author: Peters, C. J.

text:
    Morton Buildings, Inc. v. Timothy F. Bannon, Commissioner of Revenue Services
    (14398)
    Peters, C. J., Glass, Borden, Berdon and F. X. Hennessy, Js.
    Argued March 26
    decision released May 12, 1992

      Wesley W. Horton, with whom were Susan M. Cormier, Abraham M. Stanger, pro hac vice, and, on the brief, James E. Brandt, pro hac vice, and Scott F. Lewis, for the appellant (plaintiff).

      Jonathon L. Ensign, assistant attorney general, with whom, on the brief, was Richard Blumenthal, attorney general, for the appellee (defendant).
   Peters, C. J.

The principal issue in this appeal is whether General Statutes § 12-411 (1) imposes a use tax on raw materials that a building contractor has converted into building components outside of this state for incorporation into prefabricated buildings that it erects for its customers in this state. The plaintiff, Morton Buildings, Inc. (taxpayer), appealed to the trial court, pursuant to General Statutes § 12-422, from a ruling of the defendant commissioner of revenue services (commissioner) that denied the taxpayer’s claim for a refund of use taxes. Relying on a stipulation of facts, the trial court determined that the taxpayer’s appeal should be dismissed. The taxpayer sought review of this judgment in the Appellate Court, and we transferred the appeal to this court pursuant to Practice Book .§ 4023. We reverse.

The stipulation reveals the following facts. The taxpayer is an Illinois corporation that is licensed to do business in Connecticut. In this state, the taxpayer assembles and installs prefabricated timber-frame, metal-sheathed warehouses and agricultural buildings at the customers’ building sites. It markets its buildings directly to its customers, rather than retailing either buildings or building components through lumber yards or other retailers.

The taxpayer purchases out-of-state, in bulk, almost all of the raw materials that are required for the construction of buildings in this state and elsewhere. The raw materials are stored in the taxpayer’s out-of-state warehouses. When the taxpayer receives an order for a building, it delivers some of these raw materials to the work site in Connecticut without subjecting them to any further out-of-state production process. The taxpayer also delivers to the work site some windows, doors and hardware that it has bought in final form from other suppliers outside of Connecticut. With regard to these unaltered raw materials and supplies, the taxpayer concededly must pay, and has paid, Connecticut’s use tax assessments.

Upon receipt of an order for the production and installation of a building in this state, the taxpayer, however, also regularly converts other raw materials, such as sheets of lumber and rolls of steel, into building components and hardware components in accordance with the customer’s specifications. The conversion process, which takes place entirely in factories located outside of Connecticut, results in the production of building components such as trusses, lower columns, upper columns, purlins, metal panels and overhang rafters. The taxpayer transports appropriately prefabricated building and hardware components to the job site in Connecticut, where they are incorporated into the assembly and erection of -the customer’s building.

The taxpayer maintains that it has no Connecticut use tax liability for raw materials once its out-of-state production process has transformed such materials into prefabricated building and hardware components. Such components, according to the taxpayer, are no longer “tangible personal property purchased from any retailer,” as § 12-411 (1) requires. The commissioner maintains, to the contrary, that our use tax applies to any raw materials incorporated into a Connecticut building project regardless of the degree of transformation that such materials might have undergone prior to their entering Connecticut.

The trial court ruled in favor of the commissioner. It determined that the raw materials that the taxpayer had bought outside of Connecticut were not “so changed and transformed before they came into Connecticut as to preclude their being tangible personal property subject to the use tax. . . . [Wjhat comes into Connecticut is steel and lumber in its original identifiable form for use in the construction of warehouses on customers’ sites. As such it is tangible personal property subject to Connecticut’s Use Tax.”

The taxpayer’s appeal raises two issues. Procedurally, does the trial court’s determination that prefabricated production components come into Connecticut in their “original identifiable form” constitute a finding of fact or a conclusion of law? Substantively, does the taxpayer’s production of prefabricated building components outside of Connecticut fall within the ambit of the Connecticut use tax as that tax is defined by § 12-411 (1)? We agree with the taxpayer that the trial court made a determination of law for which our review is plenary and that, on the merits, its appeal must be sustained.

I

The scope of our appellate review depends upon the proper characterization of the rulings made by the trial court. To the extent that the trial court has made findings of fact, our review is limited to deciding whether such findings were clearly erroneous. When, however, the trial court draws conclusions of law, our review is plenary and we must decide whether its conclusions are legally and logically correct and find support in the facts that appear in the record. Practice Book § 4061; United Illuminating Co. v. Groppo, 220 Conn. 749, 752, 601 A.2d 1005 (1992); Zachs v. Groppo, 207 Conn. 683, 689, 542 A.2d 1145 (1988); Pandolphe’s Auto Parts, Inc. v. Manchester, 181 Conn. 217, 221-22, 435 A.2d 24 (1980).

In this case, the trial court’s determinations were based on a record that consisted solely of a stipulation of facts, written briefs, and oral arguments by counsel. The trial court had no occasion to evaluate the credibility of witnesses or to assess the intent of the parties in light of additional evidence first presented at trial. The record before the trial court was, therefore, identical with the record before this court. In these circumstances, the legal inferences properly to be drawn from the parties’ definitive stipulation of facts raise questions of law rather than of fact. Cf. Connecticut National Bank v. Douglas, 221 Conn. 530, 545, 606 A.2d 684 (1992); Bell Food Services, Inc. v. Sherbacow, 217 Conn. 476, 482 n.7, 586 A.2d 1157 (1991); Canaan National Bank v. Peters, 217 Conn. 330, 335, 586 A.2d 562 (1991); Mizla v. Depalo, 183 Conn. 59, 63 n.8, 438 A.2d 820 (1981). Accordingly, our review of the ruling of the trial court in this case is plenary.

II

The substantive issue that we must resolve is whether this taxpayer’s use of building components fabricated outside of Connecticut falls within the terms of § 12-411 (1) that impose a tax on the “use in this state of tangible personal property purchased from any retailer for . . . use in this state.” In our plenary review of the trial court’s decision sustaining the commissioner’s tax assessment, our point of departure is the oft-repeated principle that “when the issue is the imposition of a tax, rather than a claimed right to an exemption or a deduction, the governing authorities must be strictly construed against the commissioner and in favor of the taxpayer.” Hartford Parkview Associates Limited Partnership v. Groppo, 211 Conn. 246, 249-50, 558 A.2d 993 (1989); Zachs v. Groppo, supra, 689; Texaco Refining & Marketing Co. v. Commissioner, 202 Conn. 583, 588, 522 A.2d 771 (1987); Schlumberger Technology Corporation v. Dubno, 202 Conn. 412, 420-23, 521 A.2d 569 (1987).

The parties agree with the trial court’s analysis of § 12-411 (1) as requiring the establishment of three conditions for the imposition of the use tax. The commissioner must show that: (1) the allegedly taxable item Was “tangible personal property” that was used in this state; (2) the “tangible personal property” was “purchased” from a “retailer”; and (3) the “tangible personal property” was purchased for “use in this state.” With respect to the third of these conditions, General Statutes § 12-411 (13) provides: “It shall be presumed that tangible personal property shipped or brought to this state by the purchaser was purchased from a retailer for storage, use or other consumption in this state.”

The taxpayer brings prefabricated building components into Connecticut for the purpose of installing these components into a building that it is constructing in this state. This activity involves the use of “tangible personal property” in Connecticut and establishes that the first condition contained in § 12-411 (1) has been met.

The disagreement between the parties focuses on the applicability of the second condition. The crucial issue is how to characterize the building components. The taxpayer contends that the fabrication of the building components has converted them into manufactured items that have acquired a new identity so as to remove them from the category of “tangible personal property purchased from any retailer for . . . use in this state.” The commissioner contends, to the contrary, that the partial preassembly of lumber and steel into building components does not change the identity of the underlying raw materials for tax purposes and that these raw materials continue to fall within the basis for the use tax. In light of the stipulated facts, we agree with the taxpayer.

The stipulation of facts addresses the nature of the production process that takes place in the taxpayer’s out-of-state factories. That process involves an integrated series of operations using the taxpayer’s production machinery that not only cuts the raw materials to size but changes their shape and affixes metal plates and other hardware. We conclude, therefore, that the taxpayer’s building components are not identical with the raw materials that go into their production.

The commissioner contends, for three reasons, that we should nonetheless view the raw materials used in the production of the building components as taxable pursuant to § 12-411 (1). He maintains that, in International Business Machines Corporation v. Brown, 167 Conn. 123, 130-32, 355 A.2d 236 (1974), we have already construed § 12-411 (1) to impose a use tax on component materials regardless of their change in form prior to their use in Connecticut. He urges us to adopt a liberal construction of the use tax in order to implement its salutary role as a backstop for the sales tax. See International Business Machines Corporation v. Brown, supra, 129. Finally, he commends to us the guidance provided in his “Policy Statement 90-2, Modular Home Units” and suggests that we should apply that policy, in conjunction with § 12-426-18 (b) of the Regulations of Connecticut State Agencies, so as to place out-of-state builders of prefabricated buildings on the same footing as Connecticut builder-contractors.

The linchpin of the commissioner’s argument is his interpretation of International Business Machines Corporation v. Brown, supra. In that case, the issue presented, on a reservation arising out of stipulated facts, was “whether the use tax, levied upon an out-of-state manufacturing concern when its products enter the state for use, storage or consumption, should include within its ambit the cost of labor performed upon component materials without the state, or whether it should apply solely to the cost to the taxpayer of those component materials when originally purchased.” (Emphasis added.) Id., 126-27. The court recognized that, by virtue of the broad definition of “sale” contained in General Statutes § 12-407 (2) (c), “if the subcontract work were performed in Connecticut the sales tax provisions would include the cost of this intermediary labor in its tax base.” Id., 127. It noted, however, that the case before it was governed by the more limited definition of “purchase” contained in § 12-407 (7). Id., 128. Examining the history and the purpose of the sales and use tax, the court rejected the commissioner’s suggestion to construe the language in the definition of “purchase” to achieve a result similar to that obtained in connection with the definition of “sale.” Id., 134-35. The court acknowledged that the use tax had been designed “as a complementary measure [to the sales tax] to insure the equitable diffusion of the tax burden upon both in-state purchases of tangible personal property and out-of-state purchases of tangible personal property where such property is used, stored or consumed within the state . . . .” Id., 129. It noted, however, as earlier cases had held, that the two taxes “are different in conception, are assessments upon different transactions, and in the interlacings of the two legislative authorities within our federation may have to justify themselves on different constitutional grounds. A sales tax is a tax on the freedom of purchase .... A use tax is a tax on the enjoyment of that which was purchased. McLeod v. Dilworth Co., 322 U.S. 327, 330, 64 S. Ct. 1023, 88 L. Ed. 1304 [1944], Whether or not the two shall have precisely the same scope is for the determination of the legislature. Connecticut Light & Power Co. v. Walsh, 134 Conn. 295, 300, 57 A.2d 128 [1948].” (Internal quotation marks omitted.) Id.

The holding of International Business Machines Corporation v. Brown, supra, does not govern the specific issue presented by this case. We agree with the taxpayer that the court therein merely assumed, but did not decide, that the use tax would apply “to the cost to the taxpayer of . . . component materials when originally purchased.” Id., 127. Indeed, that taxpayer, relying on correspondence with the tax commissioner about the scope of the use tax; id., 131 n.3; had apparently stipulated that “the proper measure of the use tax base on its machines [was] the purchase price paid by IBM for component materials.” Id., 126. To the extent that International Business Machines Corporation v. Brown has general relevance to the case before us, we note that the court rejected the commissioner’s argument that a principle of liberal construction may be invoked to override the express language of the governing statute.

The commissioner finally asserts that his interpretation of § 12-411 (1) to include a taxpayer’s raw materials in its use tax base is supported by the policy of the tax department as memorialized in its regulations and policy statements. We have often acknowledged our obligation to accord great weight to regulatory interpretations of long standing, especially when the applicable regulations have presumably gone through some form of legislative review. Phelps Dodge Copper Products Co. v. Groppo, 204 Conn. 122, 128-30, 527 A.2d 672 (1987); Texaco Refining & Marketing Co. v. Commissioner, supra, 599-600; Fusco-Amatruda Co. v. Tax Commissioner, 168 Conn. 597, 605-608, 362 A.2d 847 (1975). We are, however, unpersuaded that the tax department’s policy statements provide definite guidance in this case.

The commissioner’s reliance on “Policy Statement 90-2, Modular Home Units” is problematic because that statement does not purport to describe how the use tax is measured. Its agenda, as the trial court noted, was to distinguish between the use tax liability of manufacturers of modular buildings who install and affix such buildings to real property and the sales tax liability of those who sell such buildings at retail prior to their affixation to a permanent foundation. With respect to the particulars of the use tax, the policy statement says only that “[a] Use Tax is due on the actual cost of the materials.” The statement therefore does not purport to define the materials that are subject to the use tax.

The commissioner has a more plausible argument with respect to § 12-426-18 (b) of the Regulations of Connecticut State Agencies, which obligates a construction contractor to pay “the tax as a consumer on the purchase ... of all materials, supplies or equipment used by him in fulfilling . . . a . . . construction contract.” The commissioner construes this regulation as imposing a use tax on the cost of raw materials purchased and manufactured into a final item of tangible personal property out-of-state, when that item of tangible property is brought into the state for use.

The difficulty with the commissioner’s contention is that the regulation does not say what he would have it say. The terms of the regulation do not distinguish between raw materials and manufactured materials. The regulation does not authorize collection of the use tax on traceable raw materials regardless of their transformation before they are used in this state. We agree with the taxpayer, therefore, that the regulation does not illuminate the merits of the controversy that we must resolve. At best, the regulation mirrors the latent ambiguities contained in § 12-411 (1), and such ambiguities must be resolved against the commissioner when the issue is the imposition of a tax. Hartford Parkview Associates Limited Partnership v. Groppo, supra; Zachs v. Groppo, supra, 689; Texaco Refining & Marketing Co. v. Commissioner, supra, 588; Schlumberger Technology Corporation v. Dubno, supra.

Our conclusion that this taxpayer need not pay a use tax based on its building components assembled outside of this state is consistent with the weight of authority in other jurisdictions. Construing statutes substantially similar to our own, the majority of courts have held that the conversion of raw materials into identifiably distinguishable personal property excludes the raw materials from continued taxability under the use tax. See, e.g., Comptroller of Treasury v. American Can Co., 208 Md. 203, 208-209, 117 A.2d 559 (1955); Morton Buildings, Inc. v. Commissioner of Revenue, Minn. Tax Court, Docket No. 5385 (November 22, 1991); International Business Machines Corporation v. David, 408 S.W.2d 833, 836 (Mo. 1966); Morton Buildings, Inc. v. Chu, 126 App. Div. 2d 828, 830, 510 N.Y.S.2d 320, aff'd, 70 N.Y.2d 725, 513 N.E.2d 1304, 519 N.Y.S.2d 643 (1987); Morton Buildings, Inc. v. Wisconsin Department of Revenue, Wis. Tax Appeals Commission, Docket No. 89-S-438 (1991); contra Chicago Bridge & Iron Co. v. Johnson, 19 Cal. 2d 162, 167, 119 P.2d 945 (1941); American Can Co. v. Department of Revenue, 47 Ill. 2d 531, 536-37, 267 N.E.2d 657 (1971). We find the logic of these decisions persuasive.

In light of our conclusion that the taxpayer’s conversion of raw materials into identrfiably different building components precludes the levy of the use tax on these raw materials, we need not consider the third condition imposed by § 12-411 (1). We therefore leave for another day the question of the circumstances under which an out-of-state building contractor that buys its raw materials in bulk can be held to have purchased such materials for use in this state.

The judgment is reversed and the case is remanded with direction to render judgment for the plaintiff.

In this opinion the other justices concurred.

       General Statutes § 12-411 provides in relevant part: “the use tax. (1) imposition and rate. An excise tax is hereby imposed on the storage, acceptance, consumption or any other use in this state of tangible personal property purchased from any retailer for storage, acceptance, consumption or any other use in this state . . . .”

       General Statutes § 12-422 provides in relevant part: “appeal. Any taxpayer aggrieved because of any order, decision, determination or disallowance of the commissioner of revenue services under section 12-418, 12-421 or 12-425 may, within one month after service upon the taxpayer of notice of such order, decision, determination or disallowance, take an appeal therefrom to the superior court for the judicial district of Hartford-New Britain, which shall be accompanied by a citation to the commissioner of revenue services to appear before said court. . . . Said court may grant such relief as may be equitable and, if such tax has been paid prior to the granting of such relief, may order the treasurer to pay the amount of such relief, with interest at the rate of nine per cent per annum, to the aggrieved taxpayer. If the appeal has been taken without probable cause, the court may tax double or triple costs, as the case demands; and, upon all such appeals which are denied, costs may be taxed against the appellant at the discretion of the court, but no costs shall be taxed against the state.”

       The taxpayer’s appeal challenges the denial of two requests for refunds of taxes paid and the validity of a deficiency assessment covering transactions from 1984 through 1987. The parties have stipulated that a final judicial determination of the validity of these claims will likewise dispose of similar claims relating to later periods not specifically included in this action. They have also stipulated that the taxpayer will be entitled to interest as allowed by statute in the event that the taxpayer’s claims are held to have been justified.

       The trial court concluded that the transactions between the taxpayer and its Connecticut customers were contracts for the improvement of real property rather than contracts for the sale of tangible personal property. As a consequence, the transactions did not fall within General Statutes § 12-408, which imposes a sales and use tax on the contract price. The taxpayer must instead pay a tax on the materials used and consumed in fulfilling its contracts for the improvement of real property, a sales tax for materials purchased in Connecticut and a use tax for materials purchased at retail elsewhere. Neither party has challenged the validity of these conclusions.

       For example, stipulation No. 22 provides: “To make the Trusses, the upper chords and lower chords that will form the Truss are run through a machine which cuts the chords to the proper lengths and to the proper angles at both ends of each chord. Lumber webbing, which is attached between the upper and lower chords, is also cut to length and to the correct angles. The Trusses (chords and webs) are then transferred to a fixture table where they are positioned ‘face-up’ and metal gusset plates, themselves made by Morton, are positioned at each joint. The gusset plates are then stitched into position with a pneumatic gun nailer. The Truss is then repositioned ‘face-down’ and additional metal gusset plates are positioned onto the joints on that side of the Truss. The Truss is then positioned onto a conveyor and transported through a roller press machine. The roller press machine imbeds the metal gusset plates into the wooden chords and webs at the pre-selected positions. The Trusses include end Trusses and intermediate Trusses.”
      As a further example, stipulation No. 26 provides: “To make the Metal Panels, Morton purchases coils of galvanized cold-rolled steel which are shipped to an independent contractor outside Connecticut for application of coatings to the steel. The rolled steel, with applied coatings, is then delivered to Morton’s factories. When a factory receives an order, it makes the required interior and exterior Metal Panels by processing the rolled steel through a machine that rolls channels into the steel to add strength and then cuts the steel to specific lengths according to the requirements of the particular order. With the application of different paints and made in varying sizes, the Metal Panels are used for a variety of purposes including, inter alia, exterior sheeting, sidewalls and roof panels.”

       The Policy Statement provides in relevant part: “This policy statement is a restatement of the Department’s existing policy and is issued in response to major changes in the prevalent business practices by out-of-state manufacturers in the modular home industry and sets forth the Department’s Sales and Use Tax treatment of various methods of doing business within the industry.
      “The prior business practice has been for the manufacturers to sell directly to the purchaser and to deliver, install and affix the modular units to the foundation either by its own employees or by a subcontractor under its direct supervision and control before the transfer of title took place. Under these circumstances, the Department has and will continue to treat the sale of the modular units as a construction contract for an improvement to real property. A Use Tax is due on the actual cost of the materials. In order for the manufacturer to be treated as a contractor, the actual placement of the modular home must be accomplished solely by employees of the manufacturer or a subcontractor under the direct supervision and control of the manufacturer. . . .
      “Current business practices reflect a change whereby the manufacturer only delivers the modular unit to the building site and performs no connecting or finishing services although in some cases the unit may be offloaded onto the foundation. Under these circumstances, the Department considers the manufacturers of modular home units to be making retail sales of tangible personal property when the manufacturer passes title to any buyer before the unit becomes affixed to the permanent foundation, and, accordingly, the full amount of the sales price is subject to Sales and Use Tax.”

       Section 12-426-18 (b) of the Regulations of Connecticut State Agencies provides in relevant part: “taxability of sales to or by construction CONTRACTORS. A contractor shall pay the tax as a consumer on the purchase or lease of all materials, supplies or equipment used by him in fulfilling either a lump sum contract, a cost-plus contract, a time and material contract with an upset or guaranteed price which may not be exceeded, or any other kind of construction contract . . . .” The definitions included in subsection (a) of the regulation define only the terms “contractor” and “construction contract.”

       Because the issue before us concerns the imposition of a tax, we are unpersuaded of the relevance of regulations dealing with tax exemptions or exclusions. Section 12-426-llb of the Regulations of Connecticut State Agencies, which adds an administrative gloss on tax exemptions authorized by General Statutes § 12-412, therefore does not govern this case.


source: Caselaw Access Project

author: Santaniello, J.

license: Public Domain

text:
    Joan Dubois v. General Dynamics Corporation/ Electric Boat Division
    (14375)
    Peters, C. J., Shea, Glass, Covello and Santaniello, Js.
    Argued February 13
    decision released May 12, 1992

      John W. Greiner, for the appellant (defendant).

      Nathan Julian Shafner, for the appellee (plaintiff).
   Santaniello, J.

This is an appeal by the defendant, General Dynamics Corporation/Electric Boat Division, from a decision of the compensation review division (review division) affirming an award of the workers’ compensation commissioner (commissioner) for the second district. The plaintiff is Joan Dubois, widow of the deceased, Arthur Dubois.

The facts are essentially undisputed. The plaintiff married Arthur Dubois on June 30, 1956. From October 11, 1958, through November 12, 1988, Arthur Dubois was employed by the defendant. Dubois was totally disabled from October 20,1988, through November 12, 1988. On November 12, 1988, Dubois died of respiratory failure and lung cancer. At the time of Dubois’ death, the plaintiff was living with him and was wholly or mainly supported by him. On October 6,1989, a notice of claim for widow’s benefits was served upon the defendant via certified mail. On October 10,1989, a notice of claim was served upon the commissioner. On October 27, 1989, one of the defendant’s insurers filed a notice of intention to contest liability.

On March 9,1990, the plaintiff filed a motion to preclude the defendant from contesting her right to receive benefits. This motion was dismissed on May 3, 1990. Subsequently, the plaintiff filed a motion to correct this ruling, which was granted by the commissioner on August 3,1990. Thereafter, the commissioner granted the motion to preclude, and later awarded benefits to the plaintiff. The defendant appealed this decision to the review division, which affirmed the commissioner’s ruling.

The defendant has appealed the review division’s decision, claiming that it improperly: (1) concluded that the notice of claim given in the present case satisfied the address requirements of General Statutes § 31-294; and (2) failed to apply General Statutes § 31-297 (b), as amended by Public Acts 1990, No. 90-116, § 9, in rendering its decision. We transferred the appeal to this court pursuant to Practice Book § 4023. We affirm the decision of the review division.

I

The defendant first argues that the notice of claim given pursuant to General Statutes § 31-294 was insufficient to preclude its defenses under General Statutes § 31-297 (b). The defendant further argues that since the notice of claim was deficient, the commissioner was without jurisdiction to grant the plaintiffs motion to preclude. An understanding of the relevant statutory provisions is necessary in order to evaluate this claim properly.

Section 31-294 (a) provides in pertinent part: “No proceedings for [workers’] compensation . . . shall be maintained unless a written notice of claim for compensation is given .... Such notice . . . shall state, in simple language, the date and place of the accident and the nature of the injury resulting therefrom . . . and the name and address of the employee and of the person in whose interest compensation is claimed.” (Emphasis added.) Section 31-297 (b) provides in pertinent part: “[W]henever liability to pay compensation is contested by the employer, he shall file with the compensation commissioner, on or before the twentieth day after he has received a written notice of claim, a notice . . . stating [inter alia] that the right to compensation is contested . . . and the specific grounds on which the right to compensation is contested, and a copy thereof shall be sent to the employee. If the employer . . . fails to file the notice contesting liability within the time prescribed herein, the employer shall be conclusively presumed to have accepted the compensability of such alleged injury or death and shall have no right thereafter to contest the employee’s right to receive compensation on any grounds or the extent of his disability . . . . (Emphasis added.) “Although the phrase, ‘written notice of claim,’ in § 31-297 (b) does not specifically refer to the phrase, ‘written notice of claim for compensation,’ in § 31-294, it is clear that both statutory sections refer to the same notice.” Pelletier v. Caron Pipe Jacking, Inc., 13 Conn. App. 276, 280, 535 A.2d 1321, cert. denied, 207 Conn. 805, 540 A.2d 393 (1988).

According to the defendant, the notice of claim was inadequate in that “no address at all was provided to identify the employee” and that “[o]nly the address of the person in whose interest compensation was claimed was provided.” A copy of the notice at issue reveals that the address was provided, as follows:

“Joan Dubois (widow of Arthur Dubois Sr.)
(Signature of Injured Employee)
278 Ross Hill
Lisbon CT 06351
(Address)
By /s/Matthew Shafner
Attorney”

Upon consideration of the facts of this case, and the policy behind the § 31-297 (b) preclusion, we conclude that this notice satisfied the requirements of § 31-294. “We recently interpreted § 31-297 (b) in Castro v. Viera, 207 Conn. 420, 430-31, 541 A.2d 1216 (1988), where, quoting Menzies v. Fisher, 165 Conn. 338, 343, 334 A.2d 452 (1973), we stated: ‘ “The object which the legislature sought to accomplish [was] plain. . . . [It] was amended to ensure (1) that employers would bear the burden of investigating a claim promptly and (2) that employees would be timely apprised of the specific reasons for the denial of their claims. These effects would, in turn, diminish delays in the proceedings, discourage arbitrary refusal of bona fide claims and narrow the legal issues which were to be contested.” ’ We have also stated that ‘[w]e are mindful of the principles underlying Connecticut practice in workmen’s compensation cases: that the legislation is remedial in nature; Kennerson v. Thames Towboat Co., 89 Conn. 367, 375, 94 A. 372 (1915); and that it should be broadly construed to accomplish its humanitarian purpose. DeCarli v. Manchester Public Warehouse Co., 107 Conn. 359, 364, 140 A. 637 (1928).’ Adzima v. UAC/Norden Division, 177 Conn. 107, 117, 411 A.2d 924 (1979).” Ash v. New Milford, 207 Conn. 665, 672-73, 541 A.2d 1233 (1988).

When these principles are applied to the present case, it is clear that the notice was sufficient to allow the defendant to make a timely investigation of the claim. The plaintiff, Joan Dubois, has the same last name as the deceased employee, Arthur Dubois. The plaintiff states in her notice of claim that she is the widow of the deceased employee, and she provides the address of their family domicile as the proper place to make an inquiry. The notice leaves no doubt that this is a claim for death benefits, as the cause of injury refers to: “Exposure to lung irritants/asbestosis that caused death DOD 11-12-88 Lung Cancer.” In light of these facts, we hold that the notice of claim at issue substantially complied with § 31-294 and that therefore, the commissioner had jurisdiction to grant the plaintiff’s motion to preclude. See Collins v. West Haven, 210 Conn. 423, 555 A.2d 981 (1989) (since the plaintiff’s notice satisfied the requirements of § 31-294, the commissioner had jurisdiction to award benefits under General Statutes § 7-433c). We further find that under these facts, the purposes of § 31-297 (b) were not violated by precluding the defendant’s defenses.

II

The defendant next argues that the review division should have, considered the adequacy of the plaintiff’s notice of claim filed on October 6, 1989, according to the requirements of § 31-297 (b) as amended by Public Acts 1990, No. 90-116, § 9. The amendment added to § 31-297 (b) as of October 1,1990, the provision that “the employer shall not be conclusively presumed to have accepted compensability when the written notice of claim . . . fails to include a warning that the employer shall be precluded from contesting liability unless a notice contesting liability is filed within the time period set forth in this section.” The defendant argues that the amended statute should be applied retroactively, and that since the notice of claim at issue did not contain the warning to the employer now required by § 31-297 (b), the decision of the review division must be reversed. Although this issue was not raised before the review division, the defendant argues that we may nonetheless consider it under the plain error doctrine. We disagree.

“Only in the most exceptional circumstances will this court consider a claim that was not raised [below].” Cahill v. Board of Education, 187 Conn. 94, 99, 444 A.2d 907 (1982); see Practice Book § 4185. “Such exceptional circumstances may occur where a new and unforeseen constitutional right has arisen between the time of trial and appeal or where the record supports a claim that a litigant has been deprived of a fundamental constitutional right and a fair trial. State v. Williams, 182 Conn. 262, 267, 438 A.2d 80 (1980); State v. Evans, [165 Conn. 61, 69, 327 A.2d 576 (1973)]. An exception may also be made where consideration of the question is in the interest of public welfare or of justice between the parties.” Cahill v. Board of Education, supra, 100. No such exceptional circumstances exist in the present case.

Furthermore, “[pjlain error is properly reserved for those extraordinary situations where the error is so obvious that the fairness and integrity of and public confidence in the judicial process would be impaired were we to fail to address an issue that was not raised or preserved at trial.” Commissioner v. Youth Challenge of Greater Hartford, Inc., 219 Conn. 657, 671, 594 A.2d 958 (1991). We conclude that this is not a case that would justify consideration of an issue raised for the first time on appeal under the plain error doctrine.

The decision of the compensation review division is affirmed.

In this opinion the other justices concurred.

       General Statutes § 31-294 (a) provides: “Any employee who has sustained an injury in the course of his employment shall forthwith notify his employer, or some person representing his employer, of such injury; and, on his failure to give such notice, the commissioner may reduce the award of compensation proportionately to any prejudice which he finds the employer has sustained by reason of such failure; but the burden of proof with respect to such prejudice shall rest upon the employer. No proceedings for compensation under the provisions of this chapter shall be maintained unless a written notice of claim for compensation is given within one year from the date of the accident or within three years from the first manifestation of a symptom of the occupational disease, as the case may be, which caused the personal injury, provided, if death has resulted within two years from the date of the accident or first manifestation of a symptom of the occupational disease, a dependent or dependents, or the legal representative of the deceased employee, may make claim for compensation within such two-year period or within one year from the date of death, whichever is later. Such notice may be given to the employer or any commissioner and shall state, in simple language, the date and place of the accident and the nature of the injury resulting therefrom, or the date of the first manifestation of a symptom of the occupational disease and the nature of such disease, as the case may be, and the name and address of the employee and of the person in whose interest compensation is claimed. An employee of the state shall send a copy of such notice to the commissioner of administrative services.”

       General Statutes § 31-297 (b), as amended, provides: “Except as provided in subsection (c) of this section, whenever liability to pay compensation is contested by the employer, he shall file with the compensation commissioner, on or before the twentieth day after he has received a written notice of claim, a notice in accord with a form prescribed by the commissioners stating that the right to compensation is contested, the name of the claimant, the name of the employer, the date of the alleged injury or death and the specific grounds on which the right to compensation is contested, and a copy thereof shall be sent to the employee. If the employer or his legal representative fails to file the notice contesting liability within the time prescribed herein, the employer shall be conclusively presumed to have accepted the compensability of such alleged injury or death and shall have no right thereafter to contest the employee’s right to receive compensation on any grounds or the extent of his disability, provided the employer shall not be conclusively presumed to have accepted compensability when the written notice of claim has not been properly served in accordance with section 31-321 or when the written notice of claim fails to include a warning that the employer shall be precluded from contesting liability unless a notice contesting liability is filed within the time period set forth in this section.”


author: Cóvello, J.

text:
    Cecilia Mercado v. Commissioner of Income Maintenance
    (14388)
    Peters, C. J., Callahan, Glass, Covello and Borden, Js.
    Argued January 7
    decision released May 12, 1992

      Judith Merrill Earl, assistant attorney general, with whom, on the brief, were Richard Blumenthal, attorney general, and Richard J. Lynch, assistant attorney general, for the appellant (defendant).

      Joanne Gibau, for the appellee (plaintiff).
   Cóvello, J.

This is an appeal from an eligibility determination made by the defendant, the commissioner of income maintenance. The issue presented is whether in determining eligibility for assistance under the Aid to Families with Dependent Children Act, 42 U.S.C. § 602 et seq., the applicable federal statute mandates the inclusion of children’s savings accounts in determining the family’s total resources. We agree with the fair hearing officer’s determination that such savings accounts are required to be considered in determining the family’s resources and, therefore, we reverse the judgment of the trial court that held to the contrary.

The procedural facts are not in dispute. The plaintiff is a recipient of Aid to Families with Dependent Children (AFDC). On August 15,1990, the defendant notified her that during the period between August 1, 1988, and August 31,1989, two of the plaintiff’s minor children had had savings account balances that totaled more than the $1000 statutory limit on family resources. The defendant concluded, therefore, that the family had been ineligible for assistance during that period and sought the return of $9342.75 paid to the plaintiff on the mistaken assumption that the family had been eligible for AFDC benefits.

The plaintiff made a timely request for a fair hearing. The hearing officer determined that during the period in question, two of the plaintiff’s children, Angel and Sandra, who were both under the age of eighteen and full-time students, had savings accounts from accumulated earnings of $989.51 and $4964.11, respectively. The hearing officer found that these savings accounts were includable in calculating whether the family unit had resources in excess of $1000. The hearing officer, therefore, determined that “the assets of the appellant’s assistance unit were in excess of the agency AFDC asset limit of $1000.00 during the period of August 1,1988, through August 31,1989. Therefore, the District properly determined that all the AFDC assistance [payment] rendered during that period represents an overpayment. The total amount of $9,342.75 is therefore subject to recoupment action.” The plaintiff took a timely appeal to the Superior Court.

The trial court, relying upon Rebman v. Welfare Commissioner, 31 Conn. Sup. 515, 324 A.2d 273 (1973), a decision of the Appellate Division of the Court of Common Pleas, concluded “[t]hat earned income and accumulated income as represented by a savings [account] held more than one month for the purposes of determining the extent of benefits should not be distinguished. To do so ‘is to do violence to the entire federal system of public welfare. A disregarding of the child’s accumulated earnings instills the incentive to work, whereas reimbursement of this accumulated earned income to the welfare commissioner perpetuates a disincentive to work.’ [Rebman v. Welfare Commissioner, supra], 520.” The trial court concluded “that the District Office and the Fair Hearing Officer incorrectly and improperly applied the law to the claim of the appellant” and sustained the appeal. The defendant appealed to the Appellate Court. We thereafter transferred the matter to ourselves pursuant to Practice Book § 4023.

As succinctly set forth in the defendant’s brief, the statutory and regulatory background to this issue is as follows: “The AFDC program is a joint federal state program. The federal statutes relating to AFDC are codified at 42 U.S.C. § 601 et seq. Federal regulations relating to eligibility for AFDC appear at 45 C.F.R. § 233.10 et seq. The defendant, Commissioner of Income Maintenance, is the state official charged with the administration of the AFDC program. See General Statutes § 17-2.

“The AFDC program, as enacted by Congress, and, in which the state participates, is designed to provide for needy dependent children. The Congress has set up, and the state has implemented, a complex system for determining whether a given child is needy. In order to provide an incentive to work, the Congress requires a participating state, in determining eligibility, to disregard certain earned income of various types of people who may make up a household. Among them are minor children who are students, minor children who are not students, parents and stepparents. That income which must be disregarded is not counted by the states in making eligibility determinations. The Congress has also imposed a $1,000.00 limitation on the resources that an AFDC household may have and still be eligible for the AFDC program.

“In the case at bar, the plaintiffs minor children earned wages from jobs. Those wages were disregarded by the state in the month in which they were received. The children placed some portion of their wages in savings accounts. It is the defendant’s contention that once the wages were retained beyond the month in which they were received, they became resources, subject to the $1,000.00 limitation on resources; and that, therefore, the plaintiff’s family was ineligible for AFDC for the entire period in which the combined balances in the savings accounts exceeded $1,000.00.”

The plaintiff argues, on the other hand, that once disregarded, the children’s wages were to be thereafter disregarded for all purposes and that the earned income should have been categorized simply as retained income and was not to be included in determining the $1000 resource limitation for AFDC eligibility purposes. We disagree.

Title 42 of the United States Code, § 602 (a) (7) provides that a state plan for AFDC benefits must “provide that the State agency—(A) shall, in determining need, take into consideration any other income and resources of any child or relative claiming aid to families with dependent children . . . (B) shall determine ineligible for aid any family the combined value of whose resources (reduced by any obligation or debts with respect to such resources) exceeds $1,000 . . . .”

Title 42 of the United States Code, § 602 (a) (8) (A) provides that a state plan for AFDC must “provide that, with respect to any month, in making the determination under paragraph (7), the State agency—(i) shall disregard all of the earned income of each dependent child receiving aid to families with dependent children who is ... a full-time student or a part-time student who is not a full-time employee attending a school, college, or university, or a course of vocation or technical training designed to fit him for gainful employment. . . .” (Emphasis added.) This language does not expressly restrict the time period for disregarding a full-time dependent student’s income to the month in which it is earned.

It is well settled that “[w]hen [statutory] language is clear and unambiguous, its meaning is not subject to modification by construction.” Thibeault v. White, 168 Conn. 112, 115, 358 A.2d 358 (1975). When the language of a statute is reasonably subject to diverse interpretations, however, we look to the statute’s legislative history and the policy it was designed to implement “to ascertain and give effect to the apparent intent of the legislature.” United Illuminating Co. v. Groppo, 220 Conn. 749, 755, 601 A.2d 1005 (1992). The legislative history of 42 U.S.C. § 602 (a) (8) does not specifically address whether Congress intended to exempt permanently the earnings of a dependent child who is a full-time student in determining a family’s eligibility for AFDC. It does indicate, however, that until 1981, a state agency could, subject to limitations imposed by federal regulations, permit a family to set aside earned or other income for the “future identifiable needs” of a dependent child. In 1967, Congress amended § 402 (a) of the Social Security Act to add various provisions for the disregarding of certain types of income of AFDC recipients and applicants, including the provision requiring that a state agency disregard all earned income of a dependent child receiving AFDC who is a full-time student. Pub. L. No. 90-248, § 202 (b) (1967). The amended law incorporated existing language, which provided that “the State agency . . . ‘(B) (i) may, subject to the limitations prescribed by the Secretary [of Health, Education and Welfare], permit all or any portion of the earned or other income to be set aside for future identifiable needs of a dependent child. . . .’ ” If a state agency chose to exercise this option, it considered such retained income “as not available for meeting current subsistence needs” of the family unit. Pub. L. No. 87-543, Senate Report No. 1589, reprinted in 1962 U.S. Code Cong. & Adm. News 1970.

The provision allowing for the setting aside of income for the future identifiable needs of dependent children was deleted, however, from the statute by Public Law No. 97-35, the Omnibus Reconciliation Act of 1981. At that time, Congress also enacted the $1000 statutory limitation on the resources of a family receiving AFDC. As a result of these amendments, a state agency may no longer permit AFDC recipients to retain income in excess of $1000, even if it is intended for the future identifiable needs of dependent children. Thus, the legislative history of 42 U.S.C. § 602 (a) (8) discloses the deliberate excision of statutory language that could have served as the basis for excluding children’s savings from the $1000 monthly resource limitation.

The plaintiff’s suggested construction of 42 U.S.C. § 602 (a) (8) is also contrary to the relevant federal regulations. Although it is not controlling, the interpretation of a federal agency is entitled to substantial deference. Chevron U.S.A. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 844-45, 104 S. Ct. 2778, 81 L. Ed. 2d 694, reh. denied, 468 U.S. 1227, 105 S. Ct. 28, 82 L. Ed. 2d 921 (1984). Section 233.20 (a) (3) (i) (B) of title 45 of the Code of Federal Regulations, an enactment of the Department of Health and Human Services (HHS), the federal agency charged with implementation of the AFDC program, provides: “[I]n AFDC—The amount of real and personal property that can be reserved for each assistance unit shall not be in excess of one thousand dollars equity value . . . .” (Emphasis added.) Section 233.20 (a) (6) (viii) states: “Reserves accumulated from earnings are given no different treatment than reserves accumulated from any other sources.” (Emphasis added.) Thus, it is clear that HHS construes savings, whether or not they are derived from earned income, as resources that are limited to $1000 per eligible family.

While such an interpretation may be an unwise perpetuation of a disincentive to save for one’s education or other worthy goals in order to get off the welfare rolls, policy determinations are not a function of the judicial branch, however, but repose exclusively with the Congress that enacted the controlling legislation. Because 42 U.S.C. § 602 (a) (7) limits the resources for an entire family to $1000, we conclude that the hearing officer correctly determined that during the period of August 1,1988, through August 31, 1989, the plaintiff was ineligible for AFDC because the balance in the children’s savings accounts exceeded $1000.

The judgment is reversed and the case is remanded with direction to render judgment dismissing the plaintiff’s appeal.

In this opinion the other justices concurred.

       General Statutes § 17-2a provides: “fair hearings by commissioner, application. Any aggrieved person authorized by law to request a fair hearing on a decision of the commissioner of income maintenance, or the conservator of any such person on his behalf, may make application for such hearing in writing over his signature to the commissioner and shall state in such application in simple language the reasons why he claims to be aggrieved. Such application shall be mailed to the commissioner within sixty days after the rendition of such decision. . . .”

       General Statutes § 17-2b (b) provides: “The applicant for such hearing, if aggrieved, may appeal therefrom in accordance with section 4-183. Appeals from decisions of said commissioner shall be privileged cases to be heard by the court as soon after the return day as shall be practicable.”

       As also set forth in the defendant’s brief, “[t]he $1,000 limitation is imposed after disregarding certain resources, such as an automobile of limited value. Resource disregards are not in issue in this case.”

       The absence, of restrictive language in 42 U.S.C. § 602 (a) (8) (A) (i) contrasts with other subsections of 42 U.S.C. § 602 (a) (8) (A). Section 602 (a) (8) (A) (ii), for example, provides that a state agency “shall disregard from the earned income of any child or relative applying for or receiving aid to families with dependent children, or of any other individual (living in the same home as such relative and child) whose needs are taken into account in making [the eligibility determination], the first $90 of the total of such earned income/or such month.” (Emphasis added.) In addition, subsection (vi) of paragraph (8) (A) provides, in relevant part, that a state agency “shall disregard the first $50 of any child support payments/or such month received, in that month.” (Emphasis added.)

       Prior to the 1967 amendment, the law allowed (but did not require) the state agency to disregard the earnings of children up to $50 a month per child for a maximum of $150 a month per family. See Pub. L. No. 90-248, Senate Report No, 744, reprinted in 1967 U.S. Code Cong. & Adm. News 2994. Congress enacted this limited disregard in 1965, “[t]o remove [the] disincentive for children to work . . . .” Pub. L. No. 89-97, Senate Report No. 404, reprinted in 1965 U.S. Code Cong. & Adm. News 2089.

       The Secretary of Health, Education and Welfare was redesignated as the Secretary of Health and Human Services effective May 4,1980. Pub. L. No. 96-88, § 601 (1979), codified at 20 U.S.C. § 3508 (a).

       Section 202 (b) of Public Law No. 90-248 of 1967 provided in relevant part: “(b) Effective July 1, 1969, section 402 (a) of such Act is amended by striking out clause (7) and inserting in lieu thereof the following: ‘(7) except as may be otherwise provided in clause (8), provide that the State agency shall, in determining need, take into consideration any other income and resources of any child or relative claiming aid to families with dependent children, or of any other individual (living in the same home as such child and relative) whose needs the State determines should be considered in determining the need of the child or relative claiming such aid, as well as any expenses reasonably attributable to the earning of any such income; (8) provide that, in making the determination under clause (7), the State agency—
      ‘(A) shall with respect to any month disregard—
      ‘(i) all of the earned income of each dependent child receiving aid to families with dependent children who is (as determined by the State in accordanee with standards prescribed by the Secretary) a full-time student or part-time student who is not a full-time employee attending a school, college, or university, or a course of vocational or technical training designed to fit him for gainful employment, and
      ‘(ii) in the case of earned income of a dependent child not included under clause (i), a relative receiving such aid, and any other individual (living in the same home as such relative and child) whose needs are taken into account in making such determination, the first $30 of the total of such earned income for such month plus one-third of the remainder of such income for such month; and
      ‘(B) (i) may, subject to the limitations prescribed by the Secretary, permit all or any portion of the earned or other income to be set aside for future identifiable needs of a dependent child, and (ii) may, before disregarding the amounts referred to in subparagraph (A) and clause (i) of this subparagraph, disregard not more than $5 per month of any income

       Prior to 1981, regulations established the resource limitation as $2000 in real and personal property, including liquid assets, and excluding the home, personal effects, an automobile, and income-producing property. Pub. L. No. 97-35, Senate Report No. 97-139 reprinted in 1981 U.S. Code Cong. & Adm. News 702. The legislative history of the 1981 act indicates that Congress considered the existing regulatory limit too high, in that it allowed AFDC “to be provided in situations in which families have resources upon which they could reasonably be expected to draw.” Id., 769. The legislative history also reveals that Congress limited the value of resources allowed AFDC recipients “to assure that aid would be restricted to those most in need.” Id., 770.


text:
    Ramon Hernandez v. Gerber Group et al.
    (14372)
    Peters, C. J., Shea, Glass, Covello and Santaniello, Js.
    Argued February 13
    decision released May 12, 1992

      David R. Bull, for the appellants (named defendant et al.).

      Robert W. Murphy, assistant attorney general, with whom, on the brief, were Richard Blumenthal, attorney general, and Charles A. Overend and Kathleen R. Smith, assistant attorneys general, for the appellee (defendant Second Injury and Compensation Assurance Fund).
   Peters, C. J.

The dispositive issue in this appeal is whether the Second Injury and Compensation Assurance Fund (Fund), which under General Statutes § 31-349 assumes responsibility for compensation for injuries arising out of an employee’s preexisting injuries, must pay for an employee’s leg disability that is sustained as a result of treatment for a compensable heart disability. The defendant Fund appealed to the compensation review division from an order by the workers’ compensation commissioner for the fourth district transferring liability to the Fund for an injury suffered by the plaintiff, Ramon Hernandez. The compensation review division sustained the Fund’s appeal, and the employer, Gerber Group, and the employer’s insurer, St. Paul Fire and Marine Insurance Company, appealed to the Appellate Court. We transferred the case to ourselves pursuant to Practice Book § 4023 and now reverse.

The parties stipulated to the following facts. On December 23,1985, Hernandez suffered a myocardial infarction (heart attack) that arose out of and in the course of his employment. His employer’s insurer acknowledged the compensability of the claim, and on December 16, 1987, issued a voluntary agreement, which was approved by the fourth district commissioner. On March 2, 1988, the Fund agreed to accept transfer of liability for the heart injury pursuant to General Statutes § 31-349 (a). On March 24,1988, the commissioner approved a voluntary agreement for 40 percent permanent partial disability of the heart for Hernandez.

In the course of receiving treatment for the heart injury, Hernandez underwent a cardiac catheterization. As a result of the catheterization, he sustained a permanent partial disability of the right leg. The employer’s insurer acknowledged the compensability of the loss of the use of the leg, and issued a voluntary agreement that was approved by the commissioner on May 16, 1988. On March 2, 1989, Hernandez and the insurer agreed upon a 29 percent permanent partial disability of the leg, and the insurer’s voluntary agreement to that effect was approved by the commissioner on March 20, 1989.

Thereafter, the insurer sought to transfer liability for the right leg disability to the Fund. The Fund refused to accept transfer of liability, because there was no preexisting disability of the leg. The compensation commissioner for the fourth district ordered the Fund to accept transfer of liability for the leg injury, finding that “the injury to, and resulting disability of the claimant’s right leg is so inextricably woven into the claimant’s myocardial infarction that it cannot be said to be a separate injury and cannot be considered apart from the myocardial infarction.” The Fund appealed to the compensation review division, which reversed the fourth district commissioner’s decision.

In their appeal to this court, the employer and the employer’s insurer have raised two issues. Their principal contention is that the compensation review division should have concluded, as a matter of law, that § 31-349 imposed liability on the Fund in the circumstances of this case. Alternatively, they maintain that the decision rendered by the compensation review division should be overturned because it constituted an insupportable departure from the factual findings and conclusions of the compensation commissioner. Because we agree with the first of these contentions, we need not address the second.

The legislature’s remedial purpose in enacting § 31-349 is well established. “ ‘ “To prevent discrimination against handicapped workers, while providing the benefits of [workers’] compensation to such workers, virtually every state has enacted some form of second injury fund legislation. . . . Such legislation is also designed to relieve employers from the hardship of liability for those consequences of compensable injury not attributable to their employment.” Jacques v. H. O. Penn Machinery Co., [166 Conn. 352, 355-56, 349 A.2d 847 (1974)].’ ” Plesz v. United Technologies Corporation, 174 Conn. 181, 185, 384 A.2d 363 (1978). Under § 31-349, the Connecticut second injury fund statute, “[i]f an employee who has ... [a] permanent physical impairment, incurs a second disability by accident or disease arising out of and in the course of his employment, resulting in a permanent disability caused by both conditions which is materially and substantially greater than that which would have resulted from the second injury alone,” the employer’s obligation is limited to the first 104 weeks of the employee’s disability. Thereafter, liability for all compensation for the injury shifts to the Fund.

In denying the employer’s claim in this case, the review division did not question the general rule that the Fund is liable for an employee’s second work-related disability. It noted that this court, in De la Pena v. Jackson Stone Co., 103 Conn. 93, 100, 130 A. 89 (1925), had described a compensable personal injury as including “the entire transaction to which the injury is traced, not only the operative causes but their effect on the body of the injured person.” The review division read Lovett v. Atlas Truck Leasing, 171 Conn. 577, 370 A.2d 1061 (1976), however, as precluding liability in the circumstances of this case. We disagree with the review division’s interpretation of Lovett.

As a result of a single accident, the claimant in Lovett sustained several severe injuries, including injuries to his eyes, back, teeth, mouth and jaws. The claimant had suffered from a preexisting astigmatism of both eyes. With respect to the eye injuries sustained in the accident, the commissioner awarded 235 weeks of compensation for total loss of vision in the left eye and ninety-three weeks of compensation for 40 percent loss of vision in the right eye. The commissioner did not transfer liability for any part of either eye injury to the Fund. The commissioner found that the injury to the left eye was sufficient to cause total loss of vision, and that the preexisting problem had not materially and substantially increased that loss of vision. The preexisting astigmatism was found to have made the injury to the right eye materially and substantially greater than that which would have resulted from the second injury alone, but because the employer would not pay 104 weeks of compensation for that injury, the Fund was found to have no liability.

The employer and its insurer in Lovett contended that, in calculating the 104 weeks required to be paid under § 31-349, they were entitled to a contribution from the Fund because they should have received credit for weekly payments already made for other disabilities arising from the accident. We rejected this claim. “The defendants appear to be claiming that the remedial objectives of the workmen’s compensation act are restricted to accidents rather than injuries. The short answer is that the second injury fund may become liable for permanent disability to each part of the body covered by the act, with each disability to be considered a separate injury, notwithstanding the fact that more than one injury may arise out of the same accident. See Olmstead v. Lamphier, 93 Conn. 20, 22, 104 A. 488 [1918]; Franko v. Schollhorn Co., 93 Conn. 13, 17-18, 104 A. 485 [1918].” Id., 585-86.

The compensation review division understood our holding in Lovett to mean “that before transfer of liability for a body part disability, the employer must have paid one hundred four weeks of benefits attributable to that specific body part.” The review division recognized that this would be a radical departure from preexisting law, but it believed that it was bound by Lovett to conclude that Hernandez’ preexisting heart condition was an injury legally separate from the injury to his leg. The question before us, therefore, is whether Lovett has the draconian consequences attributed to it by the compensation review division.

To place our decision in Lovett in context, we must examine the two cases on which Lovett relied for its holding barring the liability of the Fund. Predating the existence of the Fund, these cases involved unsuccessful attempts by employers to use the extensiveness of their employee’s injuries as a basis for limiting their liability to the employee. In Olmstead v. Lamphier, supra, this court rejected an employer’s claim that, because it had paid for the loss of its employee’s leg in an accident, it should not also be liable for the partial incapacity of the employee’s shoulder arising out of the same accident. “The injury to the shoulder was a distinct injury resulting in partial incapacity; the loss of the leg was also a distinct injury resulting in partial incapacity. For each injury . . . the injured employee was entitled to compensation. The fact that each injury resulted from one accident did not make of these a single injury. Nor did the [Workmen’s Compensation] Act intend that compensation for the loss of a member should be in lieu of all compensation for other injuries resulting from one accident.” Id., 22. In Franko v. Schollhorn Co., supra, an employee who had suffered lacerations of two fingers in an accident, both of which were eventually amputated, was permitted by this court to recover both the amount specified by the workers’ compensation statute for the incapacity of the fingers and the amount specified by the statute for their loss. This court reasoned that “when the loss of the member is preceded by a long incapacity while efforts are made to heal and cure the injury, the injured employee has suffered far more than from the mere loss of the member. Compensation for the loss of the member will not compensate him for the period of incapacity preceding the loss of the member. The just rule of compensation will give compensation for the period of total incapacity as well as for the loss of the member.” Id., 19. Both cases recognize that injuries arising out of the same accident may nonetheless be separate and distinct.

Our decision in Lovett, like those in the cases cited in Lovett, recognizes that a single accident may cause a worker to suffer multiple separate injuries. In Lovett, only the injury to the right eye was materially increased by the worker’s preexisting condition. An employer is entirely liable for injuries arising out of and in the course of employment when these injuries are not caused or materially exacerbated by a preexisting condition. Levanti v. Dow Chemical Co., 218 Conn. 9, 18-19 n.8, 587 A.2d 1023 (1991); Lovett v. Atlas Truck Leasing, supra, 581-84. Lovett stands for the proposition that the mere fact that employment-related injuries are numerous and caused by a single accident does not permit the employer to transfer liability to the Fund for all of them, when only one of them is materially exacerbated by a preexisting condition and less than 104 weeks of compensation have been paid for that injury.

In this case, the employer has made the showing of causal connection between preexisting condition and subsequent injury that was lacking in Lovett. Although all of the injuries in Lovett had the same cause, that cause was unrelated to the preexisting condition, and the preexisting condition entered the chain of causation only with respect to the injury to the right eye. In the present case, on the other hand, the preexisting condition was at the beginning of the causal chain: Hernandez had a heart condition that, in conjunction with his work assignment, led to a myocardial infarction, treatment of which led to a leg injury. As a factual matter, the requisite causal linkage therefore existed between preexisting disability and subsequent injury, permitting assignment of liability for the subsequent injury to the Fund.

The Fund was established to provide disincentives for discrimination against workers with disabilities. This case illustrates the wisdom of the legislature’s policy of requiring the Fund to assume liability for injuries that are causally related to preexisting disabilities. If persons with a history of heart trouble are at risk for developing leg problems, and the Fund did not pay for those leg problems, it would be rational for employers to discriminate against workers with a history of heart trouble, and employers who did not so discriminate would be unfairly disadvantaged. That would be precisely the result that the Fund was designed to prevent. “ ‘A statute is not to be interpreted to thwart its purpose.’ Mystic Marinelife Aquarium, Inc. v. Gill, 175 Conn. 483, 489, 400 A.2d 726 (1978).” Freeman v. Alamo Management Co., 221 Conn. 674, 684, 607 A.2d 370 (1992). The purpose of the Fund is to relieve employers from having to bear the cost of preexisting medical conditions. That purpose would be thwarted if employers were required to bear the cost of causally related sequelae of preexisting medical conditions.

The decision is reversed and the case is remanded to the compensation review division with direction to affirm the decision of the compensation commissioner.

In this opinion the other justices concurred.

       At the time relevant to this appeal, General Statutes § 31-349 provided in pertinent part: “(a) The fact that an employee has suffered previous disability, or received compensation therefor, shall not preclude him from compensation for a later injury, nor preclude compensation for death resulting therefrom. If an employee who has previously incurred, by accidental injury, disease or congenital causes, total or partial loss of, or loss of use of, one hand, one arm, one foot or one eye, or who has other permanent physical impairment, incurs a second disability by accident or disease arising out of and in the course of his employment, resulting in a permanent disability caused by both conditions which is materially and substantially greater than that which would have resulted from the second injury alone, he shall receive compensation for the entire amount of disability, including total disability, less any compensation benefits payable or paid with respect to the previous disability, and necessary medical care, as elsewhere provided in this chapter, notwithstanding the fact that part of such disability was due to prior accidental injury, disease or congenital causes. The employer by whom the employee is employed at the time of the injury, or his insurance carrier, shall in the first instance pay all awards of compensation and all medical expenses provided by this chapter for the first one hundred four weeks of disability. . . . Thereafter all responsibility for compensation and medical treatment shall be with the custodian of the second injury fund. . . . ”

       The record in this case includes a letter from Hernandez’ doctor, Lawrence Cohen, indicating that the narrowings of Hernandez’ arteries “took years to develop and therefore clearly antedate the December 23, 1985 myocardial infarction." The timing of the heart attack, however, was related to his work activities on that date, which involved, inter alia, lifting a thirty pound can of sand every three minutes. The resulting disability, Cohen concluded, “was materially and substantially greater than it would have been by virtue of the work stress alone.”

       The claim that the review division refused to accept the commissioner’s factual findings necessarily has two parts. To the extent that the decision of the compensation review division contradicted findings of fact of the commissioner for which there was support in the record, its decision would be untenable. “[T]he power and duty of determining the facts rests on the commissioner, the trier of facts. . . . The conclusions drawn by him from the facts found must stand unless they result from an incorrect application of the law to the subordinate facts or from an inference illegally or unreasonably drawn from them.” (Citations omitted; internal quotation marks omitted.) Fair v. People’s Savings Bank, 207 Conn. 535, 539, 542 A.2d 1118 (1988). The decision of the review division did not, however, dispute the commissioner’s factual finding of a causal relation between Hernandez’ heart injury and his leg injury. The review division held instead that, as a matter of law, Lovett v. Atlas Truck Leasing, 171 Conn. 577, 370 A.2d 1061 (1976), compelled the conclusion that such a causal relation could not be a basis for transferring liability to the Fund. Had this interpretation of Lovett been correct, the commissioner’s conclusion would have “result[edj from an incorrect application of the law to the subordinate facts,” and it would have been appropriate for the review division to overturn that conclusion.

       See Public Acts 1945, No. 188.


author: Shea, J.

text:
    Willie Johnson v. Commissioner of Correction
    (14378)
    Peters, C. J., Shea, Callahan, Covello and Berdon, Js.
    Argued December 12, 1991
    decision released May 12, 1992

      Julia DiCocco Dewey, assistant state’s attorney, with whom, on the brief, were Chris Alexy and Beth Baran, assistant state’s attorneys, for the appellant (respondent).

      Karen A. Goodrow, assistant public defender, for the appellee (petitioner).
   Shea, J.

In this habeas corpus proceeding, the petitioner, Willie Johnson, alleged that his convictions of sexual assault in the first degree, General Statutes § 53a-70 (a), and of unlawful restraint in the first degree, General Statutes § 53a-95 (a), were obtained in violation of both his federal and state constitutional rights to the effective assistance of counsel at his jury trial. The habeas court rendered judgment granting the petition, thus vacating the convictions and ordering a new trial.

The respondent commissioner of correction, after obtaining the permission of the habeas court pursuant to General Statutes § 52-470 (b), has appealed from the judgment and claims that: (1) the principal basis for the habeas court’s conclusion of ineffective assistance of counsel, that the alibi defense advanced at trial was wholly untenable, was fundamentally flawed in view of the petitioner’s insistence upon such a defense and his unwillingness to testify; and (2) the court’s conclusion that, if the defense of consent, rather than alibi, had been pursued, there would have been a reasonable probability of a different result, was similarly unsupported. We agree with the first of these claims and reverse the judgment. It is unnecessary, therefore, to address the second claim.

In the petitioner’s unsuccessful direct appeal from the judgment; State v. Johnson, 22 Conn. App. 477, 578 A.2d 1085, cert. denied, 216 Conn. 817, 580 A.2d 63 (1990); the opinion of the Appellate Court sets forth the facts the jury could reasonably have found as the basis for the petitioner’s convictions. We repeat them with some additions. At about 3 a.m. on June 6,1987, the complainant left her residence at a motel in New Haven, crossed Whalley Avenue and purchased cigarettes at a twenty-four hour gasoline station. When she crossed the street again to return to her residence, she saw the petitioner sitting in a white Chevrolet parked in front of the motel. She recognized him, but could not remember his name. She approached the car and asked the petitioner for a ride to the Brookside housing project. She wanted to visit her sister, who lived there, in order to obtain money for milk and diapers. After she had entered the car, the petitioner drove toward the housing project.

En route the petitioner drove the car off the road and into a secluded driveway, turning off the lights and ignition. He then compelled the complainant to perform fellatio upon him by threatening her with violence. At one point, when she attempted to leave the car, he grabbed her, ripping her coat, and ordered her to continue until he had ejaculated.

After leaving the driveway and driving a short distance, the petitioner stopped and told the complainant to get out of the car. After she had done so, he drove away, but she wrote down the license plate number of the car. She walked to Whalley Avenue where a friend, who was driving a cab, offered her a ride. When she told him what had transpired, he radioed his dispatcher, who called the New Haven police. Within a short time the complainant met with three police officers in the parking lot of a twenty-four hour food store to which the cab driver had taken her. Although she was distraught, she gave the police the license plate number she had recorded, a description of. the car, including its interior, and a physical description of her assailant, including a description of his clothing.

After checking the license plate number, the police determined that the vehicle was registered to Toya Cummings at an address in New Haven. They soon found a white Chevrolet bearing such a marker plate and matching the description given by the complainant parked near the address indicated by the motor vehicle registration records. The complainant was taken to that address in an unmarked police car. When Cummings opened the door of her residence to the police, she admitted her ownership of the Chevrolet. The petitioner, who also lived at that address, came to the door clad only in a towel, as he had been in the shower. After the police stated that the car had been used within the last hour in perpetrating a sexual assault, the petitioner said that he had used the car only until about 6 p.m. on the preceding day. When requested to step outside the house, he complied voluntarily, putting on jeans and following the officers to within twenty feet of the car in which the complainant sat. She identified the petitioner as her assailant, and he was then arrested. A search of the residence occupied by Cummings and the petitioner resulted in the seizure of a shirt and a maroon hat, both of which the complainant had mentioned earlier in describing the clothing worn by her assailant. Later a fingerprint of the complainant was found on the exterior of the white Chevrolet.

At the trial that resulted in his conviction, the petitioner offered the defense of alibi. Cummings, his girlfriend, testified that he was at home with her at the time of the sexual assault. The petitioner did not testify. A notice of alibi, in accordance with the petitioner’s claim of misidentification, had previously been filed by the public defender who initially had represented the petitioner. After that public defender had withdrawn from the case because of a conflict of interest that surfaced during jury selection and required that proceeding to be aborted, a special public defender, Patricia Buck Wolf, was appointed as the petitioner’s trial attorney. She had been engaged in the practice of law in this state for approximately five years, having devoted three years to criminal practice exclusively and two years to housing law matters. In addition to numerous minor offenses, she had handled five felony cases, only one of which required a trial.

Of the seven specific allegations of misconduct by his trial counsel that the petitioner asserted in claiming ineffective representation, the habeas court rejected five as “without factual basis.” In concluding that trial counsel had been ineffective, the court focused primarily upon its view that the alibi defense advanced at trial in accordance with the petitioner’s instructions was “untenable.” The court also relied upon the failure of trial counsel to cross-examine the complainant aggressively concerning her account of having solicited a ride from the petitioner at 3 a.m. for the purpose of obtaining money from her sister to buy milk for her four children, after having just spent money to purchase cigarettes, and also concerning her arrest for a drug offense shortly before the trial began. The court regarded these two grounds for its finding of ineffectiveness as interwoven, however, declaring that reliance on the alibi defense precluded a vigorous cross-examination on the complainant’s credibility. Having concluded that the performance component of the ineffectiveness of counsel inquiry had been satisfied by the petitioner, the court also held that the requirement of prejudice had been met, because “there is a reasonable probability that, absent the errors, the factfinder would have a reasonable doubt respecting guilt.” Strickland v. Washington, 466 U.S. 668, 695, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984).

“When a convicted defendant complains of the ineffectiveness of counsel’s assistance, the defendant must show that counsel’s representation fell below an objective standard of reasonableness.” Id., 687-88. “The proper measure of attorney performance remains simply reasonableness under prevailing professional norms.” Id., 688. “It is all too tempting for a defendant to second-guess counsel’s assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel's defense after it has proved unsuccessful, to conclude that a particular act or omission was unreasonable. . . . A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time.” (Citations omitted.) Id., 689; Johnson v. Commissioner, 218 Conn. 403, 425, 589 A.2d 1214 (1991).

“The reasonableness of counsel’s actions may be determined or substantially influenced by the defendant’s own statements or actions. Counsel’s actions are usually based, quite properly, on informed strategic choices made by the defendant and on information supplied by the defendant.” Strickland v. Washington, supra, 691. The habeas court found that throughout the trial process “[t]he petitioner persisted in denying that he had ever met the complainant dr that he had any sexual contact with her.” His girlfriend, Cummings, corroborated his claim that he had been at home with her at the time the crime occurred, and she so testified at trial. A notice of alibi to the same effect was filed by the petitioner’s previous counsel. When he was first confronted by the police, the petitioner denied using the white Chevrolet after 6 p.m. on the day before the crime.

The habeas court, nevertheless, considered the alibi defense untenable because of the strength of the evidence relating to the identification of the car involved in the crime, including the victim’s fingerprint found on its exterior. The court recognized that the petitioner’s trial counsel had “advanced the only defense he would permit, an alibi defense,” and referred to trial counsel’s testimony that, even after her discussion of the fingerprint evidence and the possibility of a consent defense, the petitioner opposed any defense but alibi. Trial counsel also testified that, if she had pursued a consent defense despite her client’s objections, she feared a courtroom outburst by the petitioner, like the one that had occurred during the direct examination of the complainant, when the petitioner interrupted the prosecutor and shouted profanities that resulted in a warning by the trial court.

In concluding that the alibi defense was so weak as to be untenable and that a defense of consent was a more viable alternative, the habeas court relied upon testimony to that effect by an attorney admitted to practice approximately two years previously, whose experience in the defense of criminal cases was limited to two jury trials and four court trials. He testified that the complainant was a “real candidate for aggressive cross-examination” because of the implausibility of her explanation for her presence on the street and her solicitation of a ride from the petitioner at such an early hour in the morning.

It is speculative, however, to assume, as the habeas court did, that a “vigorous examination” of the complainant would have been fruitful in eliciting any evidence of consent likely to have raised a reasonable doubt in the minds of the jurors. Her account of having left her four children to go on an errand at 3 a.m. was corroborated by the testimony of the neighbor in whose care she had left them. There was no evidence that the complainant had ever been a prostitute. If the incident were consensual, there was no indication of any motive on her part to implicate the petitioner in a crime. She reported the matter to the police at the first opportunity, when she had obtained a ride from her cab driver friend, who notified the police.

The petitioner’s refusal to testify would have been as severe a handicap to a consent defense as it was to the alibi defense raised at trial. A defense of consent based solely upon the unpredictable outcome of the cross-examination of a complaining witness whose credibility was to be challenged primarily on the ground of her innocuous explanation for requesting a ride from the petitioner at 3 a.m. would raise concerns about the wisdom of trial strategy more troublesome than those claimed here, especially when the petitioner persisted in denying any factual basis for such a defense.

The habeas court concluded that trial counsel had been unduly influenced by the petitioner’s insistence on the alibi defense and had allowed him “to dictate trial strategy as well as fundamental decisions.” We need not decide whether the petitioner would have had the right to present his alibi defense even if a trial strategy based upon consent were clearly the better choice. “Certain decisions relating to the conduct of the case are ultimately for the accused and others are ultimately for defense counsel. The decisions which are to be made by the accused after full discussion with counsel are: (i) what plea to enter; (ii) whether to waive jury trial; and (iii) whether to testify in his or her own behalf.” I ABA Standards for Criminal Justice (2d Ed. 1980) c.4, standard 4-5.2 (a). “In general ... it may be said that the power of decision in matters of trial strategy and tactics rests with the lawyer.” Id., commentary, p. 4.67. If the petitioner had elected to testify in support of his alibi, he presumably could have dictated that choice of strategy. He might also have invoked his right to act as his own counsel. Faretta v. California, 422 U.S. 806, 95 S. Ct. 2525, 45 L. Ed. 2d 562 (1975). The petitioner asserted neither of these prerogatives of a client. The defense of consent to a charge of sexual assault, nevertheless, involves the personal dignity of an accused in a manner that other strategic or tactical decisions do not. The assertion of such a defense, even when the accused does not testify, might have adverse repercussions on his personal life that he would prefer to avoid. “The right to counsel ... is not an all-or-nothing right, under which a defendant must choose between forgoing the assistance of counsel altogether or relinquishing control over every aspect of his case beyond its most basic structure (i.e., how to plead, whether to present a defense, whether to appeal). A defendant’s interest in his case clearly extends to other matters.” Jones v. Barnes, 463 U.S. 745, 759, 103 S. Ct. 3308, 77 L. Ed. 2d 987 (1983) (Brennan, J., dissenting). “The circumstances are extremely rare when counsel is not required to follow his client’s instructions on a decision of this nature.” Lowenfield v. Phelps, 817 F.2d 285, 292 (5th Cir. 1987), aff'd, 484 U.S. 231, 108 S. Ct. 546, 98 L. Ed. 2d 568 (1988) (choice between insanity and alibi defenses).

This appeal does not afford an appropriate occasion to delineate precisely the extent of a defendant’s right to participate in strategic choices involving such factual issues as whether to rely upon a defense of alibi or consent. There is no evidence to indicate that trial counsel viewed the defense of consent as more likely to be successful than that of alibi, even apart from her client’s attitude. She was obliged to consult with the petitioner throughout the proceeding and to discuss possible alternative defenses, as she did. Even when strategic decisions are of such a nature that “the power of decision on them must rest with the lawyer . . . that does not mean that the lawyer should completely ignore the client in making them.” I ABA Standards for Criminal Justice (2d Ed. 1980) c.4, standard 4-5.2, commentary, p. 4.68. We conclude that there was nothing improper in trial counsel’s consideration of the defendant’s objections to any defense but alibi as one of the factors to be weighed in deciding upon the most appropriate defense to pursue.

It is also unnecessary to decide whether at the time of trial the alibi defense was more viable than a defense of consent. “Even the best criminal defense attorneys would not defend a particular client in the same way.” Strickland v. Washington, supra, 689. “[Strategic choices made after thorough investigation of [the] law and facts relevant to plausible options are virtually unchallengeable . . . .” Id., 690-91. “[T]he [petitioner] must overcome the presumption that, under the circumstances, the challenged action ‘might be considered sound trial strategy.’ ” Id., 689, quoting Michel v. Louisiana, 350 U.S. 91, 101, 76 S. Ct. 158, 100 L. Ed. 83 (1955). The issue presented is whether trial counsel’s decision to proceed with the alibi defense under the circumstances facing her at the trial, including the petitioner’s insistence on that defense, was “outside the wide range of professionally competent assistance.” Strickland v. Washington, supra, 690. We conclude that her decision was well within the scope of competent professional conduct and that the habeas court could not reasonably have concluded otherwise.

The remaining basis for the petitioner’s claim of ineffective assistance of trial counsel, inadequate cross-examination of the complainant, is largely dependent on the premise we have rejected that consent was the only appropriate defense because of the strength of the identification evidence. The habeas court regarded the choice of the alibi defense as “precluding a vigorous cross-examination on the issue of the complainant’s credibility.” We agree with the court that a cross-examination designed to show that the complainant had consented to the sexual act would have been inconsistent, as a practical matter, with the alibi defense and therefore counterproductive.

The petitioner also maintains that the failure to cross-examine the complainant about her arrest on drug charges several days before trial, for the purpose of establishing a motive to testify in favor of the prosecution, indicates the incompetence of trial counsel. Although such a cross-examination would not have been inconsistent with the alibi defense, the existence of such a motive after her arrest would not have reflected upon the accuracy of the complainant’s identification of the petitioner at the time of his arrest, when she had no such motive. Wolf’s explanation for failing to pursue the charges pending against the complainant on cross-examination was that other questions pertaining to the complainant’s recollection of the crime had sufficiently detracted from her credibility, that the complainant was “shaking all over,” and that the jurors were beginning to look at her sympathetically. Wolf did not “want to keep her out there any longer” under those circumstances. Differences of opinion among trial lawyers about trial tactics are commonplace. Given that “[j]udicial scrutiny of counsel’s performance must be highly deferential,” we conclude that the failure to cross-examine the complainant about the pending drug charges under these circumstances might reasonably be considered sound trial strategy. Strickland v. Washington, supra, 689.

We conclude that there was insufficient evidence to support the conclusion of the habeas court that Wolfs performance as trial counsel for the petitioner fell below the requisite standard for competent representation of a defendant in a criminal case and that the judgment granting the petition must therefore be reversed.

The judgment is reversed and the case is remanded to the habeas court with direction to render judgment dismissing the petition.

In this opinion the other justices concurred.

       The respondent appealed to the Appellate Court, but we transferred the appeal to this court pursuant to Practice Book § 4023.

       At the time the complainant informed the police officers of the circumstances of the crime, she said that she did not want them to think she was a prostitute. The petitioner claims that his trial counsel’s failure to cross-examine the complainant concerning this remark indicates her ineptness. We regard trial counsel’s decision not to pursue this subject in the absence of some indication that inquiry would likely be productive as within the broad discretion accorded to counsel in selecting the subjects of cross-examination.