Foley and Australian Postal Corporation
[2003] AATA 904
•15 September 2003
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2003] AATA 904
ADMINISTRATIVE APPEALS TRIBUNAL )
) No V02/1419
GENERAL ADMINISTRATIVE DIVISION ) Re JOHN FOLEY Applicant
And
AUSTRALIAN POSTAL CORPORATION
Respondent
DECISION
Tribunal Mr J Handley, Senior Member Date15 September 2003
PlaceMelbourne
Decision The decision under review is affirmed. (Sgd) J Handley
Senior Member
CATCHWORDS
COMPENSATION – Applicant suffered “nervous breakdown” in 1987; claim for compensation made in 2002; whether notice of injury made as soon as practicable; whether employer would suffer prejudice; whether failure to claim resulted from ignorance or mistake or other reasonable cause; decision affirmed.
Safety, Rehabilitation and Compensation Act 1988 s124(2)
Compensation (Commonwealth Government Employees) Act 1971 s53(1)(a)(b), s54(1), s54(2)(a)(i)(ii), s54(6)
Corry and Others v Keperra Country Gold Club and Others (1986) 64 ALR 556
Pacific Manning Company Pty Ltd v Barton (2003) FCA 498
Comcare v Luck (1999) 29 AAR 403
Telstra Corporation v Roycroft (1997) 774 FCA
Banks v Comcare, Federal Court, 1954, 382/96
Re Scutts and Department of Defence (1998) AATA 527
Re Willis and Australian Telecommunications Commission (1989) 10 AAR 352
REASONS FOR DECISION
15 September 2003 Mr J Handley, Senior Member 1. The applicant applies to review a decision made by the respondent on 24 October 2002. The respondent then decided to affirm a decision it made on 1 August 2002 to reject a claim made on 25 July 2002.
2. The claim then made was in respect of a “nervous breakdown” which the applicant alleged occurred in 1987 when he was employed by the respondent (refer T-document page 21).
3. The “commencing day” of the Safety, Rehabilitation and Compensation Act 1988 was 1 December 1988. Section 124(2) is recorded in the following terms:
(2)A person is not entitled to compensation under this Act in respect of an injury, loss or damage suffered before the commencing day if compensation was not payable in respect of that injury, loss or damage:
(a)where the injury, loss or damage was suffered before the commencement of the 1930 Act - under the 1912 Act;
(b)where the injury, loss or damage was suffered after the commencement of the 1930 Act but before the commencement of the 1971 Act - under the 1930 Act as in force when the injury, loss or damage was suffered; or
(c)in any other case - under the 1971 Act as in force when the injury, loss or damage was suffered.
4. By reason of the injury having occurred prior to 1 December 1988 and during the currency of the Compensation (Commonwealth Government Employees) Act 1971 (“the 1971 Act”) the provisions of sub-section of (2)(c) above apply. Accordingly it is necessary to examine the relevant provisions of the 1971 Act namely, s53(1)(a)(b), s54(1), (2)(a)(i)(ii) and (6) which are relevantly reproduced as follows;
53.(1) This Act does not apply in relation to an injury caused to an employee unless notice in writing of the injury was served, as prescribed, on the Commonwealth-
(a)as soon as practicable after the occurrence of the injury;
(b)if the employee was not, immediately after the injury, aware that he had sustained an injury – as soon as practicable after he became so aware; or
54.(1) Compensation in relation to an employee is not payable under this Act to a person unless a claim in writing for the compensation was served, as prescribed, on the Commissioner by or on behalf of the person within the prescribed period.
(2) If the claimant is the employee, the prescribed period for the purposes of the last preceding sub-section is-
(a)in the case of a claim in relation to an injury to the claimant-
(i)the period of six months commencing on the day of the injury; or
(ii)if the claimant was not, immediately after the injury, aware that he had sustained an injury – the period of six months commencing on the day on which he became so aware;
(6) Where-
(a)a claim purporting to be a claim referred to in sub-section (1) of this section has been served on the Commissioner;
(b)the claim, as regards the time or manner of service, failed to comply with the requirements of that sub-section; and
(c)the Commonwealth would not, by reason of the failure, be prejudiced if the claim were treated as a sufficient claim, or the failure resulted from the death, or absence from Australia, of a person, from ignorance, from a mistake or from any other reasonable cause, the claim shall be deemed to have been served in accordance with that sub-section.
5. Mr Foley appeared unrepresented in these proceedings and gave evidence.. He relied on 16 typed pages of submissions that he had lodged prior to the commencement of the hearing and which were dated 22 and 26 June respectively.
6. Being apparently aware of the relevant provisions of the 1971 Act, Mr Foley said in evidence that his understanding of the word “practicable” was the ability to be able to do something or put something into practice successfully. He said the nature of his depression prohibited him from making his application until recently, because he had been largely occupied caring for his elderly father until he died in 2002. He said that subsequent to the death of his father he had “less to do” and then felt as if he was able to proceed with his claim against Australia Post.
7. Additionally, Mr Foley relied on a report completed by Dr Croker dated 15 April 2003 which was referred into evidence as Exhibit C. By reason of the reliance by Mr Foley upon that report and cross-examination of Mr Foley concerning the contents of the report, it is relevantly reproduced as follows:
I first met this man in January 1988. In February 1988, he developed a depressive illness with obsessive compulsive traits. He commenced on Tryptanol 50gm and was referred to a psychiatrist, Dr Colin Moore. Dr Moore elicited a history of a stress-related illness at age 21 during his university course, a family history of depression in his mother and maternal grandmother. Dr Moore recommended psychotherapy and referred Mr Foley to Dr. Hanne Faulkner (Mr Foley had also seen a psychologist prior to this). Mr Foley remained on Tryptanol 50-75mg daily.
In 1995, John reported continuing difficulty coping and was referred to a psychiatrist Dr. Denis O’Loughlin. Dr. O’Loughlin found he had chronic low-grade depression and schizo-affective personality traits. John has remained on Tryptanol 75mg since then.
I believe John is a quiet, introverted and reclusive person. He has had few interpersonal relationships. Initially, he coped with his problems with alcohol however, in recent years he has become much more health conscious; he exercises regularly by riding a bicycle and has little alcohol. He has also developed a friendship with the local golf range owner and has been working for him part time as well as golfing.
In respect of your particular questions, Mr Foley had been looking after his elderly father who suffered from asthma and heart disease. I believe his involvement as carer, his personality and depression would have contributed to delay in making a claim against the Post Office. I believe Mr Foley would have coped poorly with moderated stress in a workplace, especially full-time employment. I am not aware of the circumstances of his termination with the Post Office. Mr Foley has spoken of the experience and he believes he felt alienated and unable to cope. I am not able to say how much his work would have contributed to his condition due to the long period since ceasing work.
8. In cross-examination Mr Foley said that he had contacted Dr Faulkner who had previously treated him and learnt that she continued to hold notes of her treatment. He said that he had not attempted to contact Dr O’Loughlin who had also previously treated him. Mr Foley said that he had contacted Dr Conway, a former treating psychologist, but his notes had been destroyed. He said that he had not contacted Dr Moore, a treating psychiatrist, but had learnt that he was now in practice in Tasmania.
9. Mr Foley said that he was aware that he was developing a “stress condition” at Australia Post. He also believed that the “stress condition” was caused by the employment. He said that there was continuing harassment within the workplace and the work environment was hostile because of tension between “anglo yobbo’s” and “ethnic Italians/Greeks”. Additionally he said there were threats made by persons against each other and on one occasion someone had mentioned the use of a gun. He said at or about that time there were postal workers murdered in the United States and he believed that a similar hostile environment was emerging within the Richmond mail centre.
10. Initially Mr Foley said that he enjoyed the work with Australia Post after he started in February 1987 but the continuing harassment affected his enthusiasm for work and there were occasions where he preferred not to attend the workplace. He said that by June 1987 the work was “getting (him) down” and he looked forward to delivering mail because it allowed him to leave the mail centre.
11. Mr Foley said that when he resigned from Australia Post in October 1987 he had “a total panic attack”. He said he approached his supervisor, Mr Valerio, when other workmates were not at the mail centre, because he was then “paranoid” and did not want other persons to know that he was resigning. He acknowledged that he probably did tell Mr Valerio that he was intending to resign to return to taxi driving. Mr Foley also said that he arranged for his mother to ring Mr Valerio to make arrangements for his pay to be collected. He said that his mother did ring Mr Valerio to notify him he had suffered a “nervous breakdown”.
12. Whilst he was employed by Australia Post, Mr Foley was being treated by Dr Dunning, his general practitioner in Melbourne, who he said he consulted on about ten occasions. He has not enquired whether Dr Dunning continues to hold his notes.
13. After he ceased work in October 1987 Mr Foley said that he was “in a terrible way” until February 1988. He said he “coped” only because he consumed excessive quantities of alcohol.
14. Mr Foley understood the reference by Dr Croker to the development of “a depressive illness with obsessive compulsive traits” in February 1988 was the occasion when he (Mr Foley) realised he was depressed. He said between October 1987 and February 1988 he was incapable of appreciating his illness because of the effects of the alcohol he had consumed.
15. Mr Foley also acknowledged that he had been a friend of a solicitor currently in the employ of the State Government Insurance Office namely Ross Moleta. He said that he had known Mr Moleta since he had enrolled in a combined Arts/Law Degree at university. He said that Mr Moleta had suggested to him that he should make a claim upon Australia Post and approximately four years ago he obtained a claim form but at that time he did not feel “up to it”.. He denied that Mr Moleta had warned him about the risks of failing to make a claim on Australia Post.
16. Mr Foley also acknowledged that he had previously consulted with Slater & Gordon, a firm of solicitors who practice as personal injuries lawyers.
17. Mr Foley acknowledged that he had been “apathetic” about making a claim for compensation and said that apathy was a symptom of his depression. He said that he has been prescribed Tryptanol medication every six weeks since February 1988 by Dr Croker, except for a period of one or two years when he returned to Melbourne, when Tryptanol was prescribed by Dr Dunning (it was during this time that Mr Foley was employed on a full time basis at a 7 Eleven store in Balaclava). Despite this he said that he had not ever discussed the circumstances of his leaving Australia Post with Dr Croker nor had he ever been advised by Dr Croker or any persons at Centrelink that he should consider making a claim on Australia Post (Mr Foley has qualified for disability support pension which is paid to him from Centrelink. The application for disability support pension was supported by Dr Croker).
Reasons for Decision
18. Having read the submissions lodged by Mr Foley prior to the commencement of the hearing and having observed him giving his evidence, I accept and find as a fact that he is a witness of truth who has not exaggerated or embellished his evidence. I accept that he has been under active treatment for many years, mainly from Dr Croker and the continued prescription every six weeks for the last 15 years of Tryptanol would be testament to his illness.
19. I also accept that whilst he was employed by Australia Post he was affected by events in the work place. Objectively others may have a different view of the seriousness of those circumstances but subjectively I am satisfied that Mr Foley was concerned for his health and his safety.
20. I also accept that he has been a victim of circumstances surrounding the care of his mother and father for many years and has also been affected by a number of events in his neighbourhood which are well documented throughout his submissions.
21. His submissions also indicate behaviour on his part which was clearly erratic and indicative of a person who did suffer from severe depression and or a stress related illness, consistent with the prescription to him of medication from Dr Croker.
22. Nonetheless, almost 15 years has elapsed between the date of resignation from employment and the making of a claim for compensation. This is not an inconsiderable period of time. Within that time Mr Foley was aware of time limits upon making a claim and had had the benefit of an association of a close friend who was a personal injuries lawyer. He also consulted with a firm of solicitors who practise extensively as personal injury lawyers. There was an occasion when he did obtain a claim form but felt that he was unable to complete it (and make a claim) because to do so would cause him to revisit a number of unpleasant memories associated with his former employment.
23. However, subsequent to his employment with Australia Post, Mr Foley has been employed as a taxi driver and also worked for two years at a 7 Eleven store, which employment he described as being enjoyable.
24. As to the provisions of the 1971 Act I am unable to be satisfied that a notice in writing of the injury was served on the employer “as soon as practicable after the occurrence of the injury” or “as soon as practicable after he became so aware” (refer s53(1)(a) and (b)).
25. Mr Foley was aware that he was suffering from stress during his employment which continued until October 1987. He was also of the belief that the employment was responsible for his illness. Indeed, he resigned because of the illness. Thereafter he said that he was affected by considerable quantities of alcohol and it was not until February 1988 that the true nature of his condition was diagnosed, as recorded in the report of Dr Croker. Mr Foley said that it was at or about that time that he realised the seriousness of his illness and had not appreciated it earlier because of the effects of alcohol. The provisions of sub-section 53(1)(b) (refer above) apply and Mr Foley, in my view, has had more than an adequate opportunity to make an application prior to July 2002.
26. The Macquarie Dictionary online, ( defines practicable as:
1. capable of being put into practice, done, or effected, especially with the available means or with reason or prudence; feasible. 2. capable of being used or traversed, or admitting of passage.
27. In Corry and Others v Keperra Country Gold Club and Others 1986 64 ALR 556 the Human Rights Commission decided that the respondent breached s25(4) of the Sex Discrimination Act 1984 when it discriminated against women members of the respondent golf club who wished to play on Saturdays. The Commission, having examined the club by-laws and rules for playing by men and women members decided that there was nothing “impracticable” about allowing an equal opportunity for men and women to play on Saturdays. In making this finding the Commission necessarily considered the prevailing circumstances and practicalities and whether its recommendations were feasible. In making its findings the Commission was required to determine whether it was “practicable” for a benefit to be used or enjoyed simultaneously or to the same extent by both men and women in order to determine whether there had been an unlawful discrimination of the Sex Discrimination Act.
28. Mr Foley had been able to maintain employment initially as a taxi driver and later for two years at the 7 Eleven store. This indicates to me that there were occasions when it would have been “practicable” for him to serve notice of injury on the employer. It cannot be said in my view that he has been so overwhelmed by the effects of illness and medication and his responsibilities to his parents that it has been “impracticable” to serve the notice of injury earlier than July 2002.
29. The provisions of s54 of the 1971 Act refer to the making of a claim for compensation (as opposed to s53 which refers to the notice of injury). Section 54 prescribes that a claim is to be made within six months after the date of injury or within six months of becoming aware of the injury. For the above reasons that period of time has well and truly expired. (For practical purposes, a notice of claim can amount to a notice of injury – refer Pacific Manning Company Pty Ltd v Barton (2003) FCA 498; Comcare v Luck (1999) 29 AAR 403).
30. Section 54(6)(c) is cast disjunctively. The applicant need not satisfy all of the circumstances recorded in order to allow his application to be deemed to have been served in accordance with s54(1). Section 54(6)(a) and (b) clearly apply. An examination of the circumstances of (c) is required.
Prejudice
31. The respondent in my view is prejudiced if the applicant is permitted to continue these proceedings.
32. The affidavit of Mr Mentor, the solicitor acting on behalf of Australia Post, refers to extensive enquiries that he made. It refers to contact with Mr Strongman who was the postal manager at Richmond Post Office in 1987. The affidavit records that Mr Strongman does not recall the applicant. It was also learnt from Mr Strongman that Mr Valerio retired from Australia Post in July 1992 and now lives in Italy permanently. Further enquiries indicate that Dr Moore now practises in Tasmania and does not have a file relating to his treatment of Mr Foley. Enquiries made of Dr Faulkner indicate that she will not provide any information concerning Mr Foley and Dr O’Loughlin indicated that he would not “make any comment on this matter – whether he has records or not”.. It is also noted that the applicant’s parents who are both deceased, are regarded by the respondent as being crucial witnesses.
33. A combination of all these circumstances caused Mr Mentor to be of the view that the respondent would be severely prejudiced in its response to any claim made by Mr Foley because of the absence of witnesses, the death of potential witnesses and the destruction of files or notes held by other witnesses.
34. The applicant’s own evidence of enquiries made of doctors (also refer paragraphs 48 - 51) and the absence of notes also causes me to believe that the respondent in the circumstances would be prejudiced in its response to any claim if allowed.
Ignorance or Mistake
35. In Telstra Corporation v Roycroft (1997) 774 FCA North J decided, having examined a number of authorities that:
There is a thin line between "mistake" and "ignorance". If a person acts on the basis of knowledge of the Act and that knowledge is wrong, or the facts upon which the person relies are wrong, then the person has made a mistake. If a person acts without any knowledge about the Act or an aspect of it, and consequently does not know whether or not it applies, then the person is ignorant. The distinction between ignorance and mistake requires very careful attention to the evidence, ………..
36. Mr Foley did have knowledge of his rights to claim compensation. He was therefore not ignorant. The issue is when did he know of these rights. This part of the evidence is confusing. On the one hand, he said in evidence that he learnt of his injury in February 1998 when it was diagnosed. He then also knew of his rights to claim but did not because of apathy or procrastination. Alternatively at paragraph 18 of his written submissions he recorded:
I had some anecdotal advice that there was no time-limit on making a claim anyway. A solicitor friend, Ross Moleta, actually procured an application form on my behalf several years ago. He was trying to encourage me to go ahead with it, but I procrastinated, with all these stressors mentioned above, and because of the ongoing depression. Further, all these sex-abuse claims in the media pertained to many years ago – people take action many years later. Also I helped my father in several appearances before the Veteran’s Affairs Tribunal – he was getting increases in his pensions re events occurring in WWII. There didn’t seem to be any need to rush, I thought.
37. Noting that s54(6) is concerned with the reasons for failing to claim – as opposed to the reasons for failing to give notice of injury under s53(1) – Mr Foley did have knowledge – as early as February 1988 or at the latest at approximately four years ago (refer to paragraph 15 earlier). His failure to claim until July 2002 was not by mistake.
38. Additionally North J recorded in Roycroft:
It follows from these authorities that a person who knows he has a right to claim compensation for the particular injury and knows that the time for making the claim is limited, but wrongly believes he has more time to make a claim than the Act allows, is mistaken as to the time for making the claim.
39. As a fact I am satisfied that Mr Foley knew of his rights to claim and the limitation on the time to claim. It is inconceivable that his association with a personal injuries lawyer (Mr Moleta) and with Slater & Gordon would not have involved discussion of time limits. His appearance at the Veterans’ Review Board on behalf of his father would have also put him on notice that there is a limit to when claims can be brought. I am not therefore satisfied that the failure to claim until 2002 was by mistake. The emotional reasons given as a basis for the failing to claim would also suggest a knowledge of rights but an inability to exercise them. This is not mistake. And it certainly is not ignorance.
Reasonable Cause
40. Finally, whether the circumstances surrounding the failure to make a claim amount to “reasonable cause” have been examined on a number of occasions by the Federal Court and by the Tribunal.
41. In Banks v Comcare (unreported decision of Kiefel J in the Federal Court, QG 118 of 1954 Fed No. 382/96) an applicant was aware he had suffered injury in employment and consciously decided not to claim. Her Honour found the expression “reasonable cause” referred to “some act or omission which operated to prevent the giving of notice and one which in the circumstances prevailing is consistent with the reasonable standard of conduct of such a nature that it might be expected to delay the giving of the necessary notice or claim”.
42. In Re Scutts and Department of Defence (1998) AATA 527 the Tribunal decided that the applicants’ failure to make a claim did amount to reasonable cause because the applicant had been “plagued” with ill health relating to his heart condition and was undergoing extensive treatment. He was also engaged in locating a home and obtaining other employment. It was decided that the basis to determine whether a “reasonable cause” existed was objective but over which subjective circumstances were to be considered. (Refer Willis and Australian Telecommunications Commission (1989) 10 AAR 352 at 394.)
43. Subjectively I cannot be satisfied that the circumstances of Mr Foley permit the extension of time to lodge his claim for compensation on the basis of “reasonable cause” within the meaning of Banks. Additionally, the circumstances of Mr Foley were very different to those in Re Scutts.
44. Having read the typed submissions of Mr Foley, I readily acknowledge that in the immediate and short term following his employment at Australia Post he was in a fragile emotional state. His graphic description of his behaviour and mood cause me to accept that he was then incapable of making a claim or reporting injury. These circumstances would, probably amount to “reasonable cause”. But on his own account, his health did improve as did his ability to cope and function and return to employment. By that time, the “circumstances prevailing” did not operate to “prevent the giving of notice” (refer Banks). For the reasons given above I am satisfied that at least during the period of time that he was employed at 7 Eleven between 1989 and 1990 he would have been able to lodge his claim. That period of time of course exceeded the six month limit imposed by s54 but it would have been at a point in time, much closer to the ending of the employment, when the memories of Mr Strongman and other witnesses might have been more acute and the doctors who were treating would have either retained their files or would have been in a position to provide reports. During that period of time, it would be difficult to comprehend the respondent being prejudiced, had a claim then been made. Whilst employed at 7 Eleven, Mr Foley was then living in Melbourne. His parents lived elsewhere. He could not then have been caring for them on a full time basis. It follows that he was not so overwhelmed by their care that he could not have made a claim upon the employer. I would also suggest that being able to undertake full time employment would involve a considerable degree of intellectual and emotional stability, sufficient to allow completion of a claim form and service on the employer.
Death, Absence from Australia
45. There was no evidence of the death of any person or the absence from Australia “of a person” which would explain the failure to lodge a claim in compliance with s53(1).
Correspondence Subsequent to the Hearing
46. This application was heard on 30 June 2003. When these reasons were about to be delivered, Mr Foley wrote to the Tribunal on 3 August 2003 in the following terms:
Hi! I realize it is probably too late, but it occurs to me that in my submission and testimony I left a few matters implicit which would better have served me if I’d made them explicit. I have continued the enumeration of points from those in my written submission forwarded to you prior to the hearing, so that they can just be added thereto.
47. The letter attached five typed pages of submissions which were forwarded to the solicitor for the respondent, with an invitation to comment. The solicitor’s responded in the following terms:
We consider it inappropriate for the Tribunal to entertain these further submissions some five weeks after the jurisdictional hearing and after cross-examination of the Applicant and closing submissions have taken place.
If the Tribunal in fact proposes to consider these further submissions and invite further submission from the Respondent we ask that the matter be listed for a directions hearing so that we can be heard.
48. It was my view, (after a review of the additional submissions), that they did not contain any material which would alter the conclusion I had reached when this decision was to be delivered in August. I intended again to deliver this decision, however, on 8 August 2003, the Registrar received another letter from Mr Foley in the following terms:
Hi! Because of pessimism regarding my case I left preparing my submission to very late in the piece. I would like to have contacted Dr Dunning, who was my GP when I was working at the P.O. If he still does indeed retain my records I believe these would buttress my case substantially.
You certainly have my permission/authority to subpoena these records if you see fit – if they still happen to be extant.
Dr Dunning’s postal address is: 47 Cotham Road, Kew 3101.
Many thanks for your time.
49. The Registrar wrote to Mr Foley on 13 August 2003 and suggested he should enquire whether Dr Dunning continues to hold his records of treatment.
50. On 20 August 2003, Mr Foley telephoned the Registrar who recorded the discussion in the following terms:
Applicant called in response to my letter of 13 August. He tried to contact Dr Dunning but found he’s moved to a new surgery in Blackburn. He contacted surgery number (98944999) but voicemail message indicates the doctor is away for the rest of August and leaves other contact numbers if locum or other services are required. He rang one of the other contact numbers and was advised by the receptionist that Dr Dunning is on holidays. It was also indicated that medical records may have been destroyed at the time of the relocation. Mr Foley indicated the treatment records related to appointments made 13 years ago.
I advised Mr Foley I would refer the matter to the Presiding Member for instructions.
51. On 9 September 2003 the Registrar wrote to Mr Foley and asked him whether enquiries had been made of Dr Dunning. On 10 September, Mr Foley telephoned the Tribunal and advised he had learnt that his records had been destroyed. Dr Dunning treated the applicant prior to, and subsequent to, his employment at Australia Post. The absence of his records strengthens the respondent’s submission as to prejudice.
52. In my view, these proceedings should be concluded and these reasons delivered. Mr Foley had more than an adequate opportunity prior to the hearing to deliver submissions (which he did) and make enquiries of doctors (which he also did). If an issue had emerged subsequent to the hearing which was material to the issue under review I would, as a matter of procedural fairness, hear submissions concerning a resumption. I am not satisfied that a material or any other issue has emerged.
Conclusion
53. For the above reasons expressed at paragraphs 31 – 45 inclusive I am not satisfied that the provisions of s53 and s54 have been satisfied and I cannot, in the circumstances, deem the claim to have been served in accordance with the provisions of s54(6).
I certify that the 53 preceding paragraphs are a true copy of the reasons for the decision herein of Mr J Handley,
Senior Member.Signed: Elsa Genovese
Personal AssistantDate of Hearing 30 June 2003
Date of Decision 15 September 2003
Counsel for the Applicant Self Represented
Counsel for the Respondent Mr J Ferwerda
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