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April 25, 1967

Maebell STEELE, Individually, and as mother and next friend of Michael Stephen Steele, minor, and as next friend of Sheila Marie Steele, minor, Plaintiffs,
Herman ADLER, Deputy Commissioner, United States Employees' Compensation Commission, District of Columbia Compensation District, Defendant, Beth Sholom Congregation and Talmud Torah and Aetna Casualty & Surety Co., Intervening Defendants

The opinion of the court was delivered by: GASCH

 On March 3, 1966, this Court ordered that a Compensation Order of February 18, 1965, issued by the defendant Deputy Commissioner, which rejected a claim for death benefits in Case No. 14413-3, be vacated and set aside. *fn1" The Court remanded the case to the Deputy Commissioner for further consideration "in line with the opinion of this Court and the opinion of the Court of Appeals in Howell v. Einbinder [121 U.S.App.D.C. 312], 350 F.2d 442 (1965)."

 On remand, the Deputy Commissioner reiterated and in effect reaffirmed his previous decision, whereupon the complainants renewed their motion for summary judgment.

 The Court has reviewed the record again and has concluded that the complainants' motion for summary judgment should be granted for the reasons set forth below. The case is remanded to the Deputy Commissioner with instructions to enter an order granting compensation to complainants, the widow and children of William O. Steele.

 The facts of the case as shown by the record are as follows: On the evening of Saturday, November 18, 1961, sometime between the hours of 6:00 and 9:00 P.M., William O. Steele was working at his regular employment as a custodian for Beth Sholom Congregation, Washington, D.C. He and a fellow employee, James O'Frank Burney, were setting up tables and chairs in a hall of the Synagogue in preparation for a meeting which was to be held there. The tables were round, had collapsible legs, and weighed approximately fifty pounds each. The usual procedure for setting them up was to roll them to appropriate places on the floor, snap out the legs, then put them in an upright position. However, Mr. Burney testified that the men sometimes put them up first, then put them in the desired locations by pushing them across the floor. It was while he was pushing a table across the floor that William O. Steele suddenly complained to Burney that he had a severe pain in his lower abdomen. He leaned across the table he had been pushing and, when the pain did not subside, he left the hall to rest in a small room set aside for the employees. His pains continued and he went home, arriving there at about 9:30 P.M., according to the testimony of his wife. He went to his bedroom, sat on the edge of the bed, and showed his wife a mass that had appeared on the left side of his abdomen. At about 2:30 A.M. on the following morning, Steele took a taxi by himself and went to the emergency room of Freedman's Hospital for medical treatment. The emergency room admittance records in evidence show that Steele at that time had an incarcerated left inguinal hernia which was thought to be irreducible. He was admitted to the hospital and transferred to a ward at 5:30 A.M. on November 19, 1961. The nursing records, also in evidence, show that at that time he had an incarcerated left inguinal hernia.

 At unspecified times on November 19th, an intern and an assistant resident made separate examinations of Steele. Each of these doctors tentatively diagnosed the ailment of Steele as "acute edematous pancreatitis," a diagnosis which later proved to be false. Both doctors saw and noted the hernia. The intern also tentatively diagnosed peptic ulcer because of the patient's past history of ulcer disease. The assistant resident, on the other hand, diagnosed perforation of peptic ulcer and alcoholic gastritis.

 Two years earlier William O. Steele had been in the same hospital for treatment of an ulcer. He had been under the care of his physician, a general surgeon who subsequently attended him in 1961. The treatment of the ulcer consisted of rest and diet. Steele was cautioned to avoid drinking alcoholic beverages, but the evidence is undisputed that he continued to drink. In fact, on the afternoon of November 18, 1961, before having dinner at home with Mrs. Steele, Mr. Steele and James O'Frank Burney had shared a pint of whiskey and watched television at Steele's house. However, there is nothing in the record to indicate that these drinks caused Steele to have any illness or discomfort.

 Steele's own physician was called in again when Steele was admitted to the hospital with hernia. He recommended that the hernia be surgically repaired. Because of his knowledge that Steele had an ulcer condition two years earlier, the doctor also recommended that Steele submit to a subtotal gastrectomy, that is, surgical removal of three-fourths of the stomach.

 Steele consented to the recommended surgery and both operations were performed at one "sitting," although two separate incisions were required. The subtotal gastrectomy was performed first, followed by the hernia repair.

 The pathologist's report of the tissue examination of the portion of Steele's stomach removed during the subtotal gastrectomy is in evidence. It shows that William O. Steele did not have an ulcer at the time the surgery was performed. The pathologist's impression following his examination of the stomach tissues was that Steele had "superficial chronic gastritis, non-specific."

 Following surgery, the patient showed signs of making a good recovery. He had been ambulatory for a few days when, on the seventh day following surgery, December 13, 1961, he collapsed in a bathroom of the hospital. Concerted efforts by the hospital staff to revive him and save his life failed.

 An autopsy, the records of which are in evidence, indicated that the immediate cause of Mr. Steele's death was a pulmonary embolus. The origin of this embolus was not definitely ascertained by the autopsy, but medical experts at the hearing testified that such emboli often originate in the lower limbs and are due to changes in blood condition and circulation following surgery. One of the medical witnesses at the hearing, a witness for the intervenor insurance company, testified that there is a greater probability that emboli will occur following subtotal gastrectomies than following hernia repairs. On the basis of that testimony, the Deputy Commissioner found that the cause of the embolus which was the proximate cause of the death of William O. Steele was the subtotal gastrectomy, which was necessitated by Steele's ulcer, which in turn was caused by Steele's drinking, and that therefore his death was not the result of a work-related injury.

 I hold first that this conclusion is in error as a matter of law. Reliance on mere hypothetical probabilities in rejecting a claim is contrary to the presumption created by the Act *fn2" that

"In any proceeding for the enforcement of a claim for compensation under this chapter it shall be presumed, in the absence of ...

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