- 11 - Commissioner, T.C. Memo. 1993-49. We do so here, noting the parties could have entered into a settlement only as to causes of action which were before the trial court.5 We find two facts determinative of the issue before us. First, after review of the special verdict form returned by the jury in the lawsuit, we do not find that the jury considered any claim by petitioner for “personal physical injuries” as a basis for the damage award. Specifically, the jury was asked whether Whittier knew in 1994 and 1995 of petitioner’s physical disability due to her ulcer condition, whether that condition substantially limited her activity in those years, whether she requested and received a shortened workweek as a reasonable accommodation for her injury before March 1995, and whether Whittier removed that accommodation in March 1995. Nowhere in this special verdict was the jury asked whether Whittier’s actions caused or exacerbated petitioner’s ulcer disease. While petitioner’s medical condition was discussed at length in the lawsuit, including the introduction into evidence of photographs of her ulcers, this evidence merely established that she was “disabled” within the meaning of FEHA and therefore entitled to recover under that statute. The jury was never asked 5 We note that the settlement document itself failed to state that the damages were being apportioned to “physical” personal injuries, ab initio depriving the settlement of sec. 104(a)(2) treatment under the 1996 amendment.Page: Previous 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 Next
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