Question of whether claim was estopped due to previous payment of unemployment compensation benefits

Employee worked for White Tiger and injured his left knee in 02/07 and right shoulder in 03/08. He filed suit for workers compensation benefits. White Tiger answered the affirmative defense of estoppel. Employee amended complaint stating that he also injured his right shoulder in 03/09. There was no answer to the amended complaint. The Court awarded permanent-total disability benefits for his injuries.

White Tiger appealed.

Employee argued that White Tiger waived the estoppel argument because of its failure to answer the amended complaint. White Tiger argued that it did not waive the defense because it was tried by implied consent of the parties.

For judicial estoppel to apply, a party must how that (1) a party’s later position is “clearly inconsistent” with its earlier position; (2) that the party must have been successful in the prior proceeding 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.

Ala. Code 1975 § 25-4-77(a)(3) states: a recipient of unemployment compensation benefits must be “physically and mentally able to perform work of a character which he is qualified to perform by past experience or training.” The Employee’s statements that if able, he would try to find a job and that he was willing and able to perform some work is not inconsistent with his claim to be permanently and totally disabled for workers’ compensation action.

Affirmed.