Madex, Bianca v Paraquad Victoria
[2012] VCC 1523
•15 October 2012
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-11-03813
| BIANCA MADEX | Plaintiff |
| v | |
| PARAQUAD VICTORIA | First Defendant |
| and | |
| VICTORIAN WORKCOVER AUTHORITY | Second Defendant |
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JUDGE: | HIS HONOUR JUDGE MISSO | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 8 and 9 October 2012 | |
DATE OF JUDGMENT: | 15 October 2012 | |
CASE MAY BE CITED AS: | Madex, Bianca v Paraquad Victoria & Anor | |
MEDIUM NEUTRAL CITATION: | [2012] VCC 1523 | |
REASONS FOR JUDGMENT
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SUBJECT: ACCIDENT COMPENSATION
CATCHWORDS: injury to the lower back – whether the pain and suffering consequences were “serious”
LEGISLATION: Accident Compensation Act 1985, s134AB(38)(c)
CASES CITED: Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622
JUDGEMENT: leave granted to the plaintiff to bring a proceeding at common law pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 to recover damages for injuries for pain and suffering arising out of her employment with the first defendant
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Ferwerda | Maurice Blackburn |
| For the Defendants | Mr M Hooper | Minter Ellison |
HIS HONOUR:
Introduction
1 Before the Court is an application brought by Originating Motion filed 9 August 2011 by which the plaintiff applies for leave pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) to bring proceedings to recover damages for injury suffered by her arising out of the course of her employment with the first defendant.
2 The plaintiff seeks leave to bring such a proceeding for pain and suffering.
3 Mr J Ferwerda of Counsel appeared for the plaintiff and Mr M Hooper of Counsel appeared for the defendant.
4 The body function which the plaintiff says has been lost or impaired is the lower back.
5 The following evidence was adduced during the hearing:
· The plaintiff gave evidence and was cross-examined;
· The plaintiff tendered her Court Book (“PCB”), pages 17-43d and 51-59: Exhibit A;
· The defendants tendered their Court Book (“DCB”) pages 1-19; 41-44, and 56-65: Exhibit 1;
· Extracts of the clinical notes of the Hazelwood Health Centre: Exhibit 2;
· Extracts of the records of the Advantage Pharmacy: Exhibit 3;
· Film of the plaintiff taken on 5 and 6 December 2011: Exhibit 4.
6 The application is brought under the definition of “serious injury” contained ss(37)(a) of the Act which requires the plaintiff to prove that she has suffered a “permanent serious impairment or loss of a body function”.
The Statutory Scheme
7 The relevant considerations which apply to such an application are as follows:
(a) The plaintiff must prove that she has a suffered a compensable injury, that is, an injury which she suffered arising out of or in the course of her employment on or after 20 October 1999.
(b) The injury and the impairment must be permanent, that is, permanent in the sense that it is likely to last for the foreseeable future.
(c) Subsection (38)(c) provides that the impairment must have consequences in relation to pain and suffering and loss of earning capacity which, when judged by comparison with other cases in the range of possible impairments or losses of a body function, may fairly be described as being more than “significant” or “marked” and as being as least “very considerable”.
(d) Subsection (38)(h) provides that the psychological or psychiatric consequences of a physical injury are to be taken into account only for the purpose of paragraph (c) of the definition of “serious injury” and not otherwise.
(e) In conformity with Barwon Spinners Pty Ltd & Ors v Podolak,[1] I must identify the injury and the impairment said to be produced in consequence of the injury; whether the impairment is permanent, that is, likely to last for the foreseeable future, and whether the consequences for the plaintiff are such as to satisfy the “very considerable” test contained in ss(38)(c). I have applied the principles set forth therein in reaching my conclusions in this application.
[1](2005) 14 VR 622, at paragraph 11
8 I am required by s134AE of the Act to give detailed reasons which are as extensive and complete as the Court would give on the trial of an action and in doing so, to disclose my pathway of reasoning in dealing with the evidence and the issues raised by the application.
Background
9 The plaintiff was born in 1976. She is now thirty-six years of age. She has two children: a daughter who is twenty years of age, who has a child; and a second daughter, who is eleven years of age.
10 The plaintiff attended secondary school until she was in Year 11. She fell pregnant with her first child, which resulted in her schooling coming to an end. She has no vocational qualifications of any significance.
11 The plaintiff's work history leading up to the injury on which this application is based is modest. She worked in a milk bar in the early 1990s over a couple of years, working about four hours per week. She subsequently obtained a job selling flowers when she was in Western Australia in about 1999. She worked for about one month.
12 The plaintiff commenced employment with the first defendant in January 2006 undertaking part-time employment. The first defendant provides assistance for intellectually and/or physically disabled people.
The Incident
13 The plaintiff undertook shiftwork with the first defendant. She worked up to nine hours per week. The work she did was directed to a man named Peter who was physically disabled. She described him as being a man of heavy build.
14 On 14 March 2007, the plaintiff was attempting to transfer Peter to a recliner chair. She hoisted him down onto the recliner. She had her arms underneath his knees and was using one of her knees and her body weight to push him to the back of the recliner. As she was doing this she felt a twinge of pain in her lower back. She had difficulty straightening up, and when she did, she felt pain in her lower back.
The Plaintiff's Prior ill-health
15 One issue raised by the first defendant was whether the plaintiff was prescribed any painkilling medication as a consequence of the lower back injury.
16 The plaintiff developed ovarian cysts and endometriosis, probably going back to around 2000.[2] The conditions caused her significant abdominal pain. The clinical notes of the Hazelwood Health Centre reveal that on 30 July 1999, the plaintiff saw Dr Joseph, general practitioner, complaining of severe abdominal pain, which Dr Joseph considered was due to ovarian cysts.[3]
[2]Transcript 17
[3]Exhibit 2
17 On 7 September 1999, Dr Romilly, general practitioner, noted that the plaintiff continued to have problems with polycystic ovaries and referred her for a laparoscopy to have the cysts aspirated. On 4 October 1999, Dr Romilly noted that the plaintiff had been referred for an operation on 12 October 1999 relevant to her polycystic ovaries. The plaintiff was prescribed Endone for treatment of pain in her abdomen from 30 July 1999. The last prescription for Endone was 18 April 2000.
18 It would appear that the major health problem which plagued the plaintiff was persisting abdominal pain. The clinical notes reveal that on 31 August 2004, the plaintiff saw Dr Sossin. He recorded that the plaintiff was suffering from severe pain in her upper and lower abdomen and had suffered that sort of pain for about four years. The plaintiff was prescribed Kapanol. The dosage was one 50-milligram tablet per day.
19 The clinical notes reveal that on 8 October 2004, the dosage remained at 50‑milligrams, but the number of tablets was increased to two daily, every twelve hours with food. On my reading of the subsequent clinical notes, the dosage and the volume of tablets then remained the same up to the occurrence of the plaintiff's lower back injury, and thereafter.
20 The plaintiff was unable to recall when she was first prescribed Kapanol. Her recollection of the treatment which she obtained from about 1999 up until the time when she suffered the injury to her lower back was poor.[4] However, she did not suggest that the clinical notes were other than accurate.
[4]Transcript 16-18
21 The Kapanol seems to have been prescribed for the plaintiff principally to treat abdominal pain. The plaintiff said that the abdominal pain varies from week to week. She might suffer it for five to seven days straight. On the occasions when it is particularly bad, she rated it as an eight out of ten in terms of severity.[5]
[5]Transcript 22
22 The plaintiff was cross-examined about other medical conditions for which she sought medical treatment. She was referred to occasions when she sought medical treatment for urinary tract infections; upper respiratory tract infections; eye infections, and neck pain. It was put to the plaintiff that the Kapanol was not only prescribed for abdominal pain, but also for treatment of the pain which the plaintiff probably experienced when she suffered those other medical conditions.
23 It was the first defendant's intention to cross-examine Dr Nikolic, general practitioner, who works from the Hazelwood Health Centre. I was informed on the morning of the second day of hearing that Dr Nikolic was no longer required for cross examination. That left me in a situation where I was to make what I could of the clinical notes. There are two things which became reasonably obvious to me upon reading the clinical notes. Firstly, from the time when Kapanol was first prescribed, it would appear that the plaintiff was then in receipt of prescriptions on a regular basis. That is confirmed in the records of the Advantage Pharmacy, which demonstrate filling of prescriptions of Kapanol on a regular basis. Secondly, on occasions when the plaintiff was given prescriptions of Kapanol, they appear to me to be more in line with regular prescriptions and not specifically for the other medical conditions.
24 On the occasions when the plaintiff suffered those other medical conditions, she was taking Kapanol, but she was also prescribed other medication which was more appropriate for the treatment of the particular kind of infection from which she was suffering.
25 After the plaintiff suffered the injury to her lower back, there was no apparent change in the medication she was prescribed. The plaintiff thought there was, but clearly her impression was mistaken. She thought that after suffering the injury to her lower back she was prescribed Kapanol to be taken twice a day, increased from once a day.
The Plaintiff's Treatment
26 It would appear that the plaintiff first attended the Hazelwood Health Centre for treatment for her lower back on 10 April 2007. On that occasion, she saw Dr Mundae, general practitioner, who recorded that the plaintiff told him that she had pain in her lower back which had been getting worse over the preceding ten days. Curiously, Dr Mundae recorded that the plaintiff had not suffered a recent injury. In any event, it is of little consequence, because the defendants have admitted that the plaintiff has suffered a compensable injury.
27 The clinical notes also reveal that the plaintiff was treated predominantly by Dr Nikolic and Dr Mundae. Dr Nikolic provided two principal reports dated 10 December 2008[6] and 29 September 2012[7] in which she summarised the treatment provided to the plaintiff, and her opinion regarding the nature and extent of the injury to the plaintiff’s lower back.
[6]PCB 41-41a
[7]PCB 43a-43b
28 The plaintiff was referred to have a CT scan, which was taken on 26 April 2007. The radiologist reported that it demonstrated a minor L4-L5 disc bulge with minimal thecal sac contact.[8] The plaintiff was referred to have a second CT scan, which was taken on 6 December 2007. The radiologist reported that at the L4-L5 level, the disc showed minor reduction in height and generalised bulging of its annulus. The radiologist also reported that there was a dorsal left eccentric protrusion at the L5-S1 level which might have been indenting the left S1 nerve.[9]
[8]PCB 25
[9]PCB 26
29 Dr Nikolic said that the plaintiff was treated with strong analgesics, non-steroidal anti-inflammatories and physiotherapy. More particularly, she referred to the plaintiff taking Kapanol, 50 milligrams, twice a day, and non-steroidal anti-inflammatory medication when needed to help her manage her daily duties. She referred to the plaintiff having difficulty being able walk any reasonable distance or stand for more than half-an-hour. She was of the opinion that the plaintiff was not capable of returning to her pre-injury work, and she considered that the plaintiff required more physiotherapy to help her maintain strong back muscles and prevent further injury.[10]
[10]PCB 43a-43b
30 Dr Nikolic's reference to the use of Kapanol is in direct conflict with the submission made by the defendants that Kapanol was an established mode of treatment before the plaintiff suffered the injury to her lower back, and because the dosage had not changed, I could not conclude that the continued use of Kapanol was prescribed to treat the injury to the plaintiff's lower back. In the absence of anything to the contrary, I must take the evidence of Dr Nikolic on face value, and in doing so, I conclude that she considered that the use of Kapanol, at the regular dosage, was sufficient to treat the plaintiff's lower back pain as well.
31 Dr Nikolic referred the plaintiff to Mr Owen, orthopaedic surgeon. It would appear that the plaintiff saw him in February 2008. Mr Owen noted that the plaintiff had used some medication, had a few sessions of chiropractic treatment and some physiotherapy before seeing him. He also noted that the plaintiff was experiencing pain in her lower back which radiated into her left buttock and posterior thigh. Mr Owen advised the plaintiff that she should pursue conservative treatment, and in particular, physiotherapy, a rehabilitation program, a fitness program and strengthening.[11] He was of the opinion that the plaintiff had suffered a lumbosacral disc prolapse which was causing her some left sided leg pain.[12]
[11]PCB 27-28
[12]PCB 29
32 Dr Nikolic referred the plaintiff to Mr Malham, neurosurgeon. The plaintiff saw him on 21 October 2008. Mr Malham was of the opinion that the plaintiff was suffering from a mixed pattern of lower back pain, being discogenic and probably secondary to the L5-S1 disc prolapse, and right to left lower lumbar facet joint pain causing mechanical pain. He did not consider that surgery was necessary. He added Voltaren to her use of Kapanol. He gave her a referral to Dr Verrills, musculoskeletal physician, to be investigated to determine whether facet joint injections might assist her. The plaintiff did not see Dr Verrills.[13] Mr Malham was of the opinion that the plaintiff was not capable of returning to her pre-injury duties.[14]
[13]PCB 31-39
[14]PCB 37
33 The plaintiff continues to see Dr Nikolic monthly. She continues to use Kapanol at the same dosage referred to above.
34 Mr Gates, physiotherapist, treated the plaintiff from 13 June 2008 to 5 October 2009 on fourteen occasions. In a report dated 4 October 2012, he was of the opinion that the plaintiff would benefit from pain management; strengthening and stretching exercises, and a gym program.[15]
[15]PCB 43c-43d
The Medico-Legal Opinions
35 The plaintiff has been examined by a number of medical practitioners, all of whom are of the opinion that the plaintiff did suffer an injury to her lower back, and that as a result, she is not fit for her pre-injury employment, but is fit for suitable employment with restrictions which should be imposed upon her to avoid aggravating the condition of her lower back.
36 Mr Weaver, orthopaedic surgeon, examined the plaintiff on 5 February 2008. He was of the opinion that the plaintiff had injured her lumbar spine; however, he was no more specific than that.[16]
[16]DCB 63-64
37 Mr Gale, surgeon, examined the plaintiff on 26 August 2008. He was of the opinion that the plaintiff had suffered damage to an intervertebral disc in the lower lumbar spine.[17]
[17]DCB 57
38 Mr Jones, orthopaedic surgeon, examined the plaintiff on 27 May 2009. He was of the opinion that the plaintiff was suffering from mechanical back pain associated with lumbar disc degeneration.[18]
[18]DCB 42
39 Mr O’Loughlin, orthopaedic surgeon, examined the plaintiff on 24 November 2009. He considered that the plaintiff had suffered discogenic lower back pain secondary to an L5-S1 disc prolapse, probable damage to the L4-5 disc, and possibly aggravation to degenerative changes at that level.[19]
[19]PCB 52-53
40 Professor Marshall, surgeon, examined the plaintiff on 19 January 2010. He was of the opinion that the plaintiff had suffered a lower back strain. He referred to the evidence of disc injury and probable left-sided lumbar nerve root irritation demonstrated by the radiology, and then said that he accepted that she had suffered a lower back straining injury. It would appear that he accepted that the straining injury was consistent with the pathology demonstrated in the radiology.[20]
[20]DCB 11
41 Mr Kudelka, orthopaedic surgeon, examined the plaintiff on 2 October 2012. He considered that the plaintiff was suffering from chronic back pain associated with degenerative changes at L4-5 and L5-S1 lumbar disc levels.[21]
[21]PCB 56
42 Mr Polke, orthopaedic surgeon, examined the plaintiff on 28 June 2012. He was of the opinion that she was suffering from mechanical back pain with some radiological evidence of disc protrusion at the lower two lumbar levels.[22]
[22]DCB 4
43 Mr Jones suspected that there was an element of exaggeration on the part of the plaintiff and mused whether the presentation was associated with psychosomatic features. He thought that because of the effluxion of time, that the relationship between the occurrence of the plaintiff's lower back injury and her work had ceased; however, he did not disclose his path of reasoning in arriving at that conclusion. He is the only medical practitioner who expressed an opinion of that kind.
44 Mr Polke was of the opinion that the plaintiff no longer required opiate medication. He considered that she could self-manage by walking, undertaking core exercises, and otherwise did not require any active treatment.
45 The preponderance of the medical evidence is otherwise supportive of the conclusion that the plaintiff suffered a probable discal injury at L5-S1 and also at L4-5, with some pain referred from her lower back into her left buttock and leg. That is consistent with the opinion of Mr Owen and Mr Malham, who saw the plaintiff for treatment, and Mr Weaver, Mr Gale, Mr O’Loughlin, Professor Marshall and Mr Kudelka.
The Plaintiff's Consequences
46 Mr Hooper largely concentrated his attack upon the plaintiff's case by focusing on:
· The prescription of Kapanol, both before and after the plaintiff suffered injury to her lower back.
· The plaintiff's failure to undertake the recommended program of physiotherapy and back strengthening, which were referred to in many of the reports as being likely to be beneficial, and which might have led to an amelioration of her symptoms and a return to better functioning.
· The plaintiff's capacity to sit for longer periods than she was prepared to admit to, and to drive significant distances.
47 The plaintiff said that she could sit for about half-an-hour before she experiences pain. While sitting for about half-an-hour, she will move and wiggle about. If she sits for more than half-an-hour, she will experience pain in her lower back. She said she could not sit still for more than ten minutes. After about half-an-hour of sitting, she would become uncomfortable.[23]
[23]Transcript 33-34
48 The plaintiff said she could drive for more than one hour, but if she does, she will experience pain in her lower back. She said she had driven non-stop from Churchill to Melbourne – a drive of about two hours – but she would pay for it over the next two to three days.[24]
[24]Transcript 34-39
49 The plaintiff was shown film taken on 5 and 6 December 2011. The film commenced at 9:34 am on 5 December 2011. It is unnecessary to recount what was seen in the film because it provided the background to detailed cross examination undertaken by Mr Hooper to the effect:
· that the plaintiff left her home at Churchill at about 9:22 am and drove to Melbourne to a medical appointment;
· that the plaintiff sat in her car from 11:37 am until 12:22 pm and again for a further period of fifty minutes;
· that the plaintiff then drove back to Churchill.
50 The plaintiff admitted that she had driven to Melbourne from Churchill that day, and had probably sat at her car for periods of time not inconsistent with the periods put to her by Mr Hooper.[25]
[25]Transcript 50-52
51 However, the plaintiff's claimed consequences were not limited to an inability to sit for significant periods of time. In her first affidavit, she said the following:[26]
[26]PCB 19-20
· She has not worked since she suffered injury to her lower back, and after making some effort to return to work.
· She suffers constant pain in her lower back. Prolonged sitting, standing, walking distances, bending, twisting, lifting, coughing and sneezing increase the level of pain she experiences.
· Cold weather affects the level of pain she experiences in her lower back.
· She continues to suffer pain in her left leg, although it is not constant. Occasionally, she suffers pain in her right leg. She has suffered many flare-ups of pain.
· Her sleep is disturbed by the pain she experiences in her lower back. It has woken her at night and kept her awake. In the mornings, she sometimes does not feel rested.
· She is limited in domestic activities such as gardening; household chores; activities with her children, and sitting for prolonged periods of time to read.
· She avoids going out socially. She tends to stay at home instead of going out. Her relationship with family and friends has consequently been affected.
· Her memory, concentration, self-confidence and self-esteem have been affected by the injury to her lower back.
52 In her second affidavit, the plaintiff added the following:[27]
[27]PCB 23-24
· She uses an upright vacuum cleaner to avoid bending.
· She has paid her nephews and nieces to do her lawn mowing.
· She relies on her daughter to help her with household chores.
· She finds it difficult to bend, for example, to shave her legs and put on socks and shoes.
· Her sexual relationship with her partner has been affected by her lower back injury.
53 Mr Hooper submitted that I should have doubts about the plaintiff's creditworthiness. For example, he referred to the plaintiff's evidence that she was prescribed more Kapanol after the occurrence of the lower back injury, which is plainly wrong, and that the plaintiff can sit for significantly longer periods than she is prepared to admit to, as demonstrated by the film and the trip she made from Churchill to Melbourne.
54 Mr Ferwerda submitted that, apart from Mr Jones, none of the other medical practitioners who had treated the plaintiff or examined her on a medico-legal basis suggested that the plaintiff was exaggerating her symptoms or behaved in a manner creating some doubt about her creditworthiness. He invited me to consider that the plaintiff was a very simple woman who gave a good account of herself in the course of her evidence.
55 There can be no doubt that the plaintiff was wrong when she said that she was prescribed more Kapanol after she suffered injury to her lower back. There can be no doubt that she drove to Melbourne from Churchill and sat in her car for extended periods of time.
56 However, I am not prepared to accept that the Kapanol was not used by Dr Nikolic as a valid treatment for the plaintiff's lower back injury, as well as its use as a treatment for the plaintiff's abdominal pain. It seems to me that what Dr Nikolic conveyed in her reports is that Kapanol was being used as a general cover to treat pain experienced by the plaintiff, including her lower back.
57 I am likewise not prepared to accept that the fact that the plaintiff is able to drive significant distances means that she has a greater tolerance to sitting and is in less pain when she sits for significant periods of time than she described in her evidence. The plaintiff clearly said that she can sit for longer periods of time, but will be in pain, and she readily conceded that she has made significant road trips to Melbourne and to other destinations.
Findings
58 I find that the plaintiff suffered a significant injury to her lower back in the incident which occurred on 14 March 2007. I find that the injury is a discal injury consistent with the preponderance of the medical opinions. I reject the opinion of Mr Jones that the relationship between the injury and the plaintiff's work has ceased.
59 I find that the plaintiff has suffered persistent pain in her lower back with pain radiating intermittently into her left buttock and leg, and to a lesser extent into her right leg. I find that this is consistent with some degree of compression caused by a damaged disc, and, for example, consistent with the opinion of Professor Marshall, who described the mechanism which he believed was at work in causing that radiating pain.
60 I find that the impairment of the function of the plaintiff’s lower back has the consequences which I have summarised in paragraphs 43 and 44 above. I consider that the plaintiff gave her evidence in a reasonable fashion. She struck me as a very simple woman with a modest education who struggled to understand questions asked to her and to give direct answers. She often paused, clutching her head in her hands as if she was agonising, trying to search for as truthful an answer as she could give. Furthermore, I have compared the plaintiff's oral evidence with her affidavits and the histories given to examining medical practitioners and have concluded that there is nothing in the plaintiff's evidence which I consider undermines her creditworthiness.
61 In the absence of any explanation by Dr Nikolic of the clinical notes, I am left with her reports, which I can only interpret to mean that she considered that Kapanol was also a treatment for the plaintiff's pain in her lower back, and there is evidence that the plaintiff was prescribed non-steroidal anti-inflammatory medication as well.
62 Whilst the plaintiff has not had any particularly active medical treatment over the last two years or so, it seems to me that there is probably no treatment that can be provided to her. The preponderance of the medical evidence suggests that she might need more treatment if her condition worsens, but might achieve an amelioration of her symptoms and a return to better functioning with more physiotherapy and back strengthening.
63 The difficulty I have with all of those statements is that no treating medical practitioner has referred the plaintiff to have that sort of treatment. The plaintiff has been left in a void, so to speak. Furthermore, the plaintiff has had a degree of treatment which has not improved the condition thus far, so the proposal that further symptomatic treatment might have some good effect needs to be seen in that light.
64 There are a number of statements in many judgments of the Court of Appeal to the effect that constant pain; interference with daily activities; interference with sleep and the use of medication are consistent with an impairment of function which is serious. Whilst I am not prepared to be so dogmatic in applying a description of that kind to applications of serious injury generally, it seems to me that those statements are the guidance which must be considered. All of those features referred to in those statements are present in the plaintiff’s circumstances.
65 On the basis of the foregoing analysis of the medical evidence and my acceptance of the plaintiff's evidence, I consider that the pain and suffering consequences suffered by the plaintiff are “serious”.
Conclusion
66 On the basis of the foregoing reasons, findings and conclusions, I grant the plaintiff leave to bring a proceeding at common law pursuant to s134AB (16)(b) of the Act to recover damages for injuries for pain and suffering arising out of her employment with the first defendant.
67 After discussion with counsel, I will pronounce formal orders and will hear the parties on the question of costs.
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