Lyle B. Masnikoff & Associates, P.A | Social Security Disability Lawyer, Workers Compensation, Personal Injury Protection, PIP Attorney, West Palm Beach, Orlando, Pompano, Miami Fri, 23 Dec 2016 17:56:47 +0000 en-US hourly 1 Great News for Veterans Applying for SSDI in the Future Tue, 13 Dec 2016 17:49:50 +0000 Beginning in November 2016, the Social Security Administration announced the launch of a new Health IT initiative with the Department of Veterans Affairs (VA) that enables Social Security Disability processing sites the ability to receive medical records electronically from all VA facilities. Veterans will receive a faster decisions on their

Social Security disability claim, which will save time and money in the long run. Social Security and Attorneys requesting medical records from the VA can take months to obtain and this partnership allows Social Security and VA to share health information electronically in minutes.

Social Security also offers other programs to expedite veteran’s claims for disability who have become disabled while on active military service on or after October 1, 2001, and for Veterans who have received a 100% impairment rating from the VA.

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Here’s to 2016 and the year ahead in Florida Workers’ Compensation Thu, 17 Nov 2016 17:36:59 +0000 To say a lot has happened in workers compensation in Florida over the course of 2016 is an understatement. 2016 was the year of Miles, Westhphal, and Castellanos. Some say it the year the playing field was somewhat leveled back out for injured workers. Others say it is the “golden age of comp.” 2016 was probably a little bit of both.

In 2016 we saw three major decisions handed down by the Florida Supreme Court that are having a huge impact on workers compensation in this great state. In Miles, we saw the Court hand down a decision that allows attorneys to charge by the hour for work performed on a case. This decision allows injured works to have a better outlet for representation. Prior to the decision in Miles, attorneys could only be paid if there was a recovery. This severely effected claimants who had cases with difficult chances of winning, such as exposure cases. Prior to the decision, an attorney who took on these extremely difficult cases were all but assured a loss due to the construction of the law as it relates to exposure.

Now, if a Claimant wants to pursue the claim to the highest level, they will have access to attorneys who will be willing to put in the time and expense on fighting and maybe end up changing the law altogether. Before, it was not that the attorneys were greedy or wouldn’t take the case for the sole reason of not “making money” it was simple business. Almost no business, law firms included, can take such big risks and expand the amount of time and money that is needed on theses types of cases if there was almost no way to get any of it back. Business, would not be in business long with that type of mentality. Additionally, it allows claimants who are not represented to procure an attorney for the sole reason of an upcoming hearing, such as a hearing to enforce settlement. Prior to this, if the injured worker did not have an attorney, they were on their own unless they could find someone to take it on a pro bono status.

Now they can come to an agreement with an attorney on a flat fee or hourly fee for representation. In Westphal, we saw the Supreme Court expand indemnity, or missed wage, benefits from 104 weeks to 260 weeks. This allows injured workers with the severest of injuries to keep getting much needed benefits for up to five years. Prior to this, no matter what state of recovery the injured worker was in, as long as not at MMI, the missed wage benefits cut off after 104 weeks. Indemnity benefits are arguably the most important. Unfortunately, when we are injured, our bills do not stop. We do not get a “pause” on our mortgage or car payments. This decision allows injured workers to receive missed wage benefits for a longer period of time while they receive treatment so that they do not lose their homes and up on the streets losing everything and becoming a burden on the tax payer.

Castellanos, brought back the provision where attorneys may receive hourly fee rates when a benefit is wrongfully denied or provided late by the insurance company. Prior to Castellanos, at most the carrier would owe the Claimant’s attorney is a disproportionately small amount for providing the benefit untimely. What was their potential reward for waiting? They would hope that the injured worker gets frustrated and just gives up and goes away or goes out and gets in a subsequent accident that would get them off the hook completely.

The Supreme Court also recognized this and opined that “oftentimes the worker experiences delay and resistance either by the employer or the carrier. Without the likelihood of an adequate attorney’s fee award, there is little disincentive for a carrier to deny benefits or raise multiple defenses.” The Court goes further to state: “the employer under the worker’s compensation law has the prerogative to raise a whole host of defenses to denying benefits, while the employee is at the mercy of the E/C in being required to see the doctors chosen by the E/C…to navigate the current workers’ compensation system, after a denial by the E/C of benefits, would be an impossibility without the assistance of an attorney.”

The changes in 2016 work to level the playing field and ensure that insurance companies to what they are supposed to do. That is to provide quick and efficient benefits to injured workers so that they can get back to work and provide for their families.

What does 2017 hold? No one is really sure. Some camps believe the legislature will work to repeal the law or change it back in some way shape or fashion. Some will say that the 2016 decisions work to “kill business” and really hurt workers due to the increase in rates. Others will tell you that it really helps businesses because the law works to make sure insurance companies do what they are supposed to do so that your employees are back in the work force in a more timely fashion.

Over the past seventeen years Mr. Masnikoff has been practicing, he has seen the law change many times, usually for the worse. In 2016 the law has changed for the better to help injured workers. Do not allow insurance companies and other big business to influence your legislature in 2017. Let your representatives know how you feel about workers compensation and that these decisions are the best for the state, injured workers, and business. These situations can become extremely complex. We take the time to make sure that you fully understand this complex and frustrating law. We would love to discuss your case and explain all of your options to make sure that you receive the benefits that you are entitled to under the law. If you or someone you know is in this situation, please give us a call at (877)817-4127.

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State Farm Fee Schedule Cases Thu, 20 Oct 2016 17:22:40 +0000 As you are all well aware, State Farm’s policies from 2008-2011 did not allow for fee schedule reductions. Since that period of time, State Farm has modified the language in a number of different policies. However, numerous courts have ruled on the language in various versions of State Farm policies 2012 and later. A number of courts have held that State Farm’s policies do not properly elect to use the fee schedule. The issue is now going up to the appellate courts. If you have any cases in which State Farm has reduced your bills and paid them at fee schedule, you may be able to get paid if you sent these files to a PIP attorney.

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Workers Compensation Benefits and Issues That Can Be Decided By a Judge Wed, 24 Aug 2016 20:06:57 +0000 In workers compensation, there are two benefits that an injured worker is entitled to: medical treatment and lost wages. When an employee is injured while in the course and scope of employment, the Employer is required to send the injured worker to a medical provider that is covered by their workers compensation insurance. In many instances, the Employer is reluctant to send the injured employee for medical treatment and that is when hiring an attorney would be a good option. When an attorney is hired, a Petition for Benefits is filed with the Court requesting the benefits that the injured employee is seeking. Once the Petition for Benefits is filed, the Employer and their insurance company has a certain period of time to respond by either providing the benefits or denying them. If the requested benefit is denied, that becomes an issue which the Judge of Compensation Claims has authority to decide on.

How Much Money Should Be Offered in the Settlement?

One question that many of our clients have is whether the Judge has the authority to decide how much money they should receive in a settlement. The answer is that the Judge cannot decide the amount that should be offered in a settlement because a settlement is voluntary on the side of the injured worker and also on the side of the Employer/Carrier. However, the Judge has the authority to rule on any issues in the case. For example, if a Petition for Benefits is filed requesting medical treatment with a back specialist and the Employer/Carrier denies that benefit, that issue may be taken in front of a Judge to decide whether the benefit should be provided or not.
With regards to lost wage benefits, an injured worker is entitled to lost wage checks if a workers compensation physician has opined that the employee is unable to work or places the employee on certain restrictions which the Employer is not able to accommodate. In certain situations, the Employer does not provide work to the injured employee while they are on work restrictions, but lost wages are denied. If this occurs, the issue may be taken to a Hearing for a Judge to rule on.

As you can see, there are certain benefits that may be denied by the Employer/Carrier which may need to be decided by a Judge of Compensation Claims. That is why it is important to hire a Workers’ Compensation attorney who handles these types of situations in order to get advice about how to proceed with the case. If you are in this situation or know of someone who is, have them give us a call at (877) 817-4127.

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“Caution: Your Workers Compensation Case Can Be Over Before You Ever Get Hurt” Sat, 13 Aug 2016 20:08:17 +0000 Depending on how you answered your post-hire questionnaire…

In today’s world, a lot of companies will require new employees to fill out a post-hire medical questionnaire. Typically, this questionnaire will ask general questions about your medical history, prior injuries, whether or not you have ever had a workers’ compensation claim in the past, etc… Your answers could have a major impact on your potential entitlement to benefits.

In 1961 the Florida Supreme Court handed down their ruling in Martin v. Capenter, 132 So. 2d 400 (Fla. 1961). This ruling attacked the issue of the post-hire medical questionnaire. The Supreme Court essentially ruled that you are not eligible for workers’ compensation benefits for an otherwise compensable injury if the employee intentionally makes misrepresentations regarding prior medical history. In order for the defense to apply, the Employer/Carrier must prove four criteria: 1) that there is a causal relationship between the injury and the false representation; 2) the employee knee the representation was false; 3) the employer relied on the false representation; and 4) such reliance resulted in consequent damage to the employer.

Simply proving that the injured worker lied about a medical condition is not enough to support the defense.

The Employer/Carrier must prove a causal relationship between the pre- existing condition, and the new injury. This must be done through expert medical testimony.

This prong sounds difficult for the Employer/Carrier to prove. It is not. In workers’ compensation cases, the Employer/Carrier gets to pick the doctors. This means that if you are treating pursuant to a claim, you are going where they tell you. Typically, these doctors are very conservative and often make opinions that seem to favor the insurance carrier. The one who is paying the bill. Once they present evidence to the doctor that there is a pre-existing condition, chances are that the opinion will now longer be that the work accident is the major contributing cause, or 51% or more the need for treatment.

The second prong is that the employee must have known that the statement was false. A misrepresentation is different from a misstatement. A misrepresentation means that there was intent to mislead whereas a misstatement means that the employee may have simply forgot.

This also seems easy on paper. We forget things all the time. Depending on how in depth the employee’s medical history is, it certainly is not unfathomable that someone might forget an old knee injury or back injury etc… The problem is that it is extremely hard to show that someone simply forgot an injury or surgery or treatment to the same body part that is being claimed as part of the workers’ compensation claim. Unfortunately, people do try to obtain benefits under false pretenses and it is difficult, at times, to flush out what employees simply forgot and what employees are intentionally making false statements.

The third and fourth prongs essentially mean that the employer detrimentally relied on the false statements. It does not mean, as some believe, that the employer would not have hired the employee but for the false statements. It means that the Employer/Carrier need only show evidence supporting an inference that the employer would not have hired the employee had it known about the prior condition. This inference is sufficient even without Employer/Carrier’s witness expressly stating that the employee would not have been hired.

What should one do? Err on the side of caution.

Obviously, the best course of action is to be honest regarding any prior accidents and/or injuries. If you are going to answer “no” be completely sure that you have never injured the body part that they are asking about because you don’t want it to turn into a he said/she said scenario. I would even put on the side of the question something to the effect of “not that I can recall” or “I am not sure.” You can even leave the space blank if you wish. Interestingly, if you leave the space blank, that cannot be held against you. Blank spaces are not misrepresentations. They are not even misstatements.

Without a representation, there can be no reliance. It is the employer’s duty to follow up on an omission.

Over the past seventeen years Mr. Masnikoff has been practicing, he has seen employers and insurance carrier’s try to use the Martin v. Carpenter defense countless times. These situations can become extremely complex and it is important to have a dedicated, experienced advocate on your side. We would love to discuss your case and explain all of your options and benefits that you are entitled to under the law. If you or someone you know is in this situation, please give us a call at (877) 817-43127.

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Multiple Sclerosis Support Group Meeting Thu, 28 Jul 2016 19:56:40 +0000 On Saturday, July 16, 2016, Attorney Lyle B. Masnikoff and paralegal Karen Krasnitsky attended a Multiple Sclerosis Support Group Meeting in Wellington, Florida. The president of the group invited Mr. Masnikoff and Ms. Krasnitsky to speak to the group about Social Security Disability.

The MS support group consisted of a wide range of individuals who are personally touched in some way by multiple sclerosis. The group asked our Social Security Department to come and speak with its members so they could be educated on how the Social Security process works and what to expect. We were able to answer their questions and give them some tips on how to make the process as smooth as possible
from initial filing to preparing for a hearing with a Judge.

We also discussed the listing for Multiple Sclerosis which is evaluated under 11.09 and its requirements along with the importance of their doctor’s placing limitation on them through a RFC (residual functional capacity form). It was such a pleasure meeting with this group of individuals and coincidentally we ended up learning more about Multiple Sclerosis and the exceptional assistance the Multiple Sclerosis Society provides to
individuals suffering from this disease.

The Law Offices of Lyle B. Masnikoff and Associates, P.A. has attended several meetings with various groups to discuss the impact of the Social Security Disability and Florida Workers’ Compensation laws. We have gone to Union meetings, Churches, Chambers of Commerce, and many other community outreach programs to educate the community. If you or your organization would like us to speak about workers’ compensation or Social Security Disability laws, please do not hesitate to contact us at 877-817-4127.

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Material Misrepresentation without the misrepresentation Fri, 17 Jun 2016 20:14:00 +0000 A number of low-budget insurers target segments of South Florida’s population where English is a second language. The scam by insurance companies works as follows:
First, the individual goes to an insurance agency to obtain PIP insurance for their automobile. The insured pays their premium and believe they have automobile insurance to cover their medical expenses if and when they are injured in an automobile accident.

Examination Under Oath

Upon getting in an automobile accident and seeking medical treatment, the insurance company sets up an Examination Under Oath (EUO), and asks the insured all sorts of questions. The questions revolve around a number of issues ancillary to the insurer’s purpose for the questioning, such as the medical treatment and what happened to cause the accident. The real purpose for the EUO is engage in post-loss underwriting.
Post-loss underwriting is a practice in which the insurer investigates the application for insurance after an insurance claim. The insurer asks questions about prior accidents and household members. If they found out that something was not disclosed on the application for insurance, they claim there is a “material misrepresentation” and rescind the insurance policy. The insured’s medical bills are never paid for, and it is as if there was no insurance in the first place.

Post-loss underwriting is an illegal practice in many states. However, this reprehensible practice is still legal in the state of Florida. What this practice allows insurers to do is to collect premiums, and make money off those premiums. The insurer, despite having many tools accessible to them, does not verify any of the information obtained by their agents unless and until there is a claim by the insured. Once there is a claim, the insurer seeks to rescind the policy.
This practice seeks to guarantee that the insurer does not have any risk. The insurer collects premiums on policies where there are no claims, and does not pay out on policies where there are claims. This guarantees maximum profits for these predatory insurers.

Fraud by Insurers

The majority of the time, the target of these scams are some of the minority communities in South Florida. These insurers have targeted our Haitian and Hispanic communities predominantly.
Our firm has discovered the prevalence of fraud by these insurers and their agents in procuring applications for insurance and in improperly rescinding insurance policies. Many times, the insurer is lying about household members they “discover” live with the applicant for insurance. Other times, none of the questions on the application have ever been asked of the insurance applicant. Much of the time, the applicant for insurance does not even speak English.
If you have had any claims denied for material misrepresentation, please contact our office so that we can fight for your rights.

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Castellanos and the Leveling of the Playing Field for Injured Workers Fri, 29 Apr 2016 16:45:36 +0000 On Thursday, April 28, 2016, 540 days since oral arguments, the Florida Supreme Court handed down its landmark decision in Castellanos v. Next Door Company. Essentially, this allows Claimant’s attorney’s to collect a “reasonable” fee from the Employer/Carrier when successfully securing benefits.

Previously, a Claimant’s attorney fee was based on a percentage of the value of the benefits secured. For example, your doctor recommends an MRI and the insurance company is late in providing it. You need the MRI to know what it wrong with you so you can get the proper treatment. If your attorney spends twenty hours fighting with the insurance company to get you that MRI which typically costs $450.00, he would be entitled to $90.00 or $4.50 per hour. No attorney, or any other business for that matter can survive on such a construct. The injured worker needs the MRI but the way the law was previously written, it would operate to restrict his access to attorneys who simply could not afford to fight for such benefits when the compensation is so little.

The facts of Castellanos were even more drastic. Here, you had an injured worker who was originally authorized to treat via the workers compensation insurance carrier and was ultimately denied authorization of x­rays, medications, and physical therapy. While these benefits may not have a huge money benefit, they are invaluable to Mr. Castellanos who absolutely needed these treatments for his health and well being. His attorney successfully fought for him and ultimately won. His attorney put in 107.20 hours and was paid $1.53 per hour under the law as it related to attorney fees. No one can work in any industry for $1.53 per hour. Countless injured workers were in the same situation where they were wrongfully denied benefits but had no recourse or way to fight because an attorney simply could not take the case and survive financially.

How does the Castellanos case help an injured worker? Immensely. The workers compensation law in Florida is anything but great for the injured worker. It is extremely frustrating, complex, and the deck seems to be stacked against the worker before an injury even occurs. The Supreme Court recognizes this and stated in their holding “in reality, the workers’ compensation system has become increasingly complex to the detriment of the claimant.” The Court goes on to state “it is undeniable that without the right to an attorney with a reasonable fee, the workers’ compensation law can no longer assure the quick and efficient delivery of disability and medical benefits to an injured worker.”

Day in and day out, Claimant’s attorneys will file Petitions for Benefits with the Office of the Judge of Compensation Claims requesting a much needed benefit whether medical or lost wages. A response should be filed within fourteen days and the requested benefit provided within thirty. Often times, the response and benefit will either be provided late, or not at all, leaving the injured worker, the person this law is meant to protect, waiting and potentially getting worse.

What is the incentive for the insurance company to provide the benefit timely? Previously, not much. As used in the example above, typically, at most they would owe the Claimant’s attorney is a disproportionately small amount for providing the benefit untimely.

What was their potential reward for waiting? They would hope that the injured worker gets frustrated and just gives up and goes away or goes out and gets in a subsequent accident that would get them off the hook completely.

The Supreme Court also recognizes this and opined that “oftentimes the worker experiences delay and resistance either by the employer or the carrier. Without the likelihood of an adequate attorney’s fee award, there is little disincentive for a carrier to deny benefits or raise multiple defenses.” The Court goes further to state: “the employer under the worker’s compensation law has the prerogative to raise a whole host of defenses to denying benefits, while the employee is at the mercy of the E/C in being required to see the doctors chosen by the E/C…to navigate the current workers’ compensation system, after a denial by the E/C of benefits, would be an impossibility without the assistance of an attorney.”

The scales are leveling out. Now attorneys will be willing to accept cases and prosecute Employer/Carriers for not providing benefits because they will now be entitled to a reasonable attorney fee. Most importantly, this will make the Employer/Carrier start providing much needed benefits to injured workers timely which will in turn help injured workers get the treatment and lost wages they need and get back to their lives.

Additionally, Employer/Carriers may now offer more money to settle and close a case rather than risk paying even more in attorney’s fees later.

Over the past seventeen years Mr. Masnikoff has been practicing, he has seen the law change many times, usually for the worse. This time the law has changed for the better to help injured workers. These situations can become extremely complex. We take the time to make sure that you fully understand this complex and frustrating law. We would love to discuss your case and explain all of your options to make sure that you receive the benefits that you are entitled to under the law. If you or someone you know is in this situation, please give us a call at (877) 817­4127.

The entire opinion can be found at:­2082.pdf

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Your Road to Representation Just Got a Little Easier Tue, 19 Apr 2016 16:47:37 +0000 On April 20, 2016, Florida’s First District Court of Appeal published it’s holding in Miles v. City of Edgewater Police. This case dealt with a police officer who was bringing a Workers’ Compensation claim based on injuries sustained due to exposure to various chemicals while pursing active criminal cases.

Under the current law in Florida, many view exposure claims as the most expensive to litigate due to the guaranteed need for expert testimony, and most difficult to prove. In order to succeed on an exposure claim, one must prove by clear and convincing evidence: first, that he or she was in fact exposed to the specific substance, second, the level of exposure, and third, that the level of exposure to the specific substance can cause the injury or disease sustained.

The second prong is the most difficult. It is practically impossible for one to prove the level of exposure at the time of exposure. Very few of us  walk around in our daily lives with air quality tests in our back pocket.

Attorney’s in Florida, who practice in the Workers’ Compensation arena, were bound by only receiving contingent fees based on the value of benefits secured for the injured worker. What if no benefits are awarded and the Claim is denied by the Judge of Compensation Claims? Oh well, the attorney does not get paid and the Claimant may be on the hook for paying defense costs. This is especially evident in exposure cases. Why would an attorney, or a person in any industry, take a case or project on where the likelihood of success is so low that you will likely receive nothing for the hours and hard work that is put in? On top of it, you may expose your client to liability for the other sides costs. As evidenced by the Miles Court in it’s holding, attorneys will not take such cases.

What if the injured worker wants to pursue her case to a Final Hearing regardless? Good luck on your own because attorneys most likely wont be able to help at the Final Hearing stage of the game. It is not because they don’t want to or are afraid., it is because it is not economically feasible to take on such a case.

That just changed with Miles. Miles, involved a retainer agreement and then hourly fee construct as opposed to the “fees based on value of benefits” structure. The Judge of Compensation Claims ruled the this was not allowed, but the First DCA overruled the decision on several constitutional grounds.

How does this help the injured worker? Immensely. For starters, more attorneys will be willing to take on exposure claims if they know that they wont go bankrupt fighting the insurance company.

They have an alternative route to get fees and costs, even if unsuccessful. In addition to that, it may work to prompt insurance carriers to take a harder look at exposure claims being brought.

Previously, Employer/Carrier’s would offer very little money on exposure claims because they were all but guaranteed that no attorney would bring them to the Final Hearing level. Now, if they know that they have more of a fight coming, they may offer more money to settle exposure claims before they get to the Hearing.

In addition to this, one other key area this will help you, is after your case has gone to a hearing and you lost, or after your case is settled. Florida’s Workers Compensation system is a “loser pays” system. What does that mean? What that means is that if you go to a hearing or have a Petition dismissed, the other side may seek to tax costs against you. Previously, you would have had a hard time finding an attorney to represent you in such a hearing because  there would be no benefit that she would procure so no way to get paid. Now, you and an attorney can enter into a retainer agreement based on an hourly fee or flat rate, so that  you have adequate representation and are not walking into the Lion’s den.

Also, many claimants look for representation after a case is settled and for some reason or another the settlement is on the verge of falling through or the Claimant does not wish to proceed for a variety of reasons. A Motion to Enforce Settlement will be filed and hearing on the matter set before the Judge of Compensation Claims. Many times, at this stage, the injured worker is no longer represented and left to appear at the hearing with seasoned attorney’s unrepresented. Even if they wanted an attorney to help them at the Motion to Enforce Hearing, they would not be able to get one because the attorney could not get paid. She would not be securing any benefit and therefor would not be entitled to a fee. Now, pursuant to Miles, these workers will be able to contract with an attorney to represent them at the Hearing and the attorney will not have to worry about getting paid.

These situations can become extremely complex. We take the time to make sure that you fully understand this complex and frustrating law. We would love to discuss your case and explain all of your options to make sure that you receive the benefits that you are entitled to under the law. If you or someone you know is in this situation, please give us a call at (877)817­-4127.

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Durable Medical Equipment – Another Excuse to Deny PIP Payments? Mon, 11 Apr 2016 16:33:35 +0000 A recent trend we have noticed with PIP insurers is their overly broad use of denials based on a failure to have a proper license to sell durable medical equipment. There is some equipment that does require a license to sell durable medical equipment, such as a TENS unit. However, insurers have been using this tool to deny reimbursement for other equipment that does not fall under the category of durable medical equipment. One such type is back braces.

Pursuant to ACHA’s definition of durable medical equipment, it “does not include prosthetics or orthotics or any splints, braces, or aids custom fabricated by a licensed health care practitioner … [t]hus, a provider that sells or rents prosthetics or orthotics exclusively would not need [a home medical equipment license].”

Despite such facts, a number of insurers are trying to use this loophole in order to deny the payment of proper claims. Please contact our office at 877-817-4127 if you have any such denials, and we can guide you on whether you need a license or not.

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