[Cite as Clay v. Lakeview Farms, Inc., 2010-Ohio-603.]




                      IN THE COURT OF APPEALS OF OHIO
                          THIRD APPELLATE DISTRICT
                               ALLEN COUNTY



DEREK CLAY,

        PLAINTIFF-APPELLANT,

        v.                                               CASE NO. 1-09-55

LAKEVIEW FARMS, INC.,

        DEFENDANT-APPELLEE,
        -and-                                            OPINION

MARSHA P. RYAN, ADMINISTRATOR,

        DEFENDANT-APPELLEE.




                  Appeal from Allen County Common Pleas Court
                           Trial Court No. CV2008 1753

                                     Judgment Affirmed

                          Date of Decision: February 22, 2010



APPEARANCES:

        James C. Ayers for Appellant, Derek Clay

        Andrew J. Alatis for Appellee, Adm., OBWC

        Peter N. Lavalette for Appellee, Lakeview Farms, Inc.
Case No. 1-09-55


ROGERS, J.

       {¶1} Plaintiff-Appellant, Derek Clay, appeals from the judgment of the

Court of Common Pleas of Allen County denying his motion for a continuance of

the trial and dismissing his claim, with prejudice, to receive workers’

compensation benefits.      On appeal, Clay argues that the trial court erred in

denying his motion for a continuance and subsequently dismissing his case with

prejudice for failure to prosecute pursuant to Civ.R. 41(B)(1) where the dismissal

resulted in extreme prejudice to him, producing a reversal of his workers’

compensation benefits. Based on the following, we affirm the judgment of the

trial court.

       {¶2} In November 2007, Clay filed an application for workers’

compensation benefits with the Ohio Bureau of Workers’ Compensation

(“BWC”), claiming eligibility to benefits due to a back injury suffered while

lifting boxes at his place of employment with Lakeview Farms (“Lakeview”).

Subsequently, the BWC granted his claim as to a sprain in his lumbar region, but

denied his claims for spondylolisthesis, sacrum disorder, and sacroilitis, and Clay

appealed the decision to the Industrial Commission of Ohio (“Industrial

Commission”).

       {¶3} In April 2008, the Industrial Commission vacated the BWC’s order

and granted benefits for a “fracture to the pars interarticular at L5 level resulting in



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an anterolisthesis at L5-S1,” with temporary total compensation awarded from

January 11, 2007, through January 4, 2008, and April 18, 2008, through April 22,

2008. (April 2008 Record of Proceedings, pp. 1-2). Subsequently, Lakeview

appealed the Industrial Commission’s decision.

      {¶4} In June 2008, the Industrial Commission modified its April 2008

award, granting temporary total disability compensation benefits from November

1, 2007, through the present, and continuing upon the submission of medical

evidence. In its decision, the Industrial Commission stated the following:

      This finding is based upon the medical records of Dr. Fumich,
      specifically those dated 6/3/2008, which indicates [sic] that the
      condition would not show on an MRI, but rather be shown on a
      CT-scan or x-ray; his report of 4/08/2008, 2/12/2008, 1/18/2008
      and 11/1/2007. Dr. Fumich is aware of Injured Worker’s
      specific work activity and opines that Injured Worker sustained
      an acute incident from his lifting activities.

      Therefore, the weight of the evidence supports that the condition
      arose in the course and scope of Injured Worker’s employment
      and the claim is allowed as indicated.

(June 2008 Record of Proceedings, p. 1).

      {¶5} In September 2008, Lakeview appealed the Industrial Commission’s

June 2008 decision to the Court of Common Pleas of Cuyahoga County pursuant

to R.C. 4123.512.

      {¶6} In December 2008, pursuant to the agreement of the parties, the case

was transferred to the Court of Common Pleas of Allen County.



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       {¶7} On September 10, 2009, Clay filed a motion for relief from Loc.R.

3.08, requesting that he be permitted to file the deposition of his medical expert,

Dr. Frank Fumich, only three days prior to trial. In the motion, Clay explained

that the normal procedure for workers’ compensation cases is to delay spending

money on the case before there is an attempt to resolve the matter; that a

conference was held on August 12, 2009, but no resolution was reached; and, that

he then attempted to schedule Dr. Fumich for a deposition, but Dr. Fumich

notified him he would only be available on September 24, 2009. Subsequently,

the trial court granted the motion.

       {¶8} On September 24, 2009, Dr. Fumich testified via deposition that he

is licensed to practice medicine in the state of Ohio; that he practices with the

Orthopedic Institute of Ohio and is board certified as a specialist in orthopedic

surgery; that he first treated Clay in November 2007; that Clay complained of

lower back pain and bilateral leg pain; that Clay stated that he began experiencing

the pain after an incident at work in October 2007 where he was lifting forty-

pound boxes; that Clay related that the pain made it difficult for him to walk and

stand; that Clay informed him that he received chiropractic treatment from

October 16, 2007, up until October 23, 2007; and, that, based upon an x-ray of

Clay’s back, he diagnosed him with “a grade one spondylolisthesis and a pars




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defect of the L5-S1 level.” (Fumich Dep., p. 10). The following discussion then

took place between Clay’s trial counsel and Dr. Fumich:

      Clay’s Trial Counsel: * * * I want you to assume as it was told,
      as you were told in your history, that he lifted a box that
      weighed approximately forty pounds and felt the pain in his low
      back, he continued to work about four hours or so that day
      continuing to lift boxes, and when he got home he had trouble
      getting out of his truck and he felt the back pain, which he then
      went to see the chiropractor for, eventually ending up in your
      care. I want you to assume your findings, diagnoses, testing that
      you’ve all discussed here today, and I want you to assume that
      on April 9, 2005, he had a motor vehicle accident in which he did
      see a chiropractor, and he did have some low back pain. I want
      you to assume that in February 7, 2007, or thereabout, he also
      had low back pain and he was treated by a chiropractor, even
      going back as far as back as [sic] the year 2000 he had
      chiropractic treatment for his low back. But I also want you to
      assume that when he reported to work that day he was able to
      perform his services, he was not on any restriction, and he was
      able to lift boxes until he lifted this particular box. I want you to
      also assume that he had had treatment as late as 2007, as I said
      in February 7, 2007, for his low back by a chiropractor. Now,
      Doctor, accepting those factors as true and accepting your
      findings and your diagnoses, I ask you if you have an opinion to
      a reasonable degree of medical probability and certainty as to
      whether that lifting incident on October 16, 2007, as was
      described by you, proximately caused the conditions that you
      diagnosed and discussed with us in your deposition here today.
      Do you have an opinion?

      Dr. Fumich: Well, you’ve offered a lot of new information to me
      that I wasn’t aware of beforehand.

      Clay’s Trial Counsel: Yes, sir.

      Dr. Fumich: Different treatments for different incidences which
      I’ve had no ability to review records of until you’ve said this just
      now very succinctly in the matter of two minutes. So, that offers


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      a whole lot of more information I can consider, that I have to
      take a look at to be able to say with absolute certainty what my
      judgment is. I can’t say without looking at that, now that I
      know that that existed, that this is direct causation of that lifting
      injury. If none of those radiologic studies showed that a pars
      fracture or spondylolisthesis existed, I would be led to believe
      that this lifting injury caused this new fracture and this new
      spondylolisthesis which would be this work injury. But without
      knowing what those records show, I would have to see those to
      confirm that this isolated injury was the cause of that problem.
      So to answer you, I really can’t just summarize and say that I
      agree everything falls on a work injury on that date now that
      you’ve introduced this new information to me without me
      reviewing it.

      Clay’s Trial Counsel: All right. Let me add to that, that there is
      no radiological evidence that he had these two conditions prior
      to coming to see or prior to this October 16, 2007 incident.
      Adding that to the evidence that’s been given to you here today,
      do you have an opinion then as to whether the conditions were
      caused by the lifting incident?

      Dr. Fumich: I would still like to see those radiographic studies
      myself. * * * I can’t give you a definitive answer on that. I
      didn’t have any other studies that Derek brought with him
      except the ones that I took in the office, so I have not seen the
      chiropractic studies or anything prior to the year in [sic] 2007. *
      **

      ***

      Clay’s trial counsel: Let’s go off the record a moment, please. *
      * * Dr. Fumich, you’ve had an opportunity to review Plaintiff’s
      exhibit 1, which is the office records of Dr. Holman
      Chiropractic.

      Dr. Fumich: Yes.




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Case No. 1-09-55


       Clay’s Trial Counsel: Was there anything in those records that
       would assist you here today in arriving at a conclusion to a
       reasonable degree of medical probability?

       ***

       Dr. Fumich: Prior to me learning of this, I knew of no other
       incident that affected his back. And I’ve been introduced to new
       information today that leads me to believe he had something else
       going on before I met him.

       Clay’s Trial Counsel: Would the x-ray pictures assist you in
       arriving at a conclusion in this case if we had Dr. Holman’s x-
       rays taken?

       Dr. Fumich: To review an x-ray to confirm whether or not there
       was this spondylolisthesis or pars fracture that would give me
       more information to know if there was a fracture sustained on
       the date of the stated injury.

(Id. at pp. 13-17).

       {¶9} On cross-examination, Dr. Fumich further stated that Clay’s mother,

who helped Clay complete the medical history questionnaire provided to new

patients, failed to disclose that Clay had suffered two previous back injuries prior

to the injury he sustained while lifting boxes at his place of employment, and that

she failed to disclose his previous history of treatments for back injuries dating

back to 2000.

       {¶10} On September 25, 2009, Clay filed a motion for continuance of the

trial date, requesting a thirty-day continuance to give Dr. Fumich an opportunity to

review his prior treatment records so that Dr. Fumich may be able to form an



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opinion as to whether his back injury was the proximate result of his lifting boxes

while employed by Lakeview.         In the motion, Clay stated that Dr. Fumich

expressed a prior opinion in his reports that his “fracture to the pars interarticular

at L5 level resulting in an anterolisthesis at L5-S1” was sustained as a result of

lifting boxes at Lakeview in October 2007 (motion for continuance, p. 1); that,

subsequent to the deposition of Mary Eix, Clay’s mother, on September 24, 2009,

it was discovered that Dr. Fumich had not been given a history of his prior

chiropractic treatments in 2000, 2005, and February 2007; that, when Dr. Fumich

was presented with a hypothetical question at the deposition that included

information pertaining to his prior treatments, Dr. Fumich was not able to state an

opinion as to the exact cause of the diagnosis based upon this new information

relating to his prior back problems; and, that Dr. Fumich responded that he could

give an opinion as to the causation of the back injury if he was able to review the

prior radiological findings of the chiropractors to rule out pre-existing conditions.

       {¶11} Subsequently, the trial court denied Clay’s motion for a continuance,

stating the following in its judgment entry:

       Plaintiff wants a continuance due to what he calls “unexpected
       problems…with Dr. Fumich’s testimony…” Dr. Fumich has
       been identified as plaintiff’s sole expert witness. Defendant
       contends the “unexpected problems” are that Dr. Fumich was
       unable to render the necessary opinion for plaintiff’s case
       because he did not have records of plaintiff’s prior medical
       history. * * *



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         ***

         This is a case where, three business days before trial * * *, after
         counsel have [sic] waited practically until the last minute to
         learn what the expert would say, an “unexpected problem”
         arises with the plaintiff’s expert testimony – a problem that is
         ostensibly damaging to plaintiff’s case. Based on the motion * *
         *, it appears the “unexpected problem” is due to the fact that
         plaintiff’s expert, Dr. Fumich, was never provided with an
         accurate and complete history of plaintiff’s medical condition
         before he was asked to render trial testimony via his video
         deposition. * * * Is the problem one that could have been
         avoided with an accurate history or perhaps earlier or better
         preparation? Any damage to the plaintiff’s case in this instance
         was self-inflicted by waiting until the last minute to arrange for
         the expert’s deposition. * * *

(Sept. 2009 Judgment Entry on Plaintiff’s Motion for Continuance, pp. 2-4).

         {¶12} On September 29, 2009, the trial court filed a notice of its intention

to dismiss the case with prejudice pursuant to Civ.R. 41(B)(1) for Clay’s failure to

appear on the date of trial, and requested that both parties brief the issue of

whether the case should be dismissed with prejudice for failure to prosecute.

         {¶13} In October 2009, subsequent to briefing by Clay and Lakeview, the

trial court dismissed the case with prejudice, stating the following in its judgment

entry:

         This decision is necessitated by plaintiff, who, during a telephone
         conference call on September 29, 2009, represented to the court
         that plaintiff could not proceed with presentation of this case on
         September 29, 2009, the date previously scheduled for jury trial.
         The jury was canceled and plaintiff did not appear for trial on
         September 29, 2009.



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      Pursuant to R.C. 4123.512(D), plaintiff cannot unilaterally
      voluntarily dismiss his case without the consent of the defendant.
      Defendant did not consent to a voluntary dismissal. The
      plaintiff was given notice that his failure to proceed at trial
      would result in the case being dismissed pursuant to Civ.R.
      41(B)(1). Plaintiff requested the Court dismiss the matter for
      failure to prosecute “without prejudice.”

      ***

      The Court finds that plaintiff has failed to prosecute this case by
      not going forward at trial with evidence in support of his case.
      In his response * * *, plaintiff explains that the reason he did not
      go forward with the prosecution of his case was because he was
      surprised by the deposition testimony of Dr. Fumich, plaintiff’s
      expert.

      ***

      In spite of the heightened scrutiny to which dismissals with
      prejudice are subjected, a dismissal pursuant to Civ.R. 41(B)(1)
      is appropriate in cases where the conduct of a party is so
      negligent or irresponsible, as to merit such a harsh sanction. It
      is within the sound discretion of the trial court to dismiss an
      action for lack of prosecution. * * * In the careful exercise of
      this discretion, this Court considers the following:

      1. The fact that plaintiff did not appear for or proceed with
      trial;
      2. the reasons plaintiff did not proceed with presenting his
      case, including all evidence disclosed by Dr. Fumich’s deposition
      (Dr. Fumich testified, “…I’ve been introduced to new
      information today that leads me to believe he had something else
      going on before I met him.” (Fumich Dep. p. 17));
      3. the fact that plaintiff (or his mother) denied a prior history
      to Dr. Fumich; * * *
      4. the timing of the alleged “surprise,” (Fumich’s deposition
      was not arranged until a few days before trial) and the fact that
      the element of surprise could have been avoided had plaintiff not
      been so dilatory in: a) arranging the deposition, and b) making


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      sure Dr. Fumich had all the prior medical evidence before he
      rendered an opinion[.]

      ** *

      The Court finds that plaintiff’s failure to prosecute this case was
      the result of things that plaintiff could have prevented, and so,
      dismissal for lack of prosecution is warranted. * * * Dismissal
      with prejudice is also warranted and consistent with the dilatory
      conduct of plaintiff and the reasons SB 7 ended employee-
      claimants’, like plaintiff’s, unilateral ability to voluntarily
      dismiss a complaint.

(Emphasis in original). (Oct. 2009 Judgment Entry of Dismissal, pp. 1-5).

      {¶14} It is from the trial court’s dismissal of his case with prejudice that

Clay appeals, presenting the following assignment of error for our review.

      THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT
      OVERRULED PLAINTIFF-APPELLANT’S MOTION FOR
      CONTINUANCE OF THE TRIAL DATE BASED UPON
      STRANGE AND UNUSUAL CIRCUMSTANCES THAT
      PREVENTED    APPELLANT    FOR   [SIC]   HAVING
      SUFFICIENT TIME TO INVESTIGATE AND WHEN THE
      COURT    SUBSEQUENTLY    GRANTED      SUMMARY
      JUDGMENT     TO    DEFENDANT-APPELLEE      THE
      APPELLANT WAS PREJUDICED TO THE EXTENT THAT
      HIS     PREVIOUSLY     ALLOWED        WORKERS’
      COMPENSATION CLAIM WAS REVERSED.

      {¶15} In his sole assignment of error, Clay argues that the trial court

abused its discretion in denying his motion for a continuance and dismissing his

claim with prejudice. Specifically, Clay contends that a continuance of the trial

date should have been granted to give him additional time to provide Dr. Fumich

with all prior medical records so that he could make a determination as to the


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cause of his back injury, where Dr. Fumich had previously linked his diagnosis to

the injury he sustained while employed at Lakeview, where there was no prior

indication Dr. Fumich would testify that he needed to review further records to

determine the exact cause of the back injury, and where a denial of the

continuance resulted in an extreme detriment by effectively causing a dismissal of

the case with prejudice. We disagree.

       {¶16} The trial court’s grant or denial of a motion for continuance is within

the sound discretion of the trial court and will not be overturned absent an abuse of

that discretion. In re Arms, 3d Dist. No. 14-07-24, 2007-Ohio-6717, ¶13, citing

State v. Unger (1981), 67 Ohio St.2d 65, 67. See, also, Beard v. Rodriguez, 3d

Dist. No. 13-04-26, 2005-Ohio-1916, ¶5. An abuse of discretion “connotes more

than an error of law or judgment; it implies that the court’s attitude is

unreasonable, arbitrary, or unconscionable.” Blakemore v. Blakemore (1983), 5

Ohio St.3d 217, 219. When applying the abuse of discretion standard, a reviewing

court may not simply substitute its judgment for that of the trial court. Id.

       {¶17} The Supreme Court of Ohio has formulated a balancing test of all

competing interests to determine whether a trial court has abused its discretion in

its decision on a motion for continuance:

       In evaluating a motion for a continuance, a court should note,
       inter alia: the length of the delay requested; whether other
       continuances have been requested and received; the
       inconvenience to litigants, witnesses, opposing counsel and the


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       court; whether the requested delay is for legitimate reasons or
       whether it is dilatory, purposeful, or contrived; whether the
       defendant contributed to the circumstance which gives rise to
       the request for a continuance; and other relevant factors,
       depending on the unique facts of each case.

Unger, 67 Ohio St.2d at 67-68. See, also, In re T.C., 140 Ohio App.3d 409, 417,

2000-Ohio-1769.

       {¶18} Additionally, Civ.R. 41(B) provides for the involuntary dismissal of

actions, and states as follows:

       (B) Involuntary dismissal: effect thereof

       (1) Failure to prosecute. Where the plaintiff fails to prosecute,
       or comply with these rules or any court order, the court upon
       motion of a defendant or on its own motion may, after notice to
       the plaintiff’s counsel, dismiss an action or claim.

       ***

       (3) Adjudication on the merits; exception. A dismissal under
       division (B) of this rule and any dismissal not provided for in
       this rule, except as provided in division (B)(4) of this rule,
       operates as an adjudication upon the merits unless the court, in
       its order for dismissal, otherwise specifies.

       {¶19} An involuntary dismissal pursuant to Civ.R. 41(B)(1) is within the

sound discretion of the trial court. Dray v. General Motors Corp., 3d Dist. No. 1-

05-35, 2006-Ohio-347, ¶23, citing Pembaur v. Leis (1982), 1 Ohio St.3d 89, 91.

Furthermore, an involuntary dismissal with prejudice as a sanction for failure to

prosecute or for failure to follow court orders is a harsh sanction and contrary to

the fundamental preference for deciding a case on its merits. Jones v. Hartranft,


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Case No. 1-09-55


78 Ohio St.3d 368, 371, 1997-Ohio-203, citing Tokles & Son, Inc. v. Midwestern

Indemn. Co. (1992), 65 Ohio St.3d 621, 632. Consequently, a trial court should

not dismiss a case with prejudice unless the plaintiff’s conduct is “negligent,

irresponsible, contumacious or dilatory as to provide substantial grounds for a

dismissal with prejudice * * *[.]” Schreiner v. Karson (1977), 52 Ohio App.3d

219, 223. Before a trial court may dismiss an action with prejudice, it must

provide notice to the plaintiff of its intention to dismiss. Civ.R. 41(B)(1). See,

also, Dray, 2006-Ohio-347, at ¶21.       “Notice is an absolute prerequisite for

dismissal * * *.” FIA Card Servs., N.A. v. Salmon, 180 Ohio App.3d 548, 2009-

Ohio-80, ¶12, citing Perotti v. Ferguson (1983), 7 Ohio St.3d 1, 2-3.

      {¶20} Moreover, where the employer in a workers’ compensation case files

a notice of appeal from a decision of the Industrial Commission, the claimant may

not dismiss the appeal without the employer’s consent.         R.C. 4123.512(D);

Thorton v. Montville Plastics and Rubber, Inc., 11th Dist. No. 2006-G-2744,

2007-Ohio-3475, ¶¶14-15.

      {¶21} In the case sub judice, Clay scheduled a deposition with Dr. Fumich

only days before the start of trial; while the delayed deposition may have been

partly due to Dr. Fumich’s busy schedule, the deposition was taken a full year

after Lakeview filed its notice of appeal, and Clay should have anticipated the

need for Dr. Fumich’s testimony and attempted to schedule the deposition much



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sooner. Additionally, Clay did not provide Dr. Fumich with all of the information

relating to his previous back problems prior to the deposition, but introduced him

to this information at the time of the deposition. Although Clay’s trial counsel

may not have been aware that Clay failed to disclose his full back history to Dr.

Fumich, Clay knew of this concealment, and he and his trial counsel should have

been vigilant to make sure Dr. Fumich had all needed information and records

prior to the deposition in order to form an expert opinion on the relation of Clay’s

back injury to his work at Lakeview.

      {¶22} Even though the length of the continuance requested, thirty days,

was reasonable, no other continuances had been requested, and the inconvenience

to the parties would have likely been minimal, the circumstances giving rise to the

request were clearly the result of Clay’s reprehensible actions in concealing his

prior back problems from Dr. Fumich and Clay’s trial counsel’s neglect in

assuring a timely deposition and that Dr. Fumich had all necessary information

and records prior to the deposition. Accordingly, although this Court might have

reached a different conclusion regarding the continuance if the standard of review

was de novo, the denial of the motion for continuance was within the trial court’s

discretion, and we do not find an abuse of that discretion, as the trial court gave

thorough consideration to all necessary factors before exercising judgment.




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       {¶23} Turning now to Clay’s argument that the trial court erred in

dismissing his case with prejudice, we first note that Clay purposely failed to

appear for the scheduled trial date despite the trial court’s denial of his motion for

a continuance.    Although Clay may not have possessed the necessary expert

testimony to connect his back injury to actions he performed within the course of

his employment with Lakeview, he could have presented other evidence

establishing a link between the injury and his employment, including the evidence

he presented to the BWC and Industrial Commission to secure workers’

compensation benefits. Furthermore, even if Clay would have proceeded to trial

and lost, he could have appealed the trial court’s denial of his motion for a

continuance. Additionally, the trial court properly informed Clay of its intention

to dismiss his case with prejudice, and the trial court was also correct in denying

his request to dismiss the case without prejudice because Lakeview did not

consent to the dismissal.

       {¶24} Consequently, due to Clay’s actions necessitating the need for the

continuance, and Clay’s purposeful absence at trial, we find his actions to be

“negligent, irresponsible, [and] contumacious” Schreiner, 52 Ohio App.3d at 223,

such that the trial court did not abuse its discretion in dismissing the case with

prejudice.

       {¶25} Accordingly, we overrule Clay’s assignment of error.



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       {¶26} Having found no error prejudicial to the appellant herein, in the

particulars assigned and argued, we affirm the judgment of the trial court.

                                                               Judgment Affirmed

SHAW and PRESTON, J.J., concur in Judgment Only.

/jlr




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