Jettisoning the Bath Water—Does the Baby Remain?
As someone who has, for the past 32 years, earned the bulk of his living reading—I’ll admit, often only skimming—some 2,500 appellate decisions each year in our field of workers’ compensation law, and commenting (in some form and fashion) upon, say 700 of them, I appreciate it when a judge or justice takes the time to write an imaginative opinion. One such opinion was penned recently by Judge Patrick McAnany, of the Kansas Court of Appeals, in Johnson v. U.S. Food Serv., No. 117,725, 2018 Kan. App. LEXIS 44 (Aug. 3, 2018). McAnany’s carefully crafted opinion employs rich metaphor—“death by a thousand paper cuts” [Opinion ¶ 22]. It also references comedic cinema—Monty Python’s famous “Black Knight” scene. Judge McAnany’s nod to powerful stage drama—Arthur Miller’s Death of a Salesman, has me wondering, however, if the judge might prefer that we jettison the entire workers’ compensation scheme and just move back to the days in which standard tort law governed the world of work-related injuries. If we throw out the proverbial bath water, what happens to the baby? Let me explain.