend of the year and he believed that his brother needed him. Indeed, when petitioner informed his brother about his condition and his desire to consult his physician in New York, Paul advised him to take a day off the following week when the restaurant was less busy.

When petitioner arrived at the restaurant on Wednesday, July 3, he felt "awkward like [he] was drained[,]" and also had numbness in his right hand. He nonetheless began preparing to open the restaurant at 10 p.m. by putting fries on the grill and cooking bacon. There were two other employees in the kitchen with petitioner, another cook and a dishwasher.

Once business died down around 4 a.m., petitioner began cleaning. In order to clean the grease that would normally accumulate between the grills from cooking, a 200 pound grill had to be lifted and pulled forward. This task was normally performed by two employees - either the other cook or petitioner's brother. On this night, however, the cook was occupied preparing for the "breakfast rush" the next morning. Therefore, petitioner attempted to lift the grill alone and, while doing so, lost consciousness. He had no recollection of what occurred next.

According to petitioner's brother Paul, he was in the front of the restaurant when he heard someone yelling his name from the kitchen. Paul ran back and found his brother "passed out in front of the grill on the floor." Paul and the cook picked petitioner up and carried him to the booth in an attempt to revive him by slapping him in the face. Paul did not call 911.

Petitioner regained consciousness about fifteen or twenty minutes later. According to petitioner, he felt very light-headed, dizzy, and disoriented, and he could not control his right arm. Paul drove petitioner to Burdette Tomlin Memorial Hospital. Petitioner testified that his brother dropped him off and then returned to the restaurant. On the contrary, Paul testified that he remained with petitioner for the entire duration of his stay.

Hospital Records

According to the hospital records, petitioner was admitted to the emergency room at 7:40 a.m. on July 4th, 2002. He was described as a "well appearing man with no acute distress," as well as "oriented" and "alert" with no indication of confusion. Petitioner's blood pressure was 142/100, with a heart rate of 84.

Emergency room records indicate that petitioner complained of numbness in his right arm, and told staff that he had experienced difficulty since July 2 in grasping objects with his right hand, driving or writing. Petitioner also reported calf cramping in his right leg earlier in the week. A neurological examination revealed that the right shoulders, biceps, triceps and grip strength was diminished, along with his right hip and knee flexing. Further, "[s]ensation and touch were grossly intact except for the right upper extremity which was diminished." Petitioner also "had a slight right facial asymmetry and facial droop."

In a report dated July 5, 2002, Dr. Tzorfas gave the following impression: "Inferior division of the left MCA infarction in a patient with hypertension and hyperlipidemia, smoker and diabetes. These are all risk factors for small vessel disease." Based on petitioner's young age of 44, Dr. Tzorfas recommended a transthoracic echocardiogram, which revealed a probable small patent foramen ovale, i.e., a hole between the chambers of the heart. As a result, a bubble study with transthoracic imaging was recommended. The bubble study revealed "[n]o evidence of right to left intracardiac shunting." In other words, the bubble did not pass through the hole from one side of the heart to the other.

Additional tests were performed on petitioner while at the hospital. An MRI of the brain "revealed findings consistent with a nonhemorrhagic subacute infarct involving the left basal ganglion." An MRA of the brain and neck "revealed atherosclerotic disease," which appeared "to be most apparent involving the origin of the left internal carotid artery." Further, "[t]here was approximately 60% narrowing of the left internal carotid artery; no ulceration; right internal carotid artery was well preserved. No intracranial narrowing." A duplex carotid ultrasound was also performed, which revealed "stenosis [narrowing] of the left internal carotid artery estimated at approximately 60%; stenosis of the right internal carotid artery estimated at less than 40%." A July 4th CT scan revealed "possible cerebral infarct involving the left occipital lobe without hemorrhage." In contrast, a July 11th CT scan came back as "normal."

Petitioner was discharged in "stable" condition on July 13, 1992, nine days after being admitted. His discharge summary indicated that petitioner had a "cerebral vascular accident" (CVA). Notably, nowhere in the medical records is any indication that petitioner ever informed the medical personnel during his stay that he had been lifting a heavy grill when he passed out.

Treating Physicians

Constantine E. Kosmas, M.D., Ph.D., FACC, FACP, in a report dated July 17, 2002, concluded that that the likelihood of petitioner's CVA "to have been secondary to the patent foramen ovale is low in view of the absence of any right to left shunt in the bubble study." In a subsequent report dated December 11, 2002, Kosmas indicated that petitioner conceded he was not very compliant with his medications. In response, Kosmas warned petitioner that "strict compliance to his medication is absolutely necessary to avoid potential catastrophic effects of diabetes and hyperlipidemia."

In a report dated December 26, 2002, a month before petitioner filed his claim petition, Dr. Emilio Oribe, a neurologist, concluded that petitioner was at high risk for a secondary stroke. Dr. Oribe reported that petitioner advised him that he suffered his stroke symptoms while attempting to lift a "heavy grill" at work. This is the first reference to the grill in petitioner's medical records.

Petitioner's attorney, Kenneth D. Mackler, requested Russell L. Abrams, M.D. to evaluate petitioner. After a neurological examination, Abrams concluded on May 4, 2004, that "[i]t is clear the above mentioned injuries were directly contributed to by the excessive lifting, which took place on July 2, 2002." The report was later amended to alter the date of the injury from July 2 to July 4. Abrams did not testify at the hearing, perhaps because he had not provided an opinion "within a reasonable degree [of] medical probability."

At the request of respondent's attorney, petitioner was evaluated by Roy Levinson, M.D. In a report dated March 11, 2005, Levinson concluded "[w]ith a high degree of medical certainty[,] . . . that [petitioner's] cerebrovascular accident was the result of medical illness and was not related to his employment in any way." Levinson also did not testify at the hearing.

Expert Testimony

At the Workers' Compensation hearing, petitioner presented expert testimony from Ilia Segal, M.D., who is not a board-certified neurologist.*fn1 Segal's testimony was limited to the issue of causation, or "whether or not the [Cerebral Vascular Accident] was caused by a material degree by the work effort of [petitioner], and further, . . . whether [petitioner's] work effort was in excess of the wear and tear of his daily living."

Segal began by describing the three different types of strokes. First, a hemorrhagic stroke is "bleeding inside the brain . . . caused by a breakage of the blood vessel." Second, a thrombotic stroke is a clot within the vessels of the brain itself. An example of a thrombotic stroke is a lacunar infarct, which involves the very small blood vessels of the brain. Lastly, an embolic stroke occurs when the clot [comes] from somewhere else, from a vessel . . . that has a problem, and when a part of a clot or plaque*fn2 breaks off it travels upward to a smaller vessel that doesn't let the clot through and it blocks the vessel and the usual sources are either the heart, the aorta or carotid artery.

After reviewing petitioner's medical records and the hearing transcripts of petitioner's and his brother's testimony, Segal opined that, within a reasonable degree of medical certainty, petitioner suffered an embolic stroke. According to Segal, petitioner had all three potential sources. First, petitioner had a defect in his heart called a patent foramen ovale, which is an egg-shaped hole that fails to close after birth and can be a source of a blood clot or a stroke later in life. Segal concluded, however, that this was not a very likely source, because the hole was not "big." The second "potential big source" of petitioner's embolic stroke was his aorta, "which is the main vessel of the body." According to the echocardiogram conducted at the hospital, petitioner's aorta had unstable, mobile plaque. The last source is the carotid artery. According to the carotid Doppler performed at the emergency room, petitioner "had plaque narrowing of the left carotid artery, 60 percent stenosis of the left and 40 percent of the right." In other words, 60% of the right was open and 40% of the left was open.

Segal then opined that the embolic stroke was caused by the heavy lifting of the grill. This opinion was based on the following facts. Petitioner was an unhealthy person who had plaque in the aorta and in the carotid artery. On the day before petitioner lost consciousness, petitioner was working very hard lifting boxes. This caused "a small separation of the clot." The next day, petitioner attempted to lift a 200 pound grill. According to Segal, [l]ifting a very heavy load involves . . . contracting the muscles of both arms and legs. Contracting the muscles compresses blood vessel so there is less blood in your legs, in your arms. There is more blood in the center of the body, what we call the core. The blood pressure can be distributed only through the vessels that are there, so the blood pressure has to rise during the lifting event.

If a person lifts any more than half of his maximum pounds he has to hold his breath, otherwise you cannot lift weight . . . that increases blood pressure even farther. It's called Valsalva, V-a-l-s-a-l-v-a . . . [which] elevates blood pressure very high in a central vessel. Aorta is one of the central vessels. The carotid artery that feeds the brain is one of the central vessels. By way of elevating the blood pressure, a person who has underlying condition can and does sometime dislodge a larger part of a clot that goes on and blocks one of the important vessels, usually in the brain.

Consequently, since, the stroke occurred immediately after or during the heavy lifting, Segal concluded that it was the triggering event.

The triggering event is a heavy lifting. The heavy lifting of a heavy load with immediate collapse. That means that the CVA, the stroke, happened right there. When he woke up after a while his conscious was not clear. They described this as dazed and he could not move his right arm, and to a lesser degree his right leg, so the stroke happened right there during the lifting event.

Conversely, Segal opined based upon a reasonable degree of medical certainty, that petitioner's stroke was not "a result of the natural progression of [petitioner's] underlying conditions."

Segal rejected the notion that petitioner suffered a lacunar infarct, which he defined as a blockage in a smaller vessel in the brain that feeds the interior portions of the brain, the ones responsible for consciousness and everything, and these are the vessels that can be effected, notoriously effected by high blood pressure, high cholesterol, other conditions, and they can cause symptoms like transient weakness of the body and sometimes they cause no symptoms and we find them accidentally on a CAT scan or MRI of a person who has those conditions and he never knew that he had a small stroke.

What differentiates a lacunar infarct from an embolic stroke is the size of the blood vessel. According to Segal, petitioner did not suffer a lacunar infarct because the vessel involved here was "a little bigger vessel than a lacunar infarct." This conclusion was based on "the size of the abnormality on the CT scan and the MRI of the brain."

On cross-examination, Segal conceded that if the lifting event did not occur, then he could not opine within a reasonable degree of medical certainty that the stroke was not caused by petitioner's underlying conditions. Indeed, uncontrolled diabetes, hypercholesterolemia, and cigarette smoking, all symptoms petitioner exhibited, increase the incidence of stroke. Segal did note, although not based upon a reasonable degree of medical certainty, that the stroke could have been caused by petitioner's unloading of the boxes the previous day. Segal further testified that even without the heavy lifting, petitioner's risk of stroke was minimal notwithstanding his significant risk factors, due to his young age.

To rebut Segal's testimony, on May 5, 2006, respondent presented I. Howard Levin, M.D., a board certified neurologist, as a medical expert. After reviewing petitioner's hospital records, reports from other physicians who later examined petitioner, and Segal's testimony, Levin rejected Segal's conclusion that petitioner suffered an embolic stroke but rather concluded that he had a thrombotic lacunar infarct. In support of his opinion, Levin referred to the results of the diagnostic tests performed on petitioner at the hospital. The first CT scan performed on July 4th revealed the possibility of an infarct on the left occipital lobe. However, the results of the second CT scan performed on July 11, were "normal." Interpreting these results together, Levin opined that if petitioner had a stroke, "it was very small, less than five millimimeters."

Petitioner also underwent an MRI to analyze the brain and an MRA to look at the larger arteries. "The MRI showed sub-acute infarct in the left basal ganglia," which is deep in the brain. According to Levin, this location is significant because strokes of the smaller penetrating arteries located deep within the brain are normally lacunar infarcts, not embolic strokes.

Embolic strokes occur when the . . . blood clot is schlipped [phonetic] off and goes to the surface of the brain, to the outer areas of the brain along the course of the larger arteries. It doesn't usually get into the deeper penetrating arteries that are affected in patients who have high blood pressure and diabetes and have damage to those smaller deeper vessels in their brain and in their . . . brain stem.

Moreover, according to Levin, classic lacunar infarcts occur in the basal ganglia.

On cross-examination, Levin testified that with a lacunar stroke, both an early and late CT scan may be negative if it is a small enough size. Levin conceded that similar results were possible with any stroke, including an embolic stroke, because it may take 24 to 48 hours for changes to take place in the tissue enabling it to show up in the CT scan. Levin clarified, however, that he was not merely relying on the initial CT scan, but also the later negative CT scan.

In further support of his conclusion that petitioner suffered a thrombotic lacunar infarct rather than embolic stroke, Levin referred to the length of time in which petitioner exhibited symptoms. Indeed, petitioner's symptoms began two or three days before he was admitted into the emergency room on July 4th. According to Levin, embolic strokes occur suddenly, then slowly and steadily improve. On the contrary, a thrombotic stroke, such as a lacunar infarct, arises slowly over time in a "stuttering" manner. Moreover, petitioner's medical records did not indicate any difficulty in understanding and speaking, or loss of peripheral vision, which, according to Levin, is common with an embolic stroke.

Finally, Levin noted that petitioner had numerous risk factors associated with stroke. For example, petitioner suffered from diabetes for fifteen years along with complications from the disease, he had "sky high" cholesterol, and smoked two packs of cigarettes per day for thirty years. Petitioner's risk factors were further exacerbated by his medication noncompliance. According to Levin, these three risk factors, particularly the diabetes and the cigarette smoking have been repeatedly and clearly identified as independent risk factors for stroke. That means in the absence of any other medical problems any one of those problems can increase a patient's risk for stroke.

Based upon a reasonable degree of medical certainty, Levin concluded that the activity petitioner engaged in at the time the stroke occurred was irrelevant. In other words, there was no "relationship between anything that happened on July 4th with his stroke nor is there any studies in the medical literature that have ever shown that any particular jobs pose a risk factor for stroke."

On cross-examination, Levin was presented with an excerpt from Segal's report which read as follows: "I believe that [petitioner] developed a thrombosis by way of plaque formation breaking off which traveled to the brain by way of the circulatory system and caused a blockage which led to the stroke." According to Levin, however, this process is only possible in patients with a patent foramen ovale. Levin explained that increasing the Valsalva maneuver elevates the transthoracic pressure, or pressure in the chest caused by exerting force through, for example, straining stools or heavy lifting. This rise in transthoracic pressure facilitates the passage of the clot from the right to the left side of the heart.

In petitioner's case, Levin concluded, the likelihood of petitioner's patent foramen ovale being the source of his stroke was very low, a point with which Segal agreed. Levin's opinion was based on a report from Dr. Kosmas, which discussed the results of petitioner's transthoracic echocardiogram. According to the report, the test results revealed "an absence of right to left shunt in the bubble study." When asked what this observation meant, Levin explained:

That means when they put in a bubble . . . to see if it goes from the right to the left side. . . . It's the shunting. They're looking for blood flow. People have this hole it doesn't mean that the blood goes from the right to the left side, or that there's a propensity for the blood to go from the right to the left side through the hole. In this case, it doesn't appear that the shunting, there's enough there, to cause the blood to flow from the right to the left side.

In other words, if the blood does not flow through the patent foramen ovale, then essentially, a plaque or a blood clot also could not pass through.


On December 22, 2006, Judge LaBoy read a comprehensive twenty-eight page oral opinion into the record. He phrased the central issue as whether "petitioner's cerebrovascular injury arose out of and in the course of the employment with the respondent on July 2, 2002, and July 4, 2002. Specifically, whether the stroke that petitioner obtained on July 4, 2002, was an embolic stroke or a lacunar stroke." Judge LaBoy concluded that petitioner failed to meet his burden of establishing, within a reasonable degree of medical probability, that the stroke was caused by his work effort or strain.

Judge LaBoy found the testimony of petitioner concerning the lifting incident as not credible. This conclusion was based on the following facts. First, there was a discrepancy between petitioner and his brother concerning whether the brother remained at the hospital after dropping off petitioner. There was further discrepancy concerning the waiting time between the alleged fainting and the arrival at the hospital. Third, the emergency room treatment records did not indicate that petitioner mentioned anything about the lifting incident throughout his ten-day stay at the hospital. According to Judge LaBoy, this was of great significance.

[D]epending on whether to believe the petitioner or respondent, both testified that they could not remember why the lifting incident was not mentioned in the emergency room. Upon being interviewed petitioner stated he was "confused." Yet, he was able to relate that he was feeling numb, his past medical history and that he was non-compliant with his medication. The first thing a person tells the [triage] nurse is the reason why they are there and what caused the reason for being there. Furthermore, petitioner was admitted for ten days. A review of the records also failed to reveal the lifting incident. A review of the discharge summary also failed to reveal the lifting incident.

Lastly, Judge LaBoy cited petitioner's failure to present corroborating witnesses concerning his work efforts and stress during July 2nd to July 4th.

[This failure] create[s] a cloud as to the credibility of the petitioner and his brother . . . these two witnesses [cook and dishwasher] could have provided important testimony not only as to petitioner's work effort, but also the alleged fainting incident. Their testimony would have been usable in evaluating petitioner's allegations. As stated by petitioner's brother, the kitchen was 10-by-15, and at the time the petitioner "passed out," all three employees were in that small kitchen area.

With regard to the expert testimony, Judge LaBoy found respondent's expert Levin's conclusions "more persuasive, credible and entitled to the greater weight as to a reasonable degree of medical probability." Judge LaBoy reasoned that:

[Levin] is a board certified neurologist with extensive experience in his field. He thoroughly reviewed the medical records consisting of the petitioner's past and present medical history. He opined that petitioner suffered a lacunar infarct, a small one, deep in the brain and demonstrated to the court with the use of a diagram, where it happened and how it happened. His testimony as to the risk factors which led to this stroke was more credible than Dr. Segal's, risk factors which petitioner continued to possess, and that, unfortunately, two of his treating physicians indicated that if he continues to be non-compliant will be subjected to a secondary stroke. I find Dr. Levin's opinion more explicit and instructive. His opinion that there "was no relationship between anything that happened on July 4th with his stroke nor is there any studies in the medical literature that has ever shown that any particular jobs pose a risk factor for stroke" was persuasive and non-contradicted by petitioner. It was a thrombotic lacunar stroke as a result of a small vessel disease. I find that the cumulative effect of petitioner's medical condition with his admission that he was non-compliant with the medical treatment prior to July 2nd and up to July 4th, 2002, created substantial risk factors for a stroke, and, in fact, led to the stroke. The most obvious disparity between Dr. Segal and Dr. Levin is their view as to the cause of the stroke. Again, I find Dr. Levin's opinion more credible and persuasive in light of petitioner's condition and non-compliance with his treatment.

Of further significance was the fact that the treating physicians who evaluated petitioner also agreed with Levin's conclusions.

Based primarily on his acceptance of Dr. Levin's expert testimony, Judge LaBoy dismissed petitioner's claim petitions.


On this appeal, petitioner raises the following points for our consideration:


A. It Was Error To Conclude That The Lifting Incident At Work Did Not Occur Primarily Because The Hospital Records Do Not Mention Such Incident.

B. The Lower Court Erred By Drawing An Inference Adverse To Petitioner By Failing To Produce Testimony From Co-Employees And From An Examining Neurologist.

C. The Lower Court Erred In The Summary Manner In Which It Gave Greater Weight To The Respondent's Medical Expert.



The scope of our review of Judge LaBoy's decision is limited to determining whether the findings made could reasonably have been reached on sufficient credible evidence present in the record, considering the proofs as a whole, with due regard to the opportunity of the one who heard the witnesses to judge of their credibility and, in the case of agency review, with due regard also to the agency's expertise where such expertise is a pertinent factor. [Sager v. O.A. Peterson Constr., Co., 182 N.J. 156, 164 (2004)(citations omitted).]

Workers' Compensation claims based on cerebral vascular causes, such as stroke, are governed by N.J.S.A. 34:15-7.2, which provides:

In any claim for compensation for injury or death from cardiovascular or cerebral vascular causes, the claimant shall prove by a preponderance of the credible evidence that the injury or death was produced by the work effort or strain involving a substantial condition, event or happening in excess of the wear and tear of the claimant's daily living and in reasonable medical probability caused in a material degree the cardiovascular or cerebral vascular injury or death resulting therefrom.

Material degree means an appreciable degree or a degree substantially greater than de minimis.

As the Court recognized in Fiore v. Consol. Freightways, 140 N.J. 452, 466 (1995), there is a "presumption" that coronary-artery disease and heart attacks are the result of natural causes and therefore

[t]he section imposes a stringent level of proof by explicitly requiring an employee to show that the work effort was "in excess of the rigors of the claimant's daily living and that the cause of the injury or death was job-related in a material degree. . . ." [Ibid. (citation omitted).]

Having reviewed the entire record, we conclude that the judge's decision was supported by substantial credible evidence, Rule 2:11-3(e)(1)(D), and is consistent with applicable law. Claimant's Point II was not raised before Judge LaBoy and may not be asserted on appeal. See Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973). Claimant's remaining appellate contentions are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). We affirm substantially for the reasons stated in Judge LaBoy's December 22, 2006 opinion. We add the following comments.

As Judge LaBoy clearly indicated in his opinion, this case turned on the conflicting testimony of two expert witnesses. Resolving such conflicts was within the purview of the Workers' Compensation judge. A reasonable trier of fact could have fairly concluded that the defense expert, Dr. Levin, who was a board certified neurologist, was better qualified than claimant's expert, Dr. Segal, who was not a neurologist, and that Dr. Levin's testimony was more persuasive.

Dr. Segal's opinion that claimant's stroke was work-related hinged on his contention that the stroke was embolic and was caused by lifting a heavy object. Dr. Levin explained in cogent detail why claimant's stroke was a thrombotic lacunar stroke and not an embolic stroke, and why it would not have been caused by a lifting event at work; we find no basis to disturb the judge's decision to credit that testimony.

We also conclude there is support for the judge's decision not to credit claimant's testimony that he was trying to lift a heavy grill at the time he suffered the stroke. Claimant's medical records from his treatment after the stroke do not indicate that claimant told his doctors or nurses about trying to lift a grill, although he told them many other details. Indeed, he did not mention the grill until months later, shortly before he filed his claim petition. However, as indicated previously, Dr. Levin's opinion did not rest on whether or not claimant was performing heavy lifting.


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