IN THE PENSION APPEALS BOARD IN RE THE CANADA PENSION PLAN MINISTER OF HUMAN RESOURCES DEVELOPMENT. - and - GIUSEPPE DE ANGELIS (DECEASED)

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1 IN THE PENSION APPEALS BOARD IN RE THE CANADA PENSION PLAN BETWEEN: MINISTER OF HUMAN RESOURCES DEVELOPMENT Appellant - and - GIUSEPPE DE ANGELIS (DECEASED) Respondent Appeal CP heard in Toronto, Ontario December 1, 1998 Before: The Honourable Mr. Justice Rice The Honourable E.E. Smith The Honourable Madam Justice Cameron Counsel: Thomas Dastous for the Appellant Enzina De Angelis, agent for the Respondent Cameron, J.A. for the Board: This is an appeal by the Minister from a decision of a Review Tribunal holding that Mr. Giuseppe De Angelis was disabled and therefore entitled to receive disability benefits under the Canada Pension Plan as of March, Initially, the Review Tribunal set October 26, 1995, as the date of onset of

2 - 2 - disability and, indeed, the Minister accepts that Mr. De Angelis was disabled as of that date. However, the first decision of the Tribunal was later reviewed by the Tribunal and the date of onset changed to March, The Minister argues that the Tribunal erred in re-examining the date of onset and setting a new date because (i) (ii) it had no proper basis to revisit its first decision; the evidence did not support a date of onset of March, 1992; and (iii) even if an earlier date was appropriate, the earliest date possible under the legislation is April, Giuseppe De Angelis' application for disability benefits was received by the Minister on July 20, The Respondent, acknowledging the third point made by the Minister, seeks a date of onset of disability of June, 1992 when Mr. De Angelis stopped working. The disabling conditions referred to in the application are a right hand injury and hearing loss. However, when describing his limitations, Mr. De Angelis referred to buttock pain, pain in legs and feet, and pain in right hand, shoulders, arms, wrists and neck. Mr. De Angelis was diagnosed with cecal carcinoma and metastatic liver disease in October, Dr. Bhat, a surgeon who treated Mr. De Angelis, opined that the carcinoma had been present for "at least two years if not longer," prior to

3 - 3 - diagnosis in October, It was primarily the opinion of Dr. Bhat which caused the Tribunal to amend the date of onset of disability. Mr. De Angelis died on January 2, His widow and executrix pursues the matter on behalf of Mr. De Angelis' estate. The first submission of the Appellant is that Section 84, which permits a Tribunal to amend its decision, allows the amendment only on the basis of new facts, and the evidence used by the Tribunal in this case cannot be described as "new facts." The Review Tribunal first met on January 16, Exhibit #1 indicates that at that time the letter of Dr. Bhat, which was so important to the second decision, had not yet been written. However, the Tribunal was advised by the representative of the Respondent that the letter, which would address the date of onset, would be forthcoming. The Tribunal then agreed to await the letter before delivering its decision. However, for some reason the letter was not considered by the Tribunal prior to the making of the first decision. When this was brought to the attention of the Tribunal, the members agreed to consider the "new evidence." This is not the classic case where a party seeks to present evidence which could have been presented earlier but was not. Here the Tribunal itself undertook to await evidence which was unavailable at the time of

4 - 4 - the first hearing but failed to do so. It would be an unfortunate interpretation of Section 84 to prevent the Tribunal from reconsidering its decision in such a context. The failure of the Tribunal to consider Dr. Bhat's letter in the first hearing was not due to a failure to act on the part of the Respondent. I see no error, in this unusual context, in the Tribunal treating the evidence of Dr. Bhat as "new facts." The final issue is whether the date of onset is properly October 26, 1995, as the Minister maintains, or June, 1992, as the Respondent would have it. October 26, 1995, is the date when Mr. De Angelis was diagnosed with terminal cancer. He had surgery shortly thereafter and, it is conceded, could not have worked after that date. The Appellant argues that the evidence does not support a finding that Mr. De Angelis suffered from a severe and prolonged illness prior to October, 1995, and further, that the evidence suggests that at the time of his application, Mr. De Angelis was capable of working. To determine this issue, it is necessary to examine the history of Mr. De Angelis' health problems. Mr. De Angelis was injured in a power saw accident in August of As a result, his right index finger was amputated and two other fingers were left stiff, thereby affecting Mr. De Angelis' ability to grip objects. At that time, the consensus was that Mr. De Angelis would never be able to return to his work

5 - 5 - as a carpenter. Indeed, he found it impossible to find employment. But Mr. De Angelis established his own cabinetmaking business which he operated until June, The evidence supports the conclusion that by June, 1992, Mr. De Angelis' hand, forearm and shoulder were causing him a great deal of difficulty and pain. Mr. De Angelis' daughter submits that her father's actions on commencing his own business after the hand injury demonstrate that he was not one to give up easily, that if he had been able to work he would have done so. Both she and her mother described Mr. De Angelis' efforts to mow the lawn at the family home in 1992 or He would make one pass up and down the lawn with the mower and then have to sit down and rest. They both describe him holding his right side in pain long before the diagnosis of cancer was made. In 1992, just after he stopped working, he had an anal fistula removed. His family believes that this was an early sign of colon cancer, though there were no medical reports to support the existence of cancer at that time. In summary, the Respondent's position is that the cumulative result of Mr. De Angelis' many problems was that he was unable to work as of June, 1992, and that the diagnosis on October 26, 1995, was merely confirmation of a situation that had existed long before that. The Minister's position is that prior to October 26, 1995, there was no proof of the existence of the disability, and that even accepting Dr. Bhat's opinion, the mere presence of cancer is not sufficient

6 - 6 - to establish a severe and prolonged illness. While I agree with the latter point as a general statement, I am satisfied that the total evidence in this case, including the description of Mr. De Angelis' behaviour given by his family and his demonstrated high motivation to work, establishes that Mr. De Angelis was disabled at the time he ceased working in June, It is, of course, impossible to state with precision at what point Mr. De Angelis' cancer became terminal. However, on the balance of probabilities, and considering all of Mr. De Angelis' problems, his health, by June, 1992, had deteriorated to the point where he had a severe and prolonged disability. Therefore, the appeal is allowed but only to the extent of setting the date of onset of disability at June, DATED this 2 nd day of December, 1998 (signed) M.A. Cameron J.A. I concur (signed) R.C. Rice J.A. I concur (signed) E.E. Smith