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1 an accident occurring between November 1, 1996 and October 1, 2003, a catastrophically impaired edition, 1993, results in 55 per cent or more impairment of the whole person." This definition can a plaintiff was found to be catastrophically impaired on the basis of 55% whole person impairment. In Desbiens, Mr. Justice Harvey Spiegel addressed and resolved a number of issues regarding the meaning and scope of "catastrophic impairment". DESBIENS: CLARIFICATION OF "CATASTROPHIC IMPAIRMENT" I. OVERVIEW For personal injury lawyers, one of the most important issues to consider on each motor vehicle file is whether an injured person has sustained a "catastrophic impairment". In a tort action arising from plaintiff can sue for health care expenses and the damages assessment may increase dramatically. In an accident benefits matter, a catastrophically impaired person can access greatly increased benefits. "Catastrophic impairment" has a number of definitions. Some of these (such as total loss of vision in both eyes) are relatively easy to apply. In other cases, however, the lawyer must consider whether the injured person sustained "any impairment or combination of impairments that, in accordance with the American Medical Association's Guides to the Evaluation of Permanent Impairment, 4 th be very challenging to apply. Desbiens v. Mordini, [2004] O.J. No (S.C.J.), is apparently the first trial decision in which catastrophic impairment. Desbiens, which is not being pursued to appeal, therefore helps to clarify

2 Mr. Desbiens functioned very well considering that he was a paraplegic, and found that he was On November 8, 1999, Mr. Desbiens was struck by a car driven by Mr. Mordini. Mr. Desbiens was weak and lost consciousness. He was noted to be gray and non-responsive. He sustained a syncopal -2- Desbiens addresses a number of legal issues that may be of interest. This paper, however, considers only the catastrophic impairment issue. The paper is organized into the following parts: facts; Justice Spiegel's analysis; subsequent consideration of the case; key points arising from the case; and tips for handling catastrophic impairment files based on the result in Desbiens. II. FACTS In 1986, Mr. Phillipe Desbiens was rendered a paraplegic when he fell offa roof in the course of his employment. Mr. Desbiens did not return to work after that. Justice Spiegel nonetheless found that largely independent in his activities of daily living. wheeling his wheelchair on a sidewalk at the time. He was thrown approximately 8 to 15 feet from his chair. He was 56 years old at the time of the collision. Mr. Desbiens landed on his right side and right hand. He did not recall hitting his head or losing consciousness. He received treatment at Trillium Hospital. In the emergency department he felt episode. Mr. Desbiens suffered a fractured right femur. He also sustained significant soft tissue injuries. He reported a great deal of pain. He received treatment from a number of health care professionals. In

3 most of his activities of daily living. sustained a catastrophic impairment. Given that the plaintiffs were not alleging a loss of income, "non-catastrophic" damages such as housekeeping and home maintenance expenses. he met the definitions of catastrophic impairment in clauses 5(1) (f) and (g) of Ontario Regulation (1) For the purpose of s.267.5(4) of the Act, "catastrophic impairment" s.5 means, subject to subsections (2) and (3), any impairment or combination of (f) that, in accordance with the American Medical impairments -3- addition to significant physical impairments, Mr. Desbiens sustained psychological impairments due to the collision. Justice Spiegel found that Mr. Desbiens suffered a very dramatic loss of independence due to the injuries he sustained in the collision, and also found that he was dependent on others to carry out Mr. Desbiens commenced a tort action against Mr. Mordini and others. He alleged that he had the catastrophic impairment issue was particularly significant. If Mr. Desbiens was not catastrophically impaired, the p lainti ffs could only have recovered non-pecuniary damages and other One of the definitions of catastrophic impairment is "paraplegia," but Mr. Desbiens could not rely on this definition because he was paraplegic before the collision. Mr. Desbiens took the position that 461/96 ("the regulation"). The relevant portions ofs. 5 of the regulation read as follows: Guides to the Evaluation of Permanent Impairment, 4 th Association's 1993, results in 55% or more impairment of the whole edition, person, or

4 to subsections (2) and (3), any impairment that, in accordance subject the American Medical Association's Guides to the Evaluation of with Impairment, 4 th edition, 1993, results in a class 4 Permanent (marked impairment) or class 5 impairment (extreme impairment the person's health practitioner states in writing that the (a) condition has stabilized and is not likely to improve person's with treatment; or For the purpose of clauses (f) and (g) of the definition of (3) impairment" in subsection (1), an impairment that is "catastrophic by the person. -4- (g) impairment) due to mental or behavioural disorder. Clauses (f) and (g) of the definition of"catastrophic impairment" in (2) (1) do not apply in respect of a person unless, subsection (b) three years have elapsed since the incident. by a person but is not listed in the American Medical sustained Guides to the Evaluation of Permanent Impairment, 4 th Association's shall be deemed to be the impairment that is listed in edition,1993, document and that is most analogous to the impairment sustained that (4) In this section, means a loss or abnormality of a psychological, "impairment" or anatomical structure or function. physiological After a number of motions and adjournments, Desbiens proceeded to trial in February, By that time, the three year anniversary of the collision had passed and the issue of the stability of Mr. condition under subsection (2) did not need to be addressed. Desbiens'

5 Guides ("the Guides"). Justice Spiegel noted that the purpose of the Guides was to achieve a greater framework and method of analysis. Justice Spiegel noted the various definitions of "impairment" in the Guides. He noted that the editors stated that the Guides' definition of impairment closely evaluated in terms of how they affected the individual's activities of daily living. Justice Spiegel noted that Chapters 2 to 13 of the Guides each deal with a different organ system. impairments. Tables and figures are provided to assist in translating clinical findings into an impairment percentage. These impairments can ultimately be translated into a whole person -5- lii. JUSTICE SPIEGEL'S ANALYSIS 1. Discussion regarding Guides Justice Spiegel began his analysis of the catastrophic impairment issue by considering the AMA degree of objectivity in estimating the degree of permanent impairments by providing a standard parallelled the World Health Organization definition of"any loss or abnormality of psychological, physiological or anatomical structure or function". The definition of impairment in the regulation was virtually identical to WHO's definition. Justice Spiegel also noted that impairments were Justice Spiegel noted that the Guides clearly anticipated that a physician's judgment and discretion would play an important role in the assessment of a patient's impairment. This was consistent with the plaintiffs' position that the Guides should not be used as an objective "cookie cutter" to be applied without consideration of the particular reality of the individual who was being assessed. Chapter 3 deals with the musculoskeletal system. Chapter 14 deals with mental and behavioural disorders. Chapter 15 deals with pain. There are specific criteria for assessing different types of

6 impairment (WPI) percentage by using a Justice Spiegel noted that the evaluation criteria and permanent impairment percentages appeared were no specific instructions in the Guides about how to deal with a patient who, as a result ofa pre- He noted that, while the editors acknowledge that the Guides may be used in litigation, they cautioned against using impairment percentages to make direct financial awards. Justice Spiegel Desbiens suffered a 2. Marked Impairment under Clause (g) disorder. Mental or behavioural disorder is discussed in Chapter 14. The plaintiffs' principal expert on this issue was neuropsychologist Dr. Alan Finlayson. Dr. Finlayson saw Mr. Desbiens several -6- combined values chart. to be based on the assumption that the person being assessed was able-bodied. He noted that there existing impairment, carried out his or her activities of daily living differently than an able-bodied person. noted Justice Lax's comments in Snushall v. Fulsang, [2003] O.J. No (S.CoJ.), that the insurance legislation of Ontario appeared to require precisely what the Guides themselves discouraged (in Snushall, Justice Lax found that the injured plaintiff did not sustain a 55% impairment). Justice Spiegel went on to consider the plaintiffs' arguments in support of their position that Mr. catastrophic impairment in the collision. As noted, under clause (g) an impairment is catastrophic if, in accordance with the Guides, it results in a class 4 (marked impairment) or class 5 (extreme impairment) due to mental or behavioural times and determined that Mr. Desbiens met the DSM-IV criteria for an adjustment disorder with

7 Justice Spiegel noted that the evidence of other witnesses also supported and concentration was a class 3 (moderate) impairment in which the impairment level was within a in Chapter 14 for Mr. Desbiens to be catastrophically impaired under clause (g). -7- depressed mood as well as chronic pain disorder with psychological factors and general medical condition. Justice Spiegel agreed with Dr. Finlayson that Mr. Desbiens' impairments constituted Chapter 14 impairments. that conclusion. Justice Spiegel noted that, after identifying a Chapter 14 disorder, clinicians were directed to examine the following four areas of functioning to assess the severity of the impairment: activities of daily living, social functioning, concentration, and deterioration or decompensation in a work-like setting. For each area, five classes or levels of impairment are available: class 1, no impairment; class 2, mild impairment; class 3, moderate impairment; class 4, marked impairment; and class 5, severe impairment. He also noted it was possible to arrive at a global impairment classification that took all four areas of functioning into account. Dr. Finlayson found that Mr. Desbiens' impairment in activities of daily living, social functioning "compatible with some, but not all, useful functioning". Dr. Finlayson found that in the area of adaptation (deterioration or decompensation in a work-like setting), Mr. Desbiens' impairment fell class 4(marked) impairment range in which the impairment significantly impeded useful functioning. Justice Spiegel noted that it was not disputed that Mr. Desbiens only needed to establish that he had a marked or severe impairment in one of the four areas of functioning discussed

8 individual might withdraw or experience exacerbation of signs and symptoms of a mental disorder, making decisions, scheduling, completing tasks and interacting with supervisors and peers. Mr. Desbiens' activities in assisting his wife with her employment tasks and activities were on certain of these activities interaction, irritability and an inability to get around. He said that, assuming Mr. Desbiens was a difficulty adapting to his work-like setting. Justice Spiegel concluded that Mr. Desbiens' difficulty to his pain and loss of range of motion and strength rather than a mental disorder. He concluded that, impairment did not significantly impede useful functioning in a work-like setting so as to amount sustain a -8- Justice Spiegel noted that the focus of the analysis in the area of adaptation in Chapter 14 was on the psychological stress tolerance of the individual. The Guides noted that in such circumstances the decompensate and have difficulty maintaining activities of daily living, continuing social relationships and completing tasks. Stresses common to the work environment included attendance, Mr. Desbiens was not employed at the time of the collision. However, Dr. Finlayson concluded that analogous and could be considered. Dr. Finlayson indicated that Mr. Desbiens was not able to carry for reasons including problems with memory, concentration, social unable to drive his van independently as frequently as he did before the collision, this amounted to with driving did not stem from an inability to adapt to a psychologically stressful situation. Justice Spiegel concluded that any interference with Mr. Desbiens' ability to drive or to get around was due even if Mr. Desbiens' difficulty with driving was due to an inability to tolerate stress, his level of to a class 4(marked) impairment. Justice Spiegel therefore concluded that Mr. Desbiens did not catastrophic impairment under clause (g).

9 3. Impairment under Clause (f) her specific clinical findings. She concluded that, on both occasions, Mr. Desbiens sustained a The defendants' principal expert was physiatrist -9- Most of the evidence and time at trial on the catastrophic issue related to the clause (f) or 55% impairment analysis. The plaintiffs primary expert was physiatrist Dr. Gail Delaney. She assessed Mr. Desbiens in 2001 and catastrophic impairment as defined in clause (f). Dr. Arthur Ameis, who conducted an assessment in Justice Spiegel found that Dr. Ameis largely critiqued Dr. Delaney's use of the Guides rather than Except as specifically noted otherwise in his reasons, Justice Spiegel accepted the accuracy and reliability of Dr. Delaney's clinical findings where they differed from those of Dr. Ameis. Justice Spiegel then considered Mr. Desbiens' Chapter 3 impairments with respect to the cervical spine, lumbar spine, right upper extremity, lept upper extremity and right lower extremity. There was debate about how Mr. Desbiens' fractured right lower extremity could be factored into the percentage impairment. Justice Spiegel noted that the Guides stated that limits in range of motion should be evaluated based on active range of motion. The Guides did not consider the scenario of a paraplegic like Mr. Desbiens, who of course had no active range of motion because of his paraplegia. Dr. Delaney opted to work with passive range of motion and compared the restrictions in the uninjured left lower extremity versus the injured right lower extremity. Dr. Ameis did not agree that passive range of motion could be used. Justice Spiegel concluded that the absence

10 of a specific direction in the Guides permitting the use of passive range of motion did not justify ignoring an obvious impairment in the lower extremity of a paraplegic simply because he was incapable of being measured for active range of motion. Justice Spiegel therefore found that it was reasonable to use measurements based on passive range of motion and he included a percentage musculoskeletal impairments (without taking into consideration pre-existing impairment): right Justice Spiegel then considered the plaintiffs' argument that Mr. Desbiens sustained an impairment under Chapter 4 (the Nervous System) that could be combined with the Chapter 3 impairment. There was no doubt that Chapter 3 and Chapter 4 impairments could be combined to yield a -10- impairment for the right lower extremity. Justice Spiegel accepted some of Dr. Delaney's findings regarding musculoskeletal impairment, and reduced certain of the other findings based on all of the evidence and his analysis of the Guides. Ultimately, Justice Spiegel found that Mr. Desbiens sustained the following Chapter 3 upper extremity 23%; right lower extremity 8%; left upper extremity 7%; cervical spine 5%; lumbar spine 5%; total (combined, not added) 40%. percentage. Dr. Delaney assigned a 9% figure for sleep disturbance under Chapter 4, on two grounds. The first was that Mr. Desbiens had probably suffered a brain injury as a result of hypoxia during the hypotensive episode. This resulted in a sleep or arousal disorder. The plaintiffs' position was that the severity of the brain injury was not relevant to the issue of whether an impairment arising from

11 4. Dr. Delaney felt that Chapter 15 permitted a doctor to quantify the pain related impairment by Based on Mr. Desbiens' history, she felt that his pain accept that Chapter 15 permitted the assessor to assign a separate impairment rating in this case. Justice Spiegel found that Chapter 15 explained how to evaluate pain but did not provide that pain was a separate impairment for the purpose of arriving at whole person impairment percentage. impairments found in the musculoskeletal system and could not be rated as a purposes of subsection (f). He did not consider the 25% figure raised by Dr. Finlayson as a Chapter 4 impairment, although he did consider this figure later in his reasons the injury could be considered under Chapter 4. Dr. Delaney's second reason for including sleep disturbance under Chapter 4 was that Mr. Desbiens was suffering from pain that interfered with his sleep and that this was an impairment that could be captured first in Chapter 15 and then in Chapter looking at the daily activity affected by pain. interfered with his sleep. She then determined that the chapter of the Guides that best dealt with sleep interference was Chapter 4. Dr. Delaney felt that Mr. Desbiens' pain was neuropathic pain, resulting from dysfunction of his spinal cord nerve roots and peripheral nerves, which also placed it within Chapter 4. Justice Spiegel concluded that Mr. Desbiens had not suffered a brain injury. Justice Spiegel also noted that there was insufficient evidence to establish that Mr. Desbiens' sleep problems fell within the necessary category of impairment, namely reduced daytime alertness. Justice Spiegel did not Justice Spiegel noted that, if pain interfered with Mr. Desbiens' sleep, it was already included in the separate impairment. Justice Spiegel therefore was not prepared to include 9% for sleep or arousal disorder for the

12 Justice Spiegel concluded that, without taking into account Mr. Desbiens' preexisting paraplegia or psychological impairment, Mr. Desbiens had sustained a in the context of his preexisting paraplegia. 4. Impairment under clause (f), superimposed on pre-existing paraplegia. overall WPI would be reduced to 40%. However, she felt that an overall WPI of 60% more said that a -12- combination of impairments resulting in a 40% impairment of the whole person. Justice Spiegel then addressed whether Mr. Desbiens suffered a catastrophic impairment as defined in clause (f) when these impairments were considered Justice Spiegel noted that Drs. Delaney and Ameis both felt that the Guides permitted and anticipated that the assessor would exercise discretion where the initial impairment percentage did not accurately reflect the real functional impairment sustained by the injured person. Justice Spiegel noted that Dr. Delaney had used a "functional approach" in 2001, by which she arrived at an overall WPI of 60% which included a right lower extremity impairment rating of 40%. She acknowledged that if she took into account the restricted range of motion in the right lower extremity due to preexisting paraplegia, then the impairment would be reduced to 11% and the accurately reflected the actual functional impairment sustained by Mr. Desbiens in the collision. She WPI of 40% when superimposed on Mr. Desbiens' paraplegia had grave consequences for his ability to function that were not adequately reflected by a WPI of 40%. In her 2004 analysis, Dr. Delaney initially arrived at a WPI of 55% before considering Mr. Desbiens' pre-existing impairment. Dr. Delaney felt that when Mr. Desbiens' impairment was considered in

13 the context of his pre-existing paraplegia it was clear that he sustained a catastrophic impairment. reflect the functional impact of such impairments on a paraplegic. that Mr. Desbiens had "almost completely lost the ability to be independent". Dr. Delaney also suggested an alternative "residual capacity" approach. This approach would require determine the level of residual function the injured person had just before the car accident and then to consider the impact of the subsequent impairment. For example, if it was concluded that the injured person was left with only 45% residual function just before the car accident, then any impairment over 25% would be equivalent to a addressed in both approaches. In the functional approach, it is considered at the end of the analysis -13- She noted that paraplegics rely on their upper extremities and that upper extremity injuries affect mobility and transfers for paraplegics. She noted that because the upper extremity impairment percentages in the Guides were developed with able bodied people in mind, they did not adequately Dr. Delaney stated that she had no hesitation in finding that an initial WPI of 40% easily pushed Mr. Desbiens over 55%. She noted that, in 2001, she felt that 60% reflected Mr. Desbiens' functional impairment more accurately than 40%, and that his overall impairment level was worse in 2004 then in She conceded that it was very difficult to come up with a precise number to reflect the increased impact of his impairments but said that, if pushed, she would go up to about 70% WPI. She testified the assessor to 55% impairment for that person. This approach was similar to Dr. Delaney's functional approach. The pre-existing impairment is

14 at the beginning of the analysis by reducing the person's function level to reflect the pre-existing Justice Spiegel noted that Dr. Ameis testified that he would first arrive at an overall WPI percentage arrived at a total impairment of approximately 40% WPI after taking into account Mr. Desbiens' pre- Dr. Ameis discussed two main approaches he used to arrive at this figure. His first approach was the ability to transfer similar to that of Mr. Desbiens. He then combined this percentage with a -14- by increasing the percentages obtained, whereas in the residual capacity approach it is considered impairment. and then consider whether that figure was plausible in terms of the real impact on the individual's activities of daily living. If not, he would modify it upward or downward. Justice Spiegel found that Dr. Ameis' testimony was that, if he was assessing Mr. Desbiens at a CAT-DAC, he would have existing paraplegia. an "analogous loss of function" approach. He took an impairment rating associated with a hernia in the abdominal wall, reasoning that a person with such an injury would experience a decrease in percentage for dysesthesia due to disturbance of the femoral nerve, a percentage for excessive sweating and a percentage for an ankylosed (fused) hip. When he combined these with a right shoulder impairment and cervical impairment he arrived at 41% which he rounded to 40%. Dr. Ameis also discussed an "activities of daily living equivalent" approach. He likened Mr. Desbiens' functioning after the accident to that of a quadriplegic. He used a 35% WPI for this condition and combined it with the right shoulder impairment and amved at 40%. He did not

15 spirit and intent. Justice Spiegel noted that if the examiner determined that an estimate for an and detail assessing further impairments. impairment rating. Justice Spiegel noted that it would be preferable for assessors to provide a found that he sustained a more than -15- combine the cervical impairment under this approach because he felt this was already captured in the 35%. Justice Spiegel felt that the approaches of Dr. Delaney and Dr. Ameis at trial were similar in their anatomic impairment did not sufficiently reflect the severity of the patient's condition, the examiner could increase the impairment percentage and explain the reason for the increase in writing. Both experts agreed that once they reached the 55% WPI mark they did not generally spend as much time Justice Spiegel found that Dr. Delaney did explain in writing her reasons for increasing her initial complete analysis and quantification of all impairments even after 55% was reached. This was to permit a judge or tribunal to determine if the assessor would still have found a patient to be catastrophically impaired if the judge or tribunal rejected part of the assessor's impairment rating. Justice Spiegel noted that Dr. Delaney felt Mr. Desbiens' WPI could now be raised to 70%, and that, even if her initial impairment rating was reduced as low as 38%, she would still have catastrophic impairment in the context of his paraplegia. Justice Spiegel considered Dr. Delaney's suggested residual capacity approach. He noted that Dr. Delaney did not say that the Guides sustained such an approach. He stated that, on the record before

16 perspective on the inadequacy of the Guides in assessing the impairment of persons with serious pre- in his report to the Guides. Justice Spiegel noted that Dr. Berry had vast experience in writing medical-legal reports and that if defence counsel felt that Dr. Berry had misunderstood an issue a Desbiens had suffered a -16- him, it was impossible to decide that such an approach was in accordance with the Guides. He noted that there was a certain "common sense attractiveness" to the concept and that it provided a useful existing impairment. Justice Spiegel did not accept Dr. Ameis' approaches to capturing the impact of Mr. Desbiens' impairment on his pre-existing paraplegia. With respect to Dr. Ameis' analogous loss of function approach, Justice Spiegel agreed with Dr. Delaney and did not accept the suggestion that a hernia to the abdominal wall would cause an analogous loss of function. With respect to Dr. Ameis' activities of daily living equivalent approach, Justice Spiegel agreed with Dr. Delaney that the 35% WPI arrived at by Dr. Ameis did not adequately take into account the impact of Mr. Desbiens' impairment superimposed on his pre-existing paraplegia. In determining the impact of Mr. Desbiens' pre-existing impairment on his motor vehicle impairment, Justice Spiegel also considered the defence report of neurologist Dr. Henry Berry. Dr. Berry found that Mr. Desbiens had suffered a catastrophic impairment as a result of the collision. The defence submitted that Dr. Berry's findings should be discounted because he made no reference follow-up report could have been requested. Justice Spiegel found that Dr. Berry was using the term "catastrophic impairment" as it was defined in the regulation when he expressed the opinion that Mr. catastrophic impairment.

17 when Mr. Desbiens' impairments were considered in the context of his pre-existing paraplegia, Mr. Desbiens sustained a The plaintiffs also argued that Mr. Desbiens' physical impairments and psychological impairments could be combined under clause (f) to determine whether Mr. Desbiens' whole person impairment was greater than 55%. Justice Spiegel noted the plaintiffs' position that the definition of impairment in the regulation included both psychological and physiological impairments and that, since clause (f) referred to a combination of"impairments" and not a Ministry got involved in the case when the plaintiffs decided to raise a The plaintiffs -17- Justice Spiegel ultimately preferred Dr. Delaney's opinion to Dr. Ameis' opinion. He concluded that, catastrophic impairment in the collision as defined in clause (f). under clause (f), combining physical impairments with psychological Impairment impairments. combination of"physiological impairments," both types of impairments could be included. The plaintiffs submitted that the apparent absence of percentage ratings under Chapter 14 did not preclude an impairment percentage being assigned. also relied on subsection 5(3) of the regulation, which provided that an impairment that was not listed in the Guides should be deemed to be the impairment that is listed in the Guides and that is most analogous to the impairment the person sustained. Justice Spiegel noted the submissions of the Ministry of the Attorney General on this issue. The constitutional issue in their pleading. The plaintiffs alleged that if the legislation was interpreted in a manner that excluded Mr.

18 Justice Spiegel noted that the Ministry of the Attorney General generally agreed with the plaintiffs interpretation was adopted then no constitutional question arose. Guides and impairments that were identified but not assigned any percentage (as in Chapter 14). considered as "not listed" and therefore the Guides permitted the assessor to consider the impairment combine them with percentage impairment from other chapters. The defence submitted that only determining whether an individual sustained a -18- Desbiens from the catastrophic impairment designation then this would violate s.15 of the Charter and its guarantee of equality and prohibition of discrimination on enumerated grounds including disability. The plaintiffs raised the Charter argument because many of the issues raised in Desbiens appeared to be matters of first impression. It may well not be necessary to make such allegations in future catastrophic actions due to the findings in Desbiens. One should also consider the increased length and costs of the action associated with naming the Ministry. regarding the interpretation of the regulation, and that the Ministry took the position that if this The Attorney General submitted that the words "not listed" in s. 5(3) encompassed both impairments that were not identified in the Since the psychological impairments in Chapter 14 were not assigned percentages they should be percentage associated with the most analogous impairment. Justice Spiegel noted the defence position that, since psychological impairments were described qualitatively in Chapter 14 rather than with percentages, there was no mechanism in the Guides to psychological impairments that resulted in a rating mentioned in clause (g) could be considered, and that psychological impairments were irrelevant in catastrophic impairment as defined by clause (f).

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