Stanley v Lachlan Shire Council
[2024] NSWPIC 542
•1 October 2024
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Stanley v Lachlan Shire Council [2024] NSWPIC 542 |
| APPLICANT: | Jammie Michael Stanley |
| RESPONDENT: | Lachlan Shire Council |
| MEMBER: | Diana Benk |
| DATE OF DECISION: | 1 October 2024 |
CATCHWORDS: | WORKERS COMPENSATION - Workers Compensation Act 1987; claim for whole person impairment arising out of consequential condition of sleep disorder and gastrointestinal disorder as a result of accepted injury to lumbar spine; respondent disputed that the applicant had sustained consequential condition; Murphy v Allity Management Services Pty Ltd, Kooragang Cement Pty Ltd v Bates, and Kumar v Royal Comfort Bedding Pty Ltd considered; applicant sustained consequential condition of sleep disorder and gastro intestinal disorders as a result of injury to lumbar spine; unbroken chain of causation; Held – award for applicant with respect to consequential conditions claimed and the matter be referred to a Medical Assessor to assess impairment arising out of frank injury to the lumbar spine and consequential conditions. |
| DETERMINATIONS MADE: | The Commission determines: 1. The applicant sustained a workplace injury to his lumbar spine on 17 February 2014. 2. The applicant developed consequential conditions to the upper and lower gastrointestinal tract and a sleep disorder as a result of the lumbar spine injury. 3. The matter is to be remitted to the President for referral to a Medical Assessor for assessment of whole person impairment arising from the following; Date of injury: 17 February 2014. Body system: lumbar spine; upper gastrointestinal tract; lower gastrointestinal tract, and sleep disorder. 4. The Medical Assessor is to be provided with the following information; (a) Application to Resolve a Dispute and attachments; (b) Reply and attachments, and (c) this statement of reasons. |
STATEMENT OF REASONS
BACKGROUND
Jammie Stanley (the applicant) made a claim for lump sum compensation arising out of workplace injury on 17 February 2014 whilst employed by the Lachlan Shire Council (the respondent).
Following assessment, the respondent’s insurer declined to make an offer on the basis the claimed injury to the lumbar spine did not reach threshold under the provisions found in the Workers Compensation Act 1987 (the 1987Act). It also declined the claimed consequential lower gastrointestinal (medication induced gastrointestinal motility disorder), upper gastrointestinal gastro oesophageal reflux disease (GORD) and sleep disorder conditions. Internal review was unsuccessful resulting in the filing of an Application to Resolve a Dispute (ARD) in the Personal Injury Commission (Commission).
The matter underwent the usual case management pathway and following conciliation impasse, proceeded to Arbitration where liability for the consequential conditions claimed remained the sole issue in dispute.
The applicant was represented by Mr Grimes of counsel instructed by Mr Lehmann. The respondent was represented by Mr Saul of counsel instructed by Mr Franco. Mr Payne was the insurer representative.
The issue for determination is narrow but complex, relevantly whether the claimed consequential conditions result from the workplace injury to the lumbar spine on
17 February 2014.In determining this issue, I considered the documents attached to the ARD, the Reply and submissions of counsel. No oral evidence was adduced.
Procedural history
It is relevant to note previous determinations relating to the above injury.
In proceedings (W1492/15)[1] findings were made that L5/S1 discectomy was not reasonably necessary, despite liability being accepted for the lumbar spine injury.
[1] Workers Compensation Commission – 17 August 2015.
In proceedings, (W3978/20)[2] it was determined that the applicant suffered consequential injury (weight gain) arising from the accepted lumbar spine injury and bariatric surgery was reasonably necessary. This was undertaken and funded by the insurer.
EVIDENCE
[2] Workers Compensation Commission – 28 October 2020.
Applicant’s statements
I learned from the applicant’s multiple statements that he was a plant operator and labourer and suffered a back injury as a result of a collision with a rubber tyre roller machine. Lumbar surgery was recommended but as indicated above the claim was unsuccessful. Conservative treatment failed ultimately resulting in the insertion of a spinal stimulator to assist with pain in the back and legs, but which largely has fallen short of expectations regarding pain management requiring the continuation of a cocktail of medications. Inactivity resulted in approximately 60kg of weight gain prompting referral for gastric sleeve surgery, initially declined but ultimately Awarded by the Commission and undertaken on
3 December 2020.Despite weight loss, pain in the back continues and following bariatric surgery, symptoms of heartburn, bloating, reflux, nausea, vomiting, constipation are regularly experienced with the development of hemorrhoids. Sleep is disturbed on account of pain and reflux. The gastrointestinal symptoms (a combination of GORD and motility disorder) and sleep disturbance were not present prior to the back injury.
Medical evidence
Lumbar spine
Whilst this injury is not in dispute, it is necessary to briefly recount the evidence to enable an understanding of the current overall presentation.
Associate Professor Hope reported on behalf of the applicant on 17 March 2017, [3] recording constant low lumbar pain worse with movement and better with rest, affecting nightly sleep and requiring MS Contin, Panadeine Forte and Palexia on a daily basis. Right sciatica extending into the hamstring, calf and muscle was documented with lifting standing/sitting tolerance of 5kg and 10 minutes respectively noted. Pathology was deemed organic with no element of exaggeration and he concluded the history, signs and symptoms were consistent with the mechanism of injury. The medication regime was considered appropriate but a spinal stimulator was deemed necessary. On finding the applicant had asymmetrical loss of movement and interference with activities of daily living, he was classified as DRE Lumbar Category II and assessed with a 7% whole person impairment.
[3] Folio 89-93 of the ARD.
Dr Fulop, rehabilitation physician was qualified for the respondent and reported on
28 February 2017.[4] She records a consistent history of back injury and treatment with epidural injections, physiotherapy and acupuncture also noting a surgical request. She records the applicant was referred to Dr Ian Thong, pain specialist in 2015 due to his ‘enormous intake of narcotic analgesia’. There was some success in reducing intake of such medication and the applicant was ultimately referred to Dr Nathan Taylor, another pain specialist who recommended the spinal cord stimulator.[4] Folios 127 to 134 of the ARD.
Dr Fulop recorded “constant pain unless he has a ‘high’ from tablets”. The intake of MS Contin, Panadeine Forte, Palexia and Valium was recorded. Dr Fulop recorded a pain focus and the applicant’s free admission to ‘using large quantities of narcotic analgesia in an attempt to dull his pain’.
Overall, Dr Fulop concluded employment was the substantial contributing factor for the back injury; the medication was inappropriate due to what she considered was an addiction to prescribed narcotic analgesia which she recommended weaning. Physiotherapy was considered futile and she supported drastic weight loss and a graduated exercise program. She diagnosed an iatrogenic narcotic addiction.
Professor Ehrlich, orthopaedic surgeon, was qualified by the respondent and concluded that the applicant had reached maximal medical improvement at the time of his assessment on 15 January 2015.[5] He assessed the applicant as meeting DRE Lumbar category II on the basis of non-verifiable radicular symptoms.
[5] Folio 136 of the ARD
Dr Peter Georgius, pain and rehabilitation specialist treated the applicant and reported on
31 March 2020.[6] He recorded a 64kg weight gain as a result of the injury which had an ‘undesirable effect from biomechanics worsening lower back pain’. The spinal cord stimulator improved leg but not back pain. Further review on 11 January 2021[7] confirmed the ongoing ‘disabling lower back pain’, discussion relating to medicinal cannabis (THC) -ultimately deemed unsuitable and an approach on the TGA for approval of a trial of medicinal cannabis with purified CBD in an attempt to reduce the reliance on MS Contin.[6] Folio 139 of the ARD
[7] Folio 223 of the ARD
I reviewed the clinical notes produced by the Melrose Street Medical Centre, Condobolin which reveal the applicant was a patient since 2002. The documents inform me that the applicant did seek pain relief and Duromine (a weight loss drug) prior to 2014 but on multiple occasions the pain relief was refused. Specifically, I note the applicant did have an injury to his back and was declined morphine on 23 April 2009[8] and had been prescribed Panadeine Forte for pain on an infrequent basis as early as 2009. Duromine was prescribed for weight loss as early as 2013,[9] with prescriptions for pain relief increased following the workplace injury.
[8] Folio 292 of the ARD
[9] Folio 303 of the ARD
Sleep disturbance
Dr Thong, pain specialist physician records sleep disturbance as early as 2017 noting that “normison are not working, either ineffective or resistant, Seroquel works better”.[10]
[10] Folio 467 of the ARD
Dr Freiberg (respiratory and sleep medicine physician) was qualified by the applicant and reported on 25 February 2022.[11] He concluded the applicant has:
“sleep disordered breathing is mild and this aspect would have benefited greatly from the weight loss due to bariatric surgery. Treating the mild sleep disordered breathing is unlikely to have significant benefit to his overall sleep consolidation. The best approach for this sleep disordered breathing now is to side sleep, attempt to lose further weight, and when possible minimise his respiratory suppressant medications which include Seroquel and MS Contin. It is likely without these medications he would have no significant residual sleep disordered breathing…(my emphasis).
…On the other hand he has a significant sleep disruption and fragmentation predominantly due to his chronic pain and reflux symptoms. The latter have only occurred since he had bariatric surgery which was only necessary because of the weight gain he had as a result of his work injury. He appears to have reached maximal medical improvement in regard to his chronic pain management and his gastrointestinal problems. As such he is left with a disturbed sleep due to pain and discomfort from his lumbar spine, the wound from his bariatric surgery and the reflux he experiences from his bariatric surgery.”
[11] Folio 54 to 57 of the ARD
In his report dated 18 November 2022,[12] reference was made to the sleep study where repetitive awakenings were noted. It was concluded:
“the aetiology of these awakenings and arousals are most likely his chronic pain and these still occur despite narcotic analgesia and a major tranquilizer before sleep. These sleep disturbances prevent Mr Stanley attaining adequate amounts of deep sleep
…Mr Stanley’s disorder is waking constantly due to pain from his oesophageal reflux, arousals due to chronic pain affect a restful nocturnal seep pattern. If this results in daytime hyper somnolence then Mr Stanley has experienced a significant impairment from a consequential sleep injury due to his primary physical injury.”
[12] Folio 52 of the ARD.
Dr Freiberg acknowledged that the Epworth sleepiness score is a subjective self-reporting assessment although noted scores were largely consistent despite the tests undertaken three months apart. He concluded that the applicant met the criteria for “arousal and sleep disorders including disorders relating to initiating and maintaining sleep or inability to sleep”.
Relevantly, Dr Freiberg records (unedited):
“this man’s sleep and arousal disorder is multifactorial but all these factors relate to his work place injury. This includes the chronic pain that he experiences varying between 6-10 out of a maximum of 10 during the day and at night, the medications he requires for his pain which are sedating and are respiratory suppressants, and the reflux he has developed as a result of the bariatric surgery he needed for his weight gain complicating his work injury.”[13]
[13] Folio 57 of the ARD.
Professor Thomas, respiratory and sleep physician was qualified by the respondent reporting on 19 September 2022.[14] He diagnosed mild sleep obstructive apnoea likely a result of GORD secondary to gastric banding and probably back pain. He continued:
“in my opinion, the mild obstructive sleep apnoea is unrelated to his low back injury. Any disturbance of his sleep overnight is related to his GORD and possibly to pain from his low back injury. The latter aspect would be addressed by an orthopaedic surgeon and does not require a separate assessment for sleep disturbance.
…the contribution of sleep fragmentation is not calculated separately as this is more likely than not secondary to the gastroesophageal reflux disease and his back pain and the Guides indicate that these should not be assessed in this section (Respiratory or Sleep) but under the relevant system, in his case orthopaedic assessment.”
[14] Folio 98 to 109 of the ARD.
Gastrointestinal complaints
Dr Anthony Greenberg, general and gastrointestinal surgeon was qualified on behalf of the applicant. In his report dated 16 June 2022[15] he concluded the documented ingestion of Panadeine Forte, Seroquel and MS Contin were well recognised as having an impact on gastro intestinal motility (lower gastro intestinal tract) and considered the applicant’s complaints of rectal bleeding, constipation, bloating, distention, cramps and haemorrhoids were the result of long term use of opioids and psychotropic medications. He diagnosed medication-induced gastrointestinal motility disorder and considered the history, symptoms and clinical examination were consistent and assessed whole person impairment with respect to the lower gastro intestinal tract.
[15] Folio 58 to 72 of the ARD.
Symptoms in the upper intestinal tract, were considered a sequelae to bariatric surgery resulting in constant nausea, burning acid like feeling, recording the applicant informed him that “when he lies down the reflux runs up into his neck and into his mouth” and “I spew in my sleep” and that he “wakes up many times during the night and on average it could be up to 10 times during the night and his sleep is constantly disturbed”. A diagnosis of GORD was advanced and he reported it is medically accepted that a small cohort of patients suffer refractory GORD following gastric sleeve surgery.
Dr Sethi, gastroenterologist, was qualified by the respondent. His report dated
27 August 2022[16] confirmed diagnoses of GORD, irritable bowel syndrome (IBS) and haemorrhoids. He concluded that previous gastric sleeve surgery had contributed to GORD, and medical literature supports this due to alteration in gastric anatomy. Bloating, fullness, constipation and distention were considered to be the result of IBS. He concluded the bariatric surgery was in his opinion unrelated to the work injury (however this conclusion has no bearing given the previous determination and Award of the Workers Compensation Commission).[16] Folio 110 to 125 of the ARD.
Dr Sethi accepted that gastrointestinal motility disorder is known to develop due to the ingestion of analgesic agents but considered that as the applicant had not complained of such symptoms until 2019, despite taking such agents since 2015, that the “prolonged time gap essentially rules out any causative cause for his analgesic agents” as… “had they been responsible, one would have reasonably expected his symptoms to have started soon afterwards”.
Dr Sethi also concluded “the lower back injury has not occasioned the gastrointestinal condition in terms of pathological change to the worker. It played no role and his gastrointestinal conditions have developed regardless”.
Submissions
When summarised the mainstay of submissions on behalf of the applicant were;
(a) the evidence establishes on the balance of probabilities the consequential conditions arise from the back injury and the fact that the level of impairment assessed is not significant, does not discount the history of multiple pain intervention modalities including the insertion of a spinal stimulator which has failed to offer relief, thereby still requiring the applicant to remain on his medication regime;
(b) the qualified opinions of the respondent acknowledge the applicant has a sleep disorder and upper and lower gastro intestinal conditions. There is no contest in regard to diagnosis but rather causation, and
(c) excessive weight gain arose due to a combination of inactivity following the back injury and the ingestion of medication. The applicant has had bariatric surgery to address this and has lost a significant amount of weight but his back pain remains requiring the ongoing use of medication for pain. Gastrointestinal symptoms arising from the post-operative sequelae and medication use are well recorded and an application of the common sense test can only result in the claims for the consequential conditions being established.
When summarised, the mainstay of submissions for the respondent were;
(a) the evidence relating to the lumbar spine is stale and the applicant has failed to provide updated assessments;
(b) the applicant’s statements of pain appear to be out of proportion with the clinical signs and ultimate impairment assessment (DRE Category II) and therefore cannot justify the extensive reliance on medication;
(c) the applicant has failed to demonstrate the claimed his consequential conditions (apart from possibly the upper gastrointestinal tract) result from his accepted back injury. The failure to establish a material contribution should result in the failure of his claims;
(d) as regards the consequential claim for sleep disorder, there can be multiple factors for such disorders. It is well known that much of the population suffers sleep disturbance and there is nothing in the medical evidence which clearly supports an unbroken causal connection to his back injury. It has been postulated that weight gain and obesity interfered with the sleep, but as the applicant has lost one third of his habitus due to the bariatric intervention, this is no longer arguable, and
(e) as for the medications, many of the medications taken do not appear to relate to the treatment of the back condition. For example Seroquel (and other similar medications) are an antipsychotic which suggests that the applicant is being treated for psychological matters that are disconnected to this claim.
In reply it was submitted;
(a) the medical evidence establishes that Seroquel was prescribed for sleep, when other medications failed to offer relief;
(b) the respondent has no evidence to validate submissions that the medications ingested are unrelated to the lumbar spine condition or excessive, and
(c) the applicant has discharged his onus of proof.
APPLICATION OF THE LAW, FINDINGS AND REASONS
The applicant claims consequential conditions relating to sleep disorder and the gastrointestinal system as a result of the accepted injury to the lumbar spine.
The 1987 Act does not define a consequential condition. Authorities establish the following key principles (which by no means are exhaustive):
(a) the applicant bears the onus of establishing the existence of a consequential condition on the balance of probabilities[17] (Kumar);
[17] Kumar v Royal Comfort Bedding [2012] NSWCCPD 8.
(b) each case must be determined on its own facts;
(c) it is unnecessary for a worker alleging such a condition to establish that it is an ‘injury’ (including ‘injury’ based on the ‘disease’ provisions) within the meaning of s 4 of the 1987 Act[18] (Moon);
(d) in order to establish a condition, there is to be a ‘common sense evaluation’ of the causal chain, determined on the basis of the evidence, including expert opinions[19] (Kooragang);
(e) a finding of a consequential condition does not require the identification of pathology[20] (Kumar);
(f) a consequential condition occurs when an applicant experiences a new injury or condition due to the effects or consequences of their original work-related injury;
(g) reliable and contemporaneous medical evidence plays a significant role in establishing causation;
(h) there must be an unbroken chain of causation from the injury to the development of the consequential condition;
(i) it is not necessary the applicant prove he suffered from ‘injury’ to sleep or gastrointestinal systems; all he needs to demonstrate is that the symptoms arise from the accepted back injury;
(j) the test of causation in a claim for lump sum compensation is the same as it is in a claim for weekly compensation, namely, has the loss ‘resulted from’ the relevant work injury[21] (Sidiropoulos), and
(k) the absence of treatment is not fatal to the applicant’s claim of the presence of a consequential condition[22] (Baker).
[18] Moon v Conmah Pty Limited [2009] NSWWCCPD 134 (Moon).
[19] Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452 (Kooragang).
[20] Kumar v Royal Comfort Bedding [2012] NSWCCPD 8.
[21] Sidiropoulos v Able Placements Pty Limited [1998] NSWCC 7; (1998) 16 NSWCCR 123; Rail Services Australia v Dimovski & Anor [2004] NSWCA 267; (2004) 1 DDCR 648.
[22] As DP Roche noted in Baker v Southern Metropolitan Cemeteries Trust [2015] NSWWCCPD 56, there is no requirement for corroboration in the context of a civil case particularly where an injured worker’s credibility is not an issue (see also Chanaar v Zarour [2011] NSWCA 199 at [86]).
Having regard to the authorities above and the medical evidence, I find;
Lumbar spine
There is no dispute the applicant sustained a back injury on 17 February 2014. As a result the applicant has undergone extensive interventions including the insertion of a spinal stimulator which has failed to resolve the pain in his lumbar spine resulting in ongoing medically supported and supervised pharmacological interventions. I so find.
Upper gastrointestinal tract
Doctor’s Greenberg and Sethi acknowledge that GORD and reflux are known sequelae of bariatric surgery. The bariatric surgery was determined to be reasonably necessary and to arise from a consequential condition (obesity) from the lumbar spine injury. There is medical consensus in this regard and on the balance of probabilities, and with a degree of actual persuasion I find the applicant has suffered a consequential condition to the upper gastrointestinal tract. I appreciate that Dr Sethi considered this to be unrelated to the lumbar condition, however that hypothesis is inconsistent with previous findings of the Commission which remain undisturbed. I find that the GORD and reflux arises predominantly from the bariatric surgery which has already been established as being consequential to the lumbar spine injury (in previous determinations). I appreciate that Dr Sethi reconciled some of the symptom profile to be due to IBS but this is not supported by the clinical notes and again the symptoms are recorded as only occurring post bariatric intervention.
Lower gastrointestinal tract
Again, there is a degree of medical consensus with both qualified doctors acknowledging that motility disorder can arise from prolonged use of the medication taken by the applicant. Dr Sethi considered that if such symptoms were present as a result of the ingestion of medication to manage the back pain, that they would have been present prior to 2019, this being the foundation for his wholesale rejection of the condition being related to the lumbar spine condition. Overall, the absence of contemporaneous evidence is not determinative on the issue of causation where there is other evidence.[23] Whilst independent corroboration of complaints is helpful in assessing the probative value of the evidence overall, such evidence is not a ‘requirement’ that must be satisfied before I can feel actual persuasion about the existence of fact in issue.
[23] Bugat v Fox [2014] NSWSC 888.
The respondent submitted the cocktail of medications taken by the applicant is and was out of proportion to the actual pathology and that a portion of the drugs were unrelated to the orthopedic complaints (for example Seroquel). At first blush this is a logical submission, however unable to be maintained as the evidence reveals Seroquel was to assist with sleep, given that other agents had failed. Further, I cannot ignore, rightly or wrongly, that the ongoing prescription of medications discussed above has been medically supervised and authorised by not only the applicant’s general practitioner but also his pain management specialists both before and after the spinal stimulator implant. Dr Fulop as early as 2017 identified an addiction disorder diagnosing the applicant as having an iatrogenic[24] narcotic addiction and the medical evidence suggests that this has remained unchanged since that time.
[24] Defined to mean a condition induced unintentionally by a physician or surgeon or by medical treatment.
Review of the clinical notes reveals that the applicant had even prior to this injury requested strong opioid medication including morphine and Panadeine Forte but prescriptions were few and far between, only becoming consistently and continuously prescribed after the 2014 injury.
Overall, I find on the balance of probabilities, and with a degree of actual persuasion the applicant has a consequential condition to the lower gastrointestinal tract as a result of the medications taken to manage the lumbar spine injury.
Sleep disorder
Initially I was persuaded by the opinion of Dr Thomas who suggested that the sleep difficulties arose out of a combination of symptoms arising from the lumbar spine and gastrointestinal tract and therefore do not attract an assessment with reference to the impairment tables, as this could possibly allow for a duplication in assessments. This is entirely correct, however overall such matters ultimately become the province of consideration by a Medical Assessor.
My role is confined to assessing whether the evidence sufficiently establishes that any sleep disorder results from the accepted lumbar spine injury.
The presence of sleep disturbance is documented as early as 2017, wherein the clinical notes reveal that Normison, a benzodiazepine was prescribed for sleep disturbance said to arise out of pain from the lumbar spine. The notes indicate this was ineffective and so replaced by Seroquel.
Again, there is a degree of medical consensus between Dr Freiberg and Dr Thomas, with both doctors agreeing that there is a sleep disorder, although their views on causation differ. Dr Thomas initially opined, the mild obstructive sleep apnoea is unrelated to his low back injury but then seems to redact this view by stating “any disturbance of his sleep overnight is related to his GORD and possibly to pain from his low back injury”. This is similar in view to Dr Freiberg who concluded:
“the sleep and arousal disorder is multifactorial but all these factors relate to his work place injury. This includes the chronic pain that he experiences varying between 6-10 out of a maximum of 10 during the day and at night, the medications he requires for his pain which are sedating and are respiratory suppressants, and the reflux he has developed as a result of the bariatric surgery he needed for his weight gain complicating his work injury.”
The respondent relevantly argued that the basis upon which Dr Freiberg made his diagnosis and findings was subjective, because the Epworth Sleepiness Score was a self-reporting tool. I agree that this score is a self reporting tool, subjective and not really reliable in the personal injury sphere. However the study results were repeatable and consistent with the documented complaints of sleep disturbance arising from pain since at least 2017 for which the applicant has been prescribed various medications. The sleep disturbance has amplified since bariatric surgery arising from weight gain, (a condition which has found to be consequential in earlier proceedings and which remain undisturbed).
I therefore find that the balance of probabilities, and with a degree of actual persuasion the applicant has a consequential sleep disorder condition, admittedly multi factorial but related to the lumbar spine injury. This finding is made following a common sense evaluation (Kooragang) of the sequence of events which reveals the back injury resulted in persistent physical symptoms, resulting in sleep disturbance and fatigue with sleep now also being interrupted by the symptoms arising from bariatric surgery.
Further, I find on the evidence, that there is an unbroken chain of causation in the development of the consequential conditions in the upper and lower gastrointestinal tract and the sleep disorder and the injury to the lumbar spine.
The respondent may be correct in that the multi factorial nature of the sleep disorder may, more likely than not, be appropriately assessed under orthopaedic tables, however, this does not detract from my findings on causation. In any event, the method and degree of assessment is ultimately the burden of a Medical Assessor upon which I cannot trespass.
I now remit the matter back to the President for referral to a Medical Assessor for assessment of whole person impairment of these consequential conditions in conjunction with the accepted condition of the lumbar spine.
SUMMARY
For the reasons above, I make the findings and orders set out on page 1 of the Certificate of Determination.
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