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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.
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