WI Court of Appeals – District I
Case Name: Theresa L. Payton-Myrick v. Labor and Industry Review Commission, et al.
Case No.: 2016AP2463
Officials: Kessler, P.J., Brennan and Brash, JJ.
Focus: Abuse of Discretion – Forfeiture Doctrine
The Labor and Industry Review Commission appeals from an order of the circuit court that set aside the Commission’s decision—that Theresa L. Payton-Myrick was not entitled to further worker’s compensation and disability payments—and remanded the matter to the Commission for further fact-finding. The Commission argues that the circuit court erred in considering Payton-Myrick’s argument that her claim was governed by WIS. STAT. § 102.42(1m) (2015-16) because Payton-Myrick had forfeited that argument when she failed to raise it before the Commission and only raised it in the circuit court in a reply brief. The Commission also argues that Flug v. LIRC, 2017 WI 72, 376 Wis. 2d 571, 898 N.W.2d 91, governs Myrick’s § 102.42(1m) claim and requires reversal of the circuit court.
We conclude that the circuit court properly exercised its discretion when it declined to apply the forfeiture doctrine against Payton-Myrick, so we affirm that portion of the circuit court’s order. However, we agree with the Commission that Flug controls, so we reverse the remainder of the circuit court’s order.