Deflating My Fake Boobs

Yesterday, May 31, I intentionally went to a plastic surgeon and had my fake, saline, toxic boobs punctured in order to deflate them, and later to remove the implant (and possibly the capsules).

It is almost 10 (2007) years since I had them “put in” and I know when people do things the regret, they often say, “I don’t know what I was thinking at the time!”

But I do know what I was thinking.

It is human nature for us to aspire. I’ve come to learn that there are 4 things that we aspire toward: we aspire to be better, to belong, to believe, and to be someone.

For me, getting fake boobs was aspiring to get some of my youth back. To be “better.” And to belong to the “sexy” group.  I was influenced at the time by all the fake famous boobs in our culture. Bay Watch, Carmen Electra, that Spice Girl married to that Soccer Star. Even a few of my friends had gotten boob jobs.

After three kids, my once perky little “C”/big “B” cups were droopy.

After I’d gone to a nudist beach (so boring, a lot of old people and families with kids! It was horrifying), I remember one of the people I’d gone with had mentioned to another friend that I had droopy boobs.

Well, this stuck with me and I was forever wearing pushup bras and very self-conscious and tried to never get caught with my bra off.

How crazy that I put so much emphasis on my breasts, right? But all you have to do is pick up any magazine or watch any show or work around guys or walk into a mechanics shop or listen as the world eagerly anticipates the drop of the Sports Illustrated Swimsuit edition. “Who will be the cover model?” everyone asks– when really, no one cares, they just want to see perky boobs and perky bums – women that look like they are 15 (or perhaps, 13 as sexy seems to have gotten younger).

Then you’ve got the liberals and feminists and Cosmopolitan magazine articles saying beauty doesn’t really matter (and yet, those same liberals/fems/CosmoArticles are the producers, directors, writers, putting the money behind the sexy actresses and models).  Add in a president cheating on his wife with a young busty intern.

It’s all so contradictory!

On the one hand I’m told be confident of my body, no matter what, and on the other hand, I’m given the message, if you want to be loved, admired, gotta aspire to have boobs that smile at the world, not the sidewalk.

When I had the opportunity to have a boob job in 2007, I researched it. It was safe. I knew saline was not meant to last more than ten years (though I’d read articles that some women never changed them.) I was certainly not told about the possibility of Breast Implant Associated Lymphoma (also known as BIA-ALCL) Though the medical community was aware of this, it was not being talked about. And never did I even stop to consider that the way they would implant my boobs (through my armpit!) might damage the lymph nodes. I was going to a very well respected plastic surgeon (who my friend had used) and he didn’t mention it. Though, you would think as a paramedic, I might have thought about it. You would think even if I had not been a paramedic, it would just be common sense!

Here is the thing that plastic surgeons mention, but they don’t really discuss. When something (anything) is placed in your body, your body says, “Wait a minute. One of these things is not like the other and does not belong here!” And your body, miracle that it is, will being to form scare tissue around that object trying to wall it off from healthy organs. It then becomes what it known as a “capsule” around a breast implant. And even though I had saline, the shell is made of silicone. Silicone that is considered a bio-hazard.

Some ladies are fortunate in that their bodies ‘lean into’ the implants. They don’t form very hard capsules. But if you do a google search for capsule contraction surgery on youtube, you will see (very gross!) capsules that are like cement. Some that are like layers upon layers of calcium.

I knew none of this 10 years ago.

And I went and got REALLY HUGE BOOBS because two doctors tried to tell me I needed a lift and implants, but the last doctor said if he just filled the implants really large, it would be like getting a lift AND implants and I’d be fuller and much perkier!

The picture I posted in this article is of my breasts before they were deflated. Notice how thin my neck is? I have been heavy, medium, and thin depending on different stages of my life.  But I have small wrists, small neck, and my body frame is meant to be thin/fit. When I added those huge melons, it just made everything out of whack. For the first year after getting the boobs, I actually gained weight so I looked more proportionate.

But those fake boobs would end up teaching me a-lot about myself, about our culture, and about doctors and medicine, and hysterical women, and women (and men) who would help each other sight unseen, simply because they shared a common bond of boobs.

To Be Continued!


Buzzed Off My Hair For ALS

In my life, I have been not so attractive, and I have been quite attractive (not to brag or anything).

Most people would call me cheerful, creative, and free spirited.

Some people, like my husband, call me crazy.

As some of you might remember, I wrote about my father getting diagnosed with ALS at the age of 48 and losing that battle shortly after his 50th birthday.

He was an inspiration because he never complained and his sense of humor remained sharp and strong.

Recently, I’ve learned of a few deaths caused by ALS who were either members of local police departments or close family members of police I know.

And then it was discovered that Bryan Rickards – K9 Officer from Abington- had been diagnosed with ALS in February of this year (after almost a year of searching for an answer as to why his body seemed to be going wonky).

I first met Bryan a long time ago – when I was a Store Detective (security guard – but store detective sounds much more exciting).

I LOVED that job. It was probably the most fun I’ve ever had at a job. I worked for Bloomingdales in the Willow Grove Mall.

Bryan would often stop by to visit (as would many Abington cops when they were bored). He always made me and my co-workers laugh. He was always funny, optimistic, cheerful. And almost always had a crazy story.

I never had a close relationship with him and didn’t see him very much for years after I quit. Then a few years ago I started to see him once or twice a year at k9 events.  Bryan is one of those people as soon as you see him – you can’t help but smile and be happy that he is around.

So when I learned he had ALS – I was heartbroken. And because my father had ALS, it always seems to strike me a bit more because I am all too familiar with the disease.

Lately, I’ve known many sad situations with friends being diagnosed with cancer, friends having strokes, one young death in the family (all w/in a few months).  I’m starting to feel like I can’t do ENOUGH or say enough or pray enough (and I’m not even religious).

Bryan had written on his facebook that he doesn’t regard ALS as a punishment, but more as a gift, because it will give him time to heal relationships that need healing and time for him to make peace where needed.

And that was really the only serious thing he has said. He’s been staying positive. His sense of humor is still as on point as ever. Truly, he is inspiring.

One day, last week, I’d shaved the sides of my head a little bit. And then I decided, “HEY, WHY NOT SHAVE MY HEAD!” in order to raise awareness for ALS and funds for Bryan’s Go Fund me that one of his co-worker’s wife had set up for Bryan and his family.

I even put had the barber shave a little Happy Face into the side because Bryan is trying to remain upbeat and happy, and  – thinking at work, customers would ask  me about it, and I could tell them about Bryan’s story.

Well. This was a bad, bad, bad, idea. It was a good intention, but for me, a bad idea.

Also, knowing Bryan, he probably would much more have appreciated and got a big laugh if I would have put my fake boobs into a pushup bra and wrote BUST ALS across them. Who knows, maybe that’s still an option (it would probably get much more likes and raise more awareness on Instagram than my buzzed/happyface haircut did). To which I thank the very few people who liked it (you know who you are!). IMG_3568

The short lesson of it is that, buzz cuts on girls (even with Happy Faces) does not inspire much conversation with my customers. At a somewhat conservative grocery store.

The cut does not look good on me.

My husband calls me Larry.

Though very kind people say, “Oh, you’ve got the face to pull it off!”

At work the first night, I was so uncomfortable (but never will I be as uncomfortable as Bryan or those struggling with serious illness).  I learned many, many lessons about beauty that night and how it influences people. About how we present ourselves to the public and how it does make a difference. Only three people asked me about my hair/the shaved happy face.

The next shift,  I wore a pink wig. Well. The pink wig got MANY compliments. Many people asked me about it, and I was able to mention Bryan and his inspirational perspective on ALS (as well as his GO FUND ME) much more frequently. Old people loved it, young people loved it. It was met with positive reaction.

Geez, instead of buzzing my hair, I should have just worn a pink wig!


But that’s what happens to me sometimes (and I’m sure it happens to other people as well) – we get so caught up, we want to DO something. Like last summer when one of my childhood best (and also funniest) friends lost her 17 year old daughter in an accident. I wanted to drive my car (which barely makes it thru inspection and every warning light is lit) half-way across the country to be there.

My husband said, “Don’t call me to come and pick you up when your car breaks down!” and my best friend said, “I’m working that weekend, so I couldn’t come and get you.” I was quite mad at my husband, but looking back, my childhood friend who had lost her lovely daughter was surrounded by a large family /friends and community and though I know she would have appreciated my support, I could support her just as I’d been doing by keeping in touch with her.

How much we should do, all depends on the person, too. Some people don’t want any attention. Some people don’t really want attention, but they appreciate small gestures. Sometimes it’s hard to gauge. And some people want to bring awareness to their disease (watch the movie Gleason for a very inspiring movie about ALS). There is no right or wrong way to handle an illness. And I’m sure each person has their own unique experience.

But the one thing I have learned, from my father, and now, reiterated by Bryan, is that it is all about perspective. It is all about silver linings. It’s all about finding humor where and when you can. It’s about turning every obstacle into an opportunity; to bring awareness, knowledge, to make someone laugh, to make someone feel valued, to give someone inspiration. Some might want to reach out and be inspiring to the world, and some might just want to be inspiring to those who are closest to them. But I think that the ability to rise above an illness that that is truly a son-of-a-bitch, is really one of the only ways to not let it get the best of you. Not everyone can rise. (Surely, I don’t think I would). But everyone can try. And there are many inspirational people like Bryan to lead the way.

Please consider donating to Bryan Rickards Go Fund Me. If you don’t have the money, please just consider posting it on facebook or passing alone the information, or praying for him and his family.


“We who lived in concentration camps can remember the men who walked through the huts comforting others, giving away their last piece of bread. They may have been few in number, but they offer sufficient proof that everything can be taken from a man but one thing: the last of the human freedoms—to choose one’s attitude in any given set of circumstances, to choose one’s own way.”  -Viktor Frankl

Below is a poster you can copy and ask to hang it at work or anywhere you think it might help.

Brian Rickards

Officer Bryan Rickards has served the residents of Abington Township as a Police Officer for the past 19 years. Officer Rickards and his K-9 partner Ivan, are an award winning team, trained in narcotics detection, and patrol operations certified.

On February 16, 2017, Officer Rickards was given the devastating news that he had been diagnosed with ALS (Amyotrophic Laterals Sclerosis). This is a rare and progressively debilitating disease that will prevent him from ever being able to return to work as a police officer.

Bryan has 3 young children, and could really use all the help he can get. The Abington Township Police Association is collecting money to assist in defraying medical costs both current and future and support his family. All proceeds will go directly to Officer Rickards and his family. There is a GoFundMe page, along with a Beef and Beer fundraiser scheduled for April 8, 2017 have been set up to do just that!

Donations are also being accepted by the Abington Township Police Association (A.T.P.A.), PO Box 211, Abington, PA 19001.

Help spread the word!






Thirteen Lessons Learned From Working In A Grocery Store

Marshmallow Crispy Oreos

I have had a million jobs.

It started with a paper route when I was 12 – then baby sitting, and then everything from store detective at Bloomingdales (seriously the most fun job I’ve ever had). Waitress.  Paramedic. Sales for a Fortune 500 Company. Decorating cakes and cookies in a bakery.
The one thing I’ve been consistent at is being curious and researching and writing.
My writing may never lead to anything.
I’m okay with that.
I don’t know that my husband is.
He could end-up being my ex-husband if I don’t win the lottery or sell a-lot of books.
I knew as soon as the wrinkles and gray hair popped up on me he’d poop out!

At least I’m always working though (right?).
I know a few women who stay home and don’t even clean or cook  and then bitch when the husband works too much.
Not that I cook (anymore). And at least I pick up the dog poop in the yard. 
But you’ll never  hear me complain that my husband works too much! Or golfs too much.
The key to a great relationship is to spend as little as time together as possible. I read it in TIME magazine, so it must be true.
I’ve met so many people. Learned so much about human nature. And what I discovered is, no matter WHERE you work…from slinging bacon to saving lives; it is always the same.
Clicks. “In groups.”
Miserable co-workers who bitch about their bosses and the job but do nothing to change it. Employees who WANT to raise their voice and change things, but they have obligations to meet and so, they don’t want to rock the boat. But please, if you’re not willing to rock the boat, stop complaining about the stagnate sea. Muck it up or suck it up and shut up. 
And it seems the more diplomas and certifications/schooling  that bosses/managers have, the more removed from acting with common sense and kindness they become. My best bosses have been the ones with the least “professional” schooling and the most experience in the field.
The past year, I worked at a grocery store part-time. That job has taught me much more than I ever expected to learn about human nature.
Who knew working in a grocery store could provide so much insight to life?
The Top Thirteen Lessons I’ve Learned From Working In A Grocery Store:
1) We are HUGELY influenced by what we are exposed to. This sound ridiculously simple and like plain common sense. But I don’t think we are really, acutely aware how influenced we are by the people/culture we surround ourselves with. How greatly it impresses the choices we make. I worked in a fabulous BAKERY and didn’t gain any weight! Tortes. Cookies. Cheesecake. CANOLI cheesecake! Gained no weight!
Then I worked at a grocery store and gained almost fifteen pounds. It also gave me huge insight into why we are so fascinated with sex, fitness, sports, and, of course, food.  – I will write more on this in the future.
2) Old People (I’m talking late 70’s and 80’s)- have far more pride and determination to remain self-sufficient than most young people I know.
 Even though they have disabilities, they refuse help to the car. One sweet older lady who suffered a stroke and has only use of one arm, always turns down my offer to help her outside, saying, “Save the offer for someone who really needs it.” They set a great example to me and give me something to strive for.
3) Far too many people abuse food stamps. This is not a racial thing. All colors do it. All nationalities do it. What PISSES ME OFF is, that the senior citizens I described in #2, count their pennies (literally!), and live on oatmeal and fruit. The people abusing food stamps are carrying Coach purses, have manicures, and rack up 300 dollars on shrimp, steak, Cheetos, soda, and snack cakes. It’s disgusting.
4) Criminals have more protection than honest citizens due to lawyers and threats of lawsuits. Our country is upside down:Corruption is ignored or worse, rewarded!  Shoplifters are rarely stopped and even rarely ever prosecuted. You have to be REALLY STUPID to get yourself arrested.
5) Liberals allow their kids to roam the store and stand on the seat of the carts. This does not apply to all liberals; only the liberals that wear Birkenstock sandals.  And have unshaven armpits. And filthy FILTHY re-useable bags (why can’t you WASH these out? Do you realize how many germs they have?) They also rarely donate to charity. They buy gluten free and organic everything.
6) Conservatives donate to charity almost every-time they come in. I know they are Conservative because they wear USA PROUD hats, send their kids to the local Catholic school, and talk about Trump in hushed, reverent tones. They also profusely thank the physically/mentally challenged baggers even though the baggers often put their cakes in the bag upside down and sideways. Note:*** There are a few customers I have on the “Right”  that are so smug and superior and pretentious (they buy Philadelphia Magazine), they can’t even look me in the eye, god forbid they acknowledge me when I thank them and tell them to enjoy their day! They are, however,  the exception.
7) The self-check out computers make mistakes. Often.
8) The decision makers at the corporate office are completely, irresponsibly, out of touch with real life. Every solution seems to be: “computerize!”
9) Low prices are fabulous, but they only get you so far. Customers would pay more to have cheerful, thoughtful, well trained, dependable,  employees.
10) People are REALLY GETTING TIRED of being asked to donate for a new charity every-time they come in. It’s getting out of hand. And employees are just as tired and feel awful for harping after customers to donate. However, employees have been threatened with write-ups and possible termination for not asking each customer.
11) I’d say half the teenagers stand at the end of the checkout, scrolling through their iphones instead of helping to bag the groceries if there is no bagger. The parent ends up bagging while the kid stands there. Holy heck. This is why we are spiraling down the tubes people! Parents allowing perfectly capable kids to stand around while the parent does the work! See my number #2 lesson.
12) Oreo’s come in a variety of flavors and they are constantly changing. They are available only for a Limited Time. The limited time is a marketing ploy to get people to buy them. It works on me. Every. Single. Time.
They are the number one purchased brand of cookie.
13)  Almost everyone buys bananas.

I’m An Autistic Lesbian

I’m an Autistic Lesbian.

It’s true.

Because a lawyer told me that.

Not just any lawyer, but a Conservative Lawyer.

What is it about me that screams Lesbian? My fake boobs? My love of glitter and the color pink? My “Veterans Before Refugees” GruntStyle t-shirt? My heart shaped sunglasses?


I don’t think I’m autistic.

Crazy, yes.

And maybe a bit over the top when it comes to my obsession  with binders (as in the type of binders you find in office supply stores…not the type of binders in Fifty Shades of Grey).

But I know autistic people who are much better and smarter than I am.

So calling me an “Autistic Lesbian” and thinking it would somehow hurt my feelings was a mistake.

A YUGGE mistake.

And a compliment. I know plenty of fabulous lesbians. And Autistic people. So, I’m honored to be in such great company.

One thing I do believe in is freedom of speech.

I’m anti-political correctness.

I don’t believe in banning of books.

Or speech.

I worked in EMS, so I know that crude humor and language is not meant (for the most part) to be taken seriously. It’s a joke. It’s a way to relieve tremendous stress from the job.

Firehouse humor is firehouse humor.

There is no hidden agenda.

There is no racism or discrimination.

I dislike hypocrites.

You tell me how to act or behave? You damn well better do it yourself.

If there is anything I hate worse than burnt bacon, it’s people who are defined by the motto “Do as I say, NOT as I do.”

And I have hated myself many times because I told this to my children.

(And I am so sorry.)

I’ve also learned, through much experience, that character is the key to happiness.

That living in harmony with what you say you value in life, is the key to happiness.

That contradiction is not only confusing, it corrupts our common sense. It halts our progress. It decays our courage and our confidence.

I apologize; I’m losing focus – as I find that I often do lately.

Is it my age? Or Autism?

I’m not sure.


To. Be. Continued.

Thank you for your patience.

This is the comment from the “Conservative” lawyer who calls himself Josh Smith (prior to that, Daniel J. Nusbaum.) This contributes to the story that our common sense and character has been hijacked. More to follow. This will make sense. Eventually.

Time for me to go “eat a dick.”



When You Trust The Wrong Person

I’m such a sucker.

From dating horrible guys to marrying the wrong guy(s) – you’d think I’d have learned by now who to trust.

But, in fairness, we learn as we go along.

And, in fairness, I recognize danger much more quickly than I once did (perhaps it’s because I rarely drink anymore?).

Perhaps it’s because as I’ve become older, I rarely feel the overwhelming desire for status.

Seeking status is human nature, but it’s very easy to corrupt your character for the risk of Being Number One (or, number 20. Just as long as you’re not on the bottom heap).

I’d by lying if I said I still didn’t care about status, however, not as much as I once did.

I do still care about looking good and striving to do my best, but that’s not about status, that’s about wanting to be the best person I can be. That’s human nature.

For me, being the ‘best person I can be’ also includes warning people when I spot frauds and phonies.

When I have bad experiences.

Yes, being nice is GOOD. It’s wonderful. And 95% of the time, I am really nice. At least, I hope I am.

Being nice is actually EASY. It rarely pisses anyone off (except atheists – they are really never happy anyway. Unless they are watching Star Wars).

Stepping up and disagreeing with or questioning popular organizations or people is not a fun place to be caught in.

But, one thing I have tried extremely hard to do is tell the truth.  Because I want to be able to trust someone else. I want to be able to let my guard down and just enjoy myself, or pursue goals.

I want someone to not only believe in, but I want to TRUST that person or organization. You waste a-lot of energy when you are unable to trust.

You lose focus when you lose trust.

You lose freedom when you lose trust and faith in whatever it is you believed in, because you then spend time chiding yourself for believing in that person (or organization) for the time you wasted when you could have been with someone (or something else).

Your heart breaks.

Isn’t there someone, anyone, anywhere, that will give you a soft place to land when you’ve had turbulence in your life?

And when do you, as a person, stop providing a soft place to land for that person, that family, that friend, that job, that has abused your trust and your heart?

And how can you trust yourself to make the right choices in the future?

Who can you believe in anymore?

Well, I have the answer.

And I also want to admit my latest stupid disappointment – mostly in myself for not having known better in the first place.

And I’ll tell you tomorrow.

Josh Smith Daniel Nusbaum The Waiter

Joshua Smith (who refers to himself as a Conservative Lawyer – a total Fraud, he has absolutely no Conservative Values) was employed as a waiter at Monterey Bay Fish Grotto in Pittsburgh, Pa from 2005 to 2007 (I guess he couldn’t find a job as a lawyer despite his prestigious Cornell resume)

In July, 2007, he sued them because he was prescribed speed (he found a doctor to prescribe it citing ADHD and Manic Depressive).  He informed the restaurant he was disabled (wow, sorry to all the people who are REALLY disabled) and he had to have more meal breaks than usual.

Instead of going to trial, the restaurant decided to settle out of court and paid him 35,000.

He didn’t claim it as income. (Hmmm, I guess as a lawyer and Constitutional Scholar this does not speak well to him. Either he knew it and refused to report it (criminal) -or he didn’t know, which goes to show he is incompetent.

And the IRS then sued him.

dan nus myspace

Josh Smith/ Daniel Nusbaum old My Space picture 


Here is the link to the document (but I copied and pasted below in case you’d like to read for yourself).

And this

Mr. Smith was formerly employed as a server with MBFGMTW Limited Partnership d.b.a. Monterey Bay Fish Grotto (“MBFG”) from approximately June 30, 2005, until MBFG terminated his employment on January 30, 2007. While he was employed by MBFG, Mr. Smith was diagnosed with attention deficit hyperactivity disorder (“ADHD”) and major depressive disorder (“MDD”). Both ADHD and MDD are disabilities within the definition of “disability” in the Americans with Disabilities Act of 1990 (“ADA”), Pub. L. No. 101-336, 104 Stat. 327. As part of his treatment regimen he was prescribed a stimulant medication called Desoxyn (methamphetamine hydrochloride). One of Desoxyn’s side effects (The burden of proof is generally on the taxpayer, see Rule 142(a), and the 2 submission of a case under Rule 122 does not alter that burden, see Borchers v. Commissioner, 95 T.C. 82, 91 (1990), aff’d, 943 F.2d 22 (8th Cir. 1991); Rule 122(b). The stipulated record consists of: the facts alleged in Mr. Smith’s petition 3 filed with this Court on October 5, 2012, to the extent they are admitted in respondent’s answer filed on November 30, 2012; the stipulation of facts; and the exhibits attached thereto. – 4 )– is appetite suppression. This was problematic for Mr. Smith, who is small in stature. He is only five feet six inches tall, and his weight fluctuated between 120 and 140 pounds before he began taking the medication. Mr. Smith’s primary care physician was concerned about the appetite suppressive effects of Desoxyn on his general physical and mental health, particularly if he lost any weight. As a result, the physician recommended that he consume as many calories as possible whenever he was able to do so. MBFG’s employee meal policy This medical advice conflicted with MBFG’s longstanding policy prohibiting servers from eating during a shift. The only exception that MBFG allowed to the policy was that a food server could eat if less than 30 minutes remained before the restaurant stopped seating guests, and if that server had no guests remaining at his or her assigned tables. First and second violations of the policy resulted in written warnings, while a third violation resulted in termination of the server’s employment. Mr. Smith recognized the tension between his physician’s recommended eating regime and MBFG’s restrictive meal policy. He informed MBFG of his disability and requested to be excepted from the policy. For a brief period, MBFG – 5 – initially excepted Mr. Smith from the policy and he was permitted to eat without restrictions as his appetite demanded. However, management’s patience with Mr. Smith’s accommodation quickly waned, and on January 30, 2006, Mr. Smith was informed that MBFG would no longer accommodate his disability and that he was again subject to the meal policy. At that meeting MBFG explained the terms of the meal policy to Mr. Smith as follows: Mr. Smith was permitted to take up to two eight-minute breaks per shift, but only after first receiving permission from the manager; Mr. Smith was permitted to eat only pre-prepared food that was bought outside the restaurant; and Mr. Smith was permitted to consume his food only while standing in a particular location in the kitchen, in full view of all kitchen employees. Less than two weeks later, Mr. Smith was called to a meeting with MBFG management and disciplined for violating the meal policy. He was told that he would be terminated if he violated the meal policy again. Administrative complaint and District Court lawsuit Mr. Smith submitted a questionnaire to the Pennsylvania Human Relations Commission (“PHRC”) on February 16, 2006, alleging that MBFG had engaged in discriminatory conduct. The following day Mr. Smith notified MBFG in writing of his decision to pursue formal charges of discrimination as a result of its meal – 6 – policy, retaliatory conduct, and refusal to accommodate his disability. On July 21, 2006, the PHRC dismissed Mr. Smith’s complaint because the complaint did not establish probable cause to show discrimination. MBFG terminated Mr. Smith on January 30, 2007. In response to his termination, Mr. Smith filed on July 24, 2007, a civil lawsuit against MBFG in the U.S. District Court for the Western District of Pennsylvania, Civil No. 07-01032, pursuant to the ADA and the Pennsylvania Human Relations Act, 43 Pa. Cons. Stat. secs. 951-963 (West 2009). In the lawsuit Mr. Smith alleged that MBFG discriminated and retaliated against him because of his disability. Mr. Smith alleged that he suffered emotional distress, anxiety, depression and other consequential damages. Mr. Smith’s amended complaint filed November 19, 2007, stated: “As a direct and proximate result of defendant’s actions toward Plaintiff, as described herein, Plaintiff has suffered, and will continue to suffer, severe emotional distress, anxiety, depression and other consequential damages.” Settlement of the discrimination claims In March 2010 Mr. Smith and MBFG executed a “Confidential Settlement Agreement and General Release”. The settlement agreement described Mr. Smith’s claims as follows: – 7 – [Mr. Smith] * * * does hereby fully and forever release, discharge and hold harmless MBFG * * * from any and all liability upon claims, causes of action or obligations of every nature whatsoever, whether known or unknown, arising out of or relating to his employment and termination from employment or to any other act, event, failure to act or thing which has occurred or was created at any time before the date on which this Agreement is signed. Without limiting the generality hereof, this release covers claims or causes of action based upon torts (such as, for example, negligence, fraud, defamation, wrongful discharge); express and implied contracts; federal, state or local statutes and ordinances, including those which regulate employment practices (such as, for example, The Age Discrimination in Employment Act of 1967, The American [sic] with Disabilities Act, Title VII of the Civil Rights of 1964, the Pennsylvania Human Relations Act); and every other source of legal rights and obligations whatsoever. This description includes no specific mention of physical injury or sickness. In this settlement agreement, MBFG agreed to pay $35,000 in exchange for Mr. Smith’s release and discharge of any claims or causes of action he had against MBFG. Mr. Smith and MBFG’s agreement allocated the settlement payment as follows: Plaintiff has requested, and the parties have agreed, that Five Thousand Dollars of the total payment be allocated to lost wages. MBFG shall report this portion of the payment to the Internal Revenue Service through an IRS Form W-2 and such payment shall be subject to applicable employment tax withholdings. Plaintiff has requested, and the parties have agreed, that the remainder of the sum be allocated to pain and suffering, emotional distress and the expense of suit. This portion shall be reported to the Internal Revenue Service through an IRS Form 1099. [Emphasis added.] – 8 – The settlement agreement also provided that Mr. Smith was “solely responsible for the tax liabilities due from him, if any, which result from his receipt of money under this Agreement”. MBFG issued Mr. Smith a Form 1099-MISC, “Miscellaneous Income”, and reported the $30,000 of nonemployee compensation paid to him during tax year 2010. Mr. Smith did not report the $30,000 of nonemployee compensation on his 2010 Federal income tax return. On July 2, 2012, the IRS mailed Mr. Smith the notice of deficiency, which determined a deficiency in tax of $7,705, and on October 5, 2012, Mr. Smith filed his petition in this Court. On April 7, 2014, the parties filed their stipulation of facts and jointly moved to submit the case under Rule 122. By order dated April 7, 2014, the Court ordered the parties to submit simultaneous memoranda briefs by July 7, 2014. Mr. Smith did not file a brief, but we construe his position to be that the unreported income is excludable from his gross income pursuant to section 104(a)(2) because it was allocated to pain and suffering. Respondent’s brief argues that the unreported income represents settlement proceeds that were not received on account of personal physical injuries or physical sickness and therefore are not excludable from gross income under section 104(a)(2). – 9 – Discussion As a general rule, the IRS’s determinations are presumed correct, and the taxpayer has the burden of establishing that the determinations in the notice of deficiency are erroneous. Rule 142(a); Welch v. Helvering, 290 U.S. 111, 115 (1933). Mr. Smith has not contended that the burden of proof has shifted pursuant to section 7491(a), and the record shows no basis for such a contention. The record shows that Mr. Smith did receive the unreported income; thus, the presumption of correctness attaches in this unreported income case. See, e.g., Harris v. Commissioner, T.C. Memo. 2012-333. I. Taxability of settlement awards Section 61(a) provides the following broad definition of the term “gross income”: “Except as otherwise provided in this subtitle, gross income means all income from whatever source derived”. Section 61(a) is thus broad in its scope, and exclusions from gross income must be narrowly construed. Commissioner v. Schleier, 515 U.S. 323, 328 (1995). Section 104(a) provides that gross income does not include: (2) the amount of any damages (other than punitive damages) received (whether by suit or agreement and whether as lump sums or as periodic payments) on account of personal physical injuries or physical sickness * * *. – 10 – * * * * * * * For purposes of paragraph (2), emotional distress shall not be treated as a physical injury or physical sickness. The preceding sentence shall not apply to an amount of damages not in excess of the amount paid for medical care (described in subparagraph (A) or (B) of section 213(d)(1)) attributable to emotional distress. The legislative history shows that “[i]t is intended that the term emotional distress includes symptoms (e.g., insomnia, headaches, stomach disorders) which may result from such emotional distress”. H.R. Conf. Rept. No. 104-737, at 301 n.56 (1996), 1996-3 C.B. 741, 1041. Therefore, to be excludable from gross income under section 104(a)(2), a settlement award must be paid to a taxpayer on account of physical injuries or physical sickness, which does not include emotional distress or symptoms thereof. Where damages are received pursuant to a settlement agreement like Mr. Smith’s, the nature of the claim that was the actual basis for settlement controls whether those damages are excludable under section 104(a)(2). United States v. Burke, 504 U.S. 229, 237 (1992). Whether the settlement payment is excludable from gross income under section 104(a)(2) depends on the nature and the character of the claims asserted in the lawsuit. See Bent v. Commissioner, 87 T.C. 236, 244 (1986), aff’d, 835 F.2d 67 (3d Cir. 1987); Church v. Commissioner, 80 T.C. 1104, 1106-1107 (1983); Glynn v. Commissioner, 76 T.C. – 11 – 116, 119 (1981), aff’d without published opinion, 676 F.2d 682 (1st Cir. 1982). The determination of the underlying nature of the claim is factual. Robinson v. Commissioner, 102 T.C. 116, 126 (1994), aff’d in part, rev’d in part, and remanded on another issue, 70 F.3d 34 (5th Cir. 1995); Seay v. Commissioner, 58 T.C. 32, 37 (1972). Where there is a settlement agreement, the determination of the nature of the claim is usually made by reference to the agreement. See Knuckles v. Commissioner, 349 F.2d 610, 613 (10th Cir. 1965), aff’g T.C. Memo. 1964-33; Robinson v. Commissioner, 102 T.C. at 126. If the settlement agreement lacks an express statement of the claims that payment was to settle, the intent of the payor (here, MBFG) is critical to that determination. Knuckles v. Commissioner, 349 F.2d at 613; see also Agar v. Commissioner, 290 F.2d 283, 284 (2d Cir. 1961), aff’g per curiam T.C. Memo. 1960-21. II. The nature of Mr. Smith’s claim against MBFG We surmise from Mr. Smith’s petition that his position is that the unreported income is excludable from his income under section 104(a)(2) because it was partially allocated as damages for pain and suffering under the settlement agreement. (He makes no contention that the amounts were for medical care. Cf. sec. 104(a) (flush language).) Because the unreported income arose from Mr. – 12 – Smith’s settlement agreement with MBFG, we must first look to the settlement agreement to determine the nature of the claims it was intended to settle. The settlement payment is excludable from gross income only if it was paid on account of physical injuries or physical sickness. Alternatively, if the settlement payment was paid on account of general pain and suffering or emotional distress, then it would not be excludable from gross income under section 104(a)(2). As we have noted, the settlement agreement does not specifically mention any claims for physical injuries or physical sickness. And by its terms (quoted above), the settlement agreement does not provide that any portion of the payment was allocable to claims for physical injuries or physical sickness. Rather, it allocates the payment to “lost wages”, “pain and suffering, emotional distress and the expense of suit.” This Court has noted, however, that “‘pain and suffering’ is a broad term that includes emotional distress and its symptoms”. See Longoria v. Commissioner, T.C. Memo. 2009-162. Settlement payments for non-physical injuries such as emotional distress are not excludable from income under section 104(a)(2). See id.; Hawkins v. Commissioner, T.C. Memo. 2007-286, aff’d, 386 Fed. Appx. 697 (9th Cir. 2010); see also Blackwood v. Commissioner, T.C. Memo. 2012-190 (holding that depression is a non-physical injury under section 104(a)). – 13 – When we look to Mr. Smith’s Federal court complaint to see whether it states more particular claims (i.e., physical injuries or physical sickness) that would justify exclusion, see Burke, 504 U.S. at 237; Church v. Commissioner, 80 T.C. at 1106-1107, we find it does not. The claims Mr. Smith asserted against MBFG were for discrimination and retaliation; and the damages Mr. Smith claimed were: “severe emotional distress, anxiety, depression and other consequential damages”. These injuries are non-physical. As we have previously held, section 104(a)(2) and the flush language of section 104(a) require that, to be excluded from income, any damages must arise from personal injuries or personal sickness other than emotional distress or the symptoms thereof. See Longoria v. Commissioner, T.C. Memo. 2009-162. Thus, we cannot hold that Mr. Smith’s claims for damages were for physical injuries that might give rise to a settlement award that is excludable from income pursuant to section 104(a)(2). The character of the settlement payment hinges ultimately on the dominant reason of the payor in making the payment. See Agar v. Commissioner, 290 F.2d at 284; Fono v. Commissioner, 79 T.C. 680, 696 (1982), aff’d without published opinion, 749 F.2d 37 (9th Cir. 1984). Mr. Smith has not met his burden to establish that he received the $35,000 settlement payment, or any identifiable part thereof, from MBFG on account of personal physical injuries or physical sickness. – 14 – For that reason we find that the $30,000 of unreported income is not excludable from Mr. Smith’s gross income under section 104(a)(2) for his tax year 2010. To reflect the foregoing, Decision will be entered under Rule 155.