PD rating (California)

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PD rating (California)

Postby dolphines on Tue Sep 09, 2014 5:08 pm

DOI 11/04. No report stating PD before 1/1/05. I am being rated under 05 PDRS. They claims adjuster say's I am not eligible 15% increase, (more than 50 employees) not offered job, because my injury was in 04. can they have it both ways?
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Re: PD rating (California)

Postby LawAdvocate on Wed Sep 10, 2014 8:19 am

Yes, because that is what the statute said for 2004 date of injuries.
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Re: PD rating (California)

Postby dolphines on Wed Sep 10, 2014 8:50 am

Thank you
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Re: PD rating (California)

Postby dolphines on Wed Sep 10, 2014 8:56 am

A. If you were injured between Jan. 1, 2004 and Dec. 31, 2012, and your employer has 50 or more workers, and you are not offered regular, modified or alternative work, your weekly PD benefits will be increased by 15 percent once that offer is made.

If you were injured between Jan. 1, 2004 and Dec. 31, 2012, and your employer has fewer than 50 workers, and you are not offered regular, modified or alternative work, your PD benefits will not change.

If you were injured on or after Jan. 1, 2013, your permanent disability benefits will not change if you are not offered regular, modified or alternative work, regardless of the size of the employer.


http://www.dir.ca.gov/dwc/WCFaqIW.html#ReturnToWork
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Not that I don't believe you, just confused about this , could you please explain why this doesn't apply.
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Re: PD rating (California)

Postby jpod on Wed Sep 10, 2014 12:03 pm

I think you have uncovered a typo in FAQs on the DWC website.

My 2013 Labor Code says: The 15% bump up/bump down applies to injuries which occurred on, or after, 1/1/2005 up through 12/31/2012.

For rating PD the new schedule applies to injuires which occurred on, or after, 4/30/2004. Your DOI is 11/2004.
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Re: PD rating (California)

Postby dolphines on Wed Sep 10, 2014 12:21 pm

Please forgive me, I am still confused.

The claims adjuster sent labor code 4658 to me, I read it, and can't find where it say's I'm not eligible.

Can you please help.

4658. (a) For injuries occurring prior to January 1, 1992, if the
injury causes permanent disability, the percentage of disability to
total disability shall be determined, and the disability payment
computed and allowed, according to paragraph (1). However, in no
event shall the disability payment allowed be less than the
disability payment computed according to paragraph (2).
(1)

Column 2--Number of
weeks
for which two-thirds
of
average weekly
earnings
Column 1- allowed for each 1
-Range percent
of percentage of permanent
disability
of
permanent within percentage
disability incurred: range:
Under 10................ 3
10-19.75................ 4
20-29.75................ 5
30-49.75................ 6
50-69.75................ 7
70-99.75................ 8

The number of weeks for which payments shall be allowed set forth
in column 2 above based upon the percentage of permanent disability
set forth in column 1 above shall be cumulative, and the number of
benefit weeks shall increase with the severity of the disability. The
following schedule is illustrative of the computation of the number
of benefit weeks:

Column 1-
- Column 2-
Percentage -
of Cumulative
permanent number
disability of
incurred: benefit weeks:
5..................... 15.00
10.................... 30.25
15.................... 50.25
20.................... 70.50
25.................... 95.50
30.................... 120.75
35.................... 150.75
40.................... 180.75
45.................... 210.75
50.................... 241.00
55.................... 276.00
60.................... 311.00
65.................... 346.00
70.................... 381.25
75.................... 421.25
80.................... 461.25
85.................... 501.25
90.................... 541.25
95.................... 581.25
100................... for life

(2) Two-thirds of the average weekly earnings for four weeks for
each 1 percent of disability, where, for the purposes of this
subdivision, the average weekly earnings shall be taken at not more
than seventy-eight dollars and seventy-five cents ($78.75).
(b) This subdivision shall apply to injuries occurring on or after
January 1, 1992. If the injury causes permanent disability, the
percentage of disability to total disability shall be determined, and
the disability payment computed and allowed, according to paragraph
(1). However, in no event shall the disability payment allowed be
less than the disability payment computed according to paragraph (2).
(1)

Column 2--Number of
weeks
for which two-thirds
of
average weekly
earnings
Column 1- allowed for each 1
-Range percent
of percentage of permanent
disability
of
permanent within percentage
disability incurred: range:
Under 10................ 3
10-19.75................ 4
20-24.75................ 5
25-29.75................ 6
30-49.75................ 7
50-69.75................ 8
70-99.75................ 9

The numbers set forth in column 2 above are based upon the
percentage of permanent disability set forth in column 1 above and
shall be cumulative, and shall increase with the severity of the
disability in the manner illustrated in subdivision (a).
(2) Two-thirds of the average weekly earnings for four weeks for
each 1 percent of disability, where, for the purposes of this
subdivision, the average weekly earnings shall be taken at not more
than seventy-eight dollars and seventy-five cents ($78.75).
(c) This subdivision shall apply to injuries occurring on or after
January 1, 2004. If the injury causes permanent disability, the
percentage of disability to total disability shall be determined, and
the disability payment computed and allowed as follows:

Column 2--Number of
weeks
for which two-thirds
of
average weekly
earnings
Column 1- allowed for each 1
-Range percent
of percentage of permanent
disability
of
permanent within percentage
disability incurred: range:
Under 10................ 4
10-19.75................ 5
20-24.75................ 5
25-29.75................ 6
30-49.75................ 7
50-69.75................ 8
70-99.75................ 9

The numbers set forth in column 2 above are based upon the
percentage of permanent disability set forth in column 1 above and
shall be cumulative, and shall increase with the severity of the
disability in the manner illustrated in subdivision (a).
(d) (1) This subdivision shall apply to injuries occurring on or
after January 1, 2005, and as additionally provided in paragraph (4).
If the injury causes permanent disability, the percentage of
disability to total disability shall be determined, and the basic
disability payment computed as follows:

Column 2--Number of
weeks
for which two-thirds
of
average weekly
earnings
Column 1- allowed for each 1
-Range percent
of percentage of permanent
disability
of
permanent within percentage
disability incurred: range:
0.25-9.75............... 3
10-14.75................ 4
15-24.75................ 5
25-29.75................ 6
30-49.75................ 7
50-69.75................ 8
70-99.75................ 16

The numbers set forth in column 2 above are based upon the
percentage of permanent disability set forth in column 1 above and
shall be cumulative, and shall increase with the severity of the
disability in the manner illustrated in subdivision (a).
(2) If, within 60 days of a disability becoming permanent and
stationary, an employer does not offer the injured employee regular
work, modified work, or alternative work, in the form and manner
prescribed by the administrative director, for a period of at least
12 months, each disability payment remaining to be paid to the
injured employee from the date of the end of the 60-day period shall
be paid in accordance with paragraph (1) and increased by 15 percent.
This paragraph shall not apply to an employer that employs fewer
than 50 employees.
(3) (A) If, within 60 days of a disability becoming permanent and
stationary, an employer offers the injured employee regular work,
modified work, or alternative work, in the form and manner prescribed
by the administrative director, for a period of at least 12 months,
and regardless of whether the injured employee accepts or rejects the
offer, each disability payment remaining to be paid to the injured
employee from the date the offer was made shall be paid in accordance
with paragraph (1) and decreased by 15 percent.
(B) If the regular work, modified work, or alternative work is
terminated by the employer before the end of the period for which
disability payments are due the injured employee, the amount of each
of the remaining disability payments shall be paid in accordance with
paragraph (1) and increased by 15 percent. An employee who
voluntarily terminates employment shall not be eligible for payment
under this subparagraph. This paragraph shall not apply to an
employer that employs fewer than 50 employees.
(4) For compensable claims arising before April 30, 2004, the
schedule provided in this subdivision shall not apply to the
determination of permanent disabilities when there has been either a
comprehensive medical-legal report or a report by a treating
physician, indicating the existence of permanent disability, or when
the employer is required to provide the notice required by Section
4061 to the injured worker.
(e) This subdivision shall apply to injuries occurring on or after
January 1, 2013. If the injury causes permanent disability, the
percentage of disability to total disability shall be determined, and
the disability payment computed and allowed as follows:


Column 2--Number of
weeks for which two-
thirds of average
weekly earnings
Column 1- allowed for each 1
-Range percent
of percentage of permanent
disability
of
permanent within percentage
disability incurred: range:
0.25-9.75............... 3
10-14.75................ 4
15-24.75................ 5
25-29.75................ 6
30-49.75................ 7
50-69.75................ 8
70-99.75................ 16

(1) The numbers set forth in column 2 above are based upon the
percentage of permanent disability set forth in column 1 above and
shall be cumulative, and shall increase with the severity of the
disability in the manner illustrated in subdivision (a).


(2) If the permanent disability directly caused by the industrial
injury is total, payment shall be made as provided in Section 4659.




4658.1. As used in this article, the following definitions apply:
(a) "Regular work" means the employee's usual occupation or the
position in which the employee was engaged at the time of injury and
that offers wages and compensation equivalent to those paid to the
employee at the time of injury, and located within a reasonable
commuting distance of the employee's residence at the time of injury.
(b) "Modified work" means regular work modified so that the
employee has the ability to perform all the functions of the job and
that offers wages and compensation that are at least 85 percent of
those paid to the employee at the time of injury, and located within
a reasonable commuting distance of the employee's residence at the
time of injury.
(c) "Alternative work" means work that the employee has the
ability to perform, that offers wages and compensation that are at
least 85 percent of those paid to the employee at the time of injury,
and that is located within reasonable commuting distance of the
employee's residence at the time of injury.
(d) For the purpose of determining whether wages and compensation
are equivalent to those paid at the time of injury, the wages and
compensation for any increase in working hours over the average hours
worked at the time of injury shall not be considered.
(e) For the purpose of determining whether wages and compensation
are equivalent to those paid at the time of injury, actual wages and
compensation shall be determined without regard to the minimums and
maximums set forth in Chapter 1 (commencing with Section 4451).
(f) The condition that regular work, modified work, or alternative
work be located within a reasonable distance of the employee's
residence at the time of injury may be waived by the employee. The
condition shall be deemed to be waived if the employee accepts the
regular work, modified work, or alternative work and does not object
to the location within 20 days of being informed of the right to
object. The condition shall be conclusively deemed to be satisfied if
the offered work is at the same location and the same shift as the
employment at the time of injury.



4658.5. (a) This section shall apply to injuries occurring on or
after January 1, 2004, and before January 1, 2013.
(b) Except as provided in Section 4658.6, if the injury causes
permanent partial disability and the injured employee does not return
to work for the employer within 60 days of the termination of
temporary disability, the injured employee shall be eligible for a
supplemental job displacement benefit in the form of a
nontransferable voucher for education-related retraining or skill
enhancement, or both, at state-approved or accredited schools, as
follows:
(1) Up to four thousand dollars ($4,000) for permanent partial
disability awards of less than 15 percent.
(2) Up to six thousand dollars ($6,000) for permanent partial
disability awards between 15 and 25 percent.
(3) Up to eight thousand dollars ($8,000) for permanent partial
disability awards between 26 and 49 percent.
(4) Up to ten thousand dollars ($10,000) for permanent partial
disability awards between 50 and 99 percent.
(c) The voucher may be used for payment of tuition, fees, books,
and other expenses required by the school for retraining or skill
enhancement. No more than 10 percent of the voucher moneys may be
used for vocational or return-to-work counseling. The administrative
director shall adopt regulations governing the form of payment,
direct reimbursement to the injured employee upon presentation to the
employer of appropriate documentation and receipts, and other
matters necessary to the proper administration of the supplemental
job displacement benefit.
(d) A voucher issued on or after January 1, 2013, shall expire two
years after the date the voucher is furnished to the employee or
five years after the date of injury, whichever is later. The employee
shall not be entitled to payment or reimbursement of any expenses
that have not been incurred and submitted with appropriate
documentation to the employer prior to the expiration date.
(e) An employer shall not be liable for compensation for injuries
incurred by the employee while utilizing the voucher.




4658.6. The employer shall not be liable for the supplemental job
displacement benefit pursuant to Section 4658.5 if the employer meets
either of the following conditions:
(a) Within 30 days of the termination of temporary disability
indemnity payments, the employer offers, and the employee rejects, or
fails to accept, in the form and manner prescribed by the
administrative director, modified work, accommodating the employee's
work restrictions, lasting at least 12 months.
(b) Within 30 days of the termination of temporary disability
indemnity payments, the employer offers, and the employee rejects, or
fails to accept, in the form and manner prescribed by the
administrative director, alternative work meeting all of the
following conditions:
(1) The employee has the ability to perform the essential
functions of the job provided.
(2) The job provided is in a regular position lasting at least 12
months.
(3) The job provided offers wages and compensation that are within
15 percent of those paid to the employee at the time of injury.
(4) The job is located within reasonable commuting distance of the
employee's residence at the time of injury.



4658.7. (a) This section shall apply to injuries occurring on or
after January 1, 2013.
(b) If the injury causes permanent partial disability, the injured
employee shall be entitled to a supplemental job displacement
benefit as provided in this section unless the employer makes an
offer of regular, modified, or alternative work, as defined in
Section 4658.1, that meets both of the following criteria:
(1) The offer is made no later than 60 days after receipt by the
claims administrator of the first report received from either the
primary treating physician, an agreed medical evaluator, or a
qualified medical evaluator, in the form created by the
administrative director pursuant to subdivision (h), finding that the
disability from all conditions for which compensation is claimed has
become permanent and stationary and that the injury has caused
permanent partial disability.
(A) If the employer or claims administrator has provided the
physician with a job description of the employee's regular work,
proposed modified work, or proposed alternative work, the physician
shall evaluate and describe in the form whether the work capacities
and activity restrictions are compatible with the physical
requirements set forth in that job description.
(B) The claims administrator shall forward the form to the
employer for the purpose of fully informing the employer of work
capacities and activity restrictions resulting from the injury that
are relevant to potential regular, modified, or alternative work.
(2) The offer is for regular work, modified work, or alternative
work lasting at least 12 months.
(c) The supplemental job displacement benefit shall be offered to
the employee within 20 days after the expiration of the time for
making an offer of regular, modified, or alternative work pursuant to
paragraph (1) of subdivision (b).
(d) The supplemental job displacement benefit shall be in the form
of a voucher redeemable as provided in this section up to an
aggregate of six thousand dollars ($6,000).
(e) The voucher may be applied to any of the following expenses at
the choice of the injured employee:
(1) Payment for education-related retraining or skill enhancement,
or both, at a California public school or with a provider that is
certified and on the state's Eligible Training Provider List (EPTL),
as authorized by the federal Workforce Investment Act (P.L. 105-220),
including payment of tuition, fees, books, and other expenses
required by the school for retraining or skill enhancement.
(2) Payment for occupational licensing or professional
certification fees, related examination fees, and examination
preparation course fees.
(3) Payment for the services of licensed placement agencies,
vocational or return-to-work counseling, and résumé preparation, all
up to a combined limit of 10 percent of the amount of the voucher.
(4) Purchase of tools required by a training or educational
program in which the employee is enrolled.
(5) Purchase of computer equipment, up to one thousand dollars
($1,000).
(6) Up to five hundred dollars ($500) as a miscellaneous expense
reimbursement or advance, payable upon request and without need for
itemized documentation or accounting. The employee shall not be
entitled to any other voucher payment for transportation, travel
expenses, telephone or Internet access, clothing or uniforms, or
incidental expenses.
(f) The voucher shall expire two years after the date the voucher
is furnished to the employee, or five years after the date of injury,
whichever is later. The employee shall not be entitled to payment or
reimbursement of any expenses that have not been incurred and
submitted with appropriate documentation to the employer prior to the
expiration date.
(g) Settlement or commutation of a claim for the supplemental job
displacement benefit shall not be permitted under Chapter 2
(commencing with Section 5000) or Chapter 3 (commencing with Section
5100) of Part 3.
(h) The administrative director shall adopt regulations for the
administration of this section, including, but not limited to, both
of the following:
(1) The time, manner, and content of notices of rights under this
section.
(2) The form of a mandatory attachment to a medical report to be
forwarded to the employer pursuant to paragraph (1) of subdivision
(b) for the purpose of fully informing the employer of work
capacities and of activity restrictions resulting from the injury
that are relevant to potential regular work, modified work, or
alternative work.
(i) An employer shall not be liable for compensation for injuries
incurred by the employee while utilizing the voucher.
dolphines
 
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Joined: Sat Apr 28, 2012 8:16 am

Re: PD rating (California)

Postby LawAdvocate on Wed Sep 10, 2014 4:08 pm

It is here...

§10117. Offer of Work; Adjustment of Permanent Disability Payments.

--------------------------------------------------------------------------------

(a) This section shall apply to all injuries occurring between January 1, 2005 and December 31, 2012, and to the following employers:


(1) Insured employers who employed 50 or more employees at the time of the most recent policy inception or renewal date for the insurance policy that was in effect at the time of the employee's injury;


(2) Self-insured employers who employed 50 or more employees at the time of the most recent filing by the employer of the Self-Insurer's Annual Report that was in effect at the time of the employee's injury; and


(3) Legally uninsured employers who employed 50 or more employees at the time of injury.


(b) Within 60 calendar days from the date that the condition of an injured employee with permanent partial disability becomes permanent and stationary:


(1) If an employer does not serve the employee with a notice of offer of regular work, modified work or alternative work for a period of at least 12 months, each payment of permanent partial disability remaining to be paid to the employee from the date of the end of the 60 day period shall be paid in accordance with Labor Code section 4658(d)(1) and increased by 15 percent.


(2) If an employer serves the employee with a notice of offer of regular work, modified work or alternative work for a period of at least 12 months, and in accordance with the requirements set forth in paragraphs (3) and (4), each payment of permanent partial disability remaining to be paid from the date the offer was served on the employee shall be paid in accordance with Labor Code section 4658(d)(1) and decreased by 15 percent, regardless of whether the employee accepts or rejects the offer.


(3) The employer shall use form DWC-AD 10133.53 (Section 10133.53) to offer modified or alternative work, or form DWC-AD 10118 (Section 10118) to offer regular work. The claims administrator may serve the offer of work on behalf of the employer.


(4) The regular, alternative, or modified work that is offered by the employer pursuant to paragraph (2) shall be located within a reasonable commuting distance of the employee's residence at the time of the injury, unless the employee waives this condition. This condition shall be deemed to be waived if the employee accepts the regular, modified, or alternative work, and does not object to the location within 20 calendar days of being informed of the right to object. The condition shall be conclusively deemed to be satisfied if the offered work is at the same location and the same shift as the employment at the time of injury.


(c) If the claims administrator relies upon a permanent and stationary date contained in a medical report prepared by the employee's treating physician, QME, or AME, but there is subsequently a dispute as to an employee's permanent and stationary status, and there has been a notice of offer of work served on the employee in accordance with subdivision (b), the claims administrator may withhold 15% from each payment of permanent partial disability remaining to be paid from the date the notice of offer was served on the employee until there has been a final judicial determination of the date that the employee is permanent and stationary pursuant to Labor Code section 4062.


(1) Where there is a final judicial determination that the employee is permanent and stationary on a date later than the date relied on by the employer in making its offer of work, the employee shall be reimbursed any amount withheld up to the date a new notice of offer of work is served on the employee pursuant to subdivision (b).


(2) Where there is a final judicial determination that the employee is not permanent and stationary, the employee shall be reimbursed any amount withheld up to the date of the determination.


(3) The claims administrator is not required to reimburse permanent partial disability benefit payments that have been withheld pursuant to this subdivision during any period for which the employee is entitled to temporary disability benefit payments.


(d) If the employee's regular work, modified work, or alternative work that has been offered by the employer pursuant to paragraph (1) of subdivision (b) and has been accepted by the employee, is terminated prior to the end of the period for which permanent partial disability benefits are due, the amount of each remaining permanent partial disability payment from the date of the termination shall be paid in accordance with Labor Code section 4658 (d) (1), as though no decrease in payments had been imposed, and increased by 15 percent. An employee who voluntarily terminates his or her regular work, modified work, or alternative work shall not be eligible for the 15 percent increase in permanent partial disability payments pursuant to this subdivision.


(e) Nothing in this section shall prevent the parties from settling or agreeing to commute the permanent disability benefits to which an employee may be entitled. However, if the permanent disability benefits are commuted by a workers' compensation administrative law judge or the appeals board pursuant to Labor Code section 5100, the commuted sum shall account for any adjustment that would have been required by this section if payment had been made pursuant to Labor Code section 4658.


(f) When the employer offers regular, modified or alternative work to the employee that meets the conditions of this section and subsequently learns that the employee cannot lawfully perform regular, modified or alternative work, the employer is not required to provide the regular, modified or alternative work.


(g) If the employer offers regular, modified, or alternative seasonal work to the employee, the offer shall meet the following requirements:


(1) the employee was hired for seasonal work prior to injury;


(2) the offer of regular, modified or alternative seasonal work is of reasonably similar hours and working conditions to the employee's previous employment, and the one year requirement may be satisfied by cumulative periods of seasonal work;


(3) the work must commence within 12 months of the date of the offer; and


(4) The offer meets the conditions set forth in this section.


Note: Authority cited: Sections 133 and 5307.3, Labor Code. Reference: Section 4658, Labor Code; Del Taco v. WCAB (2000) 79 Cal.App.4th 1437; Anzelde v. WCAB (1996) 61 Cal. Comp. Cases 1458 (writ denied); and Henry v. WCAB (1998) 68 Cal.App.4th 981.


HISTORY


1. New article 6.5 (sections 10117-10120) and renumbering of former section 10002 to new section 10117, including amendment of section, filed 11-17-2008; operative 11-17-2008 pursuant to Government Code section 11343.4 (Register 2008, No. 47).


2. Amendment of subsection (a) and amendment of Note filed 12-20-2012 as an emergency; operative 1-1-2013 pursuant to Government Code section 11346.1(d) (Register 2012, No. 51). A Certificate of Compliance must be transmitted to OAL by 7-1-2013 or emergency language will be repealed by operation of law on the following day.
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Re: PD rating (California) (California)

Postby dolphines on Wed Sep 10, 2014 4:14 pm

(d) If the employee's regular work, modified work, or alternative work that has been offered by the employer pursuant to paragraph (1) of subdivision (b) and has been accepted by the employee, is terminated prior to the end of the period for which permanent partial disability benefits are due, the amount of each remaining permanent partial disability payment from the date of the termination shall be paid in accordance with Labor Code section 4658 (d) (1), as though no decrease in payments had been imposed, and increased by 15 percent[/b].[/b] An employee who voluntarily terminates his or her regular work, modified work, or alternative work shall not be eligible for the 15 percent increase in permanent partial disability payments pursuant to this subdivision.


I was terminated before PD payments were due. My doi is 11/04 I was terminated in 12/04 didn't start receiving TD payments till January 05. Not found PD till 08.

Does that apply?
dolphines
 
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Joined: Sat Apr 28, 2012 8:16 am

Re: PD rating (California)

Postby jpod on Thu Sep 11, 2014 6:24 am

The Labor Code is tortuous to read. You had the applicable section in your post.

Scroll down to you see the paragraph that begins with (d)(1):

"The numbers set forth in column 2 above are based upon the
percentage of permanent disability set forth in column 1 above and
shall be cumulative, and shall increase with the severity of the
disability in the manner illustrated in subdivision (a).
(d) (1) This subdivision shall apply to injuries occurring on or
after January 1, 2005, and as additionally provided in paragraph (4).
If the injury causes permanent disability, the percentage of
disability to total disability shall be determined, and the basic
disability payment computed as follows:
"
jpod
 
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Joined: Fri Mar 06, 2009 1:21 pm

Re: PD rating (California)

Postby dolphines on Thu Sep 11, 2014 7:02 am

I think that applies to number of weeks, not 15% increase.



Plus, I was fired before the PD kicked in. I think that may apply.

What do you think.
dolphines
 
Posts: 73
Joined: Sat Apr 28, 2012 8:16 am

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