IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA16-69
Filed: 6 December 2016
From the North Carolina Industrial Commission, I.C. No. W28180
KELLY F. LEWIS, Employee, Plaintiff,
v.
TRANSIT MANAGEMENT OF CHARLOTTE, Employer, SELF-INSURED
(COMPENSATION CLAIMS SOLUTIONS, Third-Party Administrator), Defendant.
Appeals by plaintiff and defendant from Opinion and Award entered
20 November 2015 by the North Carolina Industrial Commission. Heard in the Court
of Appeals 9 June 2016.
The Sumwalt Law Firm, by Vernon Sumwalt, Mark T. Sumwalt, and Lauren
H. Walker, for the plaintiff-appellant.
The Smith Law Firm, by John Brem Smith and Elizabeth N. Binion, for the
defendant-appellant.
McCULLOUGH, Judge.
Kelly Lewis (“plaintiff”), an employee of Transit Management of Charlotte
(“defendant”), appeals from the opinion and award of the North Carolina Industrial
Commission (the “Commission”) denying his claim for additional medical
compensation. Defendant also appeals from the Commission’s opinion and award.
For the following reasons, we affirm.
I. Background
LEWIS V. TRANSIT MGMT. OF CHARLOTTE
Opinion of the Court
Plaintiff, a bus operator for defendant, suffered an admittedly compensable
injury on 15 June 2009 when an SUV rear-ended the bus plaintiff was driving.
Defendant completed a Form 19 dated 16 June 2009 reporting plaintiff’s injury to the
Commission. Later that year, a physician completed a Form 25R dated
17 November 2009 indicating plaintiff was at maximum medical improvement and
suffered a 0% impairment to his back. A Form 28 dated 2 December 2009 reported
that plaintiff had returned to work as of that date and a Form 28B, completed at the
same time as the Form 28, indicated that plaintiff had received a total of $22,631.71
from defendant and administrator Compensation Claims Solutions as a result of his
injury – $13,875.84 in temporary total disability compensation and $8,755.87 in
medical compensation.
Years later, plaintiff completed a Form 18 notice of accident to employer and
claim of employee dated 28 April 2014 related to the 15 June 2009 accident.
Following defendant’s denial of plaintiff’s claim based on the expiration of the statute
of limitations in a Form 61 dated 2 May 2014, plaintiff filed a Form 33 request that
his claim be assigned for hearing dated 5 May 2014. In the Form 33, plaintiff
indicated his claim was for additional temporary total disability compensation owed
due to defendant’s underpayment because of a miscalculation of plaintiff’s average
weekly wage, and for compensation for additional medical treatment of injuries.
Defendant responded by completing a Form 33R dated 19 May 2014, in which
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Opinion of the Court
defendant elaborated on its assertion that plaintiff’s claim was barred by the statute
of limitations as follows: “The Form 28B was filed on December 2, 2009 showing the
last check being forwarded December 2, 2009. Accordingly, Plaintiff’s claim is barred
by Section 97-47 and Section 97-25.1.”
Prior to the case coming on for hearing before a deputy commissioner, the
parties entered into a pre-trial agreement in which they stipulated to the above facts.
The parties also stipulated to the following:
9. . . . Although the Form 28B shows that the last
medical compensation was paid on November 24, 2009, the
claims payment history shows a payment by Defendant for
“medical expense” on April 22, 2010, to “Electrostim Med
Services” for $253.06 in Plaintiff’s workers’ compensation
claim.
10. Plaintiff settled his third-party action and executed
a release on April 14, 2010.
11. Defendant agreed to accept $11,500.00 in full
satisfaction of its workers’ compensation subrogation lien
under N.C. Gen. Stat. § 97-10.2 and received a check in that
amount dated April 14, 2010.
....
13. On Apri1 30, 2014, Plaintiff, through counsel, asked
for a claims payment history and a payroll history from
Defendant covering the 52 weeks before Plaintiff’s injury
on June 15, 2009. Plaintiff received the claims payment
history from Defendant on April 30, 2014.
14. As also shown on the Form 28B, Defendant’s claims
payment history indicates payments [of] temporary total
disability at a weekly compensation rate of $578.16 for a
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Opinion of the Court
period of twenty-four and 3/10 (24.3) weeks for a total of
$13,875.84. The average weekly wage corresponding to
this compensation rate is $867.24. As shown by the Form
28B and the claims payment history, Defendant has not
paid any temporary partial or permanent partial disability
compensation to Plaintiff since he returned to his job at
Defendant on December 2, 2009.
15. On 2 May 2014, Plaintiff received the wage
information covering the 52 weeks before his injury on
June 15, 2009, from Defendant.
16. Plaintiff's wage information with Defendant-
Employer shows that Plaintiff’s average weekly wage was
$906.83, resulting in a compensation rate of $607.58
during the 52 weeks before his injury in this case. These
figures indicate that Defendant has underpaid Plaintiff by
$887.92 during the 24.3 weeks represented on the Form
28B.
The matter was submitted for consideration by a deputy commissioner on
stipulated facts and exhibits after the parties agreed to waive a hearing scheduled
for 28 October 2014. Pursuant to the pre-trial agreement, the deputy commissioner
considered only “the procedural issue of whether [p]laintiff [was] time-barred from
seeking additional benefits under N.C. Gen. Stat. § 97-25.1 or § 97-47 or both.”
Deputy Commissioner Wanda Blanche Taylor filed her opinion and award in favor of
plaintiff on 8 April 2015. Defendant gave notice of appeal from the deputy
commissioner’s opinion and award to the Full Commission on 13 April 2015 and then
completed a Form 44 application for review dated 21 April 2015.
The matter was heard by the Full Commission on 11 August 2015 and the
Commission filed its opinion and award modifying the deputy commissioner’s opinion
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Opinion of the Court
and award on 20 November 2015. The Commission concluded that “[p]laintiff is
entitled to payment by defendant of $714.90 to correct the underpayment of the
amount owed for temporary total disability benefits during the period from
16 June 2009 through 1 December 2009[,]” “[a]s the last payment of compensation
occurred on 22 April 2010, plaintiff’s right to additional medical treatment
terminated two years later, in 2012, and his request for additional medical treatment
filed 5 May 2014 is barred by the two-year statute of limitations contained in N.C.
Gen. Stat. § 97-25.1[,]” and “[t]here has not been a ‘final award’ in this case that would
trigger the limitations period contained in N.C. Gen. Stat. § 97-47.” The Commission
also concluded that case law relied upon by defendant and the doctrines of estoppel
and laches did not apply in the present case. Based on its findings and conclusions,
the Commission issued the following award:
1. Defendant shall pay plaintiff $714.90 to correct the
underpayment of the amount owed for temporary total
disability benefits during the period from 16 June 2009
through 1 December 2009.
2. Plaintiff’s claim for additional medical treatment is
time-barred under N.C. Gen. Stat. § 97-25.1.
Plaintiff gave notice of appeal from the Commission’s opinion and award on
2 December 2015. Defendant gave notice of appeal from the Commission’s opinion
and award on 8 December 2015, after defendant issued a check to plaintiff for $714.90
dated 7 December 2015. Defendant’s records of the $714.90 payment list the payment
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Opinion of the Court
type as “Indemnity TTD[,]” the claim status as “Open[,]” and indicate the check was
“Per Full Commission O&A 11-20-15[.]”
II. Discussion
Review of an opinion and award of the Commission “is limited to consideration
of whether competent evidence supports the Commission’s findings of fact and
whether the findings support the Commission’s conclusions of law. This ‘[C]ourt’s
duty goes no further than to determine whether the record contains any evidence
tending to support the finding.’ ” Richardson v. Maxim Healthcare/Allegis Grp., 362
N.C. 657, 660, 669 S.E.2d 582, 584 (2008) (citation omitted) (quoting Anderson v.
Lincoln Constr. Co., 265 N.C. 431, 434, 144 S.E.2d 272, 274 (1965)). The
Commission’s conclusions of law are reviewed de novo. Busque v. Mid-America
Apartment Communities, 209 N.C. App. 696, 706, 707 S.E.2d 692, 699 (2011).
Plaintiff’s Appeal
As clearly stated in plaintiff’s brief, plaintiff “appeals the Full Commission’s
determination that the limitations period for more medical treatment expired before
5 May 2014, when he applied for that treatment.” The period for medical
compensation is limited by N.C. Gen. Stat. § 97-25.1, which provides as follows:
The right to medical compensation shall terminate two
years after the employer’s last payment of medical or
indemnity compensation unless, prior to the expiration of
this period, either: (i) the employee files with the
Commission an application for additional medical
compensation which is thereafter approved by the
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Opinion of the Court
Commission, or (ii) the Commission on its own motion
orders additional medical compensation. If the
Commission determines that there is a substantial risk of
the necessity of future medical compensation, the
Commission shall provide by order for payment of future
necessary medical compensation.
N.C. Gen. Stat. § 97-25.1 (2015). Plaintiff now contends the Commission erred in
concluding that the two-year limitations period in N.C. Gen. Stat. § 97-25.1 had
expired and that plaintiff was barred from seeking additional medical compensation.
This issue presents a question of law which we review de novo.
Based on the stipulated facts, the Commission issued the following
unchallenged findings:
1. The Form 28B filed by defendant on
2 December 2009 reflects that temporary total disability
compensation was paid from 16 June 2009 through
1 December 2009, that the last compensation check was
forwarded on 2 December 2009, and that this check
represented final payment.
2. The Form 28B further reflects that the last medical
compensation was paid on 24 November 2009, and that this
payment represented final payment. However, as
stipulated by the parties, defendant’s claims payment
history reflects that the actual last payment by defendant
of medical compensation was made on 22 April 2010.
3. Because defendant paid plaintiff temporary total
disability benefits based on an incorrect average weekly
wage, plaintiff has been underpaid a total of $714.90 in
temporary total disability benefits.
Plaintiff acknowledges the above findings of fact, and also that his request for
additional medical compensation was made in the Form 33 request for a hearing that
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Opinion of the Court
was filed on 5 May 2014. Nevertheless, plaintiff contends that his application for
additional medical compensation was not barred by the two-year limitations period
because the “last” payment of medical or indemnity compensation occurred on
7 December 2015, almost a year and a half after plaintiff’s application, when
defendant paid plaintiff what it owed due to the underpayment of temporary total
disability compensation. In support of his contention, plaintiff asserts various
arguments. Yet, just as the Commission identified, the critical inquiry in this case is
what constitutes the “last payment” under N.C. Gen. Stat. § 97-25.1. The
Commission relied on Busque, 209 N.C. App. 696, 707 S.E.2d 692, and Harrison v.
Gemma Power Systems, LLC, 234 N.C. App. 664, 763 S.E.2d 17, 214 WL 2993853
(July 2014) (unpub.). We, too, now look to those decisions for guidance.
In Busque, the plaintiff suffered a compensable injury on 18 January 2003 and
was paid medical expenses for treatment received through 21 April 2013. Busque,
209 N.C. at 696-97, 707 S.E.2d at 694. The last check was issued to the plaintiff on
31 July 2003. Id. at 700, 707 S.E.2d at 696. Approximately four years later, on
18 July 2007, the plaintiff filed a Form 33 in which she sought additional medical
compensation. Id. at 697, 707 S.E.2d at 694. On appeal, this Court addressed
whether the plaintiff was barred from further recovery by the limitations period in
N.C. Gen. Stat. § 97-25.1 and, based on a “straight-forward” reading of the statute,
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Opinion of the Court
held that the plaintiff was barred. Id. at 706-707, 707 S.E.2d at 699-700. This Court
explained as follows:
Applying the statute to the present case, the “last payment
of medical or indemnity compensation” for the
18 January 2003 fall was a check issued to [the plaintiff]
dated 31 July 2003. [The plaintiff’s] application for
additional medical compensation was not filed until
18 July 2007-more than two years beyond 31 July 2003.
Thus, [the plaintiff’s] right to medical compensation for
that injury has terminated.
Id. at 707, 707 S.E.2d at 700. This Court further addressed the plaintiff’s argument
that “the term ‘last payment of . . . compensation’ can only refer to a ‘final award[,]’ ”
and disagreed with the plaintiff’s application of the statute, finding there was no
continuing denial of compensability in the case as the plaintiff filed her only request
for coverage on 18 July 2007, more than two years after the 31 July 2003 check. Id.
In Harrison, the plaintiff suffered a compensable injury on 2 March 2001 and
received payments for medical treatment until 18 May 2009, the date of the last
recorded payment. Harrison, 214 WL 2993853, at *1-3. On 25 January 2012, the
plaintiff filed a Form 33 “alleging that [the d]efendant ‘failed to authorize [the]
plaintiff's request for further treatment . . .’ and raised the issue of [the p]laintiff’s
right to indemnity benefits as a result of the 2 March 2001 injury.” Harrison, 214
WL 2993853, at *3. Among the issues on appeal, this Court addressed whether the
Commission erred in denying the plaintiff additional medical compensation benefits
for medical expenses incurred after 18 May 2009. Harrison, 214 WL 2993853, at *4.
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Relying on Busque, this Court again applied a straight-forward reading of the statute
and held that “because the last payment of medical compensation made by [the
d]efendant was more than two years prior to [the p]laintiff's current Form 33 filing,
. . . [the p]laintiff’s right to additional medical compensation [was] time-barred
pursuant to N.C. Gen. Stat. § 97–25.1.” Id. Yet, in so holding, this Court addressed
the plaintiff’s argument that “ ‘the last payment of compensation in the claim has not
yet taken place’ because ‘[the p]laintiff is still owed payment for temporary total
disability and/or permanent partial impairment.’ ” Id. This Court explained that,
“[s]tated differently, [the p]laintiff argues that the two-year statute of limitations
period found in N.C. Gen. Stat. § 97-25.1 has not yet begun and will not begin until
[the p]laintiff receives a payment from [the d]efendant for indemnity benefits.” Id.
This Court rejected that argument as misguided for the following reasons:
First, [the p]laintiff’s argument ignores the plain language
of the statute. “The right to medical compensation shall
terminate two years after the employer’s last payment of
medical or indemnity compensation . . . .” N.C. Gen. Stat.
§ 97–25.1 (emphasis added). In context, the word “last”
does not refer to a hypothetical future payment that [the
p]laintiff may be entitled to receive after presenting a claim
to the Industrial Commission. On its face, the “last”
payment refers to the most recent payment of medical or
indemnity benefits that has actually been paid. Second,
[the p]laintiff’s argument assumes the certainty of a future
indemnity payment before the right to such payment has
been decided by the Industrial Commission. Third,
accepting Plaintiff’s interpretation of the statute would
allow claimants seeking additional medical compensation
to obviate the statute of limitations in any case by asserting
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Opinion of the Court
a valid claim for indemnity benefits alongside a claim for
additional medical compensation. Such an expansive
interpretation ignores the clear intent of our legislature to
limit claims for additional medical compensation to a
specified time period.
Id. Although the Harrison decision is unpublished, we find the Court’s analysis
persuasive and now adopt it as our own.
As the Commission found in the present case based on the stipulations of the
parties, the last payment of temporary total disability compensation was paid on
2 December 2009 and the last payment of medical compensation was paid on
22 April 2010. Applying a straight-forward reading of N.C. Gen. Stat. § 97-25.1, the
two-year limitations period for additional medical compensation expired two years
after 22 April 2010 and years before plaintiff filed his request for additional
compensation for medical treatment in the Form 33 on 5 May 2014.
Plaintiff argues that the present case is distinguishable from both Busque and
Harrison because defendant’s payment on 7 December 2015 of the $714.90 that was
owed to plaintiff due to the underpayment of temporary total disability benefits was
an indemnity payment. Thus, plaintiff asserts the last payment for purposes of N.C.
Gen. Stat. § 97-25.1 was on 7 December 2015 and the two-year limitations period did
not begin to run until 7 December 2015, more than a year and a half after his request
for additional medical compensation. Plaintiff further contends that the
Commission’s order is inconsistent because it orders the corrective payment by
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Opinion of the Court
defendant but holds plaintiff’s claim for additional medical treatment is time-barred.
We are not convinced by plaintiff’s arguments.
While the 7 December 2015 payment may be for the underpayment of
indemnity compensation, that corrective payment had not been made at the time of
the Commission’s decision and, therefore, could not have been the “last payment”
under a straight-forward application of N.C. Gen. Stat. § 97-25.1. At the time the
Commission reviewed the evidence, made its findings, and issued its conclusions, the
last actual payment of medical or indemnity compensation was paid on 22 April 2010.
Thus, the evidence supports the Commission’s findings and the findings support the
Commission’s conclusions, which correctly apply N.C. Gen. Stat. § 97-25.1.
Although we hold the Commission did not err in denying plaintiff’s request for
additional medical compensation in its 20 November 2015 opinion and award, the
question remains whether plaintiff could seek additional medical benefits following
defendant’s payment of the amount of temporary total disability benefits owed to
plaintiff due to the miscalculation in the average weekly wage on 7 December 2015.
Stated differently, the issue is whether a payment to correct an earlier error in
medical or indemnity payments to make an employee whole restarts the limitations
period in N.C. Gen. Stat. § 97-25.1. Defendant argues such a corrective payment is
not the type of medical or indemnity payment that would restart the statute of
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Opinion of the Court
limitations because “[t]he check was not for any new compensation, medical or
indemnity, but rather to correct the underpayment that occurred four years ago.”
When the corrective payment is considered in light of the purpose of the
limitations period explained in Harrison, plaintiff’s argument seems reasonable-for
as the Commission noted,
applying plaintiff’s interpretation of “last payment” would
thwart the legislatures’ intent in enacting N.C. Gen. Stat.
§ 97-25.1 to limit claims for medical compensation to a
specific time period recognized by the Court in Harrison, as
well as the general aim of the Workers’ Compensation Act
to provide not only a swift and certain remedy to injured
workers, but also to ensure a limited and determinate
liability for employers.
We further agree with the Commission that plaintiff’s interpretation could result in
increased litigation in cases where honest miscalculations resulting in indemnity
benefits could lead to a reset of the two-year limitations period and additional liability
in cases where the last medical or indemnity payment was otherwise made years
earlier. Yet, there is no such distinction between medical and indemnity payments
in the normal course of a workers’ compensation case and subsequent corrective
payments in the statute. Since we need not decide the issue in the present case
because the corrective payment had not yet been paid to restart the limitations
period, we simply note that N.C. Gen. Stat. § 97-25.1 is not entirely clear as to how
such corrective payments are to be treated and leave the matter for the legislature to
address.
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Opinion of the Court
Defendant’s Appeal
In defendant’s appeal, defendant contends the Commission “erred in holding
that [there is] a remedy at law under N.C. Gen. Stat. § 97-47 and not applying the
equitable doctrine of laches to bar plaintiff’s claim.” In raising this issue, defendant
challenges the Commission’s order requiring the corrective payment of temporary
total disability compensation owed to plaintiff due to the miscalculation of plaintiff’s
average weekly wage. This issue, like the first issue, presents a question of law which
we review de novo.
N.C. Gen. Stat. § 97-47 provides that “on the grounds of a change in condition,
the Industrial Commission may review any award, and on such review may make an
award ending, diminishing, or increasing the compensation previously awarded . . . .”
N.C. Gen. Stat. § 97-47 (2015). Yet, similar to N.C. Gen. Stat. § 97-25.1, N.C. Gen.
Stat. § 97-47 restricts the period of time during which the Commission’s review and
modification of an award may take place. It provides,
[n]o such review shall affect such award as regards any
moneys paid but no such review shall be made after two
years from the date of the last payment of compensation
pursuant to an award under this Article, except that in
cases in which only medical or other treatment bills are
paid, no such review shall be made after 12 months from
the date of the last payment of bills for medical or other
treatment, paid pursuant to this Article.
N.C. Gen. Stat. § 97-47 (2015). Also limiting the application of N.C. Gen. Stat. § 97-
47, “[o]ur case law defines a ‘change in condition’ under [N.C. Gen. Stat.] § 97-47 as
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Opinion of the Court
a condition occurring after a final award of compensation that is ‘different from those
existent when the award was made’ and results in a substantial change in the
physical capacity to earn wages.” Pomeroy v. Tanner Masonry, 151 N.C. App. 171,
179, 565 S.E.2d 209, 215 (2002) (internal citations and alterations in original
omitted). Thus, N.C. Gen. Stat. § 97-47 is not applicable when there has been no final
award. See Biddix v. Rex Mills, Inc., 237 N.C. 660, 666, 75 S.E.2d 777, 782 (1953).
In the present case, the Commission relied on Biddix to reach the conclusion
that “[t]here has not been a ‘final award’ in this case that would trigger the limitations
period contained in N.C. Gen. Stat. § 97-47.” The Commission further concluded that
“the equitable doctrines of estoppel and laches do not apply to bar plaintiff’s claim in
the instant matter as defendant has a remedy at law under N.C. Gen. Stat. §§ 97-
25.1 and 97-47, namely, the ability to plead the affirmative defense of lapse of the
limitations periods set forth in these statutes.”
Defendant does not challenge the Commission’s conclusion that the limitations
period in N.C. Gen. Stat. § 97-47 had not been triggered, and even concedes that there
has not been a final award. Defendant instead claims the Commission’s conclusions
are inconsistent because the remedy at law under N.C. Gen. Stat. § 97-47 would be
that the limitations period had run from a final award. Defendant asserts there can
be no remedy at law without a final award and contends equity should prevent
plaintiff’s claim from remaining open. Defendant relies on Miller v. Carolinas
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Opinion of the Court
Medical Center-Northeast, 233 N.C. App. 342, 756 S.E.2d 54 (2014) to support his
argument that waiting 4 years to challenge the average weekly wage is too long and
not within a “reasonable time.” We are not persuaded.
While equitable doctrines are available in workers’ compensation cases, they
may not be applied where there is a remedy at law. Daugherty v. Cherry
Hospital/N.C. Dept. of Health and Human Services, 195 N.C. App. 97, 101-103, 670
S.E.2d 915, 919-20 (2009). Upon review, it is clear that both N.C. Gen. Stat. §§ 97-
25.1 and 97-47 supply remedies at law to bar claims where there has been a delay in
the case. Simply because the limitations period has not run in the present case to
bar plaintiff’s recovery of the underpaid amount of disability compensation owed to
him does not mean the doctrine of laches is available as an alternative. If that were
the case, any time a limitations period has not expired, the doctrine of laches may be
asserted as an alternative bar to recovery. Furthermore, as the Commission
concluded, the Miller case, relied on by defendant for what is a “reasonable time,” is
distinguishable from the present case. In Miller, there was a Form 21 agreement at
issue in which the average weekly wage was recorded and the Court, based on
principles of contract law, held that “a party to a Form 21 agreement which contains
a verification provision but no provision regarding the time by which verification
must be sought cannot assert a right to seek verification once a ‘reasonable time’ has
passed.” 233 N.C. App. at 349, 756 S.E.2d at 59. In the present case, there was no
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Opinion of the Court
agreement and, therefore, no requirement that plaintiff seek verification of the
average weekly wage within a reasonable time, as required in Miller.
Where N.C. Gen. Stat. §§ 97-25.1 and 97-47 provide remedies at law for the
delay in seeking benefits, the Commission did not err in rejecting the application of
the doctrine of laches in this case.
III. Conclusion
For the reasons discussed, we affirm the opinion and award of the Commission.
AFFIRMED.
Judges STEPHENS and ZACHARY concur.
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