Dissenting Opinion by
Justice SCOTT.I must respectfully dissent from the majority opinion because it extends the holding of Travelers Indemnity Company v. Reker, 100 S.W.3d 756 (Ky.2003), to bar even new non-work related physical injuries, allegedly caused by the documented misconduct of the Appellant company. Such an extension violates the “jural rights” of every working Kentuckian. Ky. Const. § 14, 54, and 241.
Section 14 of the Kentucky Constitution provides, “All courts shall be open, and every person for an injury done him in his lands, goods, person or reputation, shall have remedy by due course of law, and right and justice administered without sale, denial or delay.” Section 54 provides, “The General Assembly shall have no power to limit the amount to be recovered for injuries resulting in death, or for injuries to person or property.” Section 241 provides:
Whenever the death of a person shall result from an injury inflicted by negligence or wrongful act, then, in every such case, damages may be recovered for such death, from the corporations and persons so causing the same. Until otherwise provided by law, the action to recover such damages shall in all cases be prosecuted by the personal representative of the deceased person. The General Assembly may provide how the recovery shall go and to whom belong; and until such provision is made, the same shall form part of the personal estate of the deceased person.
“The jural right to sue for personal injury or death caused by negligence or other wrongful acts was well recognized in 1891 when our Constitution was adopted.” Perkins v. Northeastern Log Homes, 808 S.W.2d 809, 816 (Ky.1991). “In drafting our constitutional protections in §§ 14, 54 and 241, our founding fathers were protecting the jural rights of the individual citizens of Kentucky against the power of the government to abridge such rights, speaking to their rights as they would be commonly understood by those citizens in any year, not just in 1891.” Id. Thus, “[fundamental fairness is part and parcel of the concept underlying the rights guaranteed to us by our constitution; and, conversely, the various sections in it protecting individual rights from legislative interference cannot be understood or applied without reference to fundamental fairness.” Id.
*16I am agreeable with the proposition that “[t]he purposes of the [Workers’ Compensation] Act would be defeated if independent actions to recover damages for injuries or death caused by a compensable accident were permitted.” Simmons v. Clark Const. Co., 426 S.W.2d 930, 932 (Ky,1968)(emphasis added). I cannot agree however, that an employee’s default election to participate under the Workers’ Compensation Act KRS 342.001, et seq., could be construed to waive his “jural rights” for a “new non-work related physical injury” allegedly caused by such misconduct as is acknowledged herein by the majority. Such a result violates the promise made in Zurich Ins. Co. v. Mitchell, 712 S.W.2d 340 [342] (Ky.1986), wherein we noted, “The typical case in which courts have permitted a former employee to maintain a tort action against the employer involved circumstances in which the employer or the insurance company’s conduct was ‘conspicuously contemptible.’ ” Id. at 342.
Consequently, in Zurich, we referred favorably to Unruh v. Truck Insurance Exchange, 7 Cal.3d 616, 102 Cal.Rptr. 815, 498 P.2d 1063 (Cal.1972),1 by acknowledging that “[t]he facts in Unruh, supra, meet the definition of one of those cases in which the conduct was conspicuously contemptible because private investigators were hired to investigate the claim of the employee and their conduct was reprehensible in attempting to trick and deceive the claimant into activities which resulted in a physical and mental breakdown requiring hospitalization.” Zurich, 712 S.W.2d at 343 (emphasis added). We have now broken that promise, and have succumbed to the subtle request for a Writ that will prevent proof of an alleged new non-work related physical injury, which in turn, would have justified the Circuit Court’s jurisdiction — which we say today, does not exist.
For this proposition the majority, relies, not only upon Zurich, supra, but upon Travelers Indemnity Company v. Reker, 100 S.W.3d 756 (Ky.2003), Brown Badgett Inc. v. Calloway, 675 S.W.2d 389 (Ky. 1984), and General Accident Ins. Co. v. Blank, 873 S.W.2d 580 (Ky.App.1993). Zurich, of course, dealt strictly with unpaid medical bills; no injury. Reker, dealt only with the covered employees “worry, anguish, and embarrassment,” for Traveler’s failure to pay $822.16 in unpaid medical and motel bills. Id. at 758. Calloway, supra, dealt only with the reasonableness of one doctor bill, which the insurer refused to pay on the basis it was an expert witness fee, rather than a medical bill for treatment. Id. at 390. Blank also involved a work related injury and dealt with alleged violations of the UCSPA, KRS 304.12-230, and CPA, KRS 367.120, and 367.220. In Blank, the ALJ had previously denied the Workers’ interlocutory request for relief on his surgery bills for reasons “the employer raised a sufficient issue ... as to the appropriateness of the surgery undertaken.” Id. at 581.
In ordinary circumstances, I would agree that, “[i]f we permit everyone to take his or her claims to court following a denial of interlocutory relief by an ALJ, no Workers’ Compensation claims will ever be finalized.” Id. at 583. But here, we have allegations of a new, non-work related physical injury caused by the Appellee, and allegedly backed by medical proof— not just a speculative emotional injury, or cause of action for “embarrassment.”
*17Even so, a careful reading of KRS 342.690(1), confirms that the reference to “such injury or death” therein, refers only to a work-related injury. Thus, if this were a simple case of a work related injury or a failure to pay the required benefits, there could be no conflict with the Appel-lee’s “jural rights.” But such documented conduct having allegedly resulted in a new non-work related physical injury, as in Un-ruh, swpra, the Appellee’s “jural rights” to prove this fact under the Constitution of this Commonwealth must be recognized and this Writ should be denied until such time as this case reaches the appellate process where, upon a proper record, the real facts will have been established.
“When all else is said and done, common sense must not be a stranger in the house of the law.” Cantrell v. Kentucky Unemployment Ins., 450 S.W.2d 235, 237 (Ky. 1970). For the reasons aforesaid, I would affirm the Court of Appeals and deny the Writ.
. The "dual capacity” doctrine enunciated in Unruh was abrogated by statutory amendment in 1983. Cal. Lab.Code § 3602. However, the court still cited to it as an example of "conspicuously contemptible conduct" in 1986.