Workplace Health, Safety & Compensation Review Division

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1 Workplace Health, Safety & Compensation Review Division WHSCRD Case No: WHSCC Claim No.(s): , , , , , , , Decision Number: Marlene A. Hickey Chief Review Commissioner The Review Proceedings 1. The hearing of the review application was held at the Review Division office in Mount Pearl, NL on June 4, The worker participated in the hearing and was represented by Gerarda Gamberg, Appeals Officer with the Government Members Office. 2. Neither the employer nor the Commission attended or participated in the hearing process. Introduction 3. On November 30, 2010 the worker injured her right shoulder and head/neck. The worker has four other claims for injuries since November The most recent diagnoses were neck (ligament) sprain and muscle spasm (Claim No ). Physiotherapy and chiropractic care were prescribed. The worker has been in receipt of extended earnings loss benefits since March 20, A January 11, 2010 x-ray showed multi-level degenerative disc disease in the cervical spine. 5. An April 13, 2013 Form 8/10 from the worker s treating physician indicated the worker was waiting for a permanent functional impairment assessment. The matter of a permanent functional impairment for neck and shoulder injuries was referred to the case manager for review. 6. A May 22, 2013 case manager s decision denied the worker s request for a permanent functional impairment. The worker appealed. 7. On May 31, 2013 the Commission s medical consultant reviewed the file in relation to a permanent impairment entitlement associated with the 2010 neck and shoulder injuries. 1

2 8. A June 21, 2013 internal review decision referred the matter back to the case manager to conduct a review of all the worker s claims related to her neck, shoulder and thoracic spine injuries. 9. An August 9, 2013 case manager s decision reviewed the claim as per the direction of the internal review specialist s June 21, 2013 decision. The permanent functional impairment assessment request remained denied. The worker appealed. 10. The November 6, 2013 Internal Review decision upheld the permanent functional impairment denial. This is the first decision the worker is appealing before the Review Commissioner. 11. On November 21, 2013 the worker ed the Commission requesting the Commission address issues concerning her permanent functional impairment request, in particular a November 21, 2013 Form 8/10 from her physician. 12. A December 6, 2013 case manager s decision informed the worker there was no new information provided to warrant a reopening of the decision to deny her request for a permanent functional impairment. The worker appealed. 13. The February 6, 2014 Internal Review decision upheld the case manager s December 6, 2013 decision. This is the second decision the worker is appealing before the Review Commissioner. Issues Decision dated November 6, 2013: 14. The worker is requesting a review of a decision of the Commission dated November 6, The worker requests the Review Commissioner find the Commission erred in denying her a permanent functional impairment assessment for her neck and shoulders. Decision dated February 6, 2014: 15. The worker is also requesting a review of a decision dated February 6, The worker requests the Review Commissioner find the Commission erred in finding that no new evidence has been presented to warrant a reopening of the decision to deny a permanent functional impairment for the worker s neck and shoulders. Outcome 16. The decisions of the Commission dated November 6, 2013 and February 6, 2014 are in accordance with the Act, Regulations and Policies. With respect the review is denied. 2

3 Legislation and Policy 17. The jurisdiction of the Chief Review Commissioner is outlined in the Workplace Health, Safety and Compensation Act (the Act), Sections 26(1) and (2), 26.1 and 28 which state, in part: Review by review commissioner 26(1) Upon receiving an application under subsection 28(1) a review commissioner may review a decision of the commission to determine if the commission, in making that decision, acted in accordance with this Act, the regulations and policy established by the commission under subsection 5(1) as they apply to (a) (a.1) (b) (c) (d) (e) compensation benefits; rehabilitation and return to work services and benefits; an employer's assessment; the assignment of an employer to a particular class or group; an employer's merit or demerit rating; and the obligations of an employer and a worker under Part VI. (2) An order or decision of a review commissioner is final and conclusive and is not open to question or review in a court of law and proceedings by or before a review commissioner shall not be restrained by injunction, prohibition or other process or proceedings in a court of law or be removable by certiorari or otherwise in a court of law. Review commissioner bound by policy 26.1 A review commissioner shall be bound by this Act, the regulations and policy. Application to a review commissioner 28(1) A worker, dependent or an employer, either personally or through an agent acting on their behalf with written consent, may apply to the chief review commissioner for the review of a decision as referred to in subsection 26(1), within 30 days of receiving the written decision of the commission. (2) A review commissioner shall not review a decision under subsection (1) except in accordance with subsection 26(1). 3

4 (4) A review commissioner to which a matter has been referred for review shall (a) (b) notify the person seeking the review and the commission of the time and place set for the review; and review the decision of the commission and determine whether it was in accordance with this Act, the regulations and policy. (4.1) Where a review commissioner determines that the decision of the commission was in accordance with this Act, the regulations and policy, he or she shall confirm the decision of the commission. (4.2) Where a review commissioner determines that the decision of the commission was not in accordance with this Act, the regulations and policy, he or she shall identify how the decision of the commission was contrary to this Act, regulations and policy, specify the contravened provision, set aside the decision of the commission and (a) (b) make a decision which is in accordance with this Act, regulations and policy; or where it is appropriate to have a new decision from the commission, refer the matter to the commission for a new decision with or without direction on an appropriate remedy. 18. Other relevant sections considered are Sections 2, 19(1)(b), 60, 64, and 73(1) of the Act, along with Policy EN-01: Permanent Functional Impairment Relevant Submissions and Positions 19. Ms. Gamberg, on behalf of the worker, submits that the worker is entitled to a permanent functional assessment for her neck, in relation to injuries she has sustained in her 35 year career as a registered nurse. Ms. Gamberg notes the worker s injury to her neck dates back to Reference is made to a report from the worker s treating chiropractor dated January 19, 1998 wherein he states: It is my professional opinion, which is well substantiated in Orthopaedic and Chiropractic literature, that neck problems are often concomitant with pelvic ring problems at the time of injury, and that this has most clearly been the case with [the worker]. It is unfortunate that the 4

5 focus at the time of injury is frequently given only to the area which is painful at the time. Additionally, and as previously outlined, neck problems do in fact evolve from pelvic ring problems when the injury is severe and unstable and prolonged in nature, or if the early intervention was inappropriate all of which might well contribute to the chronicity. In summary, I do substantiate [the worker s] complaint of neck injury. I do validate its long standing nature and in accordance with the outline presented, feel that this complaint is clearly associated with the injury to her back and pelvis. 21. Ms. Gamberg states a permanent functional assessment for the worker s neck was considered in 2011, however, this was cancelled due to a flare up of the worker s symptoms. She notes a Claim Note dated March 9, 2011 states: There is a large lapse in any information regarding this clients neck between 2003 and I am unable to determine if the clients current neck problems are consistent with the original work injury in order to provide comment on a PFI assessment of her neck. If the clients current signs and symptoms in her neck as recently reported by [the Orthopedic Surgeon] are as a result of her compensable neck injury then a PFI assessment would be warranted. 22. Ms. Gamberg suggests the Commission, in certain contexts, does recognize there have been neck problems and this, she submits, is confirmed in the June 21, 2013 internal review decision whereby the claims were referred to the case manager for a complete review. She notes the following from the June 21, 2013 decision:, the issue I have reviewed is the Case Manager s determination under Claim No that there was no medical on that file to support a PFI assessment of the neck. However, in reviewing your claims history, I note that you have had a number of claims over the years in relation to your employment as a Nurse. Some of these claims were listed as neck injuries while others were noted to be multiple body parts. In order to determine whether there is entitlement to a PFI of your neck, shoulders and thoracic spine I find that a full review of your claims history is required. Your claim is referred back to the Case Manager to complete this review to determine whether such a PFI is warranted. Upon completion of this review you will be provided with a new written decision and if dissatisfied will have the further right to an internal review. 5

6 23. Further, Ms. Gamberg argues that there are numerous reports on the file noting problems with the worker s neck and shoulders. She references a chiropractor s report of December 20, 2001 as well as another chiropractor s report dated June 23, The June 23, 2010 report is specifically quoted. It states: [The worker] has had treatment with me for a number of spinal related injuries (low back and neck) over the past 7 years. She has a chronic neck pain that has not resolved and will continue to be an ongoing issue for her. She is able to work, but at times in the past, has missed work due to pain and joint dysfunction in her cervical spine and low back. I understand that her initial injury was in 2001 under claim We also have a reported neck injury from 2005 under claim Ms. Gamberg states that in March, 2012, the worker was unable to recover from the latest injury, and availed of medical retirement and is no longer working. 25. A Form 8/10 dated November 21, 2013 was submitted to the Commission as new evidence to prompt reconsideration of the November 6, 2013 internal review decision denying the permanent functional assessment of the neck. Ms. Gamberg notes this information was provided by the treating physician who has been treating the worker for 22 years. This medical opinion, she submits, must be very seriously considered as instructed by the Bulger decision of the Supreme Court. 26. The worker testified at the hearing and spoke generally about her injury history, going back to She submits the current condition of her neck and shoulders is the result of her multiple injuries and merits an assessment for a permanent functional impairment award. When she attended to the permanent functional assessment in March, 2013, she understood it was to assess all of her bodily impairment resulting from all her injuries. It was not until afterwards, she realized this was not the case. 27. The position of the Commission is outlined in the two recent internal review decisions on the file. The decision of November 6, 2013 speaks to the issue of the permanent functional assessment generally, while the February 6, 2014 decision speaks to the reopening request. 28. The November 6, 2013 decision concludes as follows:, I have reviewed your claims and I have considered the evidence. As you can see from my review of the claims indicated there has been little in the way of medical information received indicating ongoing, long-term issues related to the body parts in question. The most recent claim for any neck issues is the claim # In this you reported developing a kink in your neck. The diagnosis provided was a neck sprain. More importantly, I reference the fact that a January 11, 2010 x-ray confirmed degenerative disc disease at multiple levels in your cervical spine. This is the file that has received the more recent medical reporting. 6

7 The recent medical reports of April 24, 2013 and August 19, 2013 do not support that the problems you are experiencing are of a permanent nature. The current diagnosis is that of a disc injury. A muscular strain would not be expected to continue causing problems some three years subsequent given the background of degenerative changes. I also note the Commission s Medical Consultant completed a review on May 31, In this he notes his understanding is that the neck injury under claim # occurred when you reported developing a kink/spasm in your neck. A muscle spasm/ligament sprain was diagnosed. The consultant stated in part: Thus the compensable injury was accepted as a muscle spasm/ligament sprain. One would not expect any long-term sequelae from this type of injury and the evidence supports a minor, soft tissue injury. There is a lack of continuity of medical on file to support ongoing problems with the neck in relation to the compensable injury. There is evidence of multi-level degenerative changes of the cervical spine which could result in symptoms. These would not be the result of the injury in Overall, I am unable to conclude that the evidence supports that there is a permanent impairment in relation to the minor, soft tissue injury of I must note at this time that the more recent medical reporting does not indicate any issues related to your shoulders. The last medical reporting regarding shoulder issues is seen on claim # in a report of June 19, 2002., I have reviewed your case and I have considered the evidence. PFI assessments are conducted when there is evidence shown supporting longterm impairment as a result of a work injury. From my review of the cases I have identified I do not see where evidence supports this. Given same, I conclude the Case Manager has made an appropriate decision to indicate the evidence does not support you be provided with a PFI assessment for neck and shoulder difficulties. I support the Case Manager s determination. 29. The February 6, 2014 decision notes the submission of the worker by and the 8/10 report of the treating physician. The internal review specialist concludes as follows: With regard to your shoulder problems, I again reference my November 6, 2013 decision and I clearly indicate and provide a chronological review of the files which have been documented for shoulder difficulties. While it may be that you have ongoing shoulder difficulties, I have shown that the evidence does not support a connection of your current difficulties to any of the work injuries the Commission has recorded with respect to the shoulder injuries. It was on this basis your request for PFI review was 7

8 denied. Again, considering the November 21, 2013 medical report, I do not find the physician has provided any new evidence which would bring that determination into question. Analysis 30. It is the worker s position that she is suffering from a permanent impairment in her neck and shoulders, resulting from multiple injuries in her work as a registered nurse. The Commission, she submits, has failed to take this fact into consideration and provide her with a permanent functional impairment assessment as a result. 31. The Commission s response is that there is no objective evidence of permanent impairment resulting from the injuries and therefore, an assessment is not warranted. 32. Though two decisions have been noted to be under review, the issue arising from these decisions comes down to whether or not the worker is entitled to a permanent functional assessment for her neck and shoulders. This is the underlying issue I will be reviewing as it arises from both decisions. 33. I wish to note this file consists of information relating to at least nine different claims filed for injuries the worker has sustained in the workplace. The file volume itself consists of 1757 pages. At one point, there is a reference in the file to fifteen injuries, however, the actual number of injuries is not relevant to the review I must conduct of the Commission s decision. Consequently, I have not attempted to verify the accuracy of the number of claims. I have reviewed the evidence which bears on the question of whether there is a compensable injury to the worker s neck and shoulders and, if so, whether there is an impairment resulting from it. 34. What is relevant, however, is the extent to which the objective medical evidence supports a conclusion that the worker is suffering from a permanent functional impairment to her neck and shoulders, arising from her compensable injuries. Upon review of the extensive claim evidence, I find the evidence does not support the worker s position that she has a work-related impairment to the neck and shoulders.. I find as the Commission has found. 35. There is no doubt the worker has sustained compensable injuries to her neck. In fact, there are several references to neck symptoms in some of the claims, specifically as these claims included compensability of the neck and shoulder. The last relevant note of medical information on the file relates to an injury sustained in 2005 and the last medical reporting on the neck injury is the report noted by Ms. Gamberg, from the chiropractor, dated June 23, 2010 which has already been reproduced. 36. In July, 2007 the worker sustained an injury to her lower back and the medical reporting on that claim extends to 2013, yet there is no reference in the claim to ongoing neck problems up to There is no objective reporting to illustrate the nature of any neck complaints or symptoms reported. One would expect, in the presence of a permanent 8

9 impairment, there would be recent medical evidence suggesting ongoing symptoms or issues relating to the worker s neck condition, along with resulting functional restrictions. 37. On November , however, the worker did sustain an injury to her neck, which the worker described as kink type pain. A radiology report of January 11, 2010 confirmed the presence of significant degenerative disc disease in the worker s neck. The worker did not incur lost time, however, she indicated she did avail of medical retirement in March 2012 as a result of this injury. 38. There is quite a volume of material on the file and within it are medical reports which capture the worker s condition as recorded by her treating physicians and specialists. The most notable observation from reviewing these reports is that these reports address many body parts of the worker and provide objective evidence in relation to these other body parts, yet there is little, if any, reference to neck symptoms, restrictions or recommendations for treatment. 39. In this regard I note the following as relevant: a. The worker was previously assessed for a permanent functional impairment on May 6, At that time, there was no reference made to the worker reporting any problems with respect to her neck or shoulders. The focus of the assessment was on the lower back and the report notes the worker states she gets more pain on the left side now and in her sacroiliac areas in the left buttock. The worker was provided with a 12.5% impairment rating for her lower back. I note this rating was not appealed by the worker. b. There are multiple chiropractor reports and treating physician reports from 2010 onward which address the lumbosacral region, osteoarthritis of the knees, and hip bursitis. There is no reference to the neck or shoulders. c. A report from an orthopaedic specialist, dated January 10, 2012, notes the worker has long standing issues with her lower back. Also noted is the bursitis in her hips and the presence of degenerative disc disease as well as previous history of plantar fasciitis and arthritic thumb. Again, there is no reference to neck or shoulder restrictions or symptoms. d. In June, 2012 the worker s treating physician refers her for another consult with the neurosurgeon. The treating physician notes the worker has ongoing pain in her lower back, radiating down to her right leg and knee. Again, there is no reference to the neck or shoulder. Another referral to the orthopedic clinic by the treating physician in October, 2012 notes ongoing problems with pain in hip, knee and ankle only. e. A report of the chronic pain specialist dated November 6, 2012 notes the worker has lower limb pain and significant SI joint pain. 9

10 f. A report of the treating orthopedic specialist dated December 11, 2012 indicates the worker may be suffering from some form of fibromyalgia. The focus of the specialist s examination is the lumbar spine and SI joint. g. A permanent functional impairment assessment of March 21, 2013 in relation to her lower back, her SI joint, her hips and knees was conducted. A rating of 20% was provided for the permanent impairment of the thoracolumbar spine. There is no reference in the worker s recitation of history of any difficulty with her neck. 40. Upon receipt of the March 21, 2013 results, the worker appealed the rating, indicating the following in the concluding paragraph of her request for review dated June 6, 2013: Finally, all I want is to have my file regarding the 3 neck/shoulder injuries reviewed by the PFI doctor for consideration of these work related issues. Ideally, I do feel that all my claim numbers should be reviewed. The functional assessment deeming me approx. 50 to 60 percent disabled and unable to work and, caused me to have to receive pensions should be translated to a total PFI assessment. 41. The suggestion put forward by the worker in this correspondence is that each injury/claim must automatically be assessed for a permanent functional impairment. Further, it appears the worker believes her disability relates to a specific percentage of an impairment award. Neither of these suggestions is accurate. An assessment for permanent functional impairment is based on objective medical evidence of functional deterioration or impairment of the injured body part. 42. Before proceeding further. I must refer back to the Act, regulations, and Policies, because the issue for me is whether the Commission s decisions followed these. If the Commission s decisions followed the legislation, regulations, and policy provisions, I have no basis to substitute my own adjudication of the claim. 43. An injury is defined in Section 2(1)(o) of the Act. I will not reproduce the full definition here, as I only reference it to note that the definitions of impairment and disability are provided, and they are different than the definition of injury. What becomes immediately apparent is that impairment and disability are defined by their own terms. Every injury does not translate into an impairment. An impairment must be caused by a compensable injury, but an injury only reaches the level of an impairment when it satisfies the definition in Section 2(1)(l.1). So, while every impairment must result from a compensable injury, not every compensable injury results in an impairment. 10

11 44. Policy EN-01: Permanent Functional Impairment provides a worker who suffers a permanent impairment, as a result of a work related injury, a lump sum payment. I note the definition of impairment in Section 2(1)(1.1) as a physical or functional abnormality or loss, including a disfigurement. Policy EN-01: Permanent Functional Impairment specifies that there is no specific award for pain and suffering. It also states that the impairment percentages given in the A.M.A. Guides include allowances for the pain that may occur with the impairment. The existence of pain does not enhance the impairment percentages recommended. 45. The concept of an impairment is also to be distinguished from a disability. A disability is defined in Section 2(1)(g.1) as the loss of earning capacity of a worker as a result of an injury. The Act recognizes that a compensable injury may have effects both on bodily function (impairment) and earning capacity (disability), but the two concepts are not identical. For example, a worker who is totally disabled from work may retain a significant degree of bodily function, so a finding of total disability does not automatically translate into a 100% permanent functional impairment award. Conversely, a worker may have a significant degree of impairment, but no loss of preinjury earning capacity because the losses to the injured body part may not affect the worker s ability to perform his or her job. The two concepts do not always translate, and they are assessed by different methods. 46. Section 73 of the Act provides for the payment of a permanent functional impairment award. It also permits the Commission to adopt and consult a rating schedule for the purposes of determining the award. The Commission adopted the rating schedule in Policy EN-01: Permanent Functional Impairment and the Policy authorizes the use of the American Medical Association s Guidelines to the Evaluation of Permanent Impairment. The permanent functional impairment assessment is conducted by a medical consultant, usually with specific experience in performing these types of assessments. Typically, the assessment consists of a physical examination in the context of a review of the relevant medical documentation. The medical consultant performing the assessment interprets the documentation and the results of the examination, and makes findings as to the signs and symptoms. These signs and symptoms are then correlated to the ranges provided in the rating schedule. The Review Commissioner s role is to review the Commission s application of the Act, regulations, and Policy in its decision. In reviewing the medical findings themselves, a Review Commissioner is poorly positioned to substitute his or her own opinion for that of the medical consultant, as he or she is not qualified to do so. The Review Commissioner determines how the Commission weighed the evidence, and whether it was in compliance with the Act, regulations, and policies. It is not the role of the Review Commissioner to make competing medical findings. 47. Turning back to the concept of a permanent functional impairment, the impairment has to be a physical or functional abnormality which is permanent by its nature. To paraphrase, it requires evidence of some detectable or quantifiable damage, loss, or diminishment due to the compensable injury that manifests in a physical or functional impairment. This is not the same thing as recurring symptomatology: one may relate to the other, but the symptoms have to relate to some underlying permanent physical or 11

12 functional abnormality or loss. It is the physical or functional losses which are being compensated for, not pain and suffering in and of itself. 48. Though I understand the conclusion the worker is attempting to establish, I have some difficulty, in the absence of objective medical evidence, accepting that the worker has suffered permanent impairment to her neck and shoulders as a result of her employment and her injuries. The absence of any reference to neck or shoulder problems in the medical reporting also speaks to the fact that, even if there were symptoms or restrictions, these were not of a nature for the worker to seek medical treatment, i.e. not permanent impairment. 49. Further, the file is heavily populated with communications from the worker. There are many correspondences, s, records of phone calls, requests for treatments, requests for various medical aid items, reimbursements, travel costs, etc., yet at no point in the evidence do I find any reference in these communications by the worker herself to neck difficulties with the exception of the last claim in November, 2010 and to that extent this was muscle spasm and the Form 8/10 reporting indicates significant improvement. Further, the radiology report notes degenerative disc disease of the cervical spine. 50. Policy EN-01: Permanent Functional Impairment provides for a worker who suffers a permanent impairment, as a result of a work related injury, a lump sum payment. I note the rating is a measure of permanent impairment which is defined in Section 2(1)(1.1) of the Act as a physical or functional abnormality or loss, including a disfigurement. Policy EN-01: Permanent Functional Impairment specifies that there is no specific award for pain and suffering. 51. In this case, I note the opinion of the medical consultant was sought and is noted as follows: My understanding is that the neck injury under this claim occurred in 2010 when the worker reported developing a kink /spasm in her neck. The diagnosis was muscle spasm/ligament sprain. My understanding is that there was no lost time and the claim was closed in May Prior to the most recent F8/10 the last medical on file was in Mar Thus, the compensable injury was accepted as a muscle spasm/ligament sprain. One would not expect any long term sequelae from this type of injury and the evidence supports a minor, soft tissue injury. There is a lack of continuity of medical on file to support ongoing problems with the neck in relation to the compensable injury. There is evidence of multilevel degenerative changes of the cervical spine which could result in symptoms. These would not be the result of the injury in Overall, I am unable to conclude that the evidence supports that there is a permanent impairment in relation to the minor, soft tissue injury of (emphasis mine) 12

13 52. The internal review specialist proceeded to review the relevant claim history and also noted the recent claim information. The internal review specialist concludes by advising the worker that permanent functional assessments are conducted when there is evidence showing long term impairment as a result of work injury. He indicates in his review of the file he is unable to find this evidence. Based on my review of the file, I agree with the internal review specialist. 53. Further, the request to reopen the claim by way of the November, 2013 Form 8/10 report, I find has no basis. The report does not contain evidence which speaks to a permanent impairment in the worker s neck or shoulder due to a compensable injury. 54. Under Section 64 of the Act, the Commission has the discretion to reopen the file for a new adjudication. It does not have to reopen the file upon the request of the worker, and is authorized to perform a preliminary screening of the evidence. The question on the preliminary screening is not whether the new evidence, in itself, would change the outcome, but rather that it is persuasive enough to at least suggest the overall question should be re-examined with the new evidence as part of the weighing exercise. This was discussed extensively in the Breen decision of the Court of Appeal where it was affirmed that the threshold on the preliminary screening is not an onerous one. However, the Commission is not expected to look at the new evidence in a vacuum. It is entitled to compare it against the existing file evidence in order to determine whether it is of a sufficient quality to justify the Commission re-adjudicating the question on its merits. 55. Given the evidence which exists on this claim, which contains reference to noncompensable cervical changes in the neck, but no lasting or quantifiable damage (i.e. loss or abnormality) to the soft tissues in the worker s neck and shoulders, I find that the persuasive value of the new evidence to be limited. The November 21, 2013 Form 8/10 does not make a finding, on the balance of probabilities, that the worker has an impairment to the neck and shoulders due to the compensable injury, which is what was required at that stage, given the basis the worker s request was rejected upon. The report may document ongoing shoulder symptoms, but this does not demonstrate an impairment or that the symptoms are due to the compensable injury of I agree that it does not pass the preliminary screening test required by Breen, as it does not address the core of the issue in any meaningful way. Decision 56. The decisions of the Commission dated November 6, 2013 and February 6, 2014 are in accordance with the Act, Regulations and Policies. With respect, the review is denied. Review Denied Marlene A. Hickey Chief Review Commissioner December 2, 2014 Date 13

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