Court News Ohio
Court News Ohio
Court News Ohio

Tuesday, May 16, 2023

Lamar Thomas v. [Stephanie McCloud], administrator, Ohio Bureau of Workers’ Compensation, Case No. 2022-0787
Tenth District Court of Appeals (Cuyahoga County)

Disciplinary Counsel v. Omar F. Shaaban, Case No. 2023-0179
Lucas County

Disciplinary Counsel v. Jason D. Warner, Case No. 2023-0180
Marion County

Christopher Hildebrant v. Thomas Weidman, Case Nos. 2022-0837 and 2022-1042
Twelfth District Court of Appeals (Warren County)

Can Bureau of Workers’ Compensation Recover Costs of Medical Reviews?

Lamar Thomas v. [Stephanie McCloud], administrator, Ohio Bureau of Workers’ Compensation, Case No. 2022-0787
Tenth District Court of Appeals (Cuyahoga County)

ISSUE: Is an independent medical review paid by the Bureau of Workers’ Compensation a cost that is paid “on behalf of the claimant”?

In September 2013, Lamar Thomas was at work at a Cleveland waste management company when he was injured in an auto accident he said was caused by another driver. The Ohio Bureau of Workers’ Compensation (BWC) paid benefits to Thomas for neck and back injuries.

Thomas asked the next year for the BWC to provide additional compensation for the back injuries. He included a statement from his doctor. The BWC initially declined the request, but referred the issue to a doctor of its choice for review of Thomas’ medical records. Based on the records, the doctor concluded that the additional injuries Thomas submitted weren’t related to the 2013 auto accident.

The determination was disputed and was heard by the Ohio Industrial Commission, which considers contested workers’ compensation claims. The BWC prevailed and Thomas’ request was denied.

In 2015, Thomas separately settled a lawsuit that accused the other driver of negligence in the 2013 accident. The BWC asserted it was entitled to reimbursement of $6,044 from the settlement. The amount included the costs that BWC had already paid for Thomas’ medical bills and benefits related to the auto accident. It also included the doctor’s review of his medical records when he requested additional benefits.

Worker Sues BWC for Making Him Reimburse Medical Review Cost
Thomas filed a lawsuit against the BWC in February 2016. He argued the BWC was “unjustly enriched” by the payment out of the third-party settlement for the cost of the BWC doctor’s medical review. He stated that the medical review cost wasn’t part of what he sought in the lawsuit against the third party.

The lawsuit against the BWC was initially filed in Cuyahoga County, then transferred to Franklin County. After a 2020 Supreme Court of Ohio decision involving the BWC, Thomas and the bureau agreed that they needed to refile Thomas’ case in the Ohio Court of Claims. In June 2021, the court issued a ruling based on the pleadings alone and concluded that the medical review of Thomas’ records fell within the BWC’s rights to recover expenses. Thomas appealed to the Tenth District Court of Appeals.

The Tenth District reversed, determining that the BWC wasn’t entitled to recover the cost from the settlement. The BWC appealed to the Supreme Court of Ohio, which accepted the case.

BWC Contends It Can Recover Any Cost It Paid on Injured Worker’s Behalf
When an injured worker who was provided workers’ compensation later receives money related to the injury from a third party, the BWC has a right to recover a share of the funds. This right to recover costs is called “subrogation.” According to state law, the BWC can recover “payments of compensation, medical benefits, rehabilitation costs, or death benefits, and any other costs or expenses paid to or on behalf of the claimant” by the BWC.

The BWC asserts that the cost of the doctor’s review of Thomas’ medical records qualifies as an expense it paid “on behalf of the claimant.” Thomas asked for an additional allowance for his medical condition, and the BWC ordered a review of his medical records as part of completing the record in considering his request. If the BWC pays a cost, such as this medical review, on behalf of the claimant, the cost can be recovered through subrogation, the bureau maintains. It argues the type of expense doesn’t matter, only whether the BWC paid the cost on the claimant’s behalf.

The bureau also contends that the medical review wasn’t an “administrative cost,” which must be paid from a separate fund that isn’t for benefits provided to workers. Administrative costs are “incident to” the BWC conducting its duties and activities, the bureau notes. In its view, administrative costs are rent, payroll, equipment, and other overhead expenses.

Worker Argues His Settlement Didn’t Reimburse Medical Review Cost
Thomas counters that the BWC determination about his additional injuries ignored the diagnosis of the physician who was treating him. The doctor found that the auto accident aggravated earlier lower back injuries beyond the compensation paid by the BWC, his brief states. Instead of approving the doctor’s recommendation, the BWC selected a physician who “divine[d] from the charting alone” that his medical issue existed before the auto accident, the brief maintains.

Thomas argues that the purpose of the subrogation provision in the workers’ compensation statute is to prevent claimants from double recoveries for an injury or loss from one incident. He contends that he wasn’t paid twice for the cost of the medical review ordered by the BWC. He notes that he didn’t receive anything in the settlement with the third party for the cost of the medical review. There was no double recovery, he maintains. To allow the BWC to recover the medical review costs is a “windfall” for the bureau, allowing it to recoup more than was included in the third-party settlement, Thomas asserts.

Thomas also disputes that the medical review was performed on his behalf. Instead, he argues, the medical reviews of charts are a routine BWC administrative cost for building a record in a workers’ compensation case. The reviews are part of the BWC’s discharge of its duties, and the costs aren’t allowed to be passed on to injured workers, Thomas concludes.

Business and Legal Groups File Additional Briefs
The Ohio Chamber of Commerce, Ohio Manufacturer’s Association, and National Federation of Independent Business Ohio filed a joint amicus curiae brief supporting the BWC’s arguments. The groups notes that Ohio law requires most employers to contribute to a state insurance fund. They express concerns that upholding the Tenth District’s ruling for Thomas will increase employer costs if the possibility diminishes for the BWC to recover costs.

An amicus brief for Thomas was submitted by the Ohio Association of Justice, which is comprised of attorneys who represent plaintiffs in civil cases. The association argues that the BWC recovery of medical review costs is an unconstitutional taking from injured workers who don’t recover these costs in a third-party lawsuit.

Kathleen Maloney

Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.

Representing Stephanie McCloud, administrator, Ohio Bureau of Workers’ Compensation, from the Ohio Attorney General’s Office: Benjamin Flowers,

Representing Lamar Thomas: Paul Flowers,

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Suspension Considered for Attorney Who Mishandled Client Foreclosures

Disciplinary Counsel v. Omar F. Shaaban, Case No. 2023-0179
Lucas County

The Board of Professional Conduct recommends that a Toledo attorney be suspended for two years, with one year stayed with conditions. The board found that the attorney violated 38 ethics rules while handling cases for eight clients – seven of whom were homeowners he represented in foreclosure actions.

The seven foreclosure cases were referred to attorney Omar Shaaban by James Warsing, owner of Ohio Mortgage Review. Warsing offered to defend people against foreclosures. The board determined that Shaaban improperly shared legal fees with Warsing, who wasn’t a lawyer. Shaaban also committed other misconduct, such as not appearing in court for scheduled hearings and failing to inform clients about their cases.

Shaaban acknowledges the misconduct but objects to the one-year actual suspension. Because he disagrees with the board recommendation, the Supreme Court of Ohio will hear his case during oral arguments.

Lawyer and Business Owner Partner on Foreclosure Lawsuits
Warsing had an arrangement with Shaaban to refer clients facing foreclosure to the lawyer for legal representation. The referrals took place from about 2010 to 2013 or 2014, and resumed in 2017 or 2018. Warsing did much of the work, including legal research and drafting legal documents, for the clients. He then sent the paperwork to Shaaban for review and signature. Either Warsing or Shaaban would file the documents in court. There was no set fee for Shaaban, and he didn’t keep records of the payments he got from Warsing.

In a 2018 case, Warsing saw in public records that a woman was facing foreclosure on her Geauga County home. Warsing met with her, said he would hire an attorney, and said she would be able to keep her house. The woman never knew Shaaban was her attorney and never met with him.

Shaaban notified the court that he was representing the woman. But he missed legal filing deadlines, didn’t alert his client about hearing dates, and didn’t show up for multiple hearings. He also failed to respond to emails from the mortgage bank’s attorney, including offers to settle the matter. At one point, Shaaban told the court a client couldn’t attend an August 2018 hearing because she was having surgery on the same day. The client was scheduled for surgery but not until early September. He also claimed he tried to call the client and believed the phone had been disconnected. The board report states that the client’s phone wasn’t disconnected. In March 2019, the client’s home was sold.

The homes of three other clients identified in the board report also were sold after foreclosure. Three more clients hired other attorneys, who were able to settle their cases. With these clients, the board found that Shaaban failed to inform them about their cases, including bank offers to resolve the foreclosures, and he repeatedly missed court hearings among other attorney misconduct. In addition to two cases in Geauga County, the others crossed Ashtabula, Cuyahoga, Lake, and Summit counties.

According to the board panel that reviewed Shaaban’s disciplinary cases, he violated ethics rules requiring attorneys to act diligently, consult with clients about what they want to achieve, keep them informed about their cases, and explain matters so that clients can make informed decisions.

Client Subject to Arrest When Attorney Misses Meetings
In a separate matter, Shaaban represented a woman charged with driving while her driver’s license was suspended. Shaaban didn’t appear for a couple pretrial and plea proceedings, leading the court to issue bench warrants for his client’s arrest. In most of the cases, Shaaban would file a motion requesting the withdrawal of the warrant. But in February 2022, a client was arrested following her and Shaaban’s failure to appear at a January 2022 hearing.

In May 2022, he and his client appeared in court, where his client pled no contest. The board report concluded that Shaaban violated rules by knowingly disobeying obligations under court rules, and engaging in conduct prejudicial to the administration of justice and that adversely reflects on his fitness to practice law.

Attorney Contends He Has Made Changes, No Actual Suspension Needed
Shaaban asks the Supreme Court to fully stay the recommended two-year suspension. He testified at the disciplinary hearing that he did the foreclosure work to make extra money and didn’t realize that his arrangement with Warsing, who died in 2020, violated attorney conduct rules. He has since learned about rules regarding fee sharing, and there is no chance of him making the mistake again, he states. Noting that he is a solo practitioner with no support staff, Shaaban adds that he has substantially reduced his caseload, which had overwhelmed him, and he has purchased case management software.

He argues he didn’t make false statements at any point and didn’t act dishonestly or engage in misrepresentation. An actual suspension isn’t warranted, he maintains.

Disciplinary Counsel Cites Board Reservations
The Office of Disciplinary Counsel, which investigated the complaints, points out that the board panel had lingering concerns after hearing Shaaban testify. The report noted that Shaaban said the assignments with Warsing were “easy money,” yet Shaaban knew Warsing was using his name and attorney number to file documents the attorney hadn’t reviewed. The panel stated that it seemed Shaaban would be willing to violate the ethics rules if profitable to him. The panel’s conclusions about Shaaban’s credibility during the disciplinary hearing should be given deference, and the sanction and conditions recommended to protect the public are supported by the evidence, the disciplinary counsel asserts.

Kathleen Maloney

Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.

Omar F. Shaaban, representing himself:

Representing the Office of Disciplinary Counsel: Lia Meehan,

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Former Judge Convicted of Leaving Accident Scene Faces Indefinite Suspension

Disciplinary Counsel v. Jason D. Warner, Case No. 2023-0180
Marion County

Jason Warner was elected in 2018 as a Marion County Common Pleas judge. In June 2020, Warner and his wife, Julie, were in an auto accident. The Warners were driving home and didn’t yield to an oncoming vehicle, and the cars collided. The Warners left the accident scene, where the other driver was seriously injured, and didn’t report the accident until the next day.

Then-Judge Warner was convicted in March 2021 of complicity for leaving an accident scene and complicity to tampering with evidence. He was sentenced to two years in prison and is currently incarcerated. His wife was also convicted for similar offenses.

Following his conviction, the Supreme Court of Ohio placed the judge on an interim suspension. He resigned from the bench a few months later. The Board of Professional Conduct recommends that the former judge be indefinitely suspended from the practice of law. The board opposes any credit for the time he has been suspended on the interim basis.

The former judge believes the panel that reviewed the disciplinary case didn’t give the board all the relevant and undisputed evidence and that he should receive a lesser sanction. Because he objects to the board recommendations, the Supreme Court of Ohio will hear his case during oral arguments.

Judge and Wife Socialize With Friends
On June 3, 2020, the Warners met with friends. Mrs. Warner had three glasses of wine, and then-Judge Warner consumed three or four mixed drinks. They said Mrs. Warner took the wheel and started the drive home shortly before midnight.

When the cars crashed, the other vehicle went off the road and hit a utility pole. Judge Warner exited their Jeep. Mrs. Warner then stepped out of the vehicle. They approached the other car. The judge called out, asking whether anyone in the car was OK and if they could hear him. No one responded.

The judge said that it was raining and his wife yelled at him to return to their vehicle. He said they got into their damaged vehicle and his wife panicked, driving away. They went home, and neither of them contacted emergency authorities to report the accident or to find help for anyone in the other car. A witness heard the collision and called 911. The 19-year-old driver of the other car was badly injured and had to be extracted.

The next morning at about 9:30 a.m., the Warners went to the Ohio Highway Patrol to report the accident.

According to the board report, the other driver suffered from headaches, memory issues, temporary Bell’s palsy, and difficulty walking. He had to move into his parents’ home, was unable to start college that fall, and couldn’t return to his job. He can’t take part in activities he once enjoyed, such as skateboarding, and couldn’t drive for six months because of fear and anxiety, the board report noted.

Mr. Warner’s convictions were two felonies – complicity for leaving the scene of an accident and tampering with evidence because they moved their vehicle, knowing that a criminal investigation was likely. The Third District Court of Appeals upheld his convictions.

Board Finds That Judge Violated Judicial and Professional Conduct Rules
The panel that conducted the disciplinary hearing determined that Mr. Warner violated judicial conduct rules – requirements that judges comply with the law, promote public confidence in the judiciary, and avoid the appearance of impropriety. He also violated attorney conduct rules that prohibit illegal acts that reflect on the attorney’s honesty and trustworthiness, conduct prejudicial to the administration of justice, and conduct that adversely reflects on the fitness to practice law, according to the board report.

The report notes that Mr. Warner “left [the other driver] for dead” and points out that he had been employed as a law director, magistrate, and judge.

“[Mr. Warner] knew that by leaving the scene of the accident and failing to report the accident for nine hours, law enforcement’s investigation into the cause of the crash and any determination of whether alcohol was a factor in the crash would be impeded,” the report states. “[He] knew, based on his training and experience, it was wrong to leave the scene of the accident and to remove from the scene one of the vehicles involved.”

Former Judge Believes Situation Had Been Misunderstood
Mr. Warner argues in his objections that the board was unable to make an informed and fair recommendation of discipline because the panel members didn’t provide the board with “substantial and critically important evidence and testimony” in this ““singularly unique” case. He states that his wife gave him no warning that she was going to leave the accident scene. He didn’t advise or encourage her to leave. He says he feels “horrible” that he didn’t call 911. It took a long time to convince his wife to do the right thing and report the accident, he notes.

He also mentions that he waived his right to trial by jury and to testify, based on his attorney’s advice. He adds that his presentence investigation report suggested a sentence of community control, but the trial court imposed a 24-month prison sentence. He and his wife have expressed remorse and have paid restitution to the injured driver, he states.

His objections contend that he wasn’t the primary offender since he wasn’t driving and he didn’t aid or abet his wife’s actions. The objections argue that because the board didn’t have all the information, it couldn’t consider his and his wife’s testimony, which “clarifies what actually happened in the accident and its aftermath.”

He believes the appropriate sanction is a two-year suspension with credit for the time he has been suspended since March 2021.

Disciplinary Counsel Notes That Convictions Have Been Upheld
The Office of Disciplinary Counsel maintains that throughout the disciplinary proceedings, the former judge repeatedly has contested his convictions. The disciplinary counsel explains that a conviction is conclusive evidence in a disciplinary case that the person committed the crime, also noting that the convictions have been upheld on appeal in the courts.

The disciplinary counsel states that the panel considered and made its recommendations based on all of the evidence. However, the panel isn’t required to summarize all evidence and testimony – a task that would be impossible, the disciplinary counsel states. The panel members didn’t believe that the then-judge was a passive participant in the crimes, or just happened to be there, as he has claimed. Information that the former judge thinks was withheld from the board either was considered or was irrelevant to the board’s decision, the disciplinary counsel asserts.

Disbarment has been imposed for many sitting judges who have been convicted of a felony, the disciplinary counsel notes. However, those cases usually involve repeated, preplanned felonious conduct. Because Mr. Warner’s conduct, which was “reprehensible,” arose out of a single event that wasn’t premeditated, the board recommended an indefinite suspension, which gives him the opportunity to request a reinstatement to practicing law, the disciplinary counsel explains. Noting that sitting judges are held to a higher ethical standard, the disciplinary counsel points out that they are aware of no sitting judge convicted of a felony who has received less than an indefinite suspension.

Kathleen Maloney

Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.

Representing the Office of Disciplinary Counsel: Lia Meehan,

Representing Jason D. Warner: Thomas Kidd Jr.,

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Can Libel Lawsuit Over Secretive Fake Email Be Filed a Decade Later?

Christopher Hildebrant v. Thomas Weidman, Case Nos. 2022-0837 and 2022-1042
Twelfth District Court of Appeals (Warren County)


  • Is there an exception to the one-year statute of limitations on a libel claim if the publication of defamatory statements was secretive, concealed, or otherwise unknowable?
  • Should Ohio recognize an exception to the statute of limitations for libel lawsuits that allow for filing the suit when the plaintiff discovers or should have discovered a defamatory statement?
  • Should the exception to the one-year statute of limitations on libel claims apply to additional claims such as false light, invasion of privacy, and intentional infliction of emotional distress?

Christopher Hildebrant is a Cincinnati real estate developer who has been involved in various projects in Sycamore Township in Warren County. Many of the projects require approval from the township board of trustees, including from Trustee Thomas Weidman. Hildebrant alleges that on several occasions, Weidman threatened to block approval of Hildebrant’s projects unless Weidman was paid a bribe.

In July 2011, Hildebrant was brokering the sale of property between SDI Foods and Sycamore Township. If successful, Hildebrant would earn consulting payments from both SDI Foods and the township. Hildebrant maintains that when Weidman learned of the SDI payments, he threatened to block the project unless he got half of the SDI payment.

Hildebrant also alleges Stanford Roberts, the SDI Foods representative on the project, demanded that he receive half the consulting payment from Sycamore Township. Hildebrant said he told both he would split his payments, to placate the men, but never intended to pay them. When the deal was completed, Hildebrant received his full consulting payment from SDI Foods and a partial payment from the township. He made no payments to Roberts or Weidman.

Fake Email Created to Avoid Payments
When Roberts continued to seek payment, Hildebrant created an email in December 2011 that appeared to show Weidman demanding a bribe payment from Hildebrant. The email was sent from a fictitious email account under the name to Hildebrant’s account. Hildebrant then forwarded the phony email to Roberts, and indicated there was no money to pay Roberts.

In 2019, eight years after the transmission of the phony email, Hildebrant was representing another client on the development of land in Sycamore Township. The company’s purchase of the land from the township required unanimous approval of the township trustees. Weidman opposed the sale.

In January 2020, Hildebrant met with Township Trustee James LaBarbara and Township Administrator Raymond Warrick. Hildebrant showed the officials the phony 2011 email and explained that Weidman was attempting to punish Hildebrant for not paying a bribe in 2011. The officials alerted the state auditor’s office, which investigated Weidman. During the November 2020 investigation, Hildebrant first told authorities the email was jointly created by Weidman and himself. He later admitted he solely drafted the email and sent it to himself.

Weidman learned of the email from investigators in November 2020 and denied writing it. He told the auditor’s office that the account didn’t belong to him. He wasn’t permitted to obtain a copy of the email until the auditor’s office made it available in January 2021.

Trustee Sues Developer for Libel
In February 2021, Weidman filed a libel lawsuit against Hildebrant in Warren County Common Pleas Court. He also alleged false light invasion of privacy and intentional inflection of emotional distress based on the fake 2011 email.

In May 2021, Hildebrant asked the trial court for summary judgment. He noted that under R.C. 2305.11(A), the statute of limitations for a libel lawsuit expires after one year from the first publication of the allegedly defamatory statement. Hildebrant argued the statute of limitations expired nearly a decade before. He also noted that Ohio law doesn’t restart the statute of limitations clock when the false statements are republished. Even if showing the emails to LaBarbara and Warrick in January 2020 constituted “publication” of the false statement, Weidman’s February 2021 lawsuit would still be barred by the one-year time limit, Hildebrant maintained.

The trial court agreed and dismissed the case. Weidman appealed to the Twelfth District Court of Appeals, which reversed the trial court’s decision. The Twelfth District determined its decision conflicted with other appellate court decisions.

Hildebrant appealed to the Supreme Court of Ohio, which agreed to hear his case and consider the conflict among appellate courts.

Filing Deadline Not Subject to Extension, Developer Argues
Hildebrant argues the Twelfth District created an exception to the one-year statute of limitations for libel lawsuits based on a “discovery” theory that has been applied to other types of personal injury lawsuits, such as medical malpractice and diseases caused by asbestos exposure. In this case, the Twelfth District found that the libelous statements made about Weidman were in an email that the trustee couldn’t have known about at the time it was published. The appeals court ruled that the time to file a lawsuit about false statements that were “secretive, concealed, or otherwise inherently unknowable to the nature of the publication” should begin when the plaintiff knows about them or with reasonable diligence could have discovered them.

Hildebrant argues the exception is contrary to more than a century of Ohio law that imposes a firm one-year deadline. The General Assembly has modified R.C. 2305.11(A) many times over the years and has never added an exception extending the filing time to when the allegedly false statements were discovered, he notes. Hildebrant explains the discovery rules apply to cases when the injury isn’t likely to occur immediately. He notes the period when someone might experience the health effects from asbestos exposure might not occur until decades later, and a person might not discover a mistake made by a physician until years after the procedure.

Contrary to those injuries that might occur later, the injury from libel is most harmful shortly after the false statements are made, Hildebrant argues. This is why lawmakers haven’t considered or seen the need for a discovery exception such as the one proposed by Weidman and authorized by the Twelfth District, he argues.

Claims like false light and infliction of emotional distress are claims derived from the libel claim, Hildebrant notes. When libel is the basis for the other related claims, all the claims are subjected to the one-year statute of limitations governing the libel claim, he argues. Since the statute of limitations expired on the libel claim, Hildebrant asserts that all of Weidman’s legal claims are barred and were correctly dismissed by the trial court.

Time Starts When Secret Communications Revealed, Trustee Asserts
Weidman notes R.C. 2305.11(A) doesn’t state that the lawsuit must be filed within one year of when the false statement was published, but rather within a year “after the cause of action accrued.” Because the legislature didn’t define when an injury by a false statement “accrues,” then the courts are able to develop a rule that is fair to the parties , he argues. While some courts have determined an injury by libel accrues when the statement is published, those were cases when the information was generally available to the public. Weidman argues that when false statements are made in private, secretive publications like an email, then it is unfair to bar a lawsuit even before the injured person is aware of the statement.

Weidman argues he first became aware of the fake email in November 2020 when it was presented to him by investigators. He argues that the discovery exception should apply and even though the email was 10 years old, he had until November 2021 to file a lawsuit based on  Hildebrant’s false statements. Since he filed in February 2021, his lawsuit should proceed, he maintains.

Weidman rejects the argument that allowing a discovery exception would lead to a rash of lawsuits based on false statements made by others in years past. He maintains most defamation lawsuits involve comments made in mass media where the injured persons would readily access them. However, in cases where false statements have been made in confidential memorandum, notes in personnel files, and credit reports, courts have recognized the injured person may not discover the comment or realize the harm until the statements are revealed. In those limited cases, the exception should apply, Weidman concludes.

Friend-of-the-Court Brief Submitted
An amicus curiae brief supporting the Weidman’s position was submitted by the Ohio Employment Lawyers Association.

Dan Trevas

Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket (2022-0837 and 2022-1042).

Representing Christopher Hildebrant: Russell Sayre,

Representing Thomas Weidman: Todd McMurty,

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