Nancy J. Vincent - Page 11

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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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