In White Tiger Graphics v. Clemons, [Ms. 2100482, Jan. 13. 2012] __ So. 3d __(Ala. Civ. App. 2012), the Alabama Court of Civil Appeals held that a plaintiff's "assertion to the DIR [Department of Industrial Relations] that he was willing and able to perform some work that he was qualified to do [for the purposes of unemployment benefits] is not totally inconsistent with his claim [during the same period of time] to be permanently and totally disabled for workers' compensation purposes." Thus, under such circumstances, judicial estoppel did not prohibit the plaintiff from claiming permanent and total disability under worker's compensation law. The Alabama Court of Civil Appeals found the reasoning from Larson's Workers' Compensation Law persuasive: "At first glance the two positions may appear mutually exclusive; but the inconsistency disappears when the special meaning of disability in worker's compensation is remembered, involving. . .the possibility of some physical capacity for work which is thwarted by the inability to get a job for physical reasons."
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