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compensation for her personal physical injury in that she
suffered “pain and suffering from not being able to pay my bill,
not being able to work and knowing the fact that I was
discriminated against”. Further, petitioner argues that the
damage award was additional compensation for her injuries when
she slipped on grease at work. Petitioner reasons that, if Dobbs
had not sexually discriminated against her, Dobbs would not have
placed her on the on-call list and assigned her to a position
where she received physical injuries.
The flush language of section 104(a) provides that “For
purposes of paragraph (2), emotional distress shall not be
treated as a physical injury or physical sickness.” Thus,
assuming petitioner did receive damages for her pain and
suffering as a result of the employment discrimination, they
would not be excludable under section 104(a)(2). As to her
personal physical injury, Dobbs compensated petitioner in a
separate workmen’s compensation claim brought by her, and we
decline to follow petitioner’s tenuous nexus between the
discrimination and the personal injury.
We find that petitioner failed to establish that any amount
of the settlement proceeds was based on personal physical
injuries or sickness, and, thus, hold that the $71,600 damage
award is not excludable under section 104(a)(2).
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Last modified: May 25, 2011