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Jeffrey Appel
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Central Florida Workers' Compensation Attorney
Central Florida Workers' Compensation Attorney

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Florida’s Standard on Permanent Total Disability in a Work Comp Case
Without a doubt, Blake v. Merck & Co., 43 So.3d 882 (Fla. 1st DCA 2010) is the most widely cited case on the standard for adjudication of permanent total disability benefits in Florida’s workers’ compensation forum.  In Blake, the First District Court of Appeal succinctly summarized “three ways for injured worker to prove entitlement to PTD benefits.” 

To some, Blake may appear to be sole controlling case when analyzing PTD entitlement and it is often the single citation in a PTD entitlement order or final hearing memorandum.  However, this author contends other viable and important case law impacts this seemingly simple analysis. This article attempts to analyze and summarize the current PTD standard beyond the three prongs of Blake.

The current version of the PTD statute was enacted on October 1, 2003, and can be found in Section 440.15(1)(b):

In the following cases, an injured employee is presumed to be permanently and totally disabled unless the employer or carrier establishes that the employee is physically capable of engaging in at least sedentary employment within a 50-mile radius of the employee’s residence:

1. Spinal cord injury involving severe paralysis of an arm, a leg, or the trunk;
2.  Amputation of an arm, a hand, a foot, or a leg involving the effective loss of use of that appendage;
3.  Severe brain or closed-head injury as evidenced by:
a. Severe sensory or motor disturbances;
b.  Severe communication disturbances;
c.  Severe complex integrated disturbances of cerebral function;
d.  Severe episodic neurological disorders; or
e.  Other severe brain and closed-head injury conditions at least as severe in nature as any condition provided in sub-subparagraphs a.-d.; 4. Second-degree or third-degree burns of 25 percent or more  of the total body surface or third-degree burns of 5 percent or more to the face and hands; or
5.  Total or industrial blindness.

In all other cases, in order to obtain permanent total disability benefits, the employee must establish that he or she is not able to engage in at least sedentary employment, within a 50-mile radius of the employee’s residence, due to his or her physical limitation.

Wal-Mart Stores, Inc. v. Thompson, 974 So.2d 516 (Fla. 1st DCA 2008), was the first case interpreting this version of the law.  At trial, the claimant in Wal-Mart presented “unrebutted vocational evidence of unemployability.”  Id. at 517.  The evidence boiled down to the testimony of claimant’s expert who opined claimant was “ruled out on all jobs within a 50-mile radius of her home.”  Id.  The JCC awarded PTD benefits based on this testimony. Even though the JCC below and the appellants in the case both expressed frustration over the result, the appellate court affirmed the ruling stating it would not reweigh the evidence presented and citing precedent as follows:  

Appellants, in their brief, echo the JCC’s frustration, and essentially ask us to reweigh the evidence presented to the JCC. This we are unable to do under well-established precedent. See, e.g., Wilcox v. Ag Mart Produce, 942 So.2d 959, 963 (Fla. 1st DCA 2006) (“It is not the proper role of this court to reweigh the evidence presented below.”); Cape Canaveral Hosp., Inc. v. Nickell, 668 So.2d 219, 220 (Fla. 1st DCA 1996) (“The JCC sits as the finder of fact where the testimony is conflicting, and this court will not reweigh the evidence so long as the JCC’s findings are supported by competent substantial evidence.”); Mt. Sinai Hosp. v. City of Miami Beach, 523 So.2d 722, 723 (Fla. 1st DCA 1988) (“This court will not reweigh the evidence and substitute its judgment for that of the deputy commissioner.”). Id.

The next challenge to an order awarding PTD benefits involved a case where the JCC below specifically found that the claimant’s physical limitations alone did not preclude him from sedentary work but the combination of his physical injuries and vocational abilities rendered him permanently and totally disabled. Ferrell Gas v. Childers, 982 So.2d 36 (Fla. 1st DCA 2008).  Having argued this case to the DCA, I recall being mindful that a CSE challenge would not be well taken by the Court; therefore, I made a legal argued that the only physical limitations should be considered and that the JCC below erred by construing the statute otherwise.  I felt fairly confident in the position because my argument was exactly what the statute said.  The inability to work must be “due to his or her physical limitation.”  However, the Court grilled me extensively during oral argument and despite the clear language of the statute, the Court determined to depart from that language.  The Court decided the version of the statue enacted in 2003 was similar to the language of the statue in the pre-1994 version, where Section 440.15(1)(b) required a claimant “to establish that he is not able uninterruptedly to do even light work available within a 100-mile radius of the injured employee’s residence due to physical limitations.”  Id. at 37.  The Court cited cases interpreting the pre-1994 version which included Commercial Carrier Corp. v. LaPointe, 723 So.2d 912 (Fla. 1st DCA 1999) and Shaw v. Publix Supermarkets, Inc., 609 So.2d 683 (Fla. 1st DCA 1992), then succinctly declared:  “The pertinent language in the current version of Section 440.15(1)(b) is similar to the language under which this court has recognized that it is appropriate to consider both physical and vocational factors.  Accordingly, such factors were properly considered in this case…”  Id. 

In retrospect, I am happy that the Court skirted the obvious legislative intent of the 2003 changes in Ferrell Gas, because I think it resulted in a much more fair analysis.  But I still find it hard to reconcile the DCA’s willingness to disregard such clear legislative intent on PTD because it appears to be best for the system while strictly adhering to irrational legislative edicts in other instances.  The most obvious contrary example being the numerous fee challenges leading up the Emma Murray decision by the Supreme Court.  I suppose the only explanations for such apparently contradictions lie in different personalities of the judges and the changing political climate of the state. 

Garcia v. Fence Masters, Inc., 16 So.3d 200 (Fla. 1st DCA 2009) soon followed the Ferrell Gas decision.  In Garcia, an unsuccessful claimant challenged an order denying him PTD benefits based on a vocational provider’s report which only identified available jobs which were within claimant’s physical limitations.  Id. at 201.  The vocational expert admitted on cross-examination that he did not consider claimant’s vocational limitations. Regardless, the JCC accepted the opinion, concluding claimant was capable of performing at least sedentary work within a fifty-mile radius of his residence.  The JCC did not indicate whether she took into consideration claimant’s vocational limitations.  Id.  The First District reversed and remanded, indicating that the appropriate legal standard for PTD involves an analysis of vocational and physical limitations and that an order on PTD must contain “clear, ultimate findings of fact on the essential issues presented for resolution.”  Id. at 202. 

The claimant in Garcia attempted to make the further argument that because his vocational provider’s evidence was the only adequate vocational evidence and because it established his unemployability, then the DCA should have directed an award of PTD.  Id. at 203. However, the DCA was disinclined to decide the facts of the case and stated:

We have previously addressed the fallacy of this type of argument. See Fitzgerald v. Osceola County Sch. Bd., 974 So.2d 1161, 1164 (Fla. 1st DCA 2008); see also Mitchell v. XO Commc’ns., 3 So.3d 1278 (Fla. 1st DCA 2009). We again remind the bar that the JCC sits as the finder of fact and Claimant has the burden of presenting evidence the JCC finds persuasive. See Mitchell v. XO Commc’ns., 966 So.2d 489, 490 (Fla. 1st DCA 2009). Moreover, the JCC has the discretion to reject even uncontroverted evidence she disbelieves, and this court will not reweigh evidence on appeal. See Ullman v. City of Tampa Parks Dep’t, 625 So.2d 868, 874 (Fla. 1st DCA 1993).

Despite the clarity of Garcia on the legal standard for PTD and the evidence require to prove or disprove PTD, the concept continued to come up in future appeals.

Florida Transport 1982, Inc., v. Quintana, 1 So.3d 388 (Fla. 1st DCA 2009) is a case which was decided based on a pre-October 1, 2003 date of accident but still has relevance to how PTD is determined today and should continue to be good law on the proof of PTD regardless of the outcome of Westphal, which will soon be decided by the Supreme Court.  In Quintana, the claimant secured an award of PTD from the JCC despite not being at overall MMI.  The employer/carrier challenged the award on the basis that the award was premature. Id. at 389.  The Court rejected the JCC’s interpretation of the law as allowing for “temporary PTD” and reversed the JCC’s order because the JCC failed to indicate whether claimant’s physical condition alone could have qualified her for PTD.  Id. at 390.  However, in arriving at this ruling, the appellate court reiterated that the law which provides for only 104 weeks of temporary benefits, as it continues to do, contains an exception where 

…the claimant may nevertheless establish entitlement to PTD benefits by proving total disability due to an impairment “existing after the date of [MMI],” as a result of at least one of the claimant’s injuries. See City of Pensacola Firefighters v. Oswald, 710 So.2d 95, 98 (Fla. 1st DCA 1998). In other words, a claimant can still prove entitlement to PTD before reaching overall MMI, if the claimant can prove he is PTD from one of his injuries standing alone. Id. at 100; see also McFarlane, Ferguson v. Whaley, 641 So.2d 173 (Fla. 1st DCA 1994) (holding PTD award predicated solely on the claimant’s physical injuries would be affirmed despite the fact the claimant had not reached psychiatric MMI).  Id.

Another case involving a pre-October 1, 2003 accident, but which remains relevant because the language in the current law remains consistent with past versions is Advanced Masonry Systems v. Molina, 4 So.3d 62 (Fla. 1st DCA 2009).  In this case, the Court reversed an order awarding PTD because it was not supported by CSE.  The specific facts of this case are crucial to understanding its significance in the post October 1, 2003 era of PTD claims.  Of particular importance is that the claimant in this case was stipulated to have a catastrophic injury which normally creates a presumption that he is entitled to PTD benefits.  Id. at 64.  Nevertheless, the employer/carrier presented three defenses to demonstrate the case qualified for an exception to the presumption by showing proof the claimant retained a substantial earning capacity.  The employer/carrier argued and presented evidence to the JCC that (1) claimant retained a substantial earning capacity; (2) claimant voluntarily limited his income; and (3) claimant refused suitable employment.  Id.  

At trial, the employer/carrier showed evidence of employment opportunities for claimant, that claimant refused to take advantage of language classes which impacted his job search and that claimant refused a job offer within his limitations.  The JCC rejected the employer/carrier’s defenses and awarded PTD, but the DCA reversed.  The reversing opinion indicates that even in cases of a catastrophic injury, an employer/carrier may offer evidence to overcome the presumption of PTD.  However, more importantly, this case shows an example of when a PTD case may be reversed on CSE grounds.  In this case, the appellate court noted specific instances in which the factual findings of the JCC below were simply wrong and not supported in the record.  First, the Court found the record revealed claimant was given five physician-approved work opportunities instead of only one as indicated by the JCC.  Id. at 65.  Second, the JCC found, contrary to the evidence, that the claimant’s job search was not impacted by his inability to communicate in English.  Finally, the JCC found claimant did not actually refuse a job offer, but claimant’s own testimony at trial contradicted this finding.  Id.  Accordingly, this case shows that where a JCC makes erroneous and specific factual findings which are relevant to the issue at hand, then the order below is subject to being reversed for lack of CSE.

Hernandez v. Paris Industrial Maintenance, 39 So.3d 466 (Fla. 1st DCA 2010) provides important lessons in what evidence is relevant to a PTD determination in a post October 1, 2003 case.  In Hernandez, the claimant was a fifty-year old welder who suffered injuries to his dominant upper extremity, preventing him from performing his trade.  Id. at 468.  The employer/carrier obtained a vocational evaluation/reemployment assessment and a report was generated.  The report was favorable to claimant’s PTD claim and both the employer/carrier and claimant listed the evaluator as a witness.  Less than thirty days before the hearing, the employer/carrier added a different vocational provider to its witness list and attempted to delete the initial evaluator, which the JCC allowed over claimant’s objection.  Nevertheless, the initial evaluator’s deposition was taken and the report authenticated.  At the PTD hearing, the employer/carrier objected to entry of the report from the initial provider and the JCC agreed, reasoning that each party was entitled to one vocational expert.

When forced to choose to admit one report, the claimant admitted the report of his own provider, but proffered the initial evaluator.  After the JCC ruled for the employer/carrier, the claimant appealed, arguing it was error to exclude the report of the initial provider.  The DCA agreed, holding that it is a workers’ compensation claimant’s burden to prove entitlement to PTD.  Id. at 471.  As a result, the DCA found it was error to exclude the report of the initial provider because claimant’s due process rights allowed him to call witnesses to present testimony that was

…relevant and probative of the following: Claimant’s vocational limitations; Claimant’s motivation to find alternative employment; the vocational classification of Claimant’s work restrictions; and the likelihood that Claimant (considering his age, education, experience, and other vocational factors combined with his physical restrictions) could reasonably obtain or secure employment in light of his physical and vocational restrictions. The initial provider's report contains evidence that bears upon the controlling and disputed issue of Claimant’s employability and, by extension, his eligibility for PTD benefits.  Id. at 469.

This decision illustrates the importance of vocational expert opinion evidence in a PTD case and some of the specific ways vocational opinion evidence is involved in the PTD analysis.  Thus, the Hernandez decision allows one to extrapolate that competent substantial evidence in a PTD case must relate, at least in part, to opinion evidence of the variety discussed above.

The next written decision on PTD is Blake v. Merck & Co. This case is cited in the workers’ compensation practice and in subsequent appellate cases as the polestar for the correct legal standard in post-October 1, 2003 PTD claims.  See e.g., Diocese of St. Petersburg v. Cayer, 79 So.3d 82 (Fla. 1st DCA 2011) (JCC below correctly recognized Blake as controlling the PTD analysis but reversal was necessary because the Court could not determine if the JCC appropriately performed the analysis) See also Hernandez v. GEO Group, Inc., 46 So.3d 1123 (Fla. 1st DCA 2010) (recognizing Blake as “explaining the available means of proving entitlement to PTD, including proof based on medical incapacity to perform requisite level of work”).

In Blake the DCA reversed a JCC’s denial of workers’ compensation benefits because the JCC made the “erroneous assumption that, absent medical evidence of complete inability to work, a claimant is not entitled to PTD benefits without first performing a job search.” Id. at 883.  When discussing the proper legal standard, the Court referred back to Ferrell Gas and its analysis of the similar language between the post October 1, 2003 statute and the pre-1994 version, citing Commercial Carrier Corp. v. LaPointe, supra at 916-917, as controlling on the three ways to prove entitlement to PTD benefits:

(1) evidence of permanent medical incapacity to perform even light work uninterruptedly; (2) evidence of permanent work-related physical restrictions coupled with an exhaustive but unsuccessful job search; or (3) evidence of permanent work-related physical restrictions that, while not alone totally disabling, do preclude performing light work uninterruptedly, when combined with vocational factors.  Blake at 883.

However, this analysis was slightly changed by the Blake court to be 
(1) permanent medical incapacity to engage in at least sedentary employment, within a 50-mile radius of the employee's residence, due to physical limitation; (2) permanent work-related physical restrictions coupled with an exhaustive but unsuccessful job search; or (3) permanent work-related physical restrictions that, while not alone totally disabling, preclude Claimant from engaging in at least sedentary employment when combined with vocational factors.  Blake at 883.

The Court took up PTD entitlement again in Martinez v. Lake Park Auto Brokers, Inc., 60 So.3d 533 (Fla. 1st DCA 2011).  The JCC decided Martinez’s PTD claim without the benefit of the Blake decision and found that the claimant’s job search did not establish his inability to secure employment “due to his physical limitations.”  Id. at 534.    In reversing the JCC, the Court stated that the JCC did not properly apply the second prong of the analysis and remanded.  The Court also explicitly rejected the employer/carrier’s argument that there must be direct proof of a causal connection between the injured workers’ physical limitations and the unsuccessful job search stating.  Id.  The Court then resurrected and cited with approval a litany of pre-1994 accident cases guiding JCC’s on how to evaluate job searches, stating:

This court has never required direct proof of such a connection; rather, this is a finding that may be inferred from a claimant’s inability to find employment after an exhaustive job search.  See Fla. Mining and Minerals v. Brantley, 418 So.2d 352, 353 (Fla. 1st DCA 1982). (“[A]lthough there is no direct proof of rejection for a job because of [Brantley's] disability, such direct proof of this essential element has not been required by prior decisions of this court.”). The job search must, however, be conducted in good faith, and JCCs retain discretion to find a job search inadequate. See Publix Supermarkets, Inc. v. Redding, 689 So.2d 1253, 1254 (Fla. 1st DCA 1997) (“[I]n passing on the sufficiency of a work search, the JCC must decide whether claimant’s efforts were reasonable and performed in good faith in light of all the relevant circumstances: physical impairment, age, industrial history, training, education, motivation, work experience, work record, and diligence.”) (quoting Borges v. Osceola Farms Co., 651 So.2d 173, 174 (Fla. 1st DCA 1995)); Korody v. Quality Steel & Claims Ctr., 694 So.2d 40, 42 (Fla. 1st DCA 1997) (“There is no ‘absolute number of minimum or average monthly contacts as a threshold requirement  for an adequate work search. The  decisions of this court have cautioned against such a mechanical approach, emphasizing instead that the adequacy of a work search is a factual issue which is dependent upon the totality of the circumstances, including quality and context as well as number of job contacts, in each case.’”) (quoting GCC Beverages v. Simmons, 571 So.2d 59, 60 (Fla. 1st DCA 1990)). Cf. Holiday Care Ctr. v. Scriven, 418 So.2d 322, 326 (Fla. 1st DCA 1982) (“[O]ne who does not look for work she is physically able to perform risks not only the postponement of gainful employment but also her continuing entitlement to wage loss benefits during a conscientious search.”).  Id. at 535.

Although Martinez dealt with the adequacy of a work search under the second prong of the PTD analysis, the concept of how PTD evidence is weighed is relevant to all PTD cases.  The JCC is not required to implement a “mechanical approach,” Indeed appellate courts have cautioned against such an approach and encouraged JCC’s to weigh the adequacy of the evidence on such factual issues issue “dependent upon the totality of the circumstances.”  These principals appear to create a wide berth in which a JCC can dock a PTD decision based on the facts as they are applied to the correct legal standard announced in Blake.

HDV Construction Systems v. Aragon, 66 So3d 331 (Fla. 1st DCA 2011) is another case referencing back to Blake and the three prong test for PTD determination.  The injured worker was granted PTD at trial, despite his illegal status in the country.  The E/C appealed on the grounds that the claimant’s illegal status should defeat his entitlement to PTD benefits.  The Court found that the JCC below correctly applied Cenvill Development Corp. v. Candelo, 478 So.2d 1168 (Fla. 1st DCA 1985) as precluding such a defense.  Id. at 334.  After reaching this conclusion, the Court also indicated that “the legal question presented under Section 44015(1)(b)(5) is not merely whether the employee is physically capable of performing at least sedentary employment, but whether the employee (the individual seeking benefits, not a hypothetical individual) can reasonably secure or obtain – “engage in” – at least sedentary employment with a fifty-mile radius of his residence, considering his physical and vocational limitations. (emphasis and parenthetical comment in original)  Id.  Thus, this case again reminds those practicing workers’ compensation law that the focus of a PTD inquiry is highly specific to the facts of the individual’s case.  Moreover, even in a case where an injured worker is legally precluded from performing a job search, the JCC’s determination of PTD based on one of the other “disjunctive tests” for establishing PTD will be upheld.  Id.

In the Matrix Employee Leasing, Inc., v. Hadley, 78 So.3d 621 (Fla. 1st DCA 2011), the First District decided, en banc, that an injured worker was not entitled to PTD benefits prior to achieving MMI.  Despite the fact that the claimant’s eligibility for temporary benefits had ended and despite the fact the claimant was on a no-work status pending additional surgeries, the Court reversed an order of the JCC awarding PTD benefits because the claimant was not at MMI and because the claimant was not able to procure a definitive opinion of his disability status once he achieved MMI.  Accordingly, another element in proving PTD is that the claimant must “show not only total disability upon the cessation of temporary benefits but also that total disability will be ‘existing after the date of [MMI].’”  Id. at 625, quoting City of Pensacola Firefighters v. Oswald, 710 So.2d 95, 98 (Fla. 1st DCA 1998).  The Court reiterated this requirement in Buttrick v. By The Sea Resorts, 84 So.3d 476 (Fla. 1st DCA 2012) when it reversed a denial of PTD in a case where the JCC “failed to make a finding as to whether Claimant achieved maximum medical improvement…”  However, as most workers’ compensation adjudicators and practitioners are well aware, the status of PTD after 104 weeks has been the subject of debate recently and the DCA receded from the idea that an injured worker must be at MMI to obtain PTD benefits at the termination of 104 weeks.  Westphal v. City of St. Petersburg, 122 So.3d 440 (Fla. 1st DCA 2013).  This case is currently on appeal in the Florida Supreme Court and whether it will stand or the Matrix Employee Leasing and City of Pensacola Firefighters rulings will be revived is as of yet unknown.

Another late 2013 case and one which the author has intimate familiarity is Brandywine Convalescent Care v. Ragoobir, 124 so.3d 344 (Fla. 1st DCA 2013).  In this case, the injured worker successfully obtained a favorable PTD ruling from the JCC based on the first (medical incapacity) and third (restrictions/vocational factors) prongs of the Blake test.  However, in reaching his conclusion, the JCC erred by rejecting an opinion of an EMA as to certain restrictions as being equivocal or inconclusive.  The DCA stated: “Because the JCC improperly rejected the presumption of correctness that should have been accorded to the EMA’s opinion on physical work restrictions, his conclusions that Claimant is medically incapacitated from performing any kind of work was in error.”  Id. at 346.  However, the JCC in Brandywine Convalescent Care also erred by relying on the opinions of the claimant’s vocational expert witness which “did not consider only the physical work restrictions identified in the EMA report when she opined that Claimant was precluded from sedentary work due to the combination of vocational factors and physical restrictions.” Id. The JCC also erred by including his physical observations of claimant’s pain in his analysis of claimant’s limitations.  Id.  As a result, the case was reversed and remanded “for a determination of Claimant’s ability to engage in at least sedentary employment when vocational factors are combined with the permanent work-related physical restrictions identified in the EMA report.” Id. at 347.

The above cited cases yield the following as a summary of the law on PTD in its present state.  

• An injured worker must be at MMI from some condition which results in disability. Buttrick v. By The Sea Resorts, supra., subject  to the outcome of Westphal.

• If a claimant is not at MMI at the expiration of 104 weeks of temporary disability benefits, he or she must be able to offer proof of projected disability at the time when MMI is reached.  Matrix Employee Leasing, Inc., v. Hadley, supra., subject to the outcome of Westphal.

• If an injured worker can prove PTD from one condition, which is permanent or projected to be permanent, then the issue of MMI from other related conditions is irrelevant. Florida Transport 1982, Inc., v. Quintana, 1 So.3d 388 (Fla. 1st DCA 2009).

• The proper test for PTD involves analysis of (1) permanent medical incapacity to engage in at least sedentary employment, within a 50-mile radius of the employee's residence, due to physical limitation; (2) permanent work-related physical restrictions coupled with an exhaustive but unsuccessful job search; or (3) permanent work-related physical restrictions that, while not alone totally disabling, preclude Claimant from engaging in at least sedentary employment when combined with vocational factors.  Blake at 883.

• Each of these tests stands alone as a disjunctive measure of PTD eligibility.  HDV Construction Systems v. Aragon, supra.

• Review of each disjunctive test requires that the JCC view the totality of the evidence.  Martinez v. Lake Park Auto Brokers, Inc., supra.

• Defenses, even in the case where a catastrophic injury is present include, but are not necessarily limited to showing proof that (1) claimant retains a substantial earning capacity; (2) claimant voluntarily limited his income; and (3) claimant refused suitable employment. Advanced Masonry Systems v. Molina, supra.

• The JCC is the ultimate determiner of facts in the PTD analysis.  Martinez v. Lake Park Auto Brokers, Inc., supra.  

• The appellate court will not substitute its judgment or weigh facts, but will reverse a PTD determination if the JCC makes specific findings of fact which are not supported by the evidence.  Advanced Masonry Systems v. Molina, supra.

• The JCC may not use personal observations of a Claimant’s pain related physical limitations in the analysis and a vocational expert may not either.  Pain limitations are a medical determination.  Brandywine Convalescent Care, supra.

This article attempts to demonstrate why a proper PTD analysis requires consideration of issues beyond the simple tests announced Blake.  Given that PTD awards are among the most significant financial decisions made by Florida JCCs, such orders will continue to be subject of workers’ compensation appeals.  The DCA judges will also continue to change and so will the political climate of the state.  Accordingly, significant PTD cases will continually emerge.  That’s what makes our jobs interesting.  These cases will continue to modify or expand the analysis beyond Blake and each, with its specific nuances, should be closely analyzed.  
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