                             In the
 United States Court of Appeals
               For the Seventh Circuit
                          ____________

No. 04-4267
MATTHEW MARK URBANIA,
                                               Plaintiff-Appellant,
                                 v.

CENTRAL STATES, SOUTHEAST AND SOUTHWEST
AREAS PENSION FUND, and BOARD OF TRUSTEES
OF THE CENTRAL STATES SOUTHEAST AND
SOUTHWEST AREAS PENSION FUND,
                                            Defendants-Appellees.
                          ____________
            Appeal from the United States District Court
       for the Northern District of Illinois, Eastern Division.
           No. 00 C 6510—George M. Marovich, Judge.
                          ____________
     ARGUED MAY 10, 2005—DECIDED AUGUST 31, 2005
                     ____________

  Before FLAUM, Chief Judge, and KANNE and WILLIAMS,
Circuit Judges.
  WILLIAMS, Circuit Judge. Plaintiff Matthew Urbania
sued his employee pension benefit plan, defendant Cen-
tral States, Southeast and Southwest Areas Pension
Fund (hereinafter, “Central States” or “the Fund”), because
the plan denied his application for a disability pension. The
district court granted summary judgment in favor of the
defendant and Urbania appeals. Because the plan’s admin-
istrators properly interpreted the plan’s operative terms in
finding that the plaintiff failed to meet the requisite criteria
2                                               No. 04-4267

for establishing an entitlement to a disability pension, and
thus did not act arbitrarily or capriciously in denying the
benefit, we affirm.


                   I. BACKGROUND
A. Defendant Central States and the Disability
   Pension
  Central States is an employee pension benefit plan, as
defined in § 3(2)(A) of the Employee Retirement Income
Security Act (“ERISA”). See 29 U.S.C. § 1002(2)(A). Central
States is a tax-qualified, not-for-profit trust fund that is
administered by employer and employee trustees. The Fund
provides retirement and disability pensions to qualified
employees who work in the Teamster Industry under
collective bargaining agreements that require employers to
make contributions on behalf of covered employees to
Central States. The Central States Trust Agreement grants
the Fund’s trustees the discretion to establish these benefit
plans, as well as discretionary authority to administer such
plans and decide benefit claims.
  Payment of plan benefits is governed by the Fund’s
Pension Plan Document—particularly, for purposes of
this appeal, the 1980 Plan Document (hereinafter, “the
Plan”). To become eligible for disability pension benefits, a
Fund participant under the age of 62 years must (1)
be totally and permanently disabled, see Plan Section
4.06(a) & (c); (2) have ten years of Credited Service
under the Plan, see Plan Section 4.06(a)(2); (3) be eligi-
ble for Social Security disability benefits, see Plan Sec-
tion 4.06(a); and (4) become disabled before sustaining three
consecutive one-year breaks in service, see Plan Section
No. 04-4267                                                      3

4.06(a)(2) & (d).1 Of the terms introduced by these four


1
    Plan Section 4.06 provides in pertinent part:
      (a) A Participant who sustains a total and permanent
          disability as hereinafter defined
           (1) Prior to his 62nd birthday; and
           (2) after completion of 10 years of Credited
               Service (as defined in Section 3.03) if at
               least 35 weeks of contributions to the Pen-
               sion Fund have been made or were required
               to have been made on behalf of the Partici-
               pant during each of 5 calendar years of
               Covered Employment, or at least 225 weeks
               of contributions have been made or were
               required to have been to the Pension Fund
               on his behalf, subject to the Break in Service
               provisions of Section 3.05; and
           (3) after contributions by his last Employer on
               his behalf under a Collective Bargaining
               Agreement providing for contributions in
               amounts at least equivalent to those re-
               quired for Contribution Class 4 or above;
           shall be eligible for a Disability Pension Bene-
           fit under this Plan if he is entitled to disability
           benefits payable under Title II of the Social
           Security Act (as evidenced by a Certificate of
           Social Insurance Award) or if said Participant
           has sustained a disability which would satisfy
           the medical and physical requirements for such
           Certificate of Social Insurance Award where the
           Participant did not receive such Certificate
           for reasons unrelated to his medical and physi-
           cal condition.
      (b) . . .
      (c) Disability, as used herein, shall be deemed to be
          total and permanent, for purposes of this section,
          whenever the Participant is wholly disabled by
                                                   (continued...)
4                                                    No. 04-4267

individual requirements, three merit immediate note.
  First and foremost is the term “total and permanent
disability.” In order to qualify for a disability pension, the
Plan requires that the participant “sustain a total and
permanent disability as hereinafter defined.” Plan Sec-
tion 4.06(a). That “hereinafter” definition is supplied by
Section 4.06(c), which provides that
      [d]isability, as used herein, shall be deemed to be
      total and permanent, for purposes of this section,
      whenever the Participant is wholly disabled by
      bodily injury or disease, and will as a result be
      permanently, continuously and wholly prevented
      for life from engaging in any occupation and per-
      forming any work for wage or profit.
  With respect to the second requirement—that a partici-
pant have ten years of “Credited Service” under the
Plan—Section 3.03 of the Plan defines “Credited Service.”
Under this provision, a participant will earn one year of
Credited Service for each year in which a participant had at
least 1000 hours of Covered Employment2 prior to January


1
    (...continued)
            bodily injury or disease, and will as a result be
            permanently, continuously and wholly prevented
            for life from engaging in any occupation and per-
            forming any work for wage or profit. . . . .
      (d) A Participant shall be eligible for a Disability Pen-
          sion Benefit if he sustains a total and permanent
          disability while still in Covered Employment
          or before sustaining 3 consecutive One-Year Breaks
          in Service (as defined in Section 3.05(c)).
(emphasis added).
2
  Plan Section 3.02(a) defines “Covered Employment” as “[a]ny
employment of an Employee for which contributions to the
                                                (continued...)
No. 04-4267                                                   5

1, 1976. For employment after 1976, a participant will earn
one year of Credited Service for each year in which at least
35 weeks of contributions to the Fund were made on the
participant’s behalf.
  The requirement that the participant become disabled
before sustaining three consecutive one-year breaks in
service turns in large part, of course, on what constitutes a
“One-Year Break in Service.” Toward that end, Plan Section
3.05(c) provides: “On or after January 1, 1976 a Participant
shall sustain a One-Year Break in Service at the end of any
calendar year in which he receives less than 10 Vesting
Service Weeks.” A “Vesting Service Week,” per Plan Section
3.04(b)(1), is a week in which a contribution “is made or is
required to be made to the Pension Fund on [a participant’s]
behalf.” Suffice it to say, if a participant stops working
covered employment for three straight years, he will be
ineligible for the disability pension if he is injured thereaf-
ter.


B. Urbania’s Employment History and On-the-Job
   Injuries
  Plaintiff Matthew Urbania took on various jobs in the
Ohio Teamster Industry for intermittent periods of time
between 1965 and 1981. During those periods, he was a
Fund participant, and his employers made contributions on
his behalf to Central States accordingly. In 1981, however,
Urbania was laid off from covered Teamster employment
(Halls Motor Transit) and moved to Florida. Since 1981,
Central States has not received any contributions on the



2
  (...continued)
Pension Fund are made or required to be made on his behalf . . .
in accordance with the rules and regulations of this Plan and
Trust Agreement.”
6                                                    No. 04-4267

plaintiff’s behalf. As it stands today, based on his total time
in covered employment, Urbania has accrued 9.839 years of
credited service3 and 11 years of vesting service.4
  After leaving covered employment in early 1981, Urbania
took on various jobs between 1981 and 1986 for non-union
employers, none of which participated in Central States. He
suffered two on-the-job injuries while working those non-
covered jobs. The first injury occurred on June 21, 1982,
while he was working with Page Avjet Corporation. He
tripped and fell in the cockpit of an airplane, hurting his
back. The second injury occurred on October 16, 1986,
when, in the course of his employment with D.J.’s Drywall
Inc., he tripped and hurt his back while lifting drywall. On
both occasions, the plaintiff filed and settled worker’s
compensation claims—the Page Avjet settlement netting
him $12,250 in December 1983, and the D.J.’s Drywall
settlement bringing in $82,004.30 in June 1989. He was
also awarded three periods of disability by the Social
Security Administration—the first from June 1982 to


3
   There is some discrepancy in the record as to whether the
number of credited service years that the plaintiff has accrued
totals 9.825 or 9.839. As this opinion will make clear, the discrep-
ancy is inconsequential, as both numbers fall short of the requisite
ten-year minimum for a disability pension—a number that all
parties concede Urbania has failed to reach. For purposes of
consistency, and in keeping with our obligation in reviewing
summary judgment to resolve all genuine issues of material fact
in the non-moving party’s favor, see Telemark Dev. Group, Inc. v
. Mengelt, 313 F.3d 972, 976 (7th Cir. 2002), we will use the higher
figure.
4
  The plaintiff ’s 11 years of vesting service qualified him under
the Plan for a Vested Pension in the amount of $103.83 per
year for life starting at age 58. He remains qualified for, and
will, when he reaches 58 years, receive, this pension. The
Vested Pension is not here a subject of dispute.
No. 04-4267                                                  7

December 1983, the second in November 1986, and the
third beginning June 1988.


C. Urbania’s Application for a Central States Dis-
   ability Pension
   On February 4, 1998, Urbania filed an Application for
a Disability Pension with Central States, claiming under
oath that he became totally disabled as a result of a job
related injury on June 21, 1982. He further claimed that he
had not been able to work since that date. The application
listed no employment after June 1982, and suggested that
“Worker’s Compensation Disability” had sustained him in
the interim. In addition, several documents from the Social
Security Administration were submitted in support of
Urbania’s application. One such document was an Award
Certificate dated July 12, 1988, denoting November 1986 as
his date of entitlement to Social Security disability benefits.
Another was a Notice of Favorable Decision and a Decision
dated October 11, 1990, finding Urbania disabled under the
Social Security Act and entitled to a period of disability
commencing on June 1, 1988.
  However, the October 11, 1990 Decision, as well as
several documents attached thereto, indicated that Urbania
was able to, and in fact did, return to work after his June
1982 injury—notwithstanding his disability pension applica-
tion’s claim to the contrary. The decision noted that after
his 1982 back injury, Urbania “eventually returned to
work.” Indeed, along with medical records detailing medical
advice rendered to Urbania encouraging him to return to
work within specified physical limits, documents revealed
that Urbania had taken on jobs as a janitor (for four to five
months in 1984), a long-distance trucker (sometime before
August 12, 1986), and a drywall hanger (sometime before
October 16, 1986). In addition, Social Security records
indicated that the plaintiff received income after his 1982
8                                               No. 04-4267

injury from various sources, including Lodge No. 1851 of the
Loyal Order of the Moose in Sanford, Florida (1984);
Alexander-Seewald Co. in Marietta, Georgia (1985); Eagle
Pools in Granite Falls, Washington (1985); and, of course,
D.J.’s Drywall in Winter Park Florida (1986). The record
also includes Urbania’s Worker’s Compensation Notice of
Injury, which he filed after the October 1986 accident to
claim on the injury he suffered while working as a drywall
hanger with D.J.’s Drywall.
  Central States ultimately denied Urbania’ application
for a disability pension, finding that he failed to establish
that he was totally and permanently disabled before
sustaining three consecutive one-year breaks in service.
Though Urbania claims to have been disabled as of June
1982, the defendant, noting in particular the evidence of
Urbania’s odd jobs between 1982 and 1988, found the
disability was not total and permanent until June 1988.
And because, in the eyes of Central States, Urbania’s
disability was not total and permanent until 1988, he
had clearly sustained three consecutive one-year breaks
in service—namely, 1982, 1983, and 1984, the three
years immediately succeeding his last year of covered
employment (1981). Though the issue of Urbania’s insuffi-
cient years of credited service (having only 9.839 when he
needed 10) was also at issue from the outset of his applica-
tion—indeed, Urbania and his union even went so far as to
inquire whether Central States might allow him to cure this
disqualifying deficiency—the defendant did not list this as
a reason for denying plaintiff’s application in its final
decision on review.
  After exhausting administrative appeals of the defen-
dant’s decision, Urbania filed this action before the dis-
trict court. The district court granted summary judgment in
the defendant’s favor, finding that the defendant trustee’s
decision to deny the disability application was not arbitrary
No. 04-4267                                                9

and capricious. In particular, the court found that Urbania
failed (1) to meet the requirement of 10 years credited
service (having accrued only 9.839 years) and (2) to estab-
lish that he was totally and permanently disabled before
sustaining three consecutive one year breaks in service
because, in spite of his claimed June 1982 disability onset
date, he had worked other jobs thereafter. Urbania appeals.


                      II. ANALYSIS
A. Standard of Review
  We review the district court’s grant of summary judgment
on ERISA claims de novo. Hightshue v. AIG Life Ins. Co.,
135 F.3d 1144, 1147 (7th Cir. 1998). Where, as here, the
employer’s ERISA plan grants its administrator
with discretion to pay or deny claims, we review the adminis-
trator’s benefit claim decisions under the arbitrary and
capricious standard. Id.; see also Firestone Tire & Rubber
Co. v. Bruch, 489 U.S. 101, 110-11 (1989). Accordingly, we
will reverse Central States’ denial of Urbania’s disability
pension application only if that decision was arbitrary and
capricious.


B. Consideration of Less Than 10 Years of Credited
   Service
  Of the four qualifying requirements for a disability
pension, one is that a participant must have 10 years of
credited service. The district court found it “undisputed”
that plaintiff had not obtained 10 years of credited
service—accruing only 9.839 years. Urbania, however,
raises two arguments with respect to this finding. First,
he argues that because he had earned 11 “Vesting Ser-
vice Years” under the plan, it must follow that he also
earned over 10 years of credited services. This argument
is patently frivolous, as the terms of the plan make
10                                               No. 04-4267

clear that years of vesting service and credited service
are calculated differently. The plan clearly defines Credited
Service Years and Vested Service Years, and it defines them
quite differently. While it takes only 20 “Vesting Service
Weeks” in a calendar year to earn a “Vesting Service Year,”
see Plan Sections 3.04(a) & (b)(1), it takes (as of 1976) 35
weeks of plan contributions to earn a “Credited Service
Year,” see Plan Section 3.03. Each such year is accrued and
calculated to provide distinct and separate entitlements
under the plan. Eleven Vested Service Years does not equal
eleven Credited Service Years. Nor is the eleven years of
the former necessarily greater than ten years of the latter.
The plan administrators were neither arbitrary nor capri-
cious in refusing to compare apples to oranges.
   Though the outcome is ultimately the same, Urbania’s
second argument with respect to the 10 Credited Ser-
vice Years does have more appeal. Here he contends that
the district court improperly considered the fact that
Urbania had earned less than 10 years of Credited Ser-
vice in evaluating whether the defendant’s denial of benefits
was arbitrary and capricious, because Central States did
not cite insufficient credited service as a justification for
denying the pension in its final claim denial letter. 29
U.S.C. § 1133(1) requires every employee benefit plan under
ERISA to “provide adequate notice in writing to any
participant or beneficiary whose claim for benefits under
the plan has been denied, setting forth the specific reasons
for such denial.” Indeed, in Reich v. Ladish Co., we noted a
plan administrator is “required to give [a plan participant]
every reason for its denial of benefits at the time of the
denial” and that “[i]t may not add new reasons as the
litigation proceeds.” 306 F.3d 519, 524 n.1 (7th Cir. 2002)
(citations omitted). To the extent that Central States failed
in its final decision to mention the credited years deficiency,
Urbania argues that the defendant cannot rely on such a
reason now.
No. 04-4267                                                11

  However, as we held in Perlman v. Swiss Bank Corp.
Comprehensive Disability Protection Plan, 195 F.3d 975,
981-82 (7th Cir. 1999), “[d]eferential review of an adminis-
trative decision means review on the administrative record.”
Looking to the administrative record as a whole, it is
abundantly clear here that the plaintiff was clearly on
notice of his credited years deficiency and its effect in
disqualifying him from a disability pension. Indeed, it
would be disingenuous for Urbania to claim here that
he was not so apprised. In a letter dated February 17, 1998,
soon after his application for the pension was first filed, the
defendant rejected Urbania’s claim because, among other
reasons, “you do not have 10 years of service credit. You
have 9.839 years of contributory service credit.” That this
message was received by Urbania loud and clear is evi-
denced by the Level I appeal that Teamsters Local Union
377 filed on his behalf on July 27, 1998. The appeal states,
“Mr. Urbania has 9.839 years of contributory credit through
1981. . . . We feel that he should be allowed to make the
necessary payments to get the full 10 years of contributory
credit to qualify for the Disability Award.” Urbania was
given further notice of this disqualifying ground in an
October 5, 1998 letter from Central States, which, in
advising him that his appeal to the Benefit Claims Review
Committee had been denied, stated, “It is the decision of the
committee that you are not eligible for a Disability Pension
Benefit because you have not established at least 10 years
of Credited Service.” The Benefit Claims Review Committee
again noted the 10-year credited service requirement of
Plan Section 4.06(a)(2) in a letter to Urbania dated Febru-
ary 11, 1999. And finally, the minutes of Urbania’s Level III
appeal before the trustees, which repeatedly note that
Urbania had established only 9.839 years of credited
service, shows that the insufficient credited service
years issue was clearly before that reviewing body.
  As Urbania rightly points out, Central States’ final claim
denial letter issued on July 29, 1999 after the trustees
12                                              No. 04-4267

review makes no mention of insufficient service credit
as a ground for denying the disability pension. Rather,
the letter rests on the fact that the onset of Urbania’s
disability did not occur until three consecutive one-year
breaks in service had passed. This omission, however, is
readily explainable. Having been notified initially that
he was just short of the required 10-year threshold, Urbania
and his union made repeated requests that he be allowed to
make additional contributions to the Fund so as to qualify
himself. Central States, however, subsequently found an
alternative and independently sufficient reason for denying
benefits that would render further payments by Urbania
wasteful—namely, the three consecutive one-year breaks in
service. Rather than tantalize Urbania with a putatively
curable disqualification, the defendant in its final decision
letter provided the incurable disqualification alone. Thus,
Central States, which has consistently maintained insuffi-
cient credited service as a justification for denial, did not
abandon the ground by omission. It simply put the argu-
ment of “cure” to rest by advancing a separate, incurable
ground. While it would have been cleaner had the defendant
referenced this ground as well in its final decision, the
administrative record makes clear that Urbania was on
notice of the deficiency. The district court did not err in
noticing the disqualification too.


C. Section 4.06(a) Does Not Define “Total and Perma-
   nent Disability”
  Urbania next argues that the plan administrators
acted arbitrarily and capriciously by not interpreting
the Plan such that a person eligible for Social Security
benefits would be automatically entitled to benefits under
the plan. If that was the proper interpretation, Urbania
would have been considered disabled as of June 1982, when
he was first entitled to Social Security benefits.
No. 04-4267                                                     13

  However, Urbania’s interpretation is rendered unreason-
able by the plain language of the Plan. As discussed above,
there are four requirements to qualify for the disability
pension, and eligibility for Social Security benefits is
only one of them. See Plan Section 4.06(a)-(d); supra, n.1
and accompanying text. First and foremost among the
pension’s prerequisites is that a participant sustain a “total
and permanent disability.” Plan Section 4.06(a). And while
Section 4.06(a) requires that a “totally and permanently
disabled” participant be eligible for Social Security, it does
not suggest that eligibility for Social Security renders a
participant “totally and permanently disabled.” Rather,
Section 4.06(c) defines “total and permanent disability,” and
its definition is far more expansive than Social Security
eligibility alone.5 Thus, a participant must be both eligible
for Social Security as provided by Section 4.06(a) and totally
disabled as defined in Section 4.06(c) to qualify for a
disability pension. In other words, eligibility for Social
Security benefits is necessary, but not sufficient, to secure
entitlement to a disability pension under the Central States
Plan. Accordingly, Central States did not act arbitrarily and
capriciously by failing to interpret the Plan in a manner
that would find Urbania absolutely entitled to a disability
pension as of the date that he became eligible for Social
Security benefits. That’s just not how the Plan reads.




5
    We again note the pertinent provisions of Plan Section 4.06(c):
      Disability, as used herein, shall be deemed to be total
      and permanent, for purposes of this section, whenever
      the Participant is wholly disabled by bodily injury or
      disease, and will as a result be permanently, continu-
      ously and wholly prevented for life from engaging in
      any occupation and performing any work for wage or
      profit.
14                                               No. 04-4267

D. Urbania Accrued Three Consecutive One-Year
   Breaks in Service
  Another condition to qualify for a disability pension
requires that the disability be sustained while the par-
ticipant is in covered employment or before sustaining three
consecutive one-year breaks in service. Plan Section
4.06(a)(2) & (d); see also Plan Section 3.05. It was upon
Urbania’s failure to satisfy this condition that the defendant
ultimately based its decision to deny him the pension.
Urbania argues that this decision too was arbitrary
and capricious. He contends that he did not sustain three
such years because, though his last year of covered em-
ployment was in 1981, he claims to have sustained his
disability in June 1982 when he first received Social
Security benefits.
   As we have repeatedly noted, total and permanent
disability under the defendant’s Plan requires much more
than mere receipt of Social Security Benefits. It re-
quires that the participant be “wholly disabled by bodily
injury or disease,” such that he or she is “permanently,
continuously and wholly prevented for life from engaging in
any occupation and performing any work for wage or profit.”
Plan Section 4.06(c). With this proper understanding of the
Plan’s terms, the defendant reviewed the facts of Urbania’s
case. There they found an applicant who, despite his
claimed June 1982 disability onset date, had not only been
given medical clearance and encouragement to find employ-
ment in the years thereafter, but also had in fact taken on
several jobs between 1982 and 1988. Equipped with evi-
dence of the applicant’s post-1982 work history and (albeit
limited) capacity, Central States reasonably concluded that
Urbania was not so disabled as of June 1982 as to render
him “permanently, continuously and wholly prevented for
life from engaging in any occupation and performing any
work for wage or profit.” And while Central States concedes
No. 04-4267                                                 15

that Urbania did ultimately become so disabled, it identi-
fied the onset date of that disability as 1988.
  Urbania nonetheless attempts to halt the accrual of one-
year breaks in service between 1982 and 1988 by citing
Plan Section 3.05(g), which credits participants for working
during any weeks they are not in covered employment “as
a result of sickness, injury, vacation or disability.” He
argues that, pursuant to 3.05(g), the disability he suf-
fered in June 1982 should toll the clock on his breaks in
service, and thereby insulate his application from breaks-in-
service disqualification notwithstanding a 1988 disability
onset date. But this section does not apply to Urbania—it
only applies to participants not in covered employment “as
a result of sickness, injury, vacation or disability.” To be out
of covered employment as a result of sickness, injury,
vacation or disability, a participant would have to have
been in covered employment immediately preceding that
sickness, injury, vacation or disability. As of June 1982,
Urbania’s absence from covered employment was a result of
his being laid off by his last covered employer (Halls Motor
Transit) in 1981, not as a result of his injury or disability.
Urbania was injured in the course of employment—but it
was non-covered employment, suffered while on the job with
Page Avjet in Florida.
  Because the injury occurred in the course of non-covered
employment, Section 3.05(g) could not have been triggered
to stop the break-in-service clock; and because that in-
jury did not render Urbania totally disabled, his entitle-
ment to a disability pension could not at that time vest.
Thus, Urbania’s one-year breaks in service began in 1981
when he was laid off from covered employment. Because
defendant was not arbitrary and capricious in finding
that the disability did not become permanent and total until
June 1988, it is clear that more than three consecutive one-
year breaks in service accrued since his 1981 departure
from covered employment.
16                                               No. 04-4267

E. Judicial Estoppel Does Not Apply
  Finally, Urbania argues that Central States is judi-
cially estopped from divesting him of his disability pen-
sion based on his return to work after June 1982. Judicial
estoppel provides that when a party prevails on one legal or
factual ground in a lawsuit, that party cannot later repudi-
ate that ground in subsequent litigation based on the
underlying facts. Moriarty v. Svec, 233 F.3d 955, 962 (7th
Cir. 2000). To apply, (1) the latter position must be clearly
inconsistent with the earlier position; (2) the facts at issue
must be the same in both cases; and (3) the party to be
estopped must have prevailed upon the first court to adopt
the position. United States v. Hook, 195 F.3d 299, 306 (7th
Cir. 1999).
  Urbania argues that, in a prior action, Central States
retroactively paid Plan disability benefits to another
participant (Charles Turner) despite the fact that that
participant had previously gone back to work for one month.
With this prior action in mind, Urbania insists that the
defendant cannot today assert his re-employment as
grounds for denying him the pension. However, if the facts
at issue in these two cases are related, their relation is
tangential at best. In Turner’s case it was undisputed that
the participant was entitled to a disability pension, the
issue there was how much he was entitled to receive. Here,
in contrast, the issue is whether Urbania even qualifies for
a disability pension at all. Considering that Turner’s
eligibility in the prior matter went uncontested, Central
States does not appear to have advanced any position
whatsoever in that case with respect to when a disability
becomes compensable under the Plan. But even were we to
assume an identity of facts and the defendant’s assumption
of a contrary position, judicial estoppel cannot be invoked
here because Central States never prevailed upon a court to
adopt that position— Turner’s case was dismissed for lack
of jurisdiction and its merits never reached. Turner v.
No. 04-4267                                             17

Central States Pension Fund, No. C-3-86-384 (S.D. Ohio
1992). Thus, judicial estoppel does not here apply.


                  III. CONCLUSION
  For the foregoing reasons, we affirm the district court’s
grant of summary judgment in the defendants’ favor.

A true Copy:
      Teste:

                        ________________________________
                        Clerk of the United States Court of
                          Appeals for the Seventh Circuit




                   USCA-02-C-0072—8-31-05
