The opinion
Margaret Meads, Judge, concurring. I agree with the result in this case because I do not believe the Workers’ Compensation Commission could reasonably conclude that appellant was intoxicated at the time of his injury based on the proof before it. As the majority points out, there were no medical test results offered into evidence to establish the presence of alcohol in appellant’s system. Thus, the presumption created by Ark. Code Ann. § ll-9-102(5)(B)(iv)(b) (Repl. 1996) should not have been raised.
The majority believes Ark. Code Ann. § ll-9-102(5)(B)(iv) does not require medical testing to establish the presence of alcohol. I disagree. In my opinion, whenever a statute allows a presumption to be raised, there should be absolute proof of the facts that create the presumption, because of the significant impact the presumption has on the party’s burden of proof. See ERC Contractor Yard & Sales v. Robertson, 335 Ark. 63 , 977 S.W.2d 212 (1998); Morrilton Manor v. Brimmage, 58 Ark. App. 252 , 952 S.W.2d 170 (1997). Moreover, in every case previously decided by this court or our supreme court which relies upon this statute, a blood-alcohol or drug-screen test has been administered that established the presence of alcohol or drugs as a fact. See ERC Contractor Yard & Sales v. Robertson, supra; Ester v. National Home Ctrs., Inc., 335 Ark. 356 , 981 S.W.2d 91 (1998); Woodall v. Hunnicutt Constr., 67 Ark. App. 196 , 994 S.W.2d 490 , (1999); Express Human Resources III v. Terry, 61 Ark. App. 258 , 968 S.W.2d 630 (1998); Continental Express v. Harris, 61 Ark. App. 198 , 965 S.W.2d 811 (1998); Ester v. National Home Ctrs., Inc., 61 Ark. App. 91 , 967 S.W.2d 565 (1998); Graham v. Turnage Employm’t Group, 60 Ark. App. 150 , 960 S.W.2d 453 (1998), (review den. 334 Ark. 32 , 970 S.W.2d 808 (1998)); Brown v. Alabama Elec. Co., 60 Ark. App. 138 , 959 S.W.2d 753 (1998), (review den. 334 Ark. 35 , 970 S.W.2d 807 (1998)); Morrilton Manor v. Brimmage, supra; Jefferson v. Munsey Products, Inc., 55 Ark. App. 105 , 930 S.W.2d 396 (1996); and Weaver v. Whitaker Furniture Co., 55 Ark. App. 400 , 935 S.W.2d 584 (1996).
As our supreme court stated in ERC Contractor Yard & Sales v. Robertson,
[T]he basic fact that will invoke the application of the presumption is the presence of alcohol. The plain language of Ark. Code Ann. § 11-9-102 provides that once the presence of alcohol is established as a fact, there is a presumption that any injury or accident was substantially occasioned by the use of alcohol. The statute does not quantify the term “presence.” Therefore, alcohol is present whenever any amount of alcohol is revealed, no matter how small.
335 Ark. at 69, 977 S.W.2d at 215 (emphasis added).
Here, the presence of alcohol in claimant’s body has not been established as a fact, and the presumption should not have been triggered.