concurring.
I agree with the majority’s result but not its reasoning. The majority holds that, under Phil A. Livesley Co. v. Russ, 296 Or 25, 672 P2d 337 (1983), a truly unexplained fall — one that is not attributable to idiopathic causes — arises out of work as a matter of law. In my view, the majority reads Livesley incorrectly. The court held in Livesley that a truly unexplained fall permits but does not require the Workers’ Compensation Board to find that the resulting injury arises out of work. 296 Or at 32 (stating the holding).
In this case, the administrative law judge (ALJ) ruled that if a fall were unexplained, he necessarily had to find that the resulting injuries did not arise out of work. The Board adopted the ALJ’s opinion and affirmed. That was error under either my or the majority’s view of Livesley. Accordingly, I agree that this case should be remanded to permit the Board to apply the correct legal standard, although my view of the correct standard differs from the majority’s.
According to the majority, the Supreme Court held in Livesley that a truly unexplained fall arises, as a matter of law, out of work and is compensable. The majority draws that conclusion from the fact that the court said “[w]e agree” after describing our reasoning in Livesley. At the time we decided Livesley, however, we reviewed workers’ compensation cases de novo. To say that the Supreme Court understood that our holding in Livesley was based on a legal rather than a factual conclusion and that the court intended to adopt that legal conclusion both reads too much into the phrase, “[w]e agree,” and incorrectly discounts the Supreme Court’s explicit holding.
After prefacing its opinion with a summary of what we had said, the Supreme Court turned to the task of explaining and distinguishing its cases. Livesley, 296 Or at 30-31. The court then reasoned:
*506“In the present case, where idiopathic causes for an unexplained fall have been eliminated, the inference arises that the fall was traceable to some ordinary risk, albeit unidentified, to which the employment premises exposed the employe. Larsen v. State Ind. Acc. Com., 135 Or 137, 140, 295 P 195 (1931).
“Petitioners contend that this result in unexplained fall cases relieves claimants of their burden of proving work-connection. We do not agree. The facts found by the referee and the Court of Appeals permit the reasonable inference that the fall was caused by the employment environment. Claimant has met his burden of eliminating idiopathic causes. There is no finding that any force or condition independent of the employment caused his fall. Claimant was engaged in the duties of his employment, on employer’s premises, and exposed to the risks inherent in his work environment. In such a situation, where the ‘course of employment’ test is so fully met, where the cause-in-fact cannot be directly established, and where claimant has met his burden of eliminating idiopathic causes, we construe the Workers’ Compensation Law to allow the inference that the unexplained fall ‘arose out of claimant’s employment.
“Because the ‘course of employment’ elements are strong, because personal risks are eliminated, and because the ‘arising1 elements are incapable of direct determination, we hold that the administrative agency and the Court of Appeals could find that claimant has carried his burden of proof and that the unitary work-connection test is sufficiently satisfied to allow compensation for this unexplained fall.”
Livesley, 296 Or at 32.
The majority’s opinion cannot be reconciled with either the Supreme Court’s holding or its reasoning. In Livesley, the Supreme Court explicitly “h[e]ld that the administrative agency and the Court of Appeals could find that claimant has carried his burden of proof’ if, among other things, idiopathic causes for an unexplained fall are eliminated. 296 Or at 32 (emphasis added). It did not hold, as the majority does, that the Board must find that the claimant has carried his burden of proof in those circumstances. Were there any doubt about what the court held, the court’s explanation eliminates it. The court explained that it “construe[d] *507the Workers’ Compensation Law to allow the inference that the unexplained fall ‘arose out of claimant’s employment.” Id. (emphasis added). The court did not construe the workers’ compensation statutes to require that inference. Contraiy to the majority’s conclusion, Livesley permits but does not require the Board to find that a truly unexplained fall is sufficiently work-connected to be compensable.1
The remaining question is whether a later enacted statute, ORS 656.266, requires a different result. That statute provides:
“The burden of proving that an injury or an occupational disease is compensable * * * is upon the worker. The worker cannot carry the burden of proving that an injury or occupational disease is compensable merely by disproving other possible explanations of how the injury or disease occurred.”
ORS 656.266. If all that Livesley required to establish that a claimant’s injuries were compensable was proof that the fall was not due to idiopathic causes, the enactment of ORS 656.266 would call Livesley’s continued vitality into question. As the Livesley court explained, however, a claimant does not carry the burden of proving compensability merely by disproving that his or her injuries were due to idiopathic causes. Rather, in order to establish compensability, a claimant must also prove that he or she “was engaged in the duties of his employment, on employer’s premises, and exposed to the risks inherent in hi's work environment.” 296 Or at 32. The absence of idiopathic causes is only one factor for the Board to consider in determining whether “the unitary work-connection test is sufficiently satisfied to allow compensation for [an] unexplained fall.” Id.
The ALJ and the Board, however, acted on the understanding that a truly unexplained fall is necessarily noncompensable. As explained above, that understanding is incorrect. Under Livesley, if the Board finds that the fall is *508truly unexplained, it can find that “the unitary work-connection test is sufficiently satisfied to allow compensation for the unexplained fall.” Because the Board did not apply the correct legal standard, I would vacate its order and remand for it to apply that standard.
The majority acknowledges some of what the Supreme Court said in Livesley, but it concludes that those statements merely create “a superficial ambiguity.” 170 Or App at 509. In my view, there is nothing ambiguous about what the court held in Livesley.