dissenting.
I respectfully dissent from the opinion of the Court.
The Plaintiffs below are afflicted with a disease which is not considered an “injury” under the Worker’s Compensation Act (hereinafter, “Act”) as modified by House Bill 1 in 1996.1 As such, there is no remedy for their impairments, which undeniably result from many long years of work in the coal mines. Prior- to the 1996 amendments, all of these workers would have been entitled to receive an RIB award. However, as the majority points out, none are now so entitled.
The original intent of the Act was to provide both employers and employees with a set of reliable and concrete rules to be followed when a worker suffered a job-related injury. Employees gave up their constitutional right to seek redress for their injuries in court in exchange for a certainty of compensation. Employers gave up the possibility of avoiding payment on some claims altogether in exchange for a definite cap on their liability. This quid pro quo is the basis for the exclusive remedy provision of the Act. In light of the recent amendments, however, the Act no longer provides any remedy to workers with category one pneumoconiosis who are suffering a respiratory impairment of less than twenty percent. Thus, the exclusive remedy provision of the Act as applied to these Plaintiffs deprives them of a legal remedy and means of redress.2
A right of action should not be taken away unless something valuable is put in its place. Appellees have given up their rights to recover for their injuries and will receive nothing in return. Appellant, on the other hand, has received the benefits of the Act without any of the detriments. The majority attempts to explain away this injustice by proclaiming that the jural rights doctrine is inapplicable, as there was no common law cause of action in existence in 1891 for category one pneumo-coniosis. While true, “the Kentucky Constitution must be applied to fundamental jural rights as presently accepted in society, not frozen in time to the year 1891.” Perkins v. Northeastern Log Homes, Ky., 808 S.W.2d 809, 817 (1991). This is not a case about coal worker’s pneumoconiosis, but rather a case about a plaintiffs right to recover for the harmful acts of another. “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.” Id. at 816.
The majority relies upon Davis v. Solomon, Ky., 276 S.W.2d 674 (1955), for the proposition that the lack of a remedy un*136der the Act does not authorize a suit in circuit court to recover damages. Furthermore, the majority states that the 'Worker’s Compensation Board has exclusive jurisdiction over all matters falling within the purview of the Act. However, as stated above, the afflictions suffered by Appellees are not classified as “injuries” under the modified Act. These ailments have conspicuously been removed from the coverage of the Act. Thus, the Worker’s Compensation Board can have no jurisdiction over these claims, nor would a circuit court be prohibited from hearing such a claim. This does not run afoul of the language in Davis which holds that the intent “of the Act would be defeated if independent actions to recover damages for injuries or death caused by a compen-sable accident were permitted.” Id. at 676 (emphasis added) (citations omitted). The claims at issue here are not compensable under the Act, and therefore fall outside its protective umbrella. Cases from our sister states with similar provisions have so held, and their logic is sound. See Errand v. Cascade Steel Rolling Mills, 320 Or. 509, 888 P.2d 544 (1995) (holding that worker with injury defined as non-compen-sable by Act could bring civil suit despite exclusivity language in same Act); see also Stratemeyer v. Lincoln County, 276 Mont. 67, 915 P.2d 175 (1996) (exclusive remedy rule applies only for injury covered by Act; further, employer cannot receive benefit of exclusive liability provision if the Act’s definition of injury does not cover injury at issue). These claims should be heard by a circuit court.
The majority notes that the Plaintiffs below have not met the threshold requirements of KRS § 342.732, as amended, for receiving a RIB award, and are thus ineligible for any remedy under the Act. The majority cites to Mullins v. Manning Coal Corporation, Ky., 938 S.W.2d 260 (1997), cert. denied, 521 U.S. 1119, 117 S.Ct. 2511, 138 L.Ed.2d 1014 (1997), for the proposition that such threshold provisions are valid.3 While there is no doubt that the General Assembly has the power to restrict the application of legislation, if an injury is specifically not covered by an Act, then the Act will never apply to that type of injury. If the substantive provisions of the Act do not apply, the exclusive remedy provision of that Act surely cannot apply. The restriction at issue in the case at bar took the Plaintiffs out from under the protection of the Act. The majority decision leaves them with no avenue of redress for their injuries. Category one pneumoconio-sis is an acquired change in the human organism, the damages for which, if any, should be determined by a jury.
I believe that the trial court and the Court of Appeals were correct in their results, if not in their reasoning. The Plaintiffs cannot be stripped of their constitutional jural rights to pursue a cause of action for damages without doing violence to justice and fundamental fairness. As the injuries sustained by these Plaintiffs are specifically not compensable under the Worker’s Compensation Act, common sense would dictate that the Plaintiffs should be permitted to maintain a civil action for damages. And in the words of Justice Palmore, “[w]hen all is said and done, common sense must not be a stranger in the house of the law.” Cantrell v. Kentucky Unemployment Insurance Commission, Ky., 450 S.W.2d 235, 237 (1970). I would affirm.
LAMBERT, C.J., and STUMBO, J., join in this dissent.
. KRS § 342.732
. That is not to say that these .plaintiffs are alone in their situations. In fact, in excess of forty identical cases have been filed to date in various circuit courts around the Commonwealth.
. It should be noted that as Mullins was a case dealing with a jurisdictional, rather than a substantive issue, it is wholly inapplicable here.