Receiving Unemployment Benefits Does not Prevent a Permanent and Total Award
Republished with permission from Alabama Workers Comp Blawg
White Tiger Graphics, Inc v. Paul Clemons
On January 13, 2012 the Alabama Court of Civil Appeals addressed a judicial estoppel issue involving an employee claiming he was permanently and totally disabled during the same period of time he was receiving unemployment benefits. The Trial Court found that employee was permanently and totally disabled despite receiving unemployment benefits during the same period. The Alabama Court of Civil Appeals affirmed.
For judicial estoppel to apply the following criteria must be met: 1) a parties later position must be inconsistent with its earlier position; 2) the party was successful in the prior proceeding so that acceptance of an inconsistent position later would create perception that the first or second court was misled; and 3) the party asserting the inconsistent position would derive an advantage or impose an unfair detriment on the opposing party of not estopped. Hamm v. Norfolk So. Ry. Co., 52 So. 2d 484, 494 (Ala. 2010). The purpose being to protect the integrity of the judicial process by preventing parties from deliberately changing positions to suit there needs according to the circumstances. Id.
In order to received unemployment benefits the employee must be physically and mentally able to perform work of a character which he is qualified to perform by past experience or training. Ala. Code § 25-4-77 (a)(3). In order to received a permanent and total disability awardthe injury or impairment must permanently and totally incapacitate the employee from working and being retrained for gainful employment. Dolgencorp, Inc. V. Hudson, 924 So. 2d 727, 734 (Ala. Civ. App. 2005). This does not mean the employee is helpless, only unable to perform his or her trade and unable to obtain other reasonably gainful employment. Id.
The plaintiff testified at his hearing for unemployment benefits, that he felt like he was able to work, had tried to find work he was qualified for and would give it his best shot. The employer asserted that if the employee takes the position that he is able to work in order to receive unemployment benefits, the employee can not, at the same time, claim he is unable to perform his normal trade.
The Alabama Court of Civil Appeals found that an employee so limited that he can not perform services other than those that are so limited in quality, dependability or quantity that a reasonably stable market does not exist, may be classified as totally disabled. According to the Court of Appeals, this criteria would not be inconsistent with the employee saying he is willing and able to perform work he is qualified to do and give it his best shot. Therefore, the employee would not be judicially estopped from claiming he was permanently and totally disabled during the same time period he was receiving unemployment benefits because there is not an inconsistency.
In a concurring opinion, Judge Terry Moore opined that the employee's testimony did create somewhat of a contradiction. However, since the employee testified that he was willing and able to give it his best shot, it could not be said that judicial estoppel precluded a finding that he could not work despite his best efforts. In addition, Judge Moore pointed out that the Alabama Worker's Compensation Act does not address whether or not the receipt of unemployment benefits would prevent a permanent and total disability award or workers' compensation benefits in general.
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