The opinion
Judith Rogers, Judge, concurring. I concur in the result of this case but write separately because I am unwilling at this time to state that a blood-alcohol level of less than .01% is sufficient proof of the presence of alcohol so as to give rise to the rebuttable presumption that appellant’s injury was substantially occasioned by the use of alcohol. It is the Commission’s duty to find the facts, and in this case, the Commission found that a blood-alcohol level of less than .01% did “not establish the presence of alcohol as to give rise to said presumption.” As in the two recent cases of Graham v. Turnage Employment Group, 60 Ark. App. 150 , 960 S.W.2d 453 (1998) and Brown v. Alabama Electric Co., 60 Ark. App. 138 , 959 S.W.2d 753 (1998), the Commission had the duty and authority to find whether there was the presence of drugs in the claimants’ systems. The only difference between this case and those cited is the fact that in the cited cases the Commission found that there was evidence to establish the presence of drugs in the claimants’ systems. The legislature chose not to include guidelines as to the minimal level of intoxicants that must be present in one’s system. Because of this lack of guidance, I am more persuaded that it is the Commission’s place to determine the fact question of what constitutes “presence.” I believe, however, that the legislature should establish guidelines setting minimum levels of intoxicants that would trigger the rebuttable presumption.
Nonetheless, the majority opinion agrees that the Commission found the rebuttable presumption was overcome, and I agree with the Commission’s award of benefits. The evidence supports the Commission’s finding that appellant suffered an idiopathic fall, and I cannot disagree.