
    In the Matter of the Claim of Preston Hughes, Respondent, v. Acme Steel & Malleable Iron Works, Appellant. Workmen’s Compensation Board, Respondent.
   Appeal by the employer and its carrier from a decision and award of the Workmen’s Compensation Board. The issue in dispute here is whether there is substantial evidence in the record to support the board’s finding that claimant sustained an accidental injury when he slipped on a piece of coke while obtaining a drink of water, and fell backward to the floor striking his head, sustaining severe brain injuries. Appellants assert the fall was idiopathic in origin. On a previous appeal (11 A D 2d 563) we reversed such a finding in this ease on the grounds that there was no substantial evidence supporting the award. The record as then constituted revealed that the only evidence that claimant stumbled on a piece of coke was the hearsay testimony contained in his physician’s report which remained uncorroborated since the only corroborative evidence, claimant’s testimony, was stricken due to his incompetency. Upon retrial evidence has been introduced that coke was occasionally scattered on the floor in the area where the fall occurred and claimant again testified that he stumbled on a piece of coke. This is a very close case and one most difficult to resolve. On the entire record there is a sharp issue as to the competency of claimant to testify. Of course, if his testimony were competent we would face no difficulty, in affirming the board’s finding of an accidental fall. The medical testimony on this point is conflicting and it can well be argued that the testimony as to his competency is not too persuasive. We find, however, that even excluding claimant’s testimony, the history in the physician’s report buttressed by evidence of the occasional presence of coke in the area of the fall, under the circumstances here involved, constituted substantial evidence upon which the board could reach the determination rendered. Decision and award unanimously affirmed, with costs to the Workmen’s Compensation Board. Present — Coon, J. P., Gibson, Herlihy, Reynolds and Taylor, JJ.  