Lee v Transpacific Industries Pty Ltd
[2013] FCA 1322
FEDERAL COURT OF AUSTRALIA
Lee v Transpacific Industries Pty Ltd [2013] FCA 1322
Citation: Lee v Transpacific Industries Pty Ltd [2013] FCA 1322 Parties: WAYNE LEE v TRANSPACIFIC INDUSTRIES PTY LTD File number(s): WAD 324 of 2012 Judge(s): SIOPIS J Date of judgment: 6 December 2013 Catchwords: APPEAL – whether to grant an application to extend time within which to appeal under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth).
WORKERS COMPENSATION – whether the employee suffered an injury within the meaning of s 5A of the Safety, Rehabilitation and Compensation Act 1988 (Cth) – an employer arranged for an employee to attend a medical appointment in a distant town in respect of a work related injury – the employer provided the transport for the round trip journey of 8 to 10 hours duration – the employee was injured when he slipped on the forecourt of a roadhouse while taking a toilet break on his way back from the medical appointment – whether the injury suffered at the roadhouse occurred in the course of the employment – whether the Tribunal properly applied the Hatzimanolis principle.
Legislation: Administrative Appeals Tribunal Act 1975 (Cth) ss 43(2), 43(2B), 44(2A)(a), 44(4)
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 5A(1), 5A(1)(b), 6(1)(f), 14, 62Cases cited: Hatzimanolis v ANI Corporation Ltd (1992) 173 CLR 473
Gregory v Comcare Australia (1997) 72 FCR 196
Comcare v PVYW (2013) 303 ALR 1
Repatriation Commission v Butcher (2007) 94 ALD 364
Statham v Federal Commissioner of Taxation (1988) 20 ATR 228Date of hearing: 21 February 2013 Date of last submissions: 20 November 2013 Place: Perth Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 61 Counsel for the Applicant: Mr A Anforth Solicitor for the Applicant: Slater & Gordon Lawyers Counsel for the Respondent: Mr B Kelly Solicitor for the Respondent: HBA Legal
IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
WAD 324 of 2012
BETWEEN: WAYNE LEE
ApplicantAND: TRANSPACIFIC INDUSTRIES PTY LTD
Respondent
JUDGE:
SIOPIS J
DATE OF ORDER:
6 DECEMBER 2013
WHERE MADE:
PERTH
THE COURT ORDERS THAT:
1.The applicant’s application of 21 November 2012 for an extension of time within which to appeal is allowed.
2.The applicant’s appeal is allowed.
3.The parties are to deliver a minute of orders in respect of relief and costs if they are able to agree, but in the event that they are not able to agree, the respondent is to file and serve its submissions within 7 days, and the applicant is to file and serve his submissions in response within 3 days thereafter.
Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
WAD 324 of 2012
BETWEEN: WAYNE LEE
ApplicantAND: TRANSPACIFIC INDUSTRIES PTY LTD
Respondent
JUDGE:
SIOPIS J
DATE:
6 DECEMBER 2013
PLACE:
PERTH
REASONS FOR JUDGMENT
This is an application for an extension of time within which to appeal from a decision of a Deputy President of the Administrative Appeals Tribunal (the Tribunal) dated 24 August 2012 and, if the extension of time is granted, to appeal from that decision.
MR LEE INJURES HIS ANKLE AT THE AUSKI ROADHOUSE
The applicant, Mr Wayne Lee, is, and was at all material times, employed as a supervisor by Transpacific Industries Pty Ltd (Transpacific) in Newman, a remote town in the Pilbara region of Western Australia. At all material times, Mr Lee and his partner, Ms Glenda Doole, lived in Newman.
In February 2011, Mr Lee sustained an injury to his right knee whilst at work. Mr Lee made a claim for worker’s compensation in respect of that injury and Transpacific accepted liability pursuant to s 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the SRC Act). By April 2011, Mr Lee had not returned to normal work. Mr Lee’s medical condition was reassessed on 11 April 2011 by Dr Manickam Muthu who recommended that Mr Lee’s condition be assessed by an orthopaedic specialist, Mr Colin Whitewood, who had a surgery in Port Hedland.
Mr Gary Vincent was, at the material time, employed by Transpacific as an occupational health and safety manager in respect of the Pilbara region. Mr Vincent’s duties included acting as the return to work coordinator for Mr Lee. In that capacity, Mr Vincent learned that Dr Muthu had recommended that Mr Lee’s condition be assessed by Mr Whitewood. Mr Vincent came to the view that “nothing was happening with Mr Lee’s claim”. Mr Vincent inquired of Mr Lee whether he had made an appointment to see Mr Whitewood. Mr Lee responded by saying that he understood it was Mr Vincent’s role to make appointments in respect of work related injuries. Mr Vincent then telephoned Mr Whitewood’s surgery and made an appointment for Mr Lee to see Mr Whitewood on 18 May 2011. Mr Vincent said in his evidence that he routinely made appointments for persons who had been injured at work to attend medical practitioners in respect of their work related injuries.
On 10 May 2011, Mr Vincent sent Mr Lee an email advising him of the details of the appointment with Mr Whitewood in Port Hedland. The evidence was that it takes between 8 to 10 hours to complete the round trip by motor vehicle between Newman, where Mr Lee lived and worked, and Port Hedland. Because of Mr Lee’s knee injury, it was not possible for Mr Lee to drive himself to Port Hedland for the orthopaedic specialist appointment.
In May 2011, Mr Lee’s partner, Ms Doole, was also an employee of Transpacific working in Newman. Mr Roger Fellows, Mr Lee’s manager at Transpacific, arranged for Ms Doole to have a day of compassionate leave on 18 May 2011, so that she could drive Mr Lee to the orthopaedic specialist appointment in Port Hedland. Further, Transpacific made available a company vehicle so that Ms Doole could drive Mr Lee from Newman to Port Hedland to attend the medical appointment.
On the morning of 18 May 2011, Mr Lee and Ms Doole left their home in Newman for Port Hedland. Ms Doole drove the company vehicle. Later that day, Mr Lee attended the appointment with Mr Whitewood. Mr Whitewood advised Mr Lee that an MRI scan would be necessary and gave Mr Lee a medical certificate for a month off work.
On the return journey from Port Hedland to Newman, Mr Lee and Ms Doole stopped at the Auski Roadhouse for a toilet break. The roadhouse was about 200 km from Newman. There was a pool of liquid on the forecourt of the Auski Roadhouse when they arrived. It was either oil or water. The Tribunal did not make a finding which it was. Mr Lee got out of the car and was on his way to the toilet when he slipped on the liquid and injured his right ankle. After some attention was given to Mr Lee’s ankle injury at the roadhouse, Mr Lee and Ms Doole resumed their journey and returned to their home in Newman that night.
Mr Lee’s injury to his ankle was serious. He subsequently underwent surgery.
MR LEE’S CLAIM FOR WORKER’S COMPENSATION IN RESPECT OF HIS BROKEN ANKLE IS REJECTED
On 30 May 2011, Mr Lee made a claim for worker’s compensation in respect of the ankle injury which he sustained when he slipped and fell at the Auski Roadhouse. In the claim form, Mr Lee described the injury as “[d]isplaced right lateral fracture with widening of mortis”. In response to the question, “What were you doing at the time you were injured”, Mr Lee stated:
Went to see doctor for Comcare and Transpacific regarding damage right knee, got out for toilet break slipped and right knee could not support body causing me to fall.
On 3 June 2011, a determination was made by Mr Michael Kelly for and on behalf of Transpacific under the SRC Act, that Transpacific was not liable to pay compensation to Mr Lee in respect of the ankle injury arising from his fall at the Auski Roadhouse. On 6 July 2011, Mr Lee requested reconsideration of this decision pursuant to s 62 of the SCR Act. On 9 August 2011, a reviewable decision was made by Ms Yvonne Peers, for and on behalf of Transpacific, under s 62 of the SRC Act which affirmed the initial determination.
THE TRIBUNAL REJECTS MR LEE’S APPLICATION FOR REVIEW
Mr Lee then applied to the Tribunal for a review of the decision made on 9 August 2011. On 24 August 2012, the Tribunal affirmed the decision under review.
The Tribunal determined that the issues raised by Mr Lee’s application, were whether Mr Lee’s right ankle condition:
(a)was to be treated as having arisen out of, or in the course of, Mr Lee’s employment with Transpacific pursuant to s 6 of the SRC Act;
(b)was an “injury arising out of, or in the course of,” Mr Lee’s employment with Transpacific, within the meaning of s 5A(1)(b) of the SRC Act and/or
(c)was suffered by Mr Lee “as a result of medical treatment of an injury”, within s 4(3) of the SRC Act.
The Tribunal answered each of those questions in the negative.
The 28 day appeal period in respect of the Tribunal’s decision expired on 21 September 2012.
THE APPLICATION FOR AN EXTENSION OF TIME TO APPEAL
The application for an extension of time to appeal was made on 21 November 2012. Transpacific was notified of Mr Lee’s intention to make the application on 8 November 2012.
Ms Irena Siljanoska swore an affidavit in support of Mr Lee’s application for an extension of time. Ms Siljanoska sought to explain the delay in appealing from the Tribunal’s decision. Ms Siljanoska deposed that she was a legal practitioner and had represented Mr Lee before the Tribunal. Ms Siljanoska deposed that she had limited experience with this area of the law. She said that after the Tribunal’s decision had been handed down, she gave Mr Lee advice as to his prospects of success in respect of any appeal from the Tribunal’s decision. After having received her advice, Mr Lee instructed Ms Siljanoska that he did not intend to pursue an appeal in respect of the Tribunal’s decision. The letter of advice was annexed to Ms Siljanoska’s affidavit.
Ms Siljanoska went on to depose that on 25 October 2012, Mr Allan Anforth, a barrister from Canberra, telephoned her to discuss the Tribunal’s decision. Ms Siljanoska said that Mr Anforth had told her that he was writing the headnote for the Tribunal’s decision for the Administrative Law Decisions reports which required him to check whether an appeal had been lodged. Mr Anforth went on to say, deposed Ms Siljanoska, that he thought the Tribunal’s decision had contained arguable errors of law such as would probably have led to an appeal having been lodged.
Ms Siljanoska deposed that she advised Mr Anforth that she would be interested in receiving his advice as to the errors of law to which he referred. Mr Anforth did so and Ms Siljanoska passed the advice on to Mr Lee who, on 26 October 2012, instructed Ms Siljanoska to seek an extension of time to appeal.
An appeal to this Court from a decision of the Tribunal lies on a question of law. The questions of law which Mr Lee has formulated in the draft notice of appeal are the following:
1.Whether the Tribunal misconstrued and failed to apply s 6(1)(f) of the SRC Act.
2.Whether the Tribunal misconstrued and misapplied the definition of “injury” in s 5A of the SRC Act in finding that the injury to Mr Lee did not arise out of or in the course of the employment of Mr Lee within the meaning of s 5A of the SRC Act.
3.Whether the Tribunal’s reasons for decision comply with ss 43(2) and 43(2B) of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act).
I made directions that the application for the extension of time and the appeal be heard together.
The Court has a discretion to extend the time for the bringing of an appeal under s 44(2A)(a) of the Administrative Appeals Tribunal Act 1975 (Cth).
One of the considerations which a court takes into account in determining whether to extend time within which to appeal is the merits of the proposed appeal. I have come to the view that there is merit in the proposed appeal. I am also satisfied with the explanation for the delay in bringing the appeal. A delay of approximately two months is not, in the circumstances of this case, an excessive period. When this factor is weighed with the explanation for the delay and the merit of the proposed appeal, I am satisfied that the application for an extension of time should be allowed.
I will, therefore, consider the appeal.
THE APPEAL
By reason of the view to which I have come, it is convenient to deal first with the second question of law formulated by the applicant in his draft notice of appeal.
Whether the Tribunal misconstrued and misapplied the definition of “injury” in s 5A(1) of the SRC Act
Section 5A(1) of the SRC Act provides:
(1)In this Act:
injury means:
(a)a disease suffered by an employee; or
(b)an injury (other than a disease) suffered by an employee, that is a physical or mental injury arising out of, or in the course of, the employee’s employment; or…
The Tribunal found that that Mr Lee’s right ankle injury did not arise out of, or in the course of, his employment, within the meaning of s 5A(1)(b) of the SRC Act. Mr Lee contended that the Tribunal erred in construing and applying the law in relation to each of the questions of whether Mr Lee’s injury, arose out of his employment, and whether the injury arose in the course of his employment.
I deal first with the Tribunal’s decision in relation to the question of whether the right ankle injury was an injury suffered by Mr Lee in the course of his employment.
In considering this question, the Tribunal paid particular attention to whether the ankle injury occurred between two discrete periods of work. The Tribunal commenced its analysis by referring to the following observations of Mason CJ, Deane, Dawson and McHugh JJ in Hatzimanolis v ANI Corporation Ltd (1992) 173 CLR 473 (Hatzimanolis) at 483:
The course of employment is ordinarily perceived as commencing when the employee starts work in accordance with his or her ordinary or overtime hours of work and as ending when the employee completes his or her ordinary or overtime hours of work.
…For the purposes of workers’ compensation law, an injury is more readily seen as occurring in the course of employment when it has been sustained in an interval or interlude occurring within an overall period or episode of work than when it has been sustained in the interval between two discrete periods of work.
The Tribunal also observed that the majority in Hatzimanolis had referred to the circumstance of an employee who is encouraged by his or her employer to see a doctor after working hours as an instance where any injury sustained by the employee while visiting the doctor, was “not ordinarily within the course of employment”.
The Tribunal went on to find that Mr Lee’s injury occurred in an “interval between two discrete periods of work”, namely, between his finishing work on 17 May 2011 and his next starting date after 18 May 2011. The Tribunal then observed:
That being the case, the applicant’s right ankle injury is not ordinarily to be regarded as having been sustained in the course of his employment with the respondent.
The Tribunal then made an important finding in relation to the circumstances of Mr Lee’s injury. At [54] of the decision, the Tribunal said:
In the present case, the Tribunal is prepared to accept that, by reason of Mr Vincent’s “proactively” making the appointment for the applicant to see Mr Whitewood in Port Hedland on 18 May 2011 and informing the applicant of the details of that appointment, and Mr Fellows arranging for Ms Doole to be granted compassionate leave on 18 May 2011 and the use of a company car for the purpose of her driving the applicant to Port Hedland to attend that appointment, the respondent impliedly encouraged, if not induced, the applicant to attend that appointment.
The Tribunal then cited the observations of Cooper J in the case of Gregory v Comcare Australia (1997) 72 FCR 196 (Gregory) at 201-202:
The logical corollary of the approach adopted by the majority in Hatzimanolis is that, ordinarily, an injury which occurs in an interval between two discrete periods of work, even if the injury occurs at a place or in the course of an activity which the employer induced or encouraged the employee to spend the interval in or doing, will not be an injury which occurs in the course of employment. This is because, putting aside injuries suffered while travelling to and from work and the like which are specifically provided for under the Act (see s 6), the end of the discrete period of work breaks any temporal connection between the employment and the place at which or activity during which the injury is sustained.
The example given by the majority in Hatzimanolis of the employee who is encouraged by his or her employer to see a doctor after working hours illustrates the point. Whilst it might be said that an injury sustained by the employee while visiting the doctor is in some way causally connected to his or her employment, there can be no question of a temporal connection.
That is not to say that an injury occurring in an interval between two discrete periods of work can never be one occurring in the course of employment. In any given case, there may be a feature or features of the particular facts and circumstances which establishes a sufficient temporal connection between the place or activity and the employment.
The Tribunal then went on to say:
In the present case – which the Tribunal regards as involving an “interval between two discrete periods of work” – the Tribunal is not satisfied that there are any “features of the particular facts and circumstances” which establish a temporal connection between the journey undertaken by [Mr Lee] on 18 May 2011 for the purpose of his attending the appointment with Mr Whitewood, in the course of which he sustained the right ankle condition, and his employment by the respondent. Nor (as previously stated) is the Tribunal satisfied that [Mr Lee’s] sustaining the right ankle condition is sufficiently causally related to his employment with the respondent (see paragraph 47 above).
In its observations, the Tribunal referred to, but did not identify those “features of the particular facts or circumstances” of a case, which might establish the requisite temporal connection. Nor did the Tribunal engage in an analysis of this issue by reference to the particular circumstances of this case.
In support of his appeal, Mr Lee contended that the Tribunal misapprehended and misapplied the test for whether an injury was incurred “in the course of employment” as espoused in Hatzimanolis. In particular, it was said that the Tribunal failed to give effect to its finding that the employer had impliedly encouraged or induced the employee to attend the orthopaedic specialist appointment.
The respondent supported the decision of the Tribunal, relying on the adoption by the Tribunal of the observations of Cooper J in Gregory, and, in particular, the reference therein to any employee being encouraged to visit a doctor after working hours.
Whilst this judgment was reserved, the High Court delivered judgment in the case of Comcare v PVYW (2013) 303 ALR 1.
The parties were given an opportunity to make submissions on the effect of PVYW for this case. Mr Lee contended that the decision supported his contention because it focused upon the importance of assessing the circumstances in which the injury occurred by reference to the nature of the activity which the employer had encouraged the employee to engage in, and the circumstances of the place at which the employee was at the time of the injury. Transpacific contended that the decision did adversely affect the approach which had been adopted by the Tribunal.
In PVYW, the High Court gave consideration to the proper application of the Hatzimanolis principle. At [38], French CJ, Hayne, Crennan and Kiefel JJ observed:
The starting point in applying what was said in Hatzimanolis, in order to determine whether an injury was suffered in the course of employment, is the factual finding that an employee suffered injury, but not while engaged in actual work. The next enquiry is what the employee was doing when injured. For the principle in Hatzimanolis to apply, the employee must have been either engaged in an activity or present at a place when the injury occurred. The essential enquiry is then: how was the injury brought about? In some cases, the injury will have occurred at and by reference to the place. More commonly, it will have occurred while the employee was engaged in an activity. It is only if and when one of those circumstances is present that the question arising from the Hatzimanolis principle becomes relevant. When an activity was engaged in at the time of injury, the question is: did the employer induce or encourage the employee to engage in that activity? When injury occurs at and by reference to a place, the question is: did the employer induce or encourage the employee to be there? If the answer to the relevant question is affirmative, then the injury will have occurred in the course of employment.
The Tribunal did not embark upon the inquiry identified by the High Court in the preceding paragraph. Rather, the Tribunal was distracted by the question of the characterisation of the “interval” during which the injury occurred, and the example of an employee visiting a doctor after working hours given by the High Court in Hatzimanolis. In failing to make an inquiry referred to by the High Court in PVYW, the Tribunal erred in law. It follows that Mr Lee’s appeal is allowed.
The next question is whether the matter should be referred back to the Tribunal for determination in accordance with the proper application of the Hatzimanolis test as explained by the High Court in PVYW.
The draft notice of appeal seeks relief in the form of a remittal of the matter to the Tribunal for a determination. The parties did not make submissions on this question, and I will give them an opportunity to do so.
However, it is my tentative view that the Court is in a position to exercise its powers under s 44(4) of the AAT Act without having to send the matter back to the Tribunal. This is because, in my view, on the application of the test as identified by the High Court in PVYW, the inevitable answer on the facts found by the Tribunal is that Mr Lee’s injury occurred in the course of his employment (Repatriation Commission v Butcher (2007) 94 ALD 364 at [19], Statham v Federal Commissioner of Taxation (1988) 20 ATR 228 at 234).
The first condition in the PVYW test is satisfied because the injury occurred whilst Mr Lee was not engaged in actual work when he sustained his ankle injury at the Auski Roadhouse.
The second question in the application of the PVYW test is: what was the employee doing when injured? There is no dispute that, having stopped at the Auski Roadhouse, Mr Lee was walking on the forecourt on his way to the toilet.
The next question (described by the majority as “the essential enquiry”) is how the injury was brought about: was it by reference to a place, or by reason of the employee being engaged in an activity? The question then is, whether the employer induced or encouraged the employee to be at that place or to engage in the activity.
First, as to the activity in which Mr Lee was engaged when the injury occurred, namely, taking a toilet break in the course of a long road trip, that activity was plainly within the scope of the activity which the Tribunal found that the employer had encouraged or induced Mr Lee to undertake. On that basis alone, the inevitable result of the application of the test in PVYW is that Mr Lee’s injury occurred in the course of his employment with Transpacific.
Secondly, in applying the PVYW test in the context of the circumstances of the injury and the place at which the injury occurred, the result is the same. It follows from the Tribunal’s finding that the employer encouraged or induced Mr Lee to undertake the road trip to Port Hedland, that the employer encouraged or induced Mr Lee to be at the Auski Roadhouse for the purpose of taking a toilet break, as an incident of undertaking that long road trip. On the facts found by the Tribunal, the injury occurred by reason of the presence of a liquid on the forecourt at the place at which Mr Lee was encouraged or induced by his employer to be. The injury, thus, occurred by “reference to the place”, namely, the slippery surface of the forecourt of the Auski Roadhouse, at which his employer had encouraged or induced him to be. On the application of the PVYW test, therefore, Mr Lee’s injury would also, on this basis, be found to be within the course of his employment with Transpacific.
In those circumstances, in my tentative view, there is no reason why the matter should be remitted to the Tribunal. However, before making orders which reflect this view, I will hear from the parties.
The other grounds of appeal
In light of the findings I have made, it is unnecessary to consider the other questions of law raised by Mr Lee. However, for the sake of completeness, I will mention briefly the conclusions to which I would have come.
Whether Mr Lee’s injury arose out of his employment
Mr Lee contended that the Tribunal erred in finding that Mr Lee’s right ankle condition did not arise out of his employment within the meaning of s 5A(1)(b) of the SRC Act.
I would have found that the Tribunal erred in finding that Mr Lee’s injury did not arise out of his employment, within the meaning of s 5A(1)(b) of the SRC Act. In short, the Tribunal found that the causal link between Mr Lee’s injury and his employment was too remote. I would have found that the Tribunal erred in law by failing to conduct an analysis of the circumstances in which the injury occurred and the relationship between these circumstances and Mr Lee’s employment before it came to the conclusion that it did.
Whether the Tribunal misconstrued and failed to apply s 6(1)(f) of the SRC Act
Mr Lee complained that the Tribunal had erred in construing s 6(1)(f)(ii) of the SRC Act
Section 6(1)(f)(ii) of the SRC Act relevantly provides as follows:
(1)Without limiting the circumstances in which an injury to an employee may be treated as having arisen out of, or in the course of, his or her employment, an injury shall, for the purposes of this Act, be treated as having so arisen if it was sustained:
…
(f)while the employee was at a place for the purpose of:
…
(ii) receiving medical treatment for an injury.
At [40] of the reasons, the Tribunal stated:
As regards para (f) of s 6(1) of the SRC Act, although [Mr Lee] had attended Mr Whitewood’s surgery in Port Hedland “for the purpose of…receiving medical treatment for an injury” within the meaning of subpara (ii) of that paragraph, he did not sustain the right ankle condition “while [he] was at [that] place” within the meaning of that paragraph; instead, he sustained that condition at the Auski Roadhouse between Port Hedland and Newman. Plainly, he was not at the Auski Roadhouse for any of the purposes referred to in para (f) of s 6(1). Accordingly, the Tribunal determines that para (f) of s 6(1) of the SRC Act is not satisfied in this case.
For the reasons given by the Tribunal, I would not have found that the Tribunal erred in its construction of s 6(1)(f)(ii) of the SRC Act.
Whether the Tribunal failed to provide reasons
Mr Lee contended that the Tribunal failed to comply with the statutory requirement to provide reasons, because the reasons were devoid of explanatory content.
I would not have found that the Tribunal erred in law in failing to provide reasons. The Tribunal’s reasons could justifiably be criticised as being truncated and conclusory in certain important respects. However, in my view, it cannot be said that the reasons were so devoid of content as to result in a finding that the Tribunal did not carry out its statutory task.
The appeal is allowed.
I will hear further from the parties in relation to consequential relief and costs.
I certify that the preceding sixty‑one (61) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Siopis. Associate:
Dated: 6 December 2013
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