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Abuse of Discretion – Forfeiture Doctrine

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.

Attorney Derek A. Hawkins is the managing partner at Hawkins Law Offices LLC, where he heads up the firm’s startup law practice. He specializes in business formation, corporate governance, intellectual property protection, private equity and venture capital funding and mergers & acquisitions. Check out the website at or contact them at 262-737-8825.

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