                                       No. 110,7611

             IN THE COURT OF APPEALS OF THE STATE OF KANSAS

                                         NAM LE,
                                         Appellant,

                                             v.

                                ARMOUR ECKRICH MEATS,

                                            and

                      SAFETY NATIONAL CASUALTY CORPORATION,
                                    Appellees.

                              SYLLABUS BY THE COURT


1.
       Appeals from decisions by the Workers Compensation Board are governed by the
Kansas Judicial Review Act (KJRA), K.S.A. 77-601 et seq., to determine if the Board's
findings are supported by substantial evidence based on the record as a whole. K.S.A.
2013 Supp. 77-621(c)(7). In making this determination, the reviewing court does not
reweigh the evidence or engage in de novo review. K.S.A. 2013 Supp. 77-621(d).


2.
       Statutory interpretation is a question of law over which appellate review is
unlimited. The interpretation of a statute by an administrative agency is not binding on
the appellate court. The appellate court may grant relief if it finds the Board erroneously
interpreted or applied the law. K.S.A. 2013 Supp. 77-621(c)(4).



1
 REPORTER'S NOTE: Previously filed as an unpublished opinion, the Supreme Court
granted a motion to publish under Rule 7.04 (2015 Kan. Ct. R. Annot. 64). The published
version was filed with the Clerk of the Appellate Courts on December 14, 2015.

                                             1
3.
       Prior to 2011, well-established workers compensation law provided that when a
worker's job duties aggravated or accelerated an existing condition or disease or
intensified a preexisting condition, the aggravation became compensable as a work-
related accident. The 2011 amendments changed the scope of a compensable injury.
K.S.A. 2011 Supp. 44-508(f)(2) provides that an injury is not compensable solely
because it aggravates, accelerates, or exacerbates a preexisting condition or renders a
preexisting condition symptomatic.


4.
       K.S.A. 2011 Supp. 44-508(d) defines the term "accident" and provides that the
"accident" must be the prevailing factor in causing the injury.


5.
       Under K.S.A. 2011 Supp. 44-508(f)(2), accidental injuries resulting in a new
physical finding, or a change in the physical structure of the body, are compensable
despite the claimant also having sustained an aggravation of a preexisting condition.


6.
       Under K.S.A. 2011 Supp. 44-508(f)(2)(B)(ii), the accident must be the prevailing,
or primary, factor causing the injury, medical condition, and resulting disability or
impairment.


7.
       While a reviewing court does not substitute its view for that of the Board on issues
of credibility, the court may determine whether a testifying medical expert's testimony
provided substantial evidence to support the Board's decision.




                                             2
8.
        When a worker's chronic pain is part of a compensable injury, the employer has
the duty to provide the services of a health care provider as may be reasonably necessary
to cure and relieve the employee from the effects of the injury.


        Appeal from Workers Compensation Board. Opinion filed October 24, 2014. Reversed and
remanded with directions.


        Jeff K. Cooper and Gary M. Peterson, of Topeka, for appellant.


        Matthew J. Schaefer and Dallas L. Rakestraw, of McDonald, Tinker, Skaer, Quinn & Herrington,
P.A., of Wichita, for appellees.


Before POWELL, P.J., MCANANY, J., and BUKATY, S.J.


        MCANANY, J.: Nam Le, who had preexisting but asymptomatic osteoporosis, fell
at work and suffered a vertebral fracture at the T-10 level. The fracture healed, but Le
continued to suffer pain which prevented her from returning to work. The administrative
law judge (ALJ) found Le was permanently and totally disabled and entitled to future
medical benefits on account of her injury, including pain management care for her
chronic pain. On appeal, the Workers Compensation Board set aside the finding that Le
was permanently and totally disabled and limited her award to a 15% permanent partial
general disability and authorized future medical treatment only for the fracture. Le
appeals the Board's decision.


Facts


        Le has a high school education. She came to the United States from Vietnam in
1991. She speaks very little English and is unable to read or write English. She worked
for Armour for almost 12 years doing line food production packing. On August 8, 2011,

                                                   3
Le slipped and fell on a concrete floor, injuring her back. We need not recount here the
facts surrounding her accident, her preexisting osteoporotic condition, or the medical
treatment that followed. Those facts are well known to the parties and are set forth in
detail in the findings of the ALJ and the Board.


        Three medical doctors testified about Le's condition.


        Dr. David Johnson, Le's family doctor since November 2009, treated Le both
before and after the accident. He testified about Le's preexisting osteoporosis and the
treatments she received for it. He characterized Le's preexisting osteoporosis as severe
but asymptomatic. He stated that osteoporosis is inherently asymptomatic and only
becomes symptomatic with an injury. Dr. Johnson has not observed anything that would
lead him to believe that Le has suffered a new fracture since her work accident. He does
not challenge the conclusion that Le's fracture from the accident has healed. But Le was
fully capable of working before the accident, and but for the accident she would still be
working. The pain Le has experienced since the accident was caused by the fall and the
resulting fracture, and her inability to work has been caused by her chronic pain.


        Dr. Pedro Murati examined Le twice but did not treat her. He testified that Le's
osteoporosis is not itself painful and her pain was associated with her compression
fracture. He diagnosed Le with a greater than 50% thoracic compression fracture and low
back pain with radiculopathy. He assigned her a 24% whole person impairment rating.
He opined that she suffered an 86% task loss and was essentially and realistically
unemployable because of her chronic pain. In his opinion, it was Le's compression
fracture, not her osteoporosis, that prevented her from returning to the labor market. Dr.
Murati testified Le would need pain medication as a result of her injury for the rest of her
life.




                                             4
       Dr. John Ciccarelli first saw Le a month after her fall. He found that the fracture
was caused by Le's fall, although her osteoporosis was a significant contributing factor.
He suspected Le's bones were very brittle and predisposed her to the fracture she
experienced, but the prevailing factor causing the fracture was her work accident.
According to Dr. Ciccarelli, Le should not return to work due to her osteoporosis. She
continued to complain of pain and her pain was real, but Dr. Ciccarelli did not take that
into account in deciding not to issue work restrictions because the fracture had healed and
"structurally the spine [was] capable." Le's fracture, once healed, did not require any
permanent work restrictions. He stated, "I make the recommendations for restrictions
more based on what I feel structurally the spine is capable [of] and not necessarily just
pain complaints."


       When he last saw Le in January 2012, about 5 months after her fall, Dr. Ciccarelli
did not believe Le's fracture would require future treatment. But he reported he was
"writing for her a separate prescription that would keep her out of her job secondary to
her underlying osteoporosis and not based upon her previous work injury." When he last
saw Le, she complained of pain and, though she tried to work, she could not make it
through the day. He was of the opinion that Le's pain was real.


       Dr. Ciccarelli stated he would expect a fracture patient who suffers a minimal loss
of height in the fracture of a vertebral body "to be sore up to a year following these types
of fractures." But he acknowledged that here, Le suffered a 50% loss in height of the
vertebral space, which was the result of "a significant fracture." In any event, Dr.
Ciccarelli stated that Le had advance stage osteoporosis, and "a very common complaint
of someone with osteoporosis is chronic pain" without evidence of a specific trauma or
identifiable fracture. He acknowledged, however, that he had no indication she suffered
from chronic pain before the work accident.




                                              5
       In Dr. Ciccarelli's opinion Le sustained a 20% functional impairment, but 5% was
due to her osteoporosis, leaving her with a permanent partial impairment rating of 15%.
Considering only the healed fracture and disregarding her ongoing pain, Dr. Ciccarelli
was of the opinion that she did not suffer any task loss. He opined that Le was not in need
of future medical care for her fracture but needed ongoing care for her osteoporosis
which, if untreated, could cause chronic pain.


       The ALJ noted that prior to the accident, Le was able to work full time without
limitations despite her osteoporosis, but after the accident she was severely limited in
what she could do on account of her pain. Based on Le's personal background, her
chronic pain, and the opinions of Drs. Johnson and Murati, she determined that Le was
not capable of substantial gainful employment and was entitled to benefits for being
permanently and totally disabled. Further, Le was entitled to future medical benefits,
including pain management care.


       On appeal, the Board adopted Dr. Ciccarelli's impairment opinion and determined
that Le suffered a 15% permanent partial whole person functional impairment. The Board
found that Le's inability to return to work was not caused by her fracture but rather by her
osteoporosis. The Board disregarded Dr. Murati's impairment rating regarding Le's lower
back pain and radiculopathy because these symptoms were not a result of her fracture.
The Board limited Le's future medical treatment to treatment for her vertebral fracture. Le
appeals.


Appellate Review


       As directed by K.S.A. 2013 Supp. 44-556(a), we review the Board's order
pursuant to the Kansas Judicial Review Act (KJRA), K.S.A. 77-601 et seq., to determine
if the Board's findings are supported by substantial evidence based on the record as a


                                             6
whole. K.S.A. 2013 Supp. 77-621(c)(7). In doing so, we do not reweigh the evidence or
engage in de novo review. K.S.A. 2013 Supp. 77-621(d).


       We have unlimited review of questions involving the interpretation or construction
of a statute, owing "'no significant deference'" to the Board's interpretation or
construction. Ft. Hays St. Univ. v. University Ch., Am. Ass'n of Univ. Profs, 290 Kan.
446, 457, 228 P.3d 403 (2010). We may grant relief if we determine the Board
erroneously interpreted or applied the law. K.S.A. 2013 Supp. 77-621(c)(4). In making
that determination, we apply the law de novo to undisputed facts. Bryant v. Midwest Staff
Solutions, Inc., 292 Kan. 585, 587, 257 P.3d 255 (2011).


Permanent Total Disability—Effect of Preexisting Condition


       Before the 2011 amendments to the Act, it had been "well established under the
workers compensation law in Kansas that when a worker's job duties aggravate or
accelerate an existing condition or disease or intensify a preexisting condition, the
aggravation becomes compensable as a work-related accident." Poff v. IBP, Inc., 33 Kan.
App. 2d 700, 708-09, 106 P.3d 1152 (2005). The injured worker was entitled to
compensation for any increase in the amount of functional impairment associated with
the aggravation. See K.S.A. 2010 Supp. 44-501(c).


       But Le's accident occurred several months after the 2011 amendments to the Act
were effective. With these amendments a compensable injury was limited as follows:
"An injury is not compensable solely because it aggravates, accelerates or exacerbates a
preexisting condition or renders a preexisting condition symptomatic." K.S.A. 2011
Supp. 44-508(f)(2).


       While we have not interpreted the new language in K.S.A. 2011 Supp. 44-
508(f)(2), numerous Board decisions since this amendment have done so. See Allen v.

                                              7
Cleary Building Corp., No. 1,063,145, 2014 WL 1758038, at *6-7 (Kan. Work. Comp.
App. Bd. 2014) (citing six Board decisions interpreting K.S.A. 2011 Supp. 44-508[f][2]).


       Allen v. Cleary Building Corp.


       In Cleary, authored by Board member David A. Shufelt, the claimant had a long
history of injuries to his cervical spine. He then reinjured his neck at work. The ALJ
entered a preliminary order for benefits, and the respondent appealed to the Board,
arguing in part that the claimant's injury was not compensable because it was an
aggravation of a preexisting condition. The Board reviewed the claimant's medical
records and confirmed that he had a disk protrusion at the C6-C7 level that had not been
present in his previous MRIs in addition to medical findings in areas of his cervical spine
that had previously been injured. The Board stated:


               "It seems clear the Kansas legislature, in enacting the May 15, 2011, amendments
       to the Act, intended to limit recover in claims involving aggravations of preexisting
       conditions or which render preexisting conditions symptomatic. However, the legislature
       chose to use the term 'solely' in conjunction with the word 'aggravates' in K.S.A. 2012
       Supp. 44-508(f)(2). 'Solely' must be provided its plain meaning. The Kansas Supreme
       Court held in [Bergstrom v. Spears Manufacturing Co., 289 Kan. 605, 607-08, 214 P.3d
       676 (2009)], as follows:


               'When a workers compensation statute is plan and unambiguous, this
               court must give effect to its express language rather than determine what
               the law should or should not be. The court will not speculate on
               legislative intent and will not read the statute to add something not
               readily found in it. If the statutory language is clear, no need exists to
               resort to statutory construction. Graham v. Dokter Trucking Group, 284
               Kan. 547, 554, 161 P.3d 608 (2007).'




                                                     8
       Thus, the issue in this review is not whether claimant's preexisting cervical condition was
       aggravated by claimant's accident, but rather whether the injury solely aggravated the
       preexisting condition.


               "Recent Board decisions are instructive on the issue. The Appeals Board has
       found accidental injuries resulting in a new physical finding, or a change in the physical
       structure of the body, are compensable, despite claimant also having an aggravation of a
       preexisting condition. These decisions tend to show compensability where there is a
       demonstrated physical injury above and beyond an aggravation of a preexisting
       condition." Cleary, 2014 WL 1758038, at *6.


       The Board in Cleary considered six other Board decisions that had interpreted
K.S.A. 2011 Supp. 44-508(f)(2) to mean that accidental injuries resulting in a new
physical finding, or a change in the physical structure of the body, are compensable
despite the claimant also having sustained an aggravation of a preexisting condition.
Following those earlier Board decisions, the Board found that the claimant's C6-C7 disk
protrusion was a new lesion or change in the physical structure of his body caused by the
accident. Because of this finding, the Board determined that the accident did not solely
aggravate a preexisting condition and therefore the injury was compensable. Here are the
six other Board decisions discussed in Cleary.


       Folks v. State


       Folks v. State, No. 1,059,278, 2012 WL 4040471 (Kan. Work. Comp. App. Bd.
2012), was also authored by Board member Shufelt. There, the claimant injured his knee
while working on a ladder. "I felt my knee pop. . . . I noticed my knee starting to swell."
An MRI performed 3 days later revealed a chronic tear of the anterior cruciate ligament
and other conditions predating Folks' work accident, including significant osteoarthrosis
and osteonecrosis. None of these conditions had been symptomatic before Folks' work
accident.


                                                    9
          Dr. Mark Rasmussen diagnosed Folks as having a chronic ACL tear and
degenerative joint disease. Another orthopedist, Dr. Lepse, opined that Folks needed a
total right knee replacement. Dr. Edward Prostic testified to Folks' preexisting tears and
opined that the work accident "caused additional tearing of his medial meniscus for
which in general he would need a partial medial meniscectomy but that it would most
likely not give him relief so the total knee replacement authroplasty is claimant's best
treatment option." 2012 WL 4040471, at *3. While Dr. Prostic acknowledged that Folks'
"osteoarthritis is the greatest factor leading to the total knee replacement
recommendation," he testified that the work accident was "the prevailing factor in the
need for surgery at this time, but for the preexisting disease he would not need a total
knee replacement." 2012 WL 4040471, at *3.


          The ALJ found that Folks' meniscus injury arose out of his work injury, which was
the prevailing factor in causing his need for a total knee replacement. On appeal to the
Board, and after citing K.S.A. 2011 Supp. 44-508(f)(2), the Board affirmed the ALJ and
stated:


                  "Dr. Prostic, the court ordered independent medical examiner, opined that the
          accident caused a new tear in claimant's medial meniscus. Consequently, the accident did
          not solely aggravate, accelerate or exacerbate the preexisting condition in claimant's
          knee. Moreover, Dr. Prostic concluded that although a torn meniscus is normally treated
          by a partial medial meniscectomy, in this case because of claimant's preexisting knee
          condition such treatment would not provide claimant relief and the arthroplasty was the
          best and appropriate course of treatment. Consequently, Dr. Prostic concluded the
          December 2011 work injury was the prevailing factor in claimant's need for surgery at
          this time." 2012 WL 4040471, at *3.




                                                      10
       Homan v. U.S.D. #259


       In Homan v. U.S.D. # 259, No. 1,058,385, 2012 WL 2061780 (Kan. Work. Comp.
App. Bd. 2012), also authored by Board member Shufelt, the claimant had a preexisting
but asymptomatic carpal tunnel syndrome at the time of her work-related injury to her
wrist. The accident happened in August 2011, after the effective date of the current
statutory change. The accident resulted in a tear of the left triangular fibrocartileage and
aggravated and rendered symptomatic the claimant's carpal tunnel syndrome. The
medical testimony established the claimant's need for medical treatment for both
conditions. The Board found K.S.A. 2011 Supp. 44-508(f)(2) inapplicable because the
accident did not merely aggravate the preexisting carpal tunnel syndrome but tore a
cartilage in the claimant's wrist.


       Macintosh v. Goodyear Tire & Rubber Co.


       In Macintosh v. Goodyear Tire & Rubber Co., No. 1,057,563, 2012 WL 369786
(Kan. Work. Comp. App. Bd. 2012), also authored by Board member Shufelt, the
claimant had preexisting disk protrusions at L3-4, L4-5, and L5-S1 that had periodically
caused him pain and radiating pain on the left side. His June 2011 work-related injury
occurred when he was bounced around while driving a fork lift, causing immediate pain
from his low back down his right side. A postaccident MRI disclosed a herniated disk at
L5-S1, which affected the right passing nerve root. The Board found that the accident did
not solely aggravate a preexisting condition because of this new herniated disk. Thus, the
accident did not solely aggravate a preexisting condition. The accident was found to be
"the prevailing factor causing the injury, medical condition and resulting disability." 2012
WL 369786, at *1.




                                             11
       Short v. Interstate Brands Corp.


       In Short v. Interstate Brands Corp., No. 1,058,446, 2012 WL 3279502 (Kan.
Work. Comp. App. Bd. 2012), also authored by Board member Shufelt, the claimant had
a history of surgical reconstructive repair to the anterior cruciate ligament in his right
knee and mild osteoarthritic changes. The claimant began to experience pain in that knee
over 20 years later in July 2011 while working for respondent as a delivery route driver.
The claimant had experienced a new meniscus tear from the repetitive trauma of his
delivery work. This was a new finding. Consequently, K.S.A. 2011 Supp. 44-508(f)(2)
did not apply because the injury did not solely aggravate, accelerate, or exacerbate a
preexisting condition.


       Ragan v. Shawnee County


       In Ragan v. Shawnee County, No. 1,059,278, 2012 WL 2061787 (Kan. Work.
Comp. App. Bd. 2012), authored by Board member Duncan A. Whittier, the claimant
suffered a work-related injury to his left wrist while hauling trash. The injury caused a
partial rupture of a ligament in his wrist. In October 2011, the claimant reinjured his wrist
at work, resulting in a complete rupture of the tendon in his left wrist. The Board
determined the "claimant sustained a change in the physical structure of his wrist," so the
limitation of K.S.A. 2011 Supp. 44-508(f)(2) did not apply. 2012 WL 2061787, at *4.
The October 2011 accident was the prevailing factor in causing claimant's current injury.


       Gilpin v. Lanier Trucking Co.


       In Gilpin v. Lanier Trucking Co., No. 1,059,754, 2012 WL 6101121 (Kan. Work.
Comp. App. Bd. 2012), authored by Board member John F. Carpinelli, the claimant had a
preexisting spondylolisthesis, which was rendered symptomatic by the work-related
injury in June 2011. The Board determined that the work did not solely render his

                                              12
preexisting spondylolisthesis symptomatic. Rather, "the structure of claimant's previously
asymptomatic spondylolisthesis changed." 2012 WL 6101121, at *4.


       The interpretation found in these Board decisions comports with the plain
language of the statute, which appears to be intended to exclude liability for an
employees' preexisting conditions when the injury is solely an aggravation of the
preexisting condition. Further, while Cleary and the six Board decisions it cites were on
review of a preliminary hearing Order, no subsequent Board Order in any of these cases
undermined the holding in any of these cases.


       But in the Cleary line of cases, the injury from the work accident included
concurrent and, at the time, ongoing new injuries along with the aggravated preexisting
injuries. In our present case, Le's new injury, the vertebral fracture, according to Dr.
Ciccarelli has healed, leaving ongoing Le's preexisting condition of osteoporosis.


       But Le continues to experience chronic and debilitating pain. All of the doctors
who saw Le believed her pain was real. There is no dispute that the pain prevented Le
from doing a day's work. The question is whether the source of this pain is Le's fracture
or her preexisting osteoporosis.


       Dr. Johnson testified that fractures due to osteoporosis cause chronic pain and that
Le's pain was causally related to her work accident. He also opined that Le's pain from
her fracture would be the same even if she did not have osteoporosis. According to Dr.
Johnson, Le's inability to work is due to her chronic pain.


       Dr. Murati also opined that Le's pain was caused by her fracture, not her
osteoporosis.




                                             13
       But Dr. Ciccarelli, on whose testimony the Board relied, opined that Le's pain was
caused by an aggravation of Le's osteoporosis. He testified that he would expect ongoing
pain from a minor vertebral fracture for about a year after the injury. But here Le's
fracture was much more significant. And while "a very common complaint of someone
with osteoporosis is chronic pain," there is no indication Le suffered from chronic pain
before the work accident, though she suffered from severe osteoporosis at the time. Dr.
Ciccarelli's opinion of the source of Le's ongoing pain was made 5 months, not a year,
after the accident. Further, his 1-year pain projection applied only to minor fractures,
which was not the case here. He stated that with advance stage osteoporosis, "a very
common complaint of someone with osteoporosis is chronic pain" without evidence of a
specific trauma or identifiable fracture. But here, there was a specific trauma and
identifiable fracture sustained by Le which can account for her persistent pain, and there
is no evidence of chronic pain from undetected traumas before this work accident.


       The relevant part of K.S.A. 2011 Supp. 44-508(d) defines an "[a]ccident" as


       "an undesigned, sudden and unexpected traumatic event, usually of an afflictive or
       unfortunate nature and often, but not necessarily, accompanied by a manifestation of
       force. An accident shall be identifiable by time and place of occurrence, produce at the
       time symptoms of an injury, and occur during a single work shift. The accident must be
       the prevailing factor in causing the injury."


The Board noted that there was no dispute that Le suffered an accident as defined by this
statute.


       According to K.S.A. 2011 Supp. 44-510c(a)(2), "[p]ermanent total disability exists
when the employee, on account of the injury, has been rendered completely and
permanently incapable of engaging in any type of substantial and gainful employment."
An "injury" under K.S.A. 2011 Supp. 44-508(f)(1) requires a "lesion or change in the
physical structure of the body, causing damage or harm thereto."
                                                       14
       There is no dispute that Le suffered a vertebral fracture in her work accident. But
under K.S.A. 2011 Supp. 44-508(f)(2)(B)(ii), the accident must be "the prevailing factor
causing the injury, medical condition, and resulting disability or impairment." (Emphasis
added.) According to K.S.A. 2011 Supp. 44-508(g), to be the "prevailing factor causing
the injury," means to be "the primary factor, in relation to any other factor." Here, the
Board determined that the prevailing factor that led to Le's T-10 fracture was her fall at
work. But there remained the issue whether Le's fall and the resulting fracture were the
prevailing factor causing Le's "resulting disability or impairment" under K.S.A. 2011
Supp. 44-508(f)(2)(B)(ii). The Board resolved this issue against Le, finding that her
chronic pain was caused by her preexisting osteoporosis, not the fracture. The Board
agreed with Dr. Ciccarelli that osteoporosis was the prevailing factor in the inability of
Le to return to work.


       We do not substitute our view for that of the Board on issues of credibility. But
based on our earlier analysis of Dr. Ciccarelli's testimony, when considering the record as
a whole, we cannot conclude that Dr. Ciccarelli's testimony provided substantial evidence
to support the Board's decision. Le's osteoporosis was an ongoing condition. She did not
suffer from chronic pain before her work accident. Following the accident, she suffered
from intractable pain that prevented her from returning to work. It is undisputed that Le's
fracture was painful. In her case, the pain became chronic and has never been associated
with a post-work-accident trauma. When viewing the record as a whole, the evidence
undermines Dr. Ciccarelli's conclusion that Le's ongoing pain which prevents her from
working is attributed solely to her preexisting osteoporosis and is not a consequence of
the injury she sustained at work. See Herrera-Gallegos v. H&H Delivery Service, Inc., 42
Kan. App. 2d 360, 363, 212 P.3d 239 (2009). There was insufficient evidence to support
the Board's conclusion on this point, and we reverse and remand for the Board to
reinstate the ALJ's award based upon the finding that Le was permanently and totally
disabled.


                                             15
Future Medical


       Le asserts that the ALJ's award of future medical care should also be reinstated.
She argues that the Board erred in limiting her future medical benefits to reasonable and
necessary treatment for the T10 fracture to the exclusion of any pain management for her
chronic pain.


       According to K.S.A. 2011 Supp. 44-510h(a), the employer has the duty "to
provide the services of a health care provider . . . as may be reasonably necessary to cure
and relieve the employee from the effects of the injury." (Emphasis added.)


       Based on our finding that Le's chronic pain is part of her compensable injury, we
reverse the Board's decision regarding future medical care and reinstate the ALJ's award
including future pain management.


       Reversed and remanded with directions.




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