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DOCKET NO. A-5274-10T4









July 2, 2012


Submitted April 30, 2012 - Decided


Before Judges Parrillo and Alvarez.


On appeal from the Department of Labor, Division of Workers' Compensation, Claim Petition No. 2000-20814.


Marshall, Dennehey, Warner, Coleman & Goggin, attorneys for appellant (Walter F. Kawalec III, on the briefs).


Wind & McCarter, P.A., attorneys for respondent Gerard Marra (Herbert L. McCarter, on the brief).


Jeffrey S. Chiesa, Attorney General, attorney for respondent Second Injury Fund (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Linda Schober, Deputy Attorney General, on the brief).



Ryder Transportation Resources (Ryder) appeals from an award of total and permanent disability granted to petitioner Gerard Marra, a former employee, and the dismissal of the claim against the Second Injury Fund (Fund). For the reasons that follow, we affirm.

By way of background, petitioner was granted twenty percent disability on August 31, 2001, for a left inguinal hernia, which resulted in multiple surgeries and profound ilioinguinal syndrome. Thereafter, on September 15, 2003, petitioner applied for modification of the award, asserting that his condition had worsened and he required continuing treatment. Ryder resisted the application, alleging that petitioner had failed to demonstrate a need for increased disability and that all necessary medical treatment had been provided.

On June 19, 2009, petitioner requested the court join the Fund to the pending claim. The Fund participated on a limited basis, "with a reservation of rights to reopen medical testimony if deemed appropriate." The subsequent seven-day trial conducted by the judge of compensation commenced December 10, 2009, and ended on December 16, 2010.

On the last day of trial, Ryder attempted to introduce a surveillance video of petitioner on the basis that it would refute his testimony that he could do nothing more around his home than replace a light bulb. The judge of compensation denied the request because it not only came after petitioner and his experts had testified, but also without prior notice.

In his March 15, 2011 written opinion, the judge of compensation concluded that petitioner was "presently [t]otally and [p]ermanently [d]isabled as a consequence of his work related injury . . . ." On June 2, 2011, he signed an order finding total disability. The judge also dismissed the claim against the Fund on March 15, 2011. This appeal followed.

Petitioner worked as a large engine mechanic at Ryder, and had suffered several injuries, some work-related, prior to the one at issue. The earlier injuries included a fractured kneecap, for which he had undergone surgery, and a tendon repair. He testified that the knee injury did not impact his ability to work, however, as he returned to his employment approximately one week after surgery. Years earlier, petitioner fell down a flight of stairs, recuperated, and returned to work. He had twice broken bones in his right wrist. Petitioner believed none of these injuries affected his ability to work in the long run.

Petitioner became the "supervising tech" in 1997 or 1998, and stopped working with heavy machinery and tools. On the day of his injury, however, he was sent on a road call, and while lifting a loading gate, he "felt like something burst in [his] stomach . . . ." On January 6, 1998, "[h]e underwent a left hernia, inguinal hernia repair, however it was complicated by [the] onset of a nerve condition." The nerve condition resulted in exuberant scar formation which entrapped the ilioinguinal nerve and produced symptoms including "burning sensations in the testicle extending into the upper thigh, inner thigh on the left side with some numbness, as well as electric shock sensations in those same areas." This condition, ilioinguinal syndrome, occurs where there is injury to a nerve which passes over the inguinal region, resulting in pain and discomfort.

In April 1998, petitioner was medically released "for light duty with restrictions[,]" however, his prior position was not available. He explained that he had previously been a supervisor and mechanic, but the supervisory role was filled. He was assigned work he could not perform even though he was "supposed to be on light duty." He stopped working shortly after his return. On March 30, 2000, petitioner underwent a second operation, "which consisted of a division of the left ilioinguinal and iliohypogastric nerves." He was then diagnosed by Dr. Arthur Tiger, an orthopedist, in November 2000, with "scarification status post inguinal hernia surgery times 2 as well as a profound ilioinguinal syndrome." In 2000, Tiger estimated the "disability for this unusual syndrome was 35% of partial total."

In 2003, petitioner petitioned to reopen his case because in the intervening time, a series of three injections administered directly into the site proved to be more damaging than beneficial, causing "extreme testicular pain and nausea." He suffered attacks an average of six times a month, lasting at least forty-five minutes, and as long as a day-and-a-half. If alerted to the possibility that he would fall victim to these episodes, he would ingest medication which relieved the pain to a limited extent. The residual pain from these attacks might last for hours. Petitioner testified that he was never free from discomfort, but at times found the pain bearable. His pain management specialist, Dr. Ramesh Sawhney, maintains petitioner on a medication regimen consisting of Lidoderm patches, EMLA cream, Cachtralac,1 Oxycontin, and Vicodin. As a result of the chronic pain, petitioner has undergone psychological changes, including irritability and loss of appetite.

In fact, since 2004, petitioner has been treated by Dr. Roberto Sozzi, a psychiatrist, who prescribed Neurontin, Welbutrin, Zoloft, Klonopin, and Provigil in an attempt to address petitioner's depression. Petitioner's therapeutic sessions with Sozzi revolve around the fact that his activities are extremely limited, that prior to the injury he "was a heavy duty truck mechanic[,]" and now, could do little more than change a light bulb, and that he rarely left his home.

Petitioner described his typical day as commencing at 6:00 in the morning, when he takes Provigil and Vicodin. He readies his children for school and drives them there. Petitioner then watches television until 2:00, when he picks the children up from school, and either takes the dog outside or sits on the couch. His wife handles the grocery shopping and household chores, although he sometimes does yard work. Petitioner has not worked since 1998.

Petitioner's wife also testified. She said that the injury has caused petitioner to experience a significant personality change. He has little energy, is short-tempered, and otherwise acts like a person living with chronic pain. The deterioration in petitioner's mental state, in her opinion, occurred around 2003 or 2004. Petitioner is different from the person that she married, and different from the person he was prior to 2002.

Dr. Peter Crain, a neuropsychiatrist, examined petitioner on April 20, 2007, and testified on his behalf. He diagnosed defendant with "left ilioinguinal neuropathy, chronic pain syndrome, and adjustment disorder with depressed mood that was chronic." When administered the Beck Depression Inventory, petitioner tested in "the severe range of mood of depression."

Crain opined that "there is a causal relationship between what [he] diagnosed, that accident, and [his] estimate of disability." The pain was significant because it prevented petitioner from being employed, engaging in normal sexual relations with his wife, and generally feeling productive, thereby causing his depression. Petitioner did not suffer an increase in his neurological disability since the first award, but is nevertheless now, for all intents and purposes, "totally disabled on a neuropsychiatric basis because of his condition" and requires continuing treatment. Although the neurologic physical problem has not really changed, the magnitude of petitioner's pain and depression has increased to 100%.

On cross-examination, Crain was asked about petitioner's prior injuries, and said that petitioner still experienced pain from his back and right wrist. Crain nonetheless did not agree that those injuries had "any bearing on [his] estimate of disability[,]" and did not impact on petitioner's depressive or chronic pain syndrome.

Tiger also testified for petitioner, based on his examination of petitioner in May 2007, that petitioner's "inguinal syndrome had worsened and now he had evidence of a complex regional pain syndrome that was localized to this area as well as an altered gait." Tiger opined the condition was causally related to petitioner's work-related accident of January 23, 1998, and estimated the injury to be sixty percent of partial total. Petitioner had developed "a complex regional pain syndrome[,]" which increased his disability due to petitioner's degree of pain and change in gait. Tiger also testified that petitioner did "have some pre-existing medicals as well." In his opinion, petitioner's overall disability was 100%.

Ryder's expert witness, Dr. Sidney Bender, a neurologist who examined petitioner in 2000, examined him again on January 8, 2009. Although in his view the gross area afflicted by pain had actually decreased since 2000, the intensity had significantly increased. Bender emphasized his conclusion was reached on petitioner's subjective reporting because no mechanism exists for measuring pain. He had no reason to believe, however, that petitioner was magnifying or imagining the pain.

Petitioner has "chronic regional pain which is on a neuropathic basis because of injury to a peripheral nerve." From a purely neurological, not psychiatric, standpoint, petitioner could return to employment. He would be capable of working in a confined area so long as he was "able to sit and just walk short distances." In 2000, Bender assessed petitioner at five percent disabled, but after their second meeting determined that the pain was "much worse[.]"

Dr. Arthur Canario, Ryder's expert orthopedist, met with petitioner in January 2001 and July 2006, and diagnosed him with "an inguinal hernia without a recurrence and a nerve entrapment which . . . can cause some localized pain." In his 2001 report, Canario estimated petitioner's disability as "5% of total." His opinion did not change in 2006, and he considered petitioner capable of working. Petitioner was the first patient he had encountered who had not returned to work after suffering from an inguinal hernia and nerve entrapment. Additionally, he did not believe that treatment with opiates such as Oxycontin was appropriate for the condition.

Canario agreed, however, that it is impossible to quantify pain as it is "completely subjective." He did not find petitioner to display the chronic inflammation or other objective signs that would, however, corroborate the amount of pain he claimed he suffered. While acknowledging that petitioner suffered from pain, Canario did not believe it was in excess of "what is normal."

Dr. Charles Semel, a psychiatrist, authored a report Ryder introduced into evidence. He diagnosed petitioner as suffering from "[c]hronic depressive reaction secondary to medical difficulties[,] . . . [c]hronic pain syndrome[, and] . . . unremitting chronic pain[,]" which disabled him and limited his day-to-day activities. Semel assessed "a partial total psychiatric disability of 2.5 percent that is permanent and ongoing in nature."

Sawhney and Sozzi's records and reports were also entered into evidence, including a March 3, 2006, report written by Sawhney to the effect that petitioner "is totally disabled[,]" but "able to function and live an adequate life." In a June 25, 2007 report, Sozzi wrote that petitioner suffers from "intense and recurrent pain" and "continues to require psychotropic medication for anxiety and depression control." In his opinion, petitioner was entirely unable to work.

The judge of compensation found petitioner and his wife to be extremely credible. He went on to state, "Once I conclude that [p]etitioner is truthful in his testimony[, the] conclusion that he is totally disabled is inescapable."

Nor did the judge accept Ryder's contention that petitioner's complaints were purely subjective, and therefore not a proper basis for total disability. The judge found petitioner's experts, Crain and Tiger, to be persuasive, and "their diagnoses and assessments to be consistent with the medical record and [] [p]etitioner's testimony." In his view, therefore, there was an objective basis for petitioner's complaints, namely, the "exuberant scarification" described by Crain. The judge did not consider Semel's diagnosis to be inconsistent with Crain's, and determined that Sozzi and Sawhney's reports were consistent as well. He concluded that petitioner was "presently [t]otally and [p]ermanently [d]isabled as a consequence of his work related injury of January 6, 1998[,] due to a combination of neurological and neuropsychiatric factors."

Petitioner had previously received awards for hand and leg injuries. But the judge decided that the Fund was exempt from liability where "the disability resulting from the injury caused by the last compensable accident in itself and irrespective of any previous condition or disability constitutes total and permanent disability . . . ." See N.J.S.A. 34:15-95(a). Even if he had been in perfect health, "the last compensable accident would still [have] render[ed] him totally and permanently disabled." He therefore dismissed the claim against the Fund.

Ryder raises the following points for our consideration:

Issue I: Judge Kovalcik Committed Reversible Error In Finding That The Petitioner Was Totally And Permanently Disabled


Issue II: Judge Kovalcik Committed Reversible Error In Denying The Respondent The Opportunity To Present Surveillance Video


Issue III: It Was Reversible Error For Judge Kovalcik To Dismiss The Second Injury Fund


Appellate review of a decision rendered by a judge of compensation is limited to determining "whether the findings . . . could reasonably have been reached on sufficient credible evidence present in the whole record, after giving due weight to [the judge's] expertise in the field and his opportunity of hearing and seeing the witnesses." De Angelov. Alsan Mason, Inc., 122 N.J. Super. 88, 89-90 (App. Div) (citing Jackson v. Concord Co., 54 N.J. 113, 117-18 (1969); Close v.Kordulak Bros., 44 N.J. 589, 599 (1965)), aff'd, 62 N.J. 581 (1973). We therefore do "not substitute [our] own judgment for the agency's even though [we] might have reached a different result." Raso v.Ross Steel Erectors, Inc., 319 N.J. Super. 373, 380 (App. Div.) (citing Clowes v. Terminix Int'lInc., 109 N.J. 575, 588 (1988)), certif.denied, 161 N.J. 148 (1999).

The judge of compensation's interpretation of the law, on the other hand, is not entitled to special deference. Sexton v.Cnty. of Cumberland/CumberlandManor, 404 N.J. Super. 542, 548 (App. Div. 2009) (citing Manalapan Realty, L.P.v. Twp. Comm. ofManalapan, 140 N.J. 366, 378 (1995)). If mistaken, the application of law to facts will result in reversal. See Verge v. Cnty. ofMorris, 272 N.J. Super. 118, 123 (App. Div. 2004).

The burden is on the appellant to demonstrate "that the agency's action was arbitrary, unreasonable or capricious . . . ." Ibid. (citing Barone v. Dep'tof Human Servs., 210 N.J.Super. 276, 285 (App. Div 1986), aff'd 107 N.J. 355 (1987)).

N.J.S.A. 34:15-1 provides for compensation to an employee for personal injury "caused . . . by accident arising out of and in the course of his employment . . . ." A permanent and total disability "means a physical or neuropsychiatric total permanent impairment caused by a compensable accident . . ., where no fundamental or marked improvement in such condition can be reasonably expected." N.J.S.A. 34:15-36.

The burden is also on the petitioner to prove all the elements of his case. See Bird v. SomersetHills Country Club, 309 N.J.Super. 517, 521 (App. Div.), certif. denied, 154 N.J. 609 (1998). The two-part test for proving the existence of a permanent disability requires a petitioner to

first prove by demonstrable objectivemedicalevidence a disability that restricts the function of his body or its members or organs. Second, he must establish either that he has suffered a lessening to a material degree of his working ability or that his disability otherwise is significant and not simply the result of a minor injury.

[Perez v. Pantasote, Inc. 95 N.J. 105, 118 (1984).]


As to the first prong, "a subjective complaint of pain or discomfort without accompanying 'demonstrable objectivemedicalevidence,'N.J.S.A. 34:15-36, does not satisfy a petitioner's burden of proving the existence of partial-permanent disability." Colon v.Coordinated Transp. Inc., 141 N.J. 1, 9-10 (1995). The case law recognizes that this requirement varies with the nature of the disability. Physical disabilities are obviously more capable of objective analysis than psychiatric disabilities. Id. at 9 (quoting Saunderlinv. E.I. DuPont Co., 102 N.J. 402, 412 (1986)). As to the second prong, in order to prove that the permanent disability is total, as opposed to partial, petitioner must demonstrate his "inability to work because of the compensable injury or illness." Portnoffv. N.J. Mfrs. Ins.Co., 392 N.J. Super. 377, 388 (App. Div.), certif. denied, 192 N.J. 477 (2007).


Ryder contends first that the judge of compensation erred in finding that petitioner was totally and permanently disabled, because he accepted petitioner's subjective complaints and then searched the record for objective confirmation. There are two aspects to petitioner's claim of total and permanent disability: physical pain and psychiatric suffering. They should be analyzed separately, as we are cautioned against collapsing them into one another. Saunderlin, supra, 102 N.J. at 412.

To begin, it must be noted that the judge of compensation gave credence to petitioner's witnesses, specifically Crain and Tiger, and not Ryder's. See DeAngelo, supra, 122 N.J.Super. at 89-90. This is acceptable. See Amaruv. Stratton, 209 N.J. Super 1, 20 (App. Div. 1985) (stating that the factfinder "has no duty to give controlling effect to any or all of the testimony provided by the parties' experts, even in the absence of evidence to the contrary.").

As the judge noted, Crain testified that "there is enough evidence to show this man has a reason for his pain[,]" a physical objective basis for the pain. When Sawhney began giving petitioner nerve block injections, he did so because the "scar formation was progressing further, so this would then entrap the nerve more, more pressure on the nerve, and produce more pain." The judge also noted Crain's explanation that petitioner's prior surgical outcomes established he had a propensity for exuberant scarification, as demonstrated by his "appendectomy site and colon adhesions . . . [which] are indicative of the same type of exuberant scarification which resulted in the nerve entrapment." Crain's testimony was corroborated by Tiger, who also noted petitioner's excessive scarification at the site of the injury and that the nerve "was working aberrantly."

Crain also diagnosed petitioner as suffering from an "adjustment disorder with depressed mood that was chronic." On this issue, the judge also relied upon Semel's report diagnosing petitioner with "[c]hronic depressive reaction secondary to medical difficulties."

As Saunderlin makes clear, physical manifestations are not required in order to provide evidence of a psychiatric disability. Supra, 102 N.J. at 415. Although a finding of psychiatric disability should not be based on "a medical doctor's mere 'parroting' of the patient's statement[,]" the courts "must rely upon the psychiatrist's professionalism in deploying the clinical method to insure that his or her analysis meaningfully exceeds parroting the subjective statement of the patient." Id. at 416.

In this case, the experts did more than parrot petitioner's complaint. Although Crain met with petitioner only once, he also based his opinion on reports from petitioner's psychiatrist, Sozzi, who had treated petitioner since 2004. Crain said petitioner's depression was caused by his physical pain, and the loss of his ability to perform the work in which he had been trained, as well as to engage in the routine activities of day-to-day life. The evidence, therefore, was clearly sufficient and supported the judge's conclusion that petitioner suffers from depression and other psychiatric conditions resulting from his chronic pain. See DeAngelo, supra, 122 N.J. Super. at 89-90. The judge of compensation had ample demonstrable objective medical evidence of a permanent and total disability.


Next Ryder contends that the judge erred in refusing to admit the surveillance video. We review the claim for abuse of discretion, as with all rulings regarding the admissibility of evidence. Statev. Rose, 206 N.J. 141, 157 (2011) (citing Brenman v. Demello, 191 N.J. 18, 31 (2007)).

Additionally, under N.J.A.C. 12:235-3.11(a)(4)(i), a pre-trial memorandum must be executed by

[a]ny party that intends to utilize videos or other electronic media, including surveillance tapes, must indicate that such media will be utilized at trial and identify the witness who will authenticate and testify concerning the materials to be presented in the "Other Witness" section of the pre-trial memorandum or as an addendum to the pre-trial memorandum. A party is not required to provide or exhibit electronic information, including surveillance tapes, to another party prior to the other party's testimony under oath.


Ryder claims it could not comply with this requirement because the video did not exist at the time the pre-trial memorandum was submitted, a somewhat circular argument. Ryder also asserts that the surveillance footage is necessary because it refutes petitioner's testimony that he could do little more than change a four-ounce light bulb.

The judge of compensation, relying upon Gross v.Borough of Neptune, 378 N.J.Super. 155 (App. Div. 2005), barred the use of the video. In Gross, the employer argued that a video should be admitted, even if not listed on the pre-trial memorandum, because the employer was unaware that the petitioner was exaggerating her injuries until she testified. Id. at 156-57. In that case, however, like this one, "counsel had a report from his medical expert stating that Gross's injuries were far less serious than her physicians had claimed in their reports." Id. at 157. In other words, contrary to the employer's position, it was anticipated the petitioner would inflate her claims, and therefore her testimony was not a surprise. Belated surveillance tapes should not be admitted unless "the employer can show that it was unaware, and could not have been aware, of the circumstances warranting surveillance before the hearing." Id. at 158.

The employer in Gross, just like Ryder in this case, was well aware of petitioner's position that he was not able to work, nor engage in day-to-day activities. Ryder's emphasis on petitioner's testimony regarding the light bulb is misplaced; that statement was inconsequential. The utility of surveillance was appreciably no different before the trial than during, and the reasons for such a video to be created remained the same. Hence the judge's reliance on Gross was proper, and his decision to bar the use of the surveillance video was not an abuse of discretion.


Lastly, Ryder contends that the judge of compensation erred in dismissing the Fund. We review this claim to determine whether the judge of compensation could have "reasonably" arrived at his decision based "on sufficient credible evidence present in the whole record, after giving due weight to [the judge's] expertise in the field and his opportunity of hearing and seeing the witnesses." DeAngelo, supra, 122 N.J. Super. at 89-90 (citing Close, supra, 44 N.J. at 599).

Pursuant to N.J.S.A. 34:15-95, the Fund is available to "to persons totally disabled, as a result of experiencing a subsequent permanent injury under conditions entitling such persons to compensation therefor, when such persons had previously been permanently and partially disabled from some other cause . . . ." An individual is not eligible to receive Fund payments, however, "[i]f the disability resulting from the injury caused by the person's last compensable accident in itself and irrespective of any previous condition or disability constitutes total and permanent disability . . . ." N.J.S.A. 34:15-95(a).

The purpose of the Fund is "to encourage the hiring by industry of people handicapped by pre-existing disabilities . . . ." Paulv. Baltimore UpholsteringCo., 66 N.J. 111, 129 (1974). Therefore, in a case of total disability, "the subsequent employer may only be held responsible for the direct consequence of an accident or exposure, including the extent to which it aggravates or accelerates the preexistent condition, but excluding any separate and quantifiable previous disability." Gulick v. H.M.Enoch, 280 N.J. Super. 96, 115 (App. Div. 1995). The Fund, in turn, "is liable when a partially permanently disabled worker becomes totally and permanently disabled as a result of a work-connected accident or occupational illness that, in combination with the preexisting physical impairment, results in permanent total disability." Lewicki v.N.J. Art Foundry, 88 N.J. 75, 83 (1981).

To summarize, the party seeking to impose liability on the Fund must establish that "(1) the ultimate condition of the workman [is] one of permanent and total disability; (2) the prior disability [was] partial and permanent; and inter alia, (3) the prior condition and the subsequent employment-connected accident . . . 'in conjunction' result[ed] in permanent total disability." Katz v.Twp. of Howell, 68 N.J. 125, 128 (1975) (citing Paul, supra, 66 N.J. at 126).

It is worth noting that the language of the statutory exemption itself provides that if a total and permanent disability results from a compensable accident, the Fund is not liable, even if previous accidents or injuries occurred. N.J.S.A. 34:15-95(a). This is due to the policy that

the employer at the time of the last accident should not enjoy a windfall of Fund relief "if the injury from that accident in itself is productive of a disability that qualifies as total and permanent . . . by mere reason of the fact that prior conditions or disabilities may also be contributive to the actual ultimate condition of the work[er]."


[Padillav. Concord Plastics, Inc., 221 N.J. Super. 301, 309 (App. Div. 1987) (quoting Katz, supra, 68 N.J. at 132), aff'd 113 N.J. 508 (1988).]


The burden of proving the eligibility of a petitioner to Fund payments is on the party seeking to impose it. Katz, supra, 68 N.J. at 132.

In support of its position that the Fund should not have been dismissed, however, Ryder relies on the following examination of Tiger:

Q: Do you have an opinion within a reasonable degree of medical probability as to the petitioner's permanent disability at the time of your second examination based on your diagnosis?


A: I estimate 60% ofpartial total on mysecond examination.


Q: Okay. And do you have an opinion within a reasonable degree of medical probability considering all of the petitioner's medical conditions whether or not he has the ability to work?


A: In my opinion, he cannot do manual labor and cannot work because of the multitude of problems he has, including his inguinal problem as well as his psychological and sociopsychological problem.


My understanding is, he does have some pre-existing medicals as well.


(Emphasis added by Ryder).


Ryder points to the highlighted sections as proof that Tiger, petitioner's own expert, stated that no more than 60% of the disability was due to the last compensable injury. It does not appear to us, however, that Tiger was answering a question about the allocation of causation to petitioner's various injuries. In fact, Tiger was explaining the increase in petitioner's orthopedic disability between their first and second meetings.

Moreover, Tiger's assertion that petitioner had preexisting medical conditions is not sufficient to implicate the Fund. That preexisting injuries or disabilities may exist is irrelevant if the compensable injury itself is capable of causing total and permanent disability. See Padilla, supra, 221 N.J. Super. at 309. In other words, since Tiger did not say that the preexisting medical conditions contributed to his finding of total and permanent disability, that means that he was separating them out from the current condition which he considered to be fully disabling. See Katz, supra, 68 N.J. at 128-29.

On cross-examination, Tiger did opine that "the pre-existing medical conditions [are] also a . . . contributory factor toward the 100% disability of the petitioner[.]" But in an exercise of discretion, the judge, although finding Tiger credible, was entitled to determine how much or how little weight to give to that portion of his testimony. We do not find the judge committed any abuse of discretion in giving it little weight. Crain testified that the disability was entirely due to the compensable accident a sufficient basis for the judge's dismissal of the Fund.


1 The spelling is taken from the record.

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