COURT OF CIVIL APPEALS HOLD WORKERS’ COMPENSATION PLAINTIFF NOT JUDICIALLY ESTOPPED FROM PERMANENT TOTAL AWARD

COURT OF CIVIL APPEALS HOLD WORKERS’ COMPENSATION PLAINTIFF NOT JUDICIALLY ESTOPPED
FROM PERMANENT TOTAL AWARD BY VIRTUE OF APPLICATION FOR UNEMPLOYMENT BENEFITS

 In White Tiger Graphics, Inc. v. Clemons, the Alabama Court of Civil Appeals addressed the employer, White Tiger Graphic, Inc.’s, contention the Plaintiff was judicially estopped from asserting a claim for permanent total disability benefits, due to his application for unemployment benefits. The Court rejected that argument, and affirmed the trial court’s award of permanent total disability benefits.

The Plaintiff sustained compensable injuries to his left knee and right shoulder while employed at White Tiger in 2007 and 2008. His employment at White Tiger was terminated in 2009, and the Plaintiff began receiving unemployment benefits from the Alabama Department of Industrial Relations. Pursuant to his application for unemployment compensation, the Plaintiff was required to affirm he was “physically and mentally able to perform work of a character which he is qualified to perform by past experience or training.” White Tiger asserted that this was inconsistent with his contention in his workers’ compensation claim that he was permanently and totally disabled from employment, and was therefore barred under the doctrine of judicial estoppel.

The doctrine of judicial estoppel prevents parties from asserting a position inconsistent with one previously asserted. To apply, “(1) 'a party's later position must be ‘clearly inconsistent’ with its earlier position; (2) the party must have been successful in the prior proceeding ‘so that judicial acceptance of an inconsistent position in a later proceeding would create “the perception that either the first or second court was misled”’; and (3) ‘the party seeking to assert an inconsistent position would derive an unfair advantage or impose an unfair detriment on the opposing party if not estopped.’” Hamm v. Norfolk Southern Ry. Co., 52 So. 3d 484, 494 (Ala. 2010) quoting New Hampshire v. Maine, 532 U.S. 742, 121 S.Ct. 1808, 149 L.Ed. 2d 968 (2001). Courts have applied the rule to quasi judicial proceedings, such as those before the Department of Industrial Relations. Consolidated Stores, Inc. v. Gargis, 686 So. 2d 268 (Ala. Civ. App. 1996)

The Court in White Tiger concluded the doctrine, however, did not apply. Citing a Workers’ Compensation Treatise, Larson's Workers’ Compensation Law, the Court concluded the assertion that the Plaintiff was ready and able to work was not inconsistent with a finding that he was unable to find work due to his physical condition. The Plaintiff testified that he was willing to work, but had been unable to find any work he could do, supporting the Court’s conclusion. The Court noted this decision was in accord with other jurisdictions who have addressed the issue.

Evidence of a Plaintiff’s application for unemployment benefits is often used against a Plaintiff who is seeking permanent total disability benefits. This evidence can still be utilized to show that the Plaintiff was ready and willing to work, but it cannot be used as an absolute bar to a permanent total award. White Tiger serves to provide a road map for Plaintiffs seeking to avoid the implications of an application for unemployment benefits.