Dodd and Repatriation Commission (Veterans’ entitlements)

[2015] AATA 1004

Dodd and Repatriation Commission (Veterans’ entitlements) [2015] AATA 1004 (22 December 2015)

Division	VETERANS' APPEALS DIVISION
File Number(s)	2014/4109
Re	Alan Dodd
APPLICANT
And	Repatriation Commission
RESPONDENT

DECISION

Tribunal	Senior Member J F Toohey
Date	22 December 2015
Place	Sydney

The decision under review is set aside and in its place the Tribunal determines that Mr Dodd satisfies the provisions of s 24(2A) of the Veterans’ Entitlements Act (1986) and qualifies for the special rate of pension with effect from 6 December 2013. 

.......................................................

Senior Member J F Toohey

CATCHWORDS – VETERANS’ ENTITLEMENT – extreme disablement adjustment rate – claim for increase to special rate – whether applicant continued in remunerative employment after the age of 65 – decision under review set aside         

Legislation

Veterans’ Entitlements Act (1986) ss 19, 24, 120(4)

Administrative Appeals Tribunal Act 1975 s 37

Cases

Grant v Repatriation Commission [1999] FCA 1629
Repatriation Commission v Hendy [2002] FCAFC 424
Forbes v Repatriation Commission [2000] FCA 328; (2000) 101 FCR 50

Repatriation Commission vAlexander [2003] FCA 399; (2003) 75 ALD 329

Secondary Materials

Veterans’ Entitlements Bill 1985 Second Reading Speech

REASONS FOR DECISION

Senior Member J F Toohey

Background

1. Mr Alan Dodd served in the Royal Australia Navy in Vietnam in 1963 and 1966.  His service is operational service for the purposes of the Veterans’ Entitlements Act (1986) (the Act).  He is 73 years old. 

   2.Mr Dodd receives a disability pension at the extreme disablement adjustment rate by reason of the following conditions which the Repatriation Commission (the Commission) accepts are related to his service: bilateral sensorineural hearing loss with tinnitus, post-traumatic stress disorder, ischaemic heart disease, depressive disorder, alcohol dependence, arteriosclerotic peripheral vascular disease affecting both legs, hypertension, plural plaque and lumbar spondylosis.  Mr Dodd suffers from a number of other conditions which have not been accepted as related to his service. 

   3.In about 1980, Mr Dodd and his wife established Ultradrilling Pty Ltd, a company whose business is drilling for water in rural areas.  Over the years from about 2000, he had increasing difficulty doing the more physical work in the business.  It is not in dispute that his accepted back, legs and heart conditions were the main reason he could not continue. 

2. On 6 December 2013, Mr Dodd applied for an increase in his pension to the special rate.  He seeks review of a determination by the Commission, which was affirmed by the Veterans’ Review Board (the Board), that he does not qualify for the special rate.

   Legislation

   5.The legislation concerning the special rate of pension is in s 24 of the Act. A veteran who makes a claim before turning 65 must satisfy the provisions of s 24(1). A veteran who makes a claim after turning 65 must satisfy the provisions of s 24(2A).

   6.Section 24(2A) imposes more onerous criteria which reflect the intention of Parliament, outlined in the Second Reading Speech for the Veterans’ Entitlements Bill 1985, that:

   … [the] special rate of disability pension [is] payable in circumstances where, because of total and permanent incapacity resulting from war service, a veteran has been unable to resume or to continue in civil employment.  [It] was designed for severely disabled veterans of a relatively young age who would never go back to work and could never hope to support themselves or their families or put away money for their old age.  It was never intended that [it] would become payable to a veteran who, having enjoyed a full working life after war service, then retires from work possibly with whatever superannuation or other retirement benefits are available to the Australian workforce.

   7.Mr Dodd was 72 at the time he claimed the special rate. By s 24(2A), a veteran who turns 65 before claiming the special rate will qualify for special rate if subsections 24(1)(a) and (1)(b) apply to the veteran and:

   …

   (d)the veteran is, because of incapacity from war-caused injury or war-caused disease or both, alone, prevented from continuing to undertake the remunerative work (last paid work) that the veteran was last undertaking before he or she made the claim or application; and

   (e)because the veteran is so prevented from undertaking his or her last paid work, the veteran is suffering a loss of salary or wages, or of earnings on his or her own account, that he or she would not be suffering if he or she were free from that incapacity; and

   (f)the veteran was undertaking his or her last paid work after the veteran had turned 65; and

   (g)when the veteran stopped undertaking his or her last paid work, the veteran:

   (i)if he or she was then working as an employee of another person--had been working for that person, or for that person and any predecessor or predecessors of that person; or

   (ii)if he or she was then working on his or her own account in any profession, trade, employment, vocation or calling--had been so working in that profession, trade, employment, vocation or calling;

   for a continuous period of at least 10 years that began before the veteran turned 65; and

   (h)       section 25 does not apply to the veteran.

   8.The standard of proof is to the reasonable satisfaction of the Tribunal: s 120(4).  The rate of pension is to be determined during the “assessment period” which means the period starting on the application day, in this case 6 December 2013, and ending when the claim or application is determined: s 19. 

   The issues

   9.The Commission contends that Mr Dodd does not satisfy s 24(2A)(d), (e) or (g). The other provisions are not in dispute.

   10.I have to determine:

   (i)whether Mr Dodd is, by reason of his accepted disabilities alone prevented from continuing to undertake the remunerative work that he was last undertaking before 6 December 2013;

   (ii)if so, whether he is suffering a loss of salary or wages, or earnings on his own account, that he would not be suffering were it not for that incapacity;

   (iii)whether he was undertaking his last paid work after he turned 65;

   (iv)whether he had been undertaking that work for a continuous period of at least 10 years that began before he turned 65.

   Each of these questions must be answered in the affirmative in order for Mr Dodd’s claim to succeed.

   Information before the Tribunal

3. Mr Dodd provided a written statement and gave oral evidence.  He also provided copies of his work diaries from 1993 to 2008.  The Tribunal also has before it documents provided by the Commission including the transcript of the hearing of the Board on 17 June 2014. 

4. Mr Dodd’s recollection of events is poor.  I have no reason to question his truthfulness; I have no doubt that he did his best but, as set out below, his memory for dates and the sequence of events is not reliable.  His evidence as to important events and dates was inconsistent if not contradictory.  The transcript of the hearing before the Board in June 2014 indicates the extent of his admitted confusion as to dates.  This has presented difficulties for determining matters such as the extent and capacity in which he worked at different times and when he ceased work. 

5. More reliable evidence was provided by Mr Dodd’s wife, Lorraine Dodd, who provided a written statement and gave oral evidence.  Although they remain married, they are estranged.  They lead separate lives and Mr Dodd lives in a separate part of their property.  Ms Dodd gave evidence, which I accept, that they have little to do with each other.  Her evidence supported his claim to special rate.  I am satisfied that she is a largely disinterested party and I have given her evidence considerable weight.

   Mr Dodd’s evidence

   14.In his written statement dated 21 October 2014, Mr Dodd stated that, in approximately 1980, he and his wife established Ultradrilling Pty Ltd.  The company’s main business was sinking boreholes for water in rural areas.  From the early days, Mr Dodd was involved in contracting for work, undertaking site inspections, doing the drilling, and related work such as quoting and training personnel.  Ms Dodd was responsible for the accounting, bookkeeping, reception, clerical and general office work.  At times, they had up to four employees. 

   15.In dispute is whether, and if so when, Mr Dodd’s involvement in the work of the company changed, and when he ceased work altogether.

   16.During the 1980s, Mr Dodd’s son, Bradley, became involved in the business and now manages it.  Unfortunately, I have not had the benefit of written or oral evidence from Bradley Dodd.

   17.Mr Dodd gave evidence that Bradley accompanied him to drilling sites as a young boy during the 1980s and learned to drill.  Bradley’s involvement increased over time.  Mr Dodd gave evidence that, apart from another driller, Bradley was usually the only other person on the payroll.  Bradley “took over” the business around 1997; it was a gradual process as Bradley took on various parts of the business, but Mr Dodd continued to give advice.  While that evidence suggests that Mr Dodd’s role in the business changed substantially as early as around 1997, that is at odds with other evidence of Mr Dodd’s continuing active involvement up until 2008 or 2009 in most aspects of the business.

   18.At the hearing on 29 June 2015, Mr Dodd produced his work diaries for the period 1993 to 2008.  He gave evidence that he kept a diary with him at all times because of his bad memory.  He wrote everything down, such as phone numbers, drill depths, the bore log and water quality, so that he could do the invoicing.  I am satisfied that the diaries represent reliable contemporaneous records of Mr Dodd’s involvement in the business.

   19.The diaries for the period 1993 to 2003 contain entries on almost every page and indicate continuing active involvement in the work of the business. 

   20.Mr Dodd gave evidence that he could no longer do the drilling work from around 2004 on account of his back.  The 2004 and 2005 diaries appear to support his evidence.  Both contain numerous telephone numbers but fewer bore logs.  Mr Dodd gave evidence that bore log records would be in Bradley’s diary as he was doing the actual drilling by that time and he (Mr Dodd) would have been working in the workshop or in some other capacity in the business.

   21.The 2006 diary contained the details of people who Mr Dodd says contacted him for quotes, and various other entries such as details concerning the collection of steel from a merchant, paying a debt, arranging repairs for his ute and details of a bore provided by Bradley.  Mr Dodd gave evidence that the information in the 2007 diary reflected contact with past and future clients, and the 2008 diary contained similar entries.  He said the clients he had drilled bores for contacted him for advice about installing a pump or other advice or when there is a problem with the bore.  

   Ms Dodd’s evidence

   22.Ms Dodd provided a written statement and gave oral evidence.  She continues to do all the administrative work in the business.  It was clear from her evidence that she has had little conversation with Mr Dodd about the business, and possibly anything else, for some years. 

   23.In her written statement Ms Dodd said Mr Dodd “struggled, despite his accepted conditions, to manage the company for a number of years before finally admitting in 2009 that he was simply no longer able to perform the work associated with UltraDrilling”.  She stated that, “[t]oward the end of his tenure with UltraDrilling [Mr Dodd] was unable to carry out a myriad of tasks required to keep the company functioning i.e. [Mr Dodd] was unable to liaise with clients, was unable to concentrate for prolonged periods of time and unable to stand or sit for prolonged periods of time”. 

   24.Ms Dodd’s evidence was that, after Mr Dodd left the business, new employees were hired to assist the driller on site as Bradley was occupied with Mr Dodd’s tasks and, without Mr Dodd’s input, the number of jobs the company took on were significantly reduced.  This in turn affected the company’s income. 

   25.A document prepared by Ms Dodd for these proceedings shows annual sales for the period 2004 to 2015 as follows:

ANNUAL COMPANY SALES 2004 to 2015
INCLUDES GST	GST	TOTAL SALES
YEAR	AMOUNT	AMOUNT	EXCLUDING GST
2004	$1,235,546.00	$112,322.00	$1,123,244.00
2005	$1,302,699.00	$118,427.00	$1,184,272.00
2006	$1,222,411.00	$111,128.00	$1,111,283.00
2007	$1,306,583.00	$118,780.00	$1,187,803.00
2008	$1,308,833.00	$118,984.00	$1,189,895.00
2009	$631,914.00	$57,446.00	$574,468.00
2010	$918,346.00	Increase due to work set up NT by Alan when consulting prior to him finishing 3/6/2009			$83,486.00	$834,860.00
2011	$603,187.00				$54,835.00	$548,352.00
2012	$770,132.00				$70,012.00	$700,120.00
2013	$719,778.00	$65,434.00	$654,344.00
2014	$772,644.00	$70,240.00	$702,404.00
2015	$690,570.00	$62,779.00	$627,791.00

26.Ms Dodd gave evidence that, when the company started, Mr Dodd did all the drilling and wrote his invoices by hand.  Later on another driller was employed when the business expanded and then Bradley (her stepson) came into the business as well.  As she recalled, Mr Dodd “probably” stopped drilling in 2004.  She gave evidence that, in the later years, his hours were limited and he took on the role of consulting.  Prior to his disabilities becoming worse, he was “always on the road… getting work in for the company [and] doing site inspections” but, in time, his work became “more and more sales than actually doing the manual work”. 

27.Ms Dodd was not able to say with any certainty when Bradley took over the management of the business.  She gave evidence that he took on more responsibility as Mr Dodd’s disabilities became worse but she and Bradley never had a conversation to the effect that he was taking over operations. 

28.Ms Dodd gave evidence that she did not talk to Mr Dodd about him not returning to work (after 2009) but she thought he was “very upset that he couldn’t”.  She said:

I think that was his life, … with the mining and drilling industry and he really enjoyed, … when he was out on the drill rig and I still believe… if he didn’t have any of these disabilities… he’d still be out on that drill rig today… that seemed to be his life’s work and that’s all he really was… passionate about.

NSW Department of Infrastructure, Planning and Natural Resources Form A

29.The Tribunal has before it a bundle of “Form A” documents which record the particulars of one or more bores completed in every year for the period 1984 to 2005 except for 1993.  Mr Dodd gave evidence that the “Form A” is a NSW government document which records the particulars of a completed bore including the name of the driller, the name of the company, the diameter, depth, water quality, the strata that was drilled through and the location of the bore on the client’s property. 

30.The Form A records the driller’s licence number.  Mr Dodd gave evidence, which I accept, that only an individual and not a company may hold a driller’s licence, and only the person with the licence can use the drill.  His name is recorded on all of the Form As.  Asked why there were no Form As later than May 2005, Mr Dodd said another employee of the company had his own licence at that time and he did not have to be on site.  This tends to support the conclusion that he stopped drilling work around 2004.

Mr Dodd’s payment summaries

31.The Australian Taxation Office records of Mr Dodd’s income for the period 1996 to 2009 are before the Tribunal.  Mr Dodd declared his income from Ultradrilling Pty Ltd as follows:

Year	Amount	Year	Amount
1996	$5,200	2003	$3,400
1997	$5,200	2004	$20,200
1998	$5,200	2005	$16,300
1999	$7,950	2006	$34,592
2000	$10,400	2007	$50,900
2001	$8,954	2008	$82,167
2002	$6,950	2009	$63,900

32.The transcript of the hearing before the Board in June 2014 shows that the Board went to some lengths to try to establish when Mr Dodd ceased drilling work, when he ceased work altogether, and when Bradley took over the business.  Referring to tensions between himself, and his wife and son, he said he “thought the best way was to walk away”:

They gave me a remuneration, you know, but on the condition that I didn’t get into anymore financial leases or stuff like this, you know.

33.The Commission’s representative put to Mr Dodd in these proceedings that the evidence suggested that Bradley took control of the company around 1996 or 1997 after which Mr Dodd was paid a nominal sum represented by the amounts of $5,200 or $100 per week, which did not relate to actual work done.  Mr Dodd disagreed and said they did not have any money at the time and his wife probably earned a similar amount; what income they earned went back into the business by way of payments to the bank and expenses.

34.In response to further questions from the Tribunal, Mr Dodd gave evidence that the amounts earned up to 2003 were low and fluctuated because of their debts.  It is not clear from his evidence whether the debts were owed by the company or him personally.  He said he purchased properties with big mortgages and money had always been “tight”.  He could not explain why his income increased from after 2000 other than that his income went into “consolidated revenue” and he had “big loan accounts”.

What was the “last paid work” Mr Dodd was undertaking?

35.As distinct from s 24(1)(c) in which “remunerative work” is not confined to the last work in which a veteran was engaged, s 24(2A) requires characterisation of “the specific remunerative activity or activities that the veteran was last undertaking before making the claim or application”: Grant v Repatriation Commission [1999] FCA 1629.

36.For Mr Dodd it is submitted that the last paid work he was doing should be characterised broadly in that, from the early 1980s when the company started, he ranged across all areas of work, contacting clients, site inspections, drilling, preparing invoices for typing by Ms Dodd and consulting.  It is submitted that the fact that he had to give up drilling did not change the essential nature of his role as a drilling contractor with responsibility for the company and that he otherwise continued to perform the other aspects of his work.

37.The Commission submits there was a substantial change in Mr Dodd’s work around 2004 as evidenced by his diaries which show he stopped doing the drilling work then.  The Commission contends that, from around then, his work was in the nature of administrative work.  The evidence concerning when Mr Dodd ceased work is considered further below. 

1. It is clear Mr Dodd’s role changed over time since he commenced the business in 1981.  However, I am satisfied that his work retained sufficient of its character that, up to 2009, he continued in his “last paid work” which can be broadly characterised as a drilling contractor. 

2. I accept Mr Dodd’s evidence that the amounts of $5,200 received in 1996 to 1998 were not nominal director’s fees but the most he could be paid from the business at that time.  His wages increased and were varied in the following years.  There is no obvious correlation between the income of the business and the amount Mr Dodd received in wages such that it could be said he received a nominal percentage of the company’s income.  It appears more likely his income was related to his input into the business.    

   40.The financial records show a significant drop in income after Mr Dodd ceased to be involved with the business.  I accept Ms Dodd’s evidence that this was because he left the business. 

1. I am satisfied, on the information before me, that Mr Dodd ceased operating the drill in about 2004.  I am satisfied by the evidence of Ms Dodd and the financial records that he remained actively involved in the business up to 2009. 

   Did Mr Dodd undertake his last paid work after 65 and did he undertake that work for a continuous period of 10 years that began before he turned 65?

   42.For Mr Dodd to satisfy s 24(2A)(f) and (g) he must have been undertaking his last paid work after 17 July 2006 when he turned 65, and he must have been undertaking that work continuously for a continuous period of at least 10 years that began before he turned 65. 

   43.Mr Dodd’s evidence as to when he ceased work was contradictory and frequently difficult to follow.  There are a number of documents before the Tribunal which suggest he had ceased employment at various times within the 10 year period including as early as around 1997 or 2001. 

   44.The transcript of the hearing before the Board on 17 June 2014 shows that Mr Dodd gave evidence that in 2001 he had one drilling rig and was still doing drilling work but at that stage Bradley was becoming a driller and Mr Dodd was going to job sites and advising Bradley what he should be doing.  He told the Board that, from 2001, he was advising, doing sales and trying to get work, administration and “not too much on the tools”.  He said that “five or six years ago” he sold his part of the company and he had ceased in his advisory capacity “when [his wife and son] thought they knew it all”.

   45.In discussing with the Board when he retired, Mr Dodd agreed with a suggestion put to him by the Board that it would have been in 2001 when he turned 60..  In regard to income he earned in 2009, he told the Board he was still getting paid, because he was the owner of the business, but he did not work.  Asked again when it was that he stopped working, the transcript of the proceedings show Mr Dodd had some trouble recollecting the dates and then he settled on the mid-1990s as the date he stopped work.  He said Bradley took over the business when he was 25, which would have been in 1997.  As already noted, the transcript of the hearing before the Board shows the extent of Mr Dodd’s confusion about dates.

   46.When asked in these proceedings about his evidence to the Board, Mr Dodd agreed that Bradley took over in about 1997 but it “just didn’t happen overnight”.  It was put to Mr Dodd that it was always his intention that his son Bradley take over the business.  Mr Dodd gave evidence that Bradley was “not an academic” and he did not have many choices; he got his driller’s licence and “eventually” took over the company. 

   47.Mr Dodd was asked about a number of documents that were filed by the Respondent under s 37 of the Administrative Appeals Tribunal Act (1975) (T-documents) which record different dates that he ceased work.  In a claim lodged in July 2001, he indicated he was a drilling contractor from 1972 to 2000.   A file note in August 2001 indicates that he told a Department of Veterans’ Affairs officer that he could only work 10 hours per fortnight.  On a form lodged in June 2008, he indicated he stopped working in 2006.  A report completed by his doctor in October 2008 indicated that Mr Dodd had “not worked for 3-4 years”.   Several documents record 2006 as the date he ceased work.  In a claim form dated 4 December 2013, Mr Dodd indicated he ceased work in 2010.  Another records 2004/2005; another has been amended from 2006 to 2009. 

   48.I accept Mr Dodd’s evidence that these forms were completed either by his advocate at the time or his doctor.  He said he did not read the forms, he would just sign them when he was asked to do so.  That does not itself explain the discrepancies but I am satisfied, having heard Mr Dodd’s oral evidence, that he is genuinely confused about dates and that he tends to agree with matters suggested to him. 

   49.I am unable to reach any conclusion on the basis of Mr Dodd’s evidence alone as to when he ceased work.  However, taking into account the evidence of Ms Dodd and the written records, I am satisfied that he ceased his last paid work in 2009.  At that time he had been working continuously in that work for a period of at least ten years that began before he turned 65.

   Is Mr Dodd, because of incapacity from his war-caused injuries or war-caused diseases or both, alone, prevented from continuing to undertake the last paid work he was undertaking?

   50.The question is whether, during the assessment period, Mr Dodd was prevented from continuing his role as a drilling contractor by reason of his accepted disabilities alone or whether some other factor prevented him from continuing to work.  The Commission refers to the point made in Repatriation Commission v Hendy [2002] FCAFC 424 (Hendy) that any factor that contributes to the preventative effect is to be taken into account and weighs against the alone test, including if there has been a time lag between the cessation of work and the start of the assessment period. 

   51.In Repatriation Commission v Richmond [2014] FCAFC 124 (Richmond), the Full Court endorsed authorities to the effect that the “alone test” will not be satisfied:

   if there is a non war-caused factor which prevents, or contributes to preventing, the veteran from continuing to undertake the relevant remunerative work, even if it is only of secondary weight and insufficient in itself to prevent the veteran from continuing: Richmond citing Forbes v Repatriation Commission [2000] FCA 328; (2000) 101 FCR 50; Repatriation Commission v Alexander [2003] FCA 399; (2003) 75 ALD 329 and Hendy.

   52.In considering the “alone” element of the test, the Full Court said a decision maker is required to determine whether there is more than one cause of the preventative effect the veteran claims has resulted from his war-caused incapacity and if any non war-caused factors contribute to the preventative effect, their presence will deny the veteran eligibility for the special rate.  The words “prevented from” are to be given their ordinary meaning.

   53.Although the Full Court in Richmond considered the proper construction of the first limb of s 24(1)(c), the words of that part of the sub-section are in almost identical terms to s 24(2A)(d).

   54.The Commission submits that Mr Dodd does not satisfy the “alone” test because other factors play a part in him not undertaking his last paid work.  At the commencement of the assessment period in 2013 he was 72 and had not worked for around four years.  The Commission contends that his age is a contributing factor.  It is also submitted that family tensions and the fact that Bradley was gradually taking over the business were contributing factors.

   55.At the commencement of the assessment period, Mr Dodd had been involved with Ultradrilling Pty Ltd for 34 years and in the drilling business for a period prior to that.  The diaries show that, at the time he ceased work, he had been a point of contact for past and future clients and his evidence was that clients regularly contacted him with enquiries.  Implicit in Ms Dodd’s evidence that following Mr Dodd ceasing work the business took a downturn in income is that Mr Dodd had a significant role securing drilling contracts up to that time.  She says he would still be doing that work if not for his accepted disabilities. I accept her evidence.  Having regard to all of the evidence, I am not persuaded that either his age or the period of four years away from the business prevents or contributes to preventing Mr Dodd from continuing in his last paid work.

   56.The Commission submits family factors also led to Mr Dodd ceasing work and points to Mr Dodd’s evidence that he and Bradley were not getting on and Bradley said he was “too old and too slow” so Mr Dodd thought “maybe it was time to quit”.  It is relevant that Mr Dodd gave this evidence in the context of explaining his duties in 2008.  He said he was still making calls, answering the phone and talking to clients but he was not doing a lot of travelling; he was not able to walk up an incline, he “got a bit short” with people; because of his back, he “just couldn’t do it” and in the end he “cracked”.  It was in this context that Mr Dodd referred to the difficulties with Bradley and that he considered it was time to quit. 

   57.Ms Dodd gave evidence that Bradley did not indicate to her that Mr Dodd was too old or no longer up to the work.  It is reasonable to expect, given Ms Dodd’s involvement in the business that he would have said something about it to her, had that been the case.  I accept Ms Dodd’s evidence that drilling was Mr Dodd’s passion and he would have continued working if not for his back condition.  I accept there was some tension in the family but I am satisfied that Mr Dodd ceased work as a result of his accepted conditions alone.

   Is Mr Dodd suffering a loss of earnings that he would not be suffering were it not for his accepted disabilities?

   58.I am satisfied, on the basis of the evidence of Ms Dodd and the written records, that Mr Dodd is suffering a loss of salary or wages, or earnings on his own account, that he would not be suffering were it not for his accepted disabilities.

   59.I accept Ms Dodd’s evidence that Mr Dodd would still be working in the business today if not for his disabilities.  As I have said already, she is a largely disinterested party, being plainly quite distanced from Mr Dodd.

2. The payment summaries before the Tribunal show that Mr Dodd received income in varying amounts from Ultradrilling Pty Ltd up to 2009.  Mr Dodd gave evidence, which is supported by Ms Dodd, that he last received income from Ultradrilling Pty Ltd in 2009 when he received a final “goodwill” payment of $63,900.  Payment summaries from 2010 are not available to the Tribunal however I have no reason to doubt his and Ms Dodd’s evidence that he did not receive any further payments from the company after 2009.  From 2009 his only income has been his pension. 

3. The Commission submits that if the Tribunal finds the nature of Mr Dodd’s employment changed and that family tensions caused him to cease his role with Ultradrilling Pty Ltd it would be open to the Tribunal to find that Mr Dodd was suffering a financial loss for reasons other than his war-caused incapacity.  For the reasons set out above, I am not persuaded by that submission.

4. Contrary to what might be expected if Mr Dodd’s role was substantially reduced and hostilities with Bradley were impacting on his capacity to work, his income increased significantly in the latter years of his employment.  Although Mr Dodd could not explain the increase in wages from 2000 I accept Ms Dodd’s evidence that he was working in an advisory and sales capacity with Ultradrilling Pty Ltd and his contribution to the business is evident from the drop in earnings after he left.

5. I am satisfied Mr Dodd earned an income from Ultradrilling Pty Ltd on his own account up to 2009 after which, being prevented from undertaking his last paid work as a drilling contractor as a result of his accepted disabilities, he is suffering a loss of earnings on his own account, that he would not be suffering if he was free from that incapacity.

   Conclusion

   64.Mr Dodd’s written and oral evidence was inconsistent and contradictory in many respects. Were it not for the evidence of Ms Dodd, the financial records of Ultradrilling Pty Ltd and Mr Dodd’s diaries, which I am satisfied are reliable, I would not have been satisfied that he meets the provisions of s 24(2A). Taking that information into account, however, I am satisfied that Mr Dodd meets those provisions and qualifies for the special rate of pension.

   65.The decision under review is set aside and in its place the Tribunal determines that Mr Dodd satisfies the provisions of s 24(2A) and qualifies for the special rate of pension with effect from 6 December 2013.

66.     I certify that the preceding 65 (sixty-five) paragraphs are a true copy of the reasons for the decision herein of Senior Member J F Toohey. 

...................................

Associate

Dated 22 December 2015

Date(s) of hearing		29 June 2015 and 2 October 2015
Representative for the Applicant		Ms Claire Mudge, Counsel
Representative for the Respondent	Mr Ken Rudge, Advocate