concurring and concurring in the result.
I concur in the Court’s opinion, except part III (The Commission Correctly Applied I.C. § 72-228), as to which I concur in the result. The portion of the Court’s rationale for part III in which the Court holds that negative evidence may be considered along with substantial affirmative evidence in evaluating whether substantial evidence has been presented to rebut the statutory presumption appears to me to be in conflict with Vendex v. Department of Employment, 122 Idaho 890, 841 P.2d 420 (1992).
In Vendex, after rejecting one of the evidentiary grounds for the Commission’s decision, the Court vacated the Commission’s decision, even though there was other substantial and competent evidence to support the decision. In this case, the Commission found that evidence of Evans’ consumption of alcohol and his illness during the three days prior to his injury, “along with the absence of evidence to support any other theory would cause a reasonable mind to accept a conclusion that the Claimant’s injury did in fact occur as the result of a seizure.”
Considering this finding in light of the portion of I.C. § 72-228 that states, “it shall be presumed, in the absence of substantial evidence to the contrary, that the injury arose out of the employment,” causes me to conclude that the Commission improperly relied on the absence of evidence to support any other theory in reaching its conclusion. The “absence of evidence to support any other theory” is not substantial evidence that the injury did not arise out of the employment.
But for Vendex, I would have no problem in concurring in the result of part III, because there is substantial evidence that the injury did not arise out of the employment. The reason I am able to concur in the result of part III is that immediately after the Court issued Vendex, the Court issued Darner v. Southeast Idaho In-Home Services, 122 Idaho 897, 841 P.2d 427 (1992). In Darner, after rejecting one of the evidentiary grounds for the Commission’s decision, the Court considered alternative evidence for upholding the decision under the substantial and competent evidence standard.
Although I continue to believe that Vendex and Darner are irreconcilable, because of the order of their release, I accept Darner as controlling. Therefore, I concur in the result of part III.