(concurring in the result) — Although my reading of the record herein leads me to the conclusion that the plaintiff is not permanently and totally disabled within the meaning of the insurance contract, I concur in the result of *935the majority opinion because of the familiar rule of Thorn-dike v. Hesperian Orchards, Inc., 54 Wn.2d 570, 343 P.2d 183 (1959). Also, Sigman v. Stevens-Norton, Inc., 70 Wn.2d 915, 425 P.2d 891 (1967); Jacobs v. Brock, ante P. 234, 437 P.2d 920 (1968). There is evidence given by plaintiff’s local physician, which is substantial, and which can sustain the findings of the trial court. However, I feel required to comment upon the gross inconsistency of plaintiff’s sworn statements at trial as compared to his sworn statements to the Department of Employment Security by which he applied for and received unemployment compensation benefits. The state’s employer-financed system of unemployment compensation is designed to give financial aid to the labor force during periods of unemployment and is not a scheme of disability benefits. RCW 50.20.010 establishes the eligibility conditions for receipt of unemployment benefits among which is the requirement that the applicant “is able to work, and is available for work . . . . To be available for work an individual must be ready, able, and willing, immediately to accept any suitable work . . . .”
The fact that friends of plaintiff urged him to apply for unemployment compensation avails him nothing. There was no vice in making application. However, statements made by plaintiff in such application must, of necessity due to statutory eligibility requirements, have been either untrue or plaintiff was, during 1965, ready and able to work. Defendant asks us to consider this inconsistency as an estoppel to prevent plaintiff’s claim herein. However, it is apparent that essential elements of an estoppel are lacking. See Bordeaux v. Ingersoll Rand Co., 71 Wn.2d 392, 429 P.2d 207 (1967). The most that can be said of plaintiff’s dual position is that it is inconsistent — an evidentiary matter which I assume the trial court duly weighed.
Perhaps proper officials of the Employment Security Department will consider such action as may be available and proper to recover unemployment benefits paid to plaintiff. Our holding herein should certainly operate most strongly against plaintiff’s contending for any right to retain the *936money obtained from the state fund. Cf., Sagmeister v. Continental Cas. Co., 141 Wash. 153, 251 Pac. 124 (1926).
It is apparent that the trial court had somewhat the same feeling, for in his findings of fact he found “that this fraud does not destroy that preponderance. The Court finds that it is more probable that the plaintiff perpetrated a fraud upon the Unemployment Compensation Division than that he is attempting to defraud the defendant.”
Hill, J.I am in accord with Judge Neill’s concurring opinion.