dissenting.
I respectfully dissent because I am very concerned about the rationale contained in the Court’s opinion. In my view, this rationale creates major confusion concerning the burden of proof a claimant bears in a worker’s compensation case.
The pivotal circumstance in this case is the finding of the Commission that “it is impossible to determine whether Claimant intentionally fell from the roof.” This is described by the Commission as the evidence being in “equipoise.” This finding by the Commission makes this a very unique case. Ordinarily, the Commission merely finds the necessary facts to support an award or that the claimant has not proved one or more of the necessary facts. Here, the Commission by declaring an “equipoise” in the evidence undercuts its conclusion that “Claimant has met his burden of proving that he suffered an accident....”
In Evans v. Hara’s, Inc. 123 Idaho 473, 479, 849 P.2d 934, 940 (1993), we reiterated the basic burden of proof the claimant bears: “A worker’s compensation claimant has the burden of proving, by a preponderance of the evidence, all the facts essential to recovery.” For a personal injury to be compensable, it must be one caused by an accident. I.C. § 72-102(15)(a). This is one of the facts the claimant must prove by a preponderance of the evidence. Part of the definition of an “accident” is that it must be “an unexpected, undesigned, and unlooked for mishap, or untoward event.” Therefore, the claimant must prove by a preponderance of the evidence that the personal injury for which compensation is sought was caused by an unexpected, undesigned, and unlooked for mishap, or untoward event. If the personal injury were intentionally caused by the claimant, obviously it would not be one caused by an accident. Here, the Commission explicitly found that there was no preponderance of the evidence on the question of the causation of the claimant’s personal injury. Therefore, the claimant did not fulfill the burden of proof he had.
The confusion in this case arises because the Commission relied on authority that is no longer applicable in placing the burden on the employer to prove by a preponderance of the evidence that the fall was intentional. The Commission cited Potter v. Realty Trust Co., 60 Idaho 281, 90 P.2d 699 (1939) for this proposition. In Potter, the circumstances concerned intoxication, not intentional injury, and the Court’s decision was decided based on I.C.A. § 43-1002 (1932). Id. at 286-87, 90 P.2d at 701-02. This statute specifically provided:
No compensation shall be allowed for an injury caused:
1. By the employee’s wilful intention to injure himself; or,
2. By his intoxication.
If the employer claims an exemption or forfeiture under this section the burden of proof shall be upon him.
(Emphasis added).
When the legislature recodified the worker’s compensation law in 1971, it included I.C. § 72-208 in its current form, which does not contain the statement putting the burden of proof on the employer contained in I.C.A. § 43-1002, upon which the Court relied in Potter.
In my view, the proper application of the burden of proof in the present case is to require the claimant to prove by a preponderance of the evidence that his personal injury was caused by an accident. In this context, I.C. § 72-208(a) is nothing more than a self-evident declaration that intentional injury by an employee is not compensable.
I.C. § 72-228 creates a presumption in some eases “in the absence of substantial evidence to the contrary, ... that the injury or death was not occasioned by the employee’s ... wilful intention to injure himself. ....” This presumption provides insight into the appropriate construction of the legislature’s intention concerning burden of proof in these circumstances. If the legislature had not intended that the burden is on the claimant to prove that an accident caused the personal injury for which compensation is *756sought, why would the claimant need a presumption to negate intentional injury? Stated otherwise, if the burden were on the employer to prove intentional injury, no presumption would be necessary to support compensation if the employer did not prove intentional injury by a preponderance of the evidence. The Court’s opinion deprives the presumption contained in I.C. § 72-228 of any meaning.