author: Peters, C. J.

text:
    State of Connecticut v. Brian D. Whiteman
    (13024)
    Peteks, C. J., Healey, Shea, Callahan and Dupont, Js.
    Argued May 1
    decision released June 16, 1987

      Marcia B. Smith, assistant state’s attorney, with whom were Maureen M. Keegan, certified legal intern, and, on the brief, John A. Connelly, state’s attorney, and Bradford J. Ward, assistant state’s attorney, for the appellant (state).

      Kimball Haines Hunt, with whom, on the brief, was William J. Wholean, for the appellee (defendant).
   Peters, C. J.

This appeal requires us to determine the interrelationship between General Statutes § 53a-69, which sets forth time limitations for the reporting of sexual assault claims, and General Statutes § 54-193 (b), the generally applicable criminal statute of limitations. The defendant, Brian D. Whiteman, was charged by information with sexual assault in the first degree, in violation of General Statutes § 53a-70. The defendant moved to dismiss the information, claiming that his prosecution was barred by § 54-193 (b). The trial court rendered judgment granting the motion to dismiss with prejudice on August 1,1986. With the trial court’s permission, the state appealed this judgment to the Appellate Court. This court subsequently transferred the appeal to itself. We affirm the judgment of the trial court.

The facts relevant to this appeal are undisputed. The sexual assault charge against the defendant was based on information provided to the Watertown police by the mother of the alleged victim. The mother told police that the defendant had sexually molested her daughter on or about February 18,1981, when the child was six years old. The mother said that the child had first told her of the incident on January 20, 1986. Relying on this information, the state determined that it would prosecute the defendant for sexual assault in the first degree. Accordingly, the state sought a warrant for the defendant’s arrest which was issued on February 28, 1986. The defendant was arrested on March 27,1986.

Because the charging documents indicated that his prosecution had not been begun until more than five years after February 18, 1981, the defendant filed a motion to dismiss the information against him. The defendant alleged, and the trial court concluded, that his prosecution was barred by the provisions of the applicable statute of limitations, § 54-193 (b), under which “[n]o person may be prosecuted . . . except within five years next after the offense has been committed.” The trial court rejected the contention of the state that § 53a-69 imposes a different time limitation for prosecution in sexual assault cases by effectively tolling the running of the § 54-193 (b) statute of limitations.

On appeal, the state reiterates its claim that the legislature’s intent in enacting § 53a-69 was to create a special rule for sexual assault cases, under which the § 54-193 (b) statute of limitations does not begin to run until the notice requirements of § 53a-69 first have been met. Section 53a-69 mandates that prosecutions for sexual assault may ordinarily not be brought “unless the alleged offense was brought to the notice of public authority within one year after its occurrence.” When, however, the alleged victim was less than sixteen years of age at the time of the assault, § 53a-69 permits prosecution within one year after a parent of the alleged victim learns of the offense. The state urges us to hold that a prosecution which comports with the one year notice provision of § 53a-69 is timely even though it does not comply with the five year time limitation of § 54-193 (b). Such a result follows, according to the state, from established principles of statutory construction, the legislative history of § 53a-69, and the public policy of protecting children. We disagree.

In defining the interrelationship between §§ 53a-69 and 54-193 (b), our goal is to “ascertain and give effect to the apparent intent of the legislature” in enacting that statute. Rhodes v. Hartford, 201 Conn. 89, 93, 513 A.2d 124 (1986); State v. Kozlowski, 199 Conn. 667, 673, 509 A.2d 20 (1986). A guiding principle of our inquiry is that criminal statutes, and in particular criminal statutes of limitation, should be strictly construed in favor of the accused. State v. Paradise, 189 Conn. 346, 352, 456 A.2d 305 (1983).

Although §§ 53a-69 and 54-193 (b) both restrict the state’s power to prosecute crimes, the two statutes serve distinct purposes. Section 54-193 (b) limits the time period within which a crime may successfully be prosecuted, regardless of when law enforcement authorities receive notice of the criminal complaint which leads to prosecution. Section 53a-69, by contrast, imposes a notice requirement on the state’s ability to prosecute claims of sexual assault, by barring criminal actions in the absence of timely notice of a complaint to law enforcement authorities. The purpose of the § 53a-69 notice requirement, as the legislative history to the statute indicates, is to guard against prosecutions based on stale claims of sexual assault, and to prevent the possibility of blackmail. 19 H.R. Proc., Pt. 6,1976 Sess., pp. 2289-91; Commission to Revise the Criminal Statutes, Penal Code Comments, Connecticut General Statutes, p. 28.

The state claims that, because § 53a-69 affords child victims of sexual assaults an extended period of time to give notice of criminal complaints, a similar period must be interpolated into the § 54-193 (b) statute of limitations to toll its operation until the victim reveals the offense to a proper party. We are unpersuaded. The legislative history of § 53a-69 reveals that that statute was intended to impose stricter restrictions on the prosecution of sexual assault claims than those imposed on other crimes. See 19 S. Proc., Pt. 3,1976 Sess., pp. 1101-38; 19 H.R. Proc., Pt. 6,1976 Sess., pp. 2289-91, 2620-23. The fact that the legislature chose to relax some of these restrictions for a limited class of alleged victims does not evince a concomitant intention to toll the commencement of the limitation period for prosecution under § 54-193 (b). There is nothing in the legislative history of § 53a-69, moreover, to suggest that the legislature had such an intention.

The state maintains that the state’s public policy of providing special protection to children requires us to construe § 53a-69 as tolling the statute of limitations in cases involving alleged sexual assaults on minor victims. In areas where the legislature has spoken, however, the primary responsibility for formulating public policy must remain with the legislature. Absent any indication of the legislature’s intention to extend the statute of limitations for cases involving alleged sexual assaults on children, we decline to do so. “ ‘It is not the function of courts to read into clearly expressed legislation provisions which do not find expression in its words . . . . ’ ” (Citations omitted.) Mozzochi v. Glastonbury, 188 Conn. 276, 279, 449 A.2d 173 (1982).

We note, moreover, that the protection of children is not the only public policy implicated in this appeal. Statutes of limitations, like § 54-193 (b), further important policy interests by “ ‘foreclos[ing] the potential for inaccuracy and unfairness that stale evidence and dull memories may occasion in an unduly delayed trial.’ (Emphasis in original.) United States v. Levine, 658 F.2d 113, 127 (3d Cir. 1981).” State v. Coleman, 202 Conn. 86, 91, 519 A.2d 1201 (1987). We have deemed these policies sufficiently significant to require the strict construction of statutes of limitations even in civil cases; see Daily v. New Britain Machine Co., 200 Conn. 562, 584, 512 A.2d 893 (1986); Vilcinskas v. Sears, Roebuck & Co., 144 Conn. 170, 174-75, 127 A.2d 814 (1956). In a criminal case, where a defendant’s liberty is at stake, the necessity for such a strict construction is even more compelling. Accordingly, we conclude that the trial court properly dismissed the information against the defendant because of the state’s failure to commence prosecution within five years of the commission of the alleged offense, as required by § 54-193 (b).

There is no error.

In this opinion the other justices concurred.

       “[General Statutes] Sec. 53a-69. time limitation foe complaint. No prosecution may be instituted or maintained under this part unless the alleged offense was brought to the notice of public authority within one year of its occurrence or, where the alleged victim was less than sixteen years old or incompetent to make complaint, within one year after a parent, guardian or other competent person specially interested in the alleged victim learns of the offense.”

       “[General Statutes (Rev. to 1981)] Sec. 54-193. limitation of prosecutions for various offenses. . . . (b) No person may be prosecuted for any offense, except a capital felony or a class A felony, for which the punishment is or may be imprisonment in excess of one year, except within five years next after the offense has been committed. No person may be prosecuted for any other offense, except a capital felony or a class A felony, except within one year next after the offense has been committed.”

       “[General Statutes (Rev. to 1981)] Sec. 53a-70. sexual assault in the FIRST degree: class B felony, (a) A person is guilty of sexual assault in the first degree when such person compels another person to engage in sexual intercourse by the use of force against such other person or a third person, or by the threat of use of force against such other person or against a third person which reasonably causes such person to fear physical injury to such person or a third person.
      “(b) Sexual assault in the first degree is a class B felony.”

       The state does not dispute the trial court’s conclusion that, for purposes of calculating the period of limitations under General Statutes § 54-193 (b), the commencement of prosecution was the issuance of the warrant for the defendant’s arrest. See State v. Crawford, 202 Conn. 443, 450-52, 521 A.2d 1034 (1987).

       Apparently, under the state’s construction of General Statutes § 53a-69, the operation of General Statutes § 54-193 (b) would also be tolled when the alleged minor victim reaches the age of sixteen. We need not consider the validity of this construction because the alleged victim in this case was eleven years old at the time she informed her mother of the alleged incident. Furthermore, our ultimate conclusion in this case is that § 53a-69 does not toll the statute of limitations in § 54-193.


source: Caselaw Access Project

author: Hull, J.

license: Public Domain

text:
    Rosalie McDonough v. Connecticut Bank and Trust Company et al.
    (12972)
    Peters, C. J., Santaniello, Hull, Higgins and F. Hennessy, Js.
    Argued March 4
    decision released June 16, 1987

      Robert E. Beach, Jr., for the appellants-appellees (defendants).

      Matthew Schafner, with whom was Frank N. Eppinger, for the appellee-appellant (plaintiff).
   Hull, J.

The plaintiff employee, Rosalie McDonough, claimed workers’ compensation benefits from her employer, the defendant Connecticut Bank and Trust Company, as a result of unusual emotional stress at work which accelerated underlying physical conditions and precipitated the onset of disabling heart disease. On December 7,1982, the workers’ compensation commission for the second district awarded her statutory compensation for total incapacity, for the period from June 19,1980, until July 15,1981, and reasonable medical expenses. The named defendant and the defendant Travelers Insurance Company, its insurer, appealed the award to the compensation review division (CRD). The plaintiff then cross appealed to the CRD.

The defendants’ principal claim on appeal to the CRD was that the ultimate conclusion that the plaintiff’s disability due to heart disease arose out of and in the course of employment was not supported by the findings when the appropriate standards of law are applied. The plaintiff’s sole claim on her cross appeal was that the commissioner erred in failing to find that her disability continued after July 15, 1981.

The CRD affirmed and adopted the findings and award of the commissioner as corrected. The CRD noted that the employer claimed that the disability was caused by factors which preexisted the June, 1980 events, that the work place stress was only a minor factor, and that no injury or occupational disease as defined by statute had been proved. The CRD declined to substitute its factual conclusions for those of the commissioner.

On their appeal from the order of the CRD, the defendants raise two issues: (1) whether the CRD applied the appropriate standard when analyzing heart disease cases for the necessary connection with employment; and (2) whether the appropriate standard was met in this case. The plaintiff, in her cross appeal, claims error in the CRD’s affirmation of the commissioner’s conclusion that her total incapacity lasted from June 18,1980, only until July 15,1981, the date of “the last examination of Dr. Pembrook.”

The defendants’ first argument is that the plaintiff’s disability was not caused by one of the three categories of injury defined in General Statutes § 31-275, which provides in subsection (8): “ ‘Personal injury’, or ‘injury’, as the same is used in this chapter, shall be construed to include, in addition to accidental injury, which may be definitely located as to the time when and the place where the accident occurred, an injury to an employee which is causally connected with his employment and is the direct result of repetitive trauma or repetitive acts incident to such employment, and occupational disease as herein defined.”

Subsection (11) of § 31-275 provides: “ ‘Occupational disease’ includes any disease peculiar to the occupation in which the employee was engaged and due to cause in excess of the ordinary hazards of Employment as such and includes any disease due to or attributable to exposure to or contact with any radioactive material by an employee in the course of his employment.”

“The act’s definition of three categories of compensable personal injury is exclusive.” Grady v. St. Mary’s Hospital, 179 Conn. 662, 668, 427 A.2d 842 (1980). Since it is undisputed that the commissioner did not find that the plaintiff’s heart disease was the result of repetitive trauma or occupational disease, the defendant’s first claim is that the plaintiff can recover only if she proved that her disability was the result of an accidental injury definitely located as to time and place.

The defendants’ second claim is lack of causation, since a compensable injury is one “arising out of and in the course of” employment. General Statutes § 31-284. As they argued before the CRD, the defendants claims that stress-related heart claims require a special test for causation.

The plaintiff frames the two issues of “accidental injury” and “causation” differently. She urges us to combine the two lines of thought into the single question of whether the CRD erred in determining, on the facts it affirmed and accepted as its own, that job-related stress was a substantial factor that proximately caused the plaintiffs cardiac disability described as myocardial ischemia, intermittent spasm, and angina pectoris. In discussing “causation,” however, the plaintiff relies on Connecticut cases analyzing the issue in terms of accidental injury.

It is clear that the twin issues of “accidental injury” and “arising out of and in the course of employment” coalesce on occasion. Their interrelationship is extensively analyzed in A. Larson, The Law of Workmen’s Compensation (1987) §§ 38.80 through 38.83. In most of the cases that Larson describes, the concepts of accident and causation are so commingled that it is impossible to segregate them. Id., § 38.82. Larson goes on to point out that in heart and related cases “the essence of the problem is causation.” Id., § 38.83 (a).

General Statutes § 31-284 makes it very clear that, for our purposes, we are dealing with one overall standard. To qualify for compensation under the Workers’ Compensation Act an employee must sustain a personal injury, arising out of and in the course of his employment. See General Statutes § 31-284 (a). Analysis of pertinent Connecticut authority reveals that our precedents bear out Larson’s view that, in heart-related cases, the essence of the problem is causation.

We start with Stier v. Derby, 119 Conn. 44, 174 A. 332 (1934). The plaintiff’s decedent, William Stier, was regularly employed at the Derby Gas and Electric Company and also was a supernumerary policeman for the city of Derby. He received a call from the Derby police informing him that a man had drowned in the Housatonic River and asking him to go there to render assistance. He rushed around to various places in great haste and excitement, obtained an inhalator, drove to the wrong location, and then to the correct one. When he reached the scene he grabbed the inhalator, suddenly lifted it out of the car and was running with it when he was told that one was already there. Twice during his hurried drive to the scene he experienced chest pain. When he returned to his car he was pale, sweating, and experiencing further chest pain. He was driven to his home, but before a doctor could be summoned he died. The commissioner found that his death was due to thrombosis or occlusion of the coronary arteries and that the excitement and unusual exertion were contributing causes of his death and constituted an accidental injury within the meaning of the compensation act. He further found that the decedent was employed only by the Derby Gas and Electric Company and that the injury arose out of and in the course of his employment. The defendant Derby Gas and Electric Company appealed to the Superior Court, which dismissed the appeal and confirmed the award. This court stated that the primary question on appeal was whether the decedent’s death was the result of a personal injury received in the course of his employment and arising out of it. We held that the statute requiring proof of an accidental injury which can be definitely located both as to time and place “does not require that the time be fixed by a stopwatch or the place by a mathematical point.” Stier v. Derby, supra, 49-50. We determined that the time and place of the injury were definitely located as the interval of time and space covered by the deceased after his receipt of the information concerning the drowning until he left the scene of the drowning to return to Derby. Id., 50-51.

In sustaining the commissioner’s finding, we held that “the coronary thrombosis or forming of the blood clot is a matter of a few minutes. Death from this source if caused by unusual excitement and over-exertion is an accidental injury within the compensation law. Richardson v. New Haven, 114 Conn. 389, 391, 158 A. 886 [1932]; Hartz s. Hartford Faience Co., 90 Conn. 539, 543, 97 A. 1020 [1916]; Monk v. Charcoal Iron Co., 264 Mich. 193, 224 N.W. 354, 355 [1929]; Schroetke v. Jackson-Church Co., 193 Mich. 616, 160 N.W. 383, [1916]. ‘Whatever predisposing physical condition may exist, if the employment is the immediate occasion of the injury, it arises out of the employment because it develops within it.’ Hartz v. Hartford Faience Co., supra, 539, 543; Madden’s Case, 222 Mass. 487, 494, 111 N.E. 379 [1916].” Id., 52.

In Jones s. Hamden, 129 Conn. 532, 29 A.2d 772 (1942), the plaintiffs decedent was a public school janitor who was cleaning snow from a sidewalk. He was engaged in snow removal work for not more than two or three minutes when he fell unconscious. He died ten days later of a hemorrhage of an aneurysm in the brain.

The commissioner denied compensation concluding that the death was “ ‘not due to any accidental injury which may be definitely located as to the time when, and the place where it occurred, nor to any unusual activity incidental to his said employment on January 27th 1941, causing extraordinary excitement and physical exertion.’ ” Id., 533. The commissioner further concluded that the death was not due to an accidental injury within the meaning of the Compensation Act, arising out of and in the course of the decedent’s employment. Id. The Superior Court dismissed the plaintiff’s appeal.

In reversing the trial court, this court stated that the “cause of death as shown by the autopsy was a hemorrhage of an aneurysm in the sub-arachnoid area of the brain. An aneurysm is an out-pouching of a blood vessel having its origin in a congenitally weak spot therein which eventually may get to a size and degree of weakness so as to rupture. It usually ruptures spontaneously although various factors such as high blood pressure, arteriosclerosis or strain may be contributory factors. Many complete ruptures are preceded by a slow leakage over a period of time. It is probable that Jones had suffered such a leakage for six months prior to his death.” Id.

In our determination that the commissioner had failed to apply the correct rule of law in denying compensation, we relied on the definition of a compensable accidental injury previously articulated in St. John v. U. Piccolo & Co., 128 Conn. 608, 611, 25 A.2d 54 (1942), that “ ‘it is generally held that an internal injury that is itself sudden, unusual and unexpected is none the less accidental, because it is incurred in the course of the employee’s ordinary work; and that an injury incurred by a workman while performing his work in the normal, ordinary way may be an “accidental injury” and compensable.’ ” Jones v. Hamden, supra, 534.

Furthermore, we held that “[i]f the employment is the immediate occasion of the injury, the previous physical condition of the employee is immaterial. Hartz v. Hartford Faience Co., [supra]; Stier v. Derby, [supra, 52].” Id., 535; see also Garofola v. Yale & Towne Mfg. Co., 131 Conn. 572, 575, 41 A.2d 451 (1945).

Although the defendants in this case do not take issue with the compensability of heart attacks or myocardial infarctions resulting from strain and exertion, they argue that this case is different because there was no evidence of a distinct physical injury such as the death of a portion of the heart muscle. They also rely on Donato v. Pantry Pride (Food Fair), 37 Conn. Sup. 836, 438 A.2d 1218 (1981), as illustrative of their position. In Donato, the plaintiff was a food store manager whose store showed a sizable cash shortage. While security investigators were still on the premises, the plaintiff collapsed. He was diagnosed as having suffered an acute myocardial infarction and cardiac arrest. The commissioner concluded that the plaintiff’s infarction and cardiac arrest were caused by unusual job-related stress and exertion. In upholding the commissioner’s finding, the court stated: “Much of the more recent litigation concerning the term ‘injury’ has involved various mental and nervous conditions ‘which, as the tangible effects of mental states on physical functions are better understood, have come to play a large part in modern concepts of disability.’ Larson, [supra, § 42.20]. With the exception of one decision to the contrary, decisions rendered in the past quarter century have uniformly awarded compensation where mental or nervous stress has caused distinct physical injury. Larson, loe. cit.; contra, Toth v. Standard Oil Co., 160 Ohio St. 1, 113 N.E.2d 81 (1953).” Id., 839. Donato relied on Stier v. Derby, supra, for the proposition that death from coronary thrombosis, if caused by unusual excitement or overexertion, is a compensable accidental injury, overlooking the later cases which established that unusual excitement or overexertion is not required for compensability.

We conclude that the defendants’ argument that there must be distinct damage to the heart before compensation may be awarded is hair-splitting. Such arcane distinctions of possible medical consequences of a stressful impact on the human cardiovascular system would necessarily introduce legalistic criteria into the field of medicine. We find a more realistic criterion to be that stated in Bertrand v. Coal Operators Casualty Co., 253 La. 1115, 1147-48, 221 So. 2d 816 (1968). In Bertrand, the plaintiff’s heart began to beat erratically and he almost blacked out and fell while he was at work. The Supreme Court of Louisiana found that the claimant became disabled as a result of that episode and that the sudden change which took place in his physical condition at that time constituted an accident.

Apart from their contention that the plaintiff did not suffer a compensable “accidental injury,” the defendants’ principal argument is that we should adopt a new standard for deciding stress-related heart claims and abandon the long-standing rule that the claimant must prove that a sudden, unusual, and unexpected employment factor was a substantial factor in causing the claimant’s condition. They propose that we adopt a rule propounded by Professor Larson in “The ‘Heart Cases’ in Workmen’s Compensation: An Analysis and Suggested Solution,” 65 Mich. L. Rev. 441 (1967). Larson proposes the balancing of employment factors versus nonemployment factors.

Relying principally on Senzamici v. Waterbury Castings Co., 115 Conn. 446, 449, 161 A. 860 (1932), the defendants claim that prior Connecticut case law lays the foundation for such a test. In Senzamici, the plaintiff’s decedent was employed in the defendant’s foundry. He contacted influenza which later resulted in pneumonia from which he died. The commissioner held that the plaintiff did not show that the decedent’s illnesses were causally connected with his employment and dismissed her claim for compensation. The Superior Court reversed the commissioner, finding such a causal connection. In reversing the trial court, this court stated: “[W]e said, in Madore v. New Departure Mfg. Co., 104 Conn. 709, 713, 718, 134 Atl. 259 [1926]: ‘The causal connection required to be established is, that the employment was the proximate cause of the injury, and this rule obtains whether the injury be the result of accident or disease. . . . Before he can make a valid award the trier must determine that there is a direct causal connection between the injury, whether it be the result of accident or disease, and the employment. The question he must answer is, was the employment a proximate cause of the disablement, or was the injured condition merely contemporaneous or coincident with the employment? If it was the latter there can be no award made. . . .’In the case of Norton v. Barton’s Bias Narrow Fabric Co., 106 Conn. 360, 364, 365, 138 Atl. 139 [1927], we said: ‘It is not sufficient that the conditions of the employment contributed to some undefined degree to bring on the disability from which the employee suffers. In the production of results many circumstances often play a part of so minor a character that the law cannot recognize them as causes. . . .’” Id., 448-49.

We do not agree with the defendants that Senzamici or the cases it cited stand in any way for a test based upon balancing nonemployment and employment factors to determine causation in a compensation case. These cases indicate that in Connecticut traditional concepts of proximate cause constitute the rule for determining such causation.

We decline to declare a new standard by judicial fiat. The defendants have advanced no persuasive reason why we should do so. We are aware of the enormous socioeconomic impact of such a change. The judicial engrafting of such a major change to our long accepted rule of causation in heart stress cases would not further either the cause of justice or the administration of the Workers’ Compensation Act. Heart stress cases differ only in degree from other compensation cases involving causation in myriad differing fact patterns. Only the factual nuances and difficulties of expert medical testimony distinguish such cases. In order to recover, the claimant must prove causation by a reasonable medical probability. Glenn v. Stop & Shop, Inc., 168 Conn. 413, 417, 362 A.2d 512 (1975); Lyons v. Fox New England Theatres, Inc., 112 Conn. 691, 692, 153 A. 778 (1931).

Most significant is the lack of legislative action to change the long standing judicially developed standard of causation in compensation cases. As this court stated in Ralston Purina Co. v. Board of Tax Review, 203 Conn. 425, 525 A.2d 91 (1987): “[W]e presume that the legislature is aware of our interpretation of a statute, and that its subsequent nonaction may be understood as a validation of that interpretation. Herald Publishing Co. v. Bill, [142 Conn. 53, 63, 111 A.2d 4 (1955)]; Forman Schools, Inc. v. Litchfield, 134 Conn. 1, 6, 54 A.2d 710 (1947); Cashman v. McTernan School, Inc., 130 Conn. 401, 408, 34 A.2d 874 (1943); Coombs v. Darling, 116 Conn. 643, 646, 166 A. 70 (1933).” We conclude that the CRD did not err in the standard of compensability which it followed.

The defendants’ second claim of error is essentially an attempt to get the CRD and this court to retry the facts. This we will not do. Adzima v. UAC/Norden Division, 177 Conn. 107, 117-18, 411 A.2d 924 (1979); Balkus v. Terry Steam Turbine Co., 167 Conn. 170, 173-74, 355 A.2d 227 (1974); Battey v. Osborne, 96 Conn. 633, 634, 115 A. 83 (1921). The defendants’ argument boils down to a claim that the commissioner should have accepted Dr. Robert Silverstein’s opinion rather than Dr. Richard Pembrook’s. The mere statement of this proposition refutes it. The commissioner’s findings adequately support the conclusion that the plaintiff suffered an accidental injury definite as to time and place, from June 16 to June 18, 1980, while at work. This injury arose out of and in the course of her employment. The evidence supported the conclusion with a reasonable medical probability that the unexpected events at work were a substantial factor in precipitating the plaintiffs disabling disease. The CRD did not err in affirming the commissioner’s findings and conclusions to this effect.

Concerning the plaintiff’s cross appeal, the plaintiff conceded at oral argument that it was probably unnecessary. We simply agree with the CRD that the commissioner properly concluded that he had an insufficient medical basis for any findings concerning future medical benefits. The commissioner did not deny any such benefits. The plaintiff is free to pursue any such claims for benefits after July 15, 1981, as she sees fit.

There is no error on the appeal or the cross appeal.

In this opinion the other justices concurred.

       The relevant portions of the award of compensation are as follows:
      “On and before June 18, 1980, the claimant was an employee of the respondent employer which had secured its obligations under the Workers’ Compensation Act by insuring its liability thereunder with the respondent insurer.
      “Claimant had been employed by the respondent employer for 21 years, the last 3 of which she spent as the supervisor of the Discount Department at the respondent’s Groton branch.
      “At the time of the hearing, claimant was 58 years old and had a family history of cardiovascular problems. . . .
      “From the testimony of the claimant and a subordinate, Stella Bergeson, it appears that problems developed in the Discount Department which culminated in the calling of a meeting by the claimant’s superior, Mr. Coulthard, on June 16, 1980.
      “There are conflicting accounts of what occurred at the meeting; however, it is clear that some form of criticism was directed at the claimant. The events of the meeting raised enough emotion in the claimant to force her to leave the meeting in tears.
      “On June 18,1980, while at work, the claimant received a memorandum detailing the events of the meeting with which she did not agree. She became upset and felt a pain in her chest.
      “This event was followed by another meeting in which she felt she was unjustly criticized and left for home.
      “When she arrived at her house, the chest pain became worse, and she went to the emergency room of the Lawrence and Memorial Hospital, New London, Connecticut, where she was admitted.
      “After an apparently normal EKG test, the claimant was discharged on June 23,1980, with a diagnosis by Dr. Richard Barry of thoracic outlet syndrome and urinary tract infection. . . .
      “The claimant did not return to work, although the employer called her on several occasions to determine her work status.
      “She continued to experience chest pains. On July 3, 1980, she sought out treatment with a cardiologist, Dr. Richard Pembrook, of New London, Connecticut.
      “Because of the number of risk factors, such as family history of heart disease, extensive cigarette smoking and obesity, Dr. Pembrook suspected that the cause of her chest pains was cardiovascular rather than musculoskeletal, as had been diagnosed by Dr. Barry. . . .
      “Dr. Pembrook then performed a vectorcardiogram, which indicated myocardial ischemia. ...
      “On July 17,1980, the doctor performed a stress electrocardiogram and became further convinced of an underlying cardiovascular disease involving not only fixed obstruction of the coronary arteries, but intermittent spasm, and that the chest pain she was experiencing was angina pectoris.
      “He then ordered a coronary arteriogram for the claimant which was performed at St. Francis Hospital in Hartford, Connecticut, which revealed that the right coronary artery was totally occluded, the left anterior descending coronary artery was 70 percent occluded, and the circumflex coronary artery was 40 percent occluded. . . .
      “Based on these diagnostic studies, Dr. Pembrook recommended that the plaintiff undergo double coronary bypass surgery. It was performed at St. Francis Hospital on April 10, 1981.
      “Following surgery, the claimant experienced some improvement in her condition; but according to Dr. Pembrook’s opinion, she was unable to work because of surgical complications when he examined her in July, 1981.
      “He was of the further opinion that the bypass surgery did not eliminate the problem of coronary spasm, which still could be triggered by physical exercise or emotional stress.
      “Dr. Pembrook was of the opinion that in persons suffering stenosing of the coronary arteries and spasm, that emotional stress raises the risk of myocardial infarction because of the additional demand placed upon the heart and its consequent need for oxygen provided by increased blood supply.
      “Dr. Pembrook was of the further opinion that the events at the claimant’s work place on the days immediately preceding June 17, 1980, were stressful to her and produced the symptoms of chest pains and angina. The stress was a factor that accelerated an underlying condition which had been asymptomatic and probably would have become acute at some time later.
      “Dr. Robert Silverstein, a cardiologist of Hartford, Connecticut, examined the claimant’s medical records, although he never personally examined her, and stated that it would have been helpful to do so in rendering his opinion about her condition and its causes.
      “Like Dr. Pembrook, he was of the opinion that stenosing or hardening of the coronary arteries occurs over a long period of time, and that the claimant had an o'cclusion of 2 of these arteries. He also agreed with Dr. Pembrook that the claimant had not suffered a myocardial infarction, but that given her risk factors, the chances were greater than ‘fifty/fifty’ that she would.
      “Of all of the conditions that create heart attacks, Dr. Silverstein placed stress at the lower end of the spectrum of contributing factors. It was his opinion that the plaintiff possessed other risk factors such as diabetes, high blood pressure, obesity, and a family history of heart disease that were far more significant in determining her condition.
      “He was of the further opinion that stress played a different role in each individual and does not necessarily have a deleterious role as far as cardiovascular problems are concerned. In the case of the claimant, he did not feel that her job played a key role in her condition, and that stress can arise from situations other than on the job. He admitted that stress can cause an increased need for oxygen, can accelerate arteriosclerosis, and can be a precipitating factor in heart attacks.
      “He was of the opinion that the claimant should be able to return to work 1 to 6 months post surgery.
      “When questioned as to the necessity for coronary bypass surgery and its affects, Dr. Pembrook stated that the claimant’s chances for prolonged life are no greater with the surgery than without. He stated that surgery might even accelerate occlusion that was already in the coronary arteries, that it is primarily for the relief of symptoms, is not curative, and is palliative. . . .”
      The following additional findings were made by the commissioner in response to the defendants’ motion to correct: “As of July 15, 1981, the claimant had never experienced a myocardial infarction. . . .
      “In the fall and winter of 1980 and 1981, virtually any kind of physical activity resulted in chest pains and discomfort. . . .
      “In the summer and fall of 1980, the claimant experienced severe chest pains when a friend died and when the claimant had a flu shot. . . .
      “The vast majority of the factors underlying the claimant’s coronary disease were personal as opposed to employment-related factors. . . .”
      Although the preceding paragraph in the record has a notation of “D” indicating it was denied, we accept the accuracy of the commissioner’s ruling on the respondent’s motion to correct dated December 2,1983, which indicates that that paragraph was granted.

       In its opinion the CRD stated: “[T]he remaining part of the respondent employer’s evidentiary argument would have us adopt a type of major factor analysis as a basis for causation. That seemed to be the concept employed by the employer’s counsel in the cross-examination of Dr. [Richard] Pembrook:
      ‘Q. And you can’t put any sort of percentage on the amount of job related stress that contributed to it, the problems, can you?’ . . .
      “But Connecticut has never adopted any major contributing factor theory. Instead we have relied on the substantial factor basis of proximate causation enunciated in Mahoney v. Beatman, 110 Conn. 184 [147 A. 762] (1929). Therefore, the fact that the claimant had pre-existent coronary atherosclerosis, as testified [to] by both Dr. Pembrook and Dr. H. Robert Silverstein, the Hartford Cardiologist testifying for respondent, does not in and of itself controvert the Commissioner’s conclusion that the proximate cause of claimant’s disability was work related. Neither does claimant’s weight, her smoking or her family history of heart disease.
      “Finally, Appellant argues, there was no one identifiable incident or unusual stress nor was there occupational disease found. We have discussed these issues recently in Zipoli v. Watertown, 215-CRD-5-83, (1/17/86), and before in Gecewicz v. Sealtest Foods Division, 77-CRD-1-81,1 Conn. Workers Comp. Rev. Op. 195 (10/25/82). Our analysis in those cases demonstrates that neither a single identifiable incident nor unusual stress or exertion is required to conform to the statutory definition of injury.
      “Claimant’s cross appeal objects because the Commissioner failed to grant any benefits after July 15,1981. That day was the date of Dr. Pembrook’s deposition. Obviously, the Commissioner concluded he had insufficient medical basis for any findings concerning subsequent future benefits. If those benefits are now claimed, they must wait on further medical evidence.
      “Both the employer’s appeal and the employee’s cross appeal are dismissed, and the Finding and Award of the Commissioner is affirmed as corrected.”

       “General Statutes § 31-284 provides in relevant part: “An employer shall not be liable to any action for damages on account of personal injury sustained by an employee arising out of and in the course of his employment or on account of death resulting from personal injury so sustained, but an employer shall secure compensation for his employees as follows, except that compensation shall not be paid when the personal injury has been caused by the wilful and serious misconduct of the injured employee or by his intoxication.”

       The Connecticut rule accords with the majority rule: “The ‘by accident’ requirement is now deemed satisfied in most jurisdictions either if the cause was of an accidental character or if the effect was the unexpected result of routine performance of the claimant’s duties. Accordingly, if the strain of claimant’s unusual exertions causes collapse from heart weakness, back weakness, hernia and the like, the injury is held accidental.” A. Larson, The Law of Workmen’s Compensation (1987) § 38.00.
      Professor Larson explains that this rule also applies generally in “heart cases”:
      “§ 38.30 CATEGORY TWO: ROUTINE EXERTION CAUSING INJURY FROM ‘generalized conditions.’ . . . A substantial . . . majority of jurisdictions accept usual exertion as leading to accidental injury in this class of cases.
      “§ 38.31 the heart cases. The ‘heart cases’ dominate this category. In the decisions they appear under such laymen’s designations as ‘heart attack,’ ‘heart failure,’ ‘heart damage,’ ‘precipitation of heart disease,’ or ‘aggravation of heart condition,’ and under such more specific or medical terms as coronary thrombosis, myocarditis, dilatation of heart, coronary sclerosis, coronary occlusion, angina pectoris, myocardial infarction, and fibrillation.
      “The positions adopted in the various jurisdictions may be placed under three headings: acceptance of the usual-exertion rule in heart cases; rejection of the usual-exertion rule; and adoption of some other test for drawing the line between compensable and noncompensable heart attacks.
      “§ 38.31 (a) jurisdictions accepting the usual-exertion rule. The preponderance of jurisdictions that now accept the usual-exertion rule in heart cases is three to one over those that reject it.
      “§ 38.31 (b) jurisdictions requiring unusual exertion. A substantial minority of jurisdictions—about a third, as just noted—require a showing of unusual exertion to relate a heart attack to the employment. The line between the two sets of holdings, however, is by no means perfectly precise. It is blurred on the side of the usual-exertion rule by cases in which courts suddenly seem to become worried about the almost limited range of heart cases they might be bringing within the Act and as a result produce an occasional restrictive decision difficult to reconcile with the main line of cases. The line is also blurred from the other side by the process of grasping at straws in some cases to find unusualness in which might look to the average man as the most commonplace effort in the course of a particular job.
      “§ 38.31 (c). jurisdictions with special rules. In the third category, that of jurisdictions using tests that cannot be described as mere acceptance or rejection of the usual-exertion rule .... [T]he present rule may be briefly summarized: A heart attack is compensable if attributable to unusual exertion under the older cases, or if attributable to an exertion placing upon the heart a strain greater than the wear and tear of ordinary life.” A. Larson, The Law of Workmens’ Compensation (1987) §§ 38.30 through 38.31 (c).
      The defendants claim that Donato v. Pantry Pride (Food Fair), 37 Conn. Sup. 836, 438 A.2d 1218 (1981), requires a “distinct” physical injury and “ensuing heart attacks” to constitute an accidental injury. They attempt to distinguish this case by claiming that there was no distinct physical injury such as the death of a portion of the heart muscle as a result of a heart attack. The defendants cite Kostamo v. Marquette Iron Mining Co., 405 Mich. 105, 274 N.W. 2d 411 (1979), as authority for the proposition that without definable injury to the heart, i.e., an infarction, there can be no recovery. A close examination of Kostamo reveals no such statement. The case is a fact-specific review of five heart stress cases reaching differing results depending on the specific factual matrix. Id., 147.
      Similarly, Landreneau v. Travelers Ins. Co., 345 So. 2d. 177 (La. App. 1977), which is cited by the defendants, made no such claim. It merely found a lack of work-related causation where the claimant’s heart attack occurred at home. Finally, Ayer v. Industrial Commission, 23 Ariz. App. 163, 531 P.2d 208 (1975), merely states that under Arizona law “[a] disabling mental condition brought about by the gradual buildup of emotional stress over a period of time, and not by an unexpected injury causing event, is not compensable unless accompanied by physical force or exertion.” Id., 166. To the contrary, the following cases allowed compensation without such a “distinct physical injury”; Hoage v. Royal Indemnity Co., 90 F.2d 387 (D.C. Cir. 1937) (compensation to an overworked claims adjuster who suffered from angina pectoris); Church v. Westchester County, 253 App. Div. 859, 1 N.Y.S. 2d 581 (1938) (coronary occlusion found compensable); and Kinney v. State Industrial Accident Commissioner, 245 Or. 543, 423 P.2d 186 (1967) (preexisting aortic stenosis compensable without additional damage to the heart).

       In the light of our conclusion as to the appropriate standard for determination of compensability, we need not decide if the events found by the commissioner to have occurred at the place of the plaintiff’s employment between certain dates in June, 1980, constituted an unusual stress or exertion connected with the plaintiffs employment.


author: Per Curiam.

text:
    State of Connecticut v. Thomas Timmons
    (12986)
    Peters, C. J., Healey, Shea, Cretella and A. Aronson, Js.
    Argued May 12
    decision released June 16, 1987

      Eugene J. Riccio, special public defender, for the appellant (defendant).

      Frederick W. Fawcett, assistant state’s attorney, with whom, on the brief, were Donald A. Browne,
      state’s attorney, and Richard F. Jacobson and Robert A. Lacobelle, assistant state’s attorneys, for the appellee (state).
   Per Curiam.

In this appeal from his conviction of manslaughter in the first degree, a violation of General Statutes § 53a-55 (a) (l), the defendant, Thomas Timmons, has raised two issues. He claims that his conviction should be set aside because (1) the trial court, Callahan, J., failed to afford him a probable cause hearing on the crime of murder with which he had originally been charged, and (2) the trial court, Stodolink, J., misinstructed the jury on the inferences that might be drawn from the defendant’s flight from the scene of the crime. These claims of error were first presented to, and rejected by, the Appellate Court; State v. Timmons, 7 Conn. App. 457, 509 A.2d 64 (1986); and have now been renewed in this court pursuant to our grant of certification. After reviewing the briefs and the record and listening to the oral argument, we conclude that the appeal should be dismissed on the ground that certification was improvidently granted. It would serve no useful purpose for us to repeat the Appellate Court’s full and carefully considered discussion of the defendant’s claims of error.

The defendant’s main contention is that, because a probable cause hearing is a constitutional and jurisdictional prerequisite to a prosecution for murder; Conn. Const., amend. XVII; General Statutes § 54-46a (a); State v. Mitchell, 200 Conn. 323, 332, 512 A.2d 140 (1986); State v. Sanabria, 192 Conn. 671, 673, 474 A.2d 760 (1984); a failure to hold such a hearing deprives the court of subject matter jurisdiction to convict him of the lesser included offense of manslaughter in the first degree. State v. Rodriguez, 180 Conn. 382, 400, 429 A.2d 919 (1980). We agree with the reasoning of the Appellate Court rejecting this contention because the state was entitled to prosecute the defendant for manslaughter on the basis of the information that it had filed prior to his arraignment.

The appeal is dismissed.

       “[General Statutes] Sec. 53a-55. manslaughter in the first degree: ‘class B felony, (a) A person is guilty of manslaughter in the first degree when: (1) With intent to cause serious physical injury to another person, he causes the death of such person or of a third person.”

       Amendment seventeen to the Connecticut constitution provides in relevant part: “No person shall be held to answer for any crime, punishable by death or life imprisonment, unless upon probable cause shown at a hearing in accordance with procedures prescribed by law, except in the armed forces, or in the militia when in actual service in time of war or public danger.”

       The Appellate Court’s conclusion finds additional support in our holding in State v. Shipman, 195 Conn. 160, 486 A.2d 1130 (1985). That case was decided at a time when the governing law interposed a constitutional requirement of a grand jury indictment as a precondition to a prosecution for murder. We held, in Shipman, that a challenge to a grand jury indictment was “academic” when a defendant, indicted for murder, was subsequently convicted of the lesser included offense of manslaughter and thereby “implicitly acquitted ... of the murder charge.” Id., 162. We can discern no jurisdictional distinction between noncompliance with the present constitutional requirement of a probable cause hearing and noncompliance with the former constitutional requirement of a grand jury indictment.


author: Arthur H. Healey, J.

text:
    Phelps Dodge Copper Products Company v. John G. Groppo, Commissioner of Revenue Services
    (13007)
    Peters, C. J., Healey, Santaniello, Callahan and Hull, Js.

      Argued March 3
    decision released June 16, 1987

      Peter H. Gruen, with whom was Gary L. McGuirk, for the appellant (plaintiff).

      Jonathon L. Ensign, assistant attorney general, with whom, on the brief, was Joseph I. Lieberman, attorney general, for the appellee (defendant).
   Arthur H. Healey, J.

This matter, which comes to us by way of reservation from the Superior Court, seeks advice on the following question: “Whether a component part of a machine must constitute a machine in and of itself or be purchased in conjunction with a machine in order to be exempt from the Connecticut sales and use tax pursuant to Section 12-412 (34) of the Connecticut General Statutes.”

On March 12,1985, the plaintiff, Phelps Dodge Copper Products Company, received a “Statement of Amount Due, Sales and Use Tax” which imposed a sales and/or use tax in the amount of $119,695.58, plus interest and penalty. The plaintiff protested the amount of the tax on the basis that its purchase of certain machinery and devices was not taxable by virtue of the exemption from tax on the sale and use of machinery used directly in a manufacturing process provided for in General Statutes § 12-412 (34). As a result of the protest, the defendant commissioner of revenue services (commissioner) reduced the assessment and issued a “Revised Statement of Tax” in the amount of $60,329.83 plus interest of $36,529.30. On September 9, 1985, the plaintiff, under protest, paid the total amount due pursuant to the “Revised Statement of Tax.”

On September 11, 1985, the plaintiff instituted an action in the Superior Court against the commissioner requesting that the assessment be reduced to zero and that the plaintiff be reimbursed for any tax and interest paid as a result of the assessment. The plaintiff and the commissioner filed a joint request to reserve the matter for consideration by the Appellate Court. On June 5,1986, the trial court, A. Aronson, J., granted that request. On August 4,1986, the parties filed a joint motion to transfer the case to the Supreme Court. On August 12,1986, the case was transferred to this court.

The parties have stipulated to the following background facts: The plaintiff is a division of Phelps Dodge Industries, Inc., a Delaware corporation authorized to do business in Connecticut. The plaintiff is engaged in the business of manufacturing continuous cast copper rod and related products at its production facility in Norwich.

Between December, 1980, and July, 1983, the plaintiff installed a new production line at its Norwich copper plant for the production of cast copper rod. In connection with the installation of the new production line, the plaintiff “purchased machines, equipment, devices, components, belts, pulleys, ducts, shafts, valves, tubing, coils, retainers, and other related devices (‘The Installed Devices’) from various sources” and incorporated the installed devices into the new production line at the Norwich plant.

After the plaintiff had installed the new production line, the commissioner audited the plaintiff’s records for the period December 1, 1980, through November 3, 1983. As a result of the audit, the commissioner issued a deficiency assessment plus interest and penalty thereon. In assessing the amount of tax due, the commissioner determined that some of the installed devices, the “disputed devices,” were not entitled to the exemption provided in § 12-412 (34). As stipulated by the parties, the commissioner made this determination because by regulation he has interpreted this exemption as applying “(i) to an item or device which, when purchased, is a ‘basic machine itself’ within the meaning of § 12-412 [34], or (ii) to ‘component parts and contrivances, such as belts, pulleys, shafts, moving parts, operating structures and all equipment or devices used or required to control, regulate or operate the machinery’ . . . only when purchased in conjunction with a ‘basic machine itself.’ . . . [U]nder [the commissioner’s] interpretation [of § 12-412 (34)], such component parts [and] contrivances . . . qualify for the exemption only if purchased from the same vendor of the ‘basic machine itself’ and at the same time as the ‘basic machine itself.’ ” The assessment was therefore based on the finding of the commissioner that the disputed devices did not constitute a “basic machine” or were not purchased from the same vendor of the “basic machine” and at the same time as the purchase of the “basic machine.”

The parties have also expressly stipulated that all the disputed devices will be used in a “manufacturing and production process” as required by § 12-412 (34) and that the disputed devices, by themselves, do not either singly or jointly constitute a “basic machine” as that term is used in § 12-412 (34). Additionally, the parties have stipulated that all of the disputed devices were purchased at the same time and all were necessary for the initial operation of the new production line. The plaintiff concedes that but for the exemption provided in § 12-412 (34), the disputed devices would be subject to tax.

I

General Statutes § 12-412 (34) exempts from the sales and use tax the sale and use of “machinery used directly in a manufacturing . . . production process.” The statute defines “machinery” as “the basic machine itself, including all of its component parts and contrivances, such as belts, pulleys, shafts, moving parts, operating structures and all equipment or devices used or required to control, regulate or operate the machinery . . . .” Section 12-426-llb (c)(1) of the regulations of Connecticut state agencies provides: “The [sales and use] tax shall apply to sales of and the storage, use or other consumption of contrivances, such as belts, pulleys, shafts and operating structures accessory to machinery, spare parts for the repair of machinery, and component parts, when purchased separately.” (Emphasis added.)

The commissioner argues that his regulatory interpretation of § 12-412 (34) is consistent with that statute and, therefore, “a component part of a machine must constitute a machine in and of itself or be purchased in conjunction with a machine in order to be exempt from the Connecticut Sales and Use Tax . . . .” The plaintiff argues that the commissioner’s regulatory interpretation of § 12-412 (34) is “invalid, unreasonable, arbitrary, contrary to law and an unconstitutional exercise of administrative powers” and that, under the statute, component parts of a machine are exempt from the Connecticut sales and use tax whether they constitute a basic machine in and of themselves or are purchased in conjunction with a basic machine. The issue before this court, therefore, is essentially the proper interpretation and application of the language of § 12-412 (34).

The plaintiff claims that items such as the disputed devices fall within the clear meaning of the term “machinery” as it is used in the exemption statute. It argues that in enacting § 12-426-llb (c) (1) of the regulations, the commissioner was not attempting to interpret § 12-412 (34) but was instead enacting new legislation. The plaintiff contends that the commissioner’s regulation is invalid and, therefore, “should not be applicable in determining the tax exempt status of the Disputed Devices since [the regulation] establishes an artificial distinction between component parts purchased from a separate vendor and component parts purchased from the same vendor on the same invoice as the basic machine.” The plaintiff argues that the distinction created by the regulation frustrates the legislative purpose of § 12-412 (34).

The commissioner in his brief sets forth three arguments which, when considered together, support his regulatory interpretation of General Statutes § 12-412 (34). First, the commissioner points out that § 12-412 (34) is an exemption from tax and as such must be strictly construed against the party claiming the exemption. Second, the regulation, which sets forth his interpretation of the statute, has received approval from the standing legislative regulation review committee and has been in effect for the past six years. Third, the commissioner’s regulatory interpretation is “fully supported by the legislative history of and circumstances surrounding the enactment of § 12-412 (34).”

It is fundamental that “ ‘[t]he power conferred [upon administrative agencies] to make regulations for carrying a statute into effect must be exercised within the powers delegated . . . and it cannot be extended to amending or adding to the requirements of the statute itself.’ ” Loglisci v. Liquor Control Commission, 123 Conn. 31, 37, 192 A. 260 (1937); Page v. Welfare Commissioner, 170 Conn. 258, 262, 365 A.2d 1118 (1976); Ingham v. Brooks, 95 Conn. 317, 329, 111 A. 209 (1920). In Fusco-Amatruda Co. v. Tax Commissioner, 168 Conn. 597, 604, 362 A.2d 847 (1975), we held that “ ‘[n]o administrative or regulatory body can modify, abridge or otherwise change the statutory provisions under which it acquires authority unless the statute specifically grants it that power.’ State ex rel. Huntington v. McNulty, 151 Conn. 447, 449, 199 A.2d 5 [1964].” It is equally fundamental, however, that “ ‘[statutes are to be construed in light of their legislative history, their language, the purpose they are to serve, and the circumstances surrounding their enactment.’ ” Kellems v. Brown, 163 Conn. 478, 502-503, 313 A.2d 53 (1972), appeal dismissed, 409 U.S. 1099, 93 S. Ct. 911, 34 L. Ed. 2d 678 (1973). We also note that the commissioner’s regulatory interpretation of the statute, which he is charged with administering, is entitled to great deference and weight. Board of Education v. Connecticut State Board of Labor Relations, 190 Conn. 235, 241, 460 A.2d 1255 (1983).

We agree with the commissioner that General Statutes § 12-412 (34) provides an exemption from taxation and that under our case law “[a] statutory provision granting an exemption from a tax is to be strictly construed against the party claiming the exemption. Hartford Hospital v. Board of Tax Review, 158 Conn. 138, 147, 256 A.2d 234 (1969).” Oxford v. Beacon Falls, 183 Conn. 345, 346, 439 A.2d 348 (1981); Schlumberger Technology Corporation v. Dubno, 202 Conn. 412, 420, 521 A.2d 569 (1987). This canon of construction, however, is not itself dispositive of the issue before us because “ ‘such strict construction neither requires nor permits the contravention of the true intent and purpose of the statute as expressed in the language used.’ Jewett City Savings Bank v. Board of Equalization, 116 Conn. 172, 185, 164 A. 643 [1933].” Hartford Hospital v. Hartford, 160 Conn. 370, 375, 279 A.2d 561 (1971). Keeping this consideration in mind, we must therefore assess the other arguments proffered by the commissioner.

The commissioner also points to the fact that the regulation has been approved by the legislative regulation review committee as required by General Statutes § 4-170. General Statutes § 4-170 provides in part that “[n]o adoption, amendment or repeal of any regulation . . . shall be effective until the original of the proposed regulation approved by the attorney general, as provided in section 4-169 . . . [has] been submitted to the standing legislative regulation review committee .... The committee ... in its discretion, may . . . approve [or] disapprove . . . any such regulation.” The fact that the commissioner’s regulation has been approved by the standing legislative regulation review committee, although not dispositive of the issue before us, is an important consideration in our determination of whether the commissioner’s regulation comports with the legislative intent behind § 12-412 (34). Texaco Refining & Marketing Co. v. Commissioner, 202 Conn. 583, 599-600, 522 A.2d 771 (1987); Connecticut Hospital Assn. v. Commission on Hospitals & Health Care, 200 Conn. 133, 144, 509 A.2d 1050 (1986). The committee’s “ratification” of the regulation shows support for the proposition that the commissioner’s regulatory interpretation of the statute “is part of the general statutory scheme” that the legislature has provided for the imposition of the sales and use tax. See Texaco Refining & Marketing Co. v. Commissioner, supra; Connecticut Hospital Assn. v. Commission on Hospitals & Health Care, supra.

The commissioner also points to the fact that his regulatory interpretation of § 12-412 (34) has existed since 1977 and that since that time, the legislature has twice amended the statute without changing the definition of “machinery.” The fact that the regulation has been in existence for a substantial period of time, although not itself determinative, is persuasive as to its validity. Sutton v. Lopes, 201 Conn. 115, 120, 513 A.2d 139 (1986); Oral Roberts University v. Oklahoma Tax Commissioner, 714 P.2d 1013, 1015-16 (Okla. 1985); see Cammarano v. United States, 358 U.S. 498, 511, 79 S. Ct. 524, 3 L. Ed. 2d 462 (1959).

The most important of the commissioner’s arguments is that his regulatory interpretation of the statute is “fully supported by the legislative history and circumstances surrounding the enactment of [§ 12-412 (34)].” Although the legislative history does not speak precisely to this point, we agree that it can be read to support the commissioner’s interpretation of the statute. That fact, considered together with his other arguments, which we have already discussed, lead us to con-elude that the commissioner’s regulatory interpretation of the statute is consistent with the language of that statute and does not contravene the legislative intent behind it.

The definition of “machinery” which is under consideration in this case was first enacted in 1959. Public Acts 1959, No. 578, § 11. It was enacted as part of an amendment to the predecessor of General Statutes § 12-412 (18) which provides a sales and use tax exemption for materials and tooling consumed in the manufacture of tangible personal property. The amendment provided an exception to this exemption and established that machinery, as defined, is subject to the sales and use tax. There is no discussion in the legislative history of No. 578, § 11, of the 1959 Public Acts as to the meaning of the term “machinery.”

In 1976, the legislature partially reduced the rate of sales tax for machinery used in a manufacturing production process. In doing so, it incorporated the aforementioned definition of “machinery.” Public Acts 1976, No. 76-114, § 1. The legislative history of No. 76-114, § 1, of the 1976 Public Acts reveals that the legislature intended the term “machinery” to include “machine parts.” On the floor of the House, Representative James J. Clynes noted, inter alia, that “machinery is defined in Section 1 as ‘machinery used in the production of manufacturing goods,' and this also includes machine parts.” 19 H.R. Proc., Pt. 5, 1976 Sess., p. 1688. In response to this legislation, the commissioner, in 1977, promulgated § 12-426-11 (A) of the regulations of Connecticut state agencies, the predecessor of § 12-426-llb. This regulation, which is in substantial accord with § 12-426-llb, provided: “Contrivances, such as belts, pulleys, shafts and operating structures accessory to such basic machine and equipment and devices used to control, regulate or operate it . . . will be subject to the 7% tax rate when purchased separately. The 2V2% tax rate is applicable only and if any of these accessory parts are purchased as a package with the basic machine. ” (Emphasis added.)

In 1977, the legislature amended No. 76-114, § 1, of the 1976 Public Acts. Public Acts 1977, No. 77-370, § 1. This amendment further reduced the sales and use tax on the sale of machinery used in manufacturing or agricultural production and reenacted the definition of “machinery,” specifically broadening the scope of that definition by including within it “numerically controlled machinery used directly in the manufacturing process.” Public Acts 1977, No. 77-370, § 1. The legislative history of that act is clear that the legislature was put on notice of the commissioner’s regulatory interpretation of the statute. The remarks of Senator Lawrence J. DeNardis demonstrate this legislative awareness: “What Senator [B. Patrick] Madden and other supporters of the amendment [to include repair and replacement parts within the definition of ‘machinery’] want to do is to eliminate an inconsistency under the present law and statute .... Because when we lowered the sales tax on manufacturing production machinery from 7 to 3 ¥2%, the statute was silent with respect to repair and replacement parts, and subsequently the State Tax Department in regulation 11A said that repair and replacement parts were taxable at higher rates, so we have an illogical situation whereby a manufacturer who desires to invest in a new machine buys his component parts separately and assembles the machine himself, but because of the Tax Department ruling that it is an administrative impossibility to distinguish between new components and repair parts, each part purchased by the manufacturer in this particular case, is taxable at 7%, so the new machine in effect, is effectively taxed at a pre-1976 rate, and so we are asking that in the interests of consistency and fairness and equity, that this amendment be adopted. ” (Emphasis added.) 20 S. Proc., Pt. 6, 1977 Sess., pp. 2244-45.

The following year, the legislature eliminated the sales and use tax on machinery used in manufacturing and agricultural production. Public Acts 1978, No. 78-71, § 4. In doing so, it again reenacted the definition of “machinery” and rejected an amendment, similar to one proposed and rejected in 1977, which would have included repair and replacement parts within the definition of “machinery” 21 S. Proc., Pt. 3,1978 Sess., pp. 1184-86; 21 H.R. Proc., Pt. 5,1978 Sess., p. 1962.

This court has recently made it clear that the legislature is presumed to be aware of the interpretation of a statute and “that its subsequent nonaction may be understood as a validation of that interpretation.” Ralston Purina Co. v. Board of Tax Review, 203 Conn. 425, 439, 525 A.2d 91 (1987); Shell Oil Co. v. Ricciuti, 147 Conn. 277, 285, 160 A.2d 257 (1960). This presumption is strengthened in this case because the legislative history of the statute demonstrates that the legislature is in fact aware of the commissioner’s regulation, but has taken no action to correct that interpretation. See 20 S. Proc., Pt. 6, 1977 Sess., pp. 2244-45, remarks of Senator Lawrence J. DeNardis. The legislature has not only taken no action, it has on two occasions affirmatively reenacted the definition of “machinery.” “[DJeference is due an Agency’s construction of a statute when [the legislature] becomes aware of and fails to correct such a construction.” 2A J. Sutherland, Statutory Construction (4th Ed. Sands) § 49.05, p. 363, and cases cited therein. We also note that the “[interpretations and application of regulations by . . . administrative agencies . . . charged with the duty of administering and enforcing a statute [although not binding,] have great weight in determining the operation of a statute.” 2A J. Sutherland, supra, p. 362. Regulations promulgated by an agency having authority to do so are presumed valid. DiFederico v. McNamara, 181 Conn. 54, 56, 434 A.2d 320 (1980).

The plaintiff argues that the legislature did not intend the term “machinery” to be defined “so narrowly as to include only the basic machine itself” and maintains that the commissioner’s regulation frustrates the legislative purpose of § 12-412 (34). We disagree.

Contrary to the plaintiffs assertion, the commissioner’s regulation does not limit the definition of “machinery” “so narrowly as to include only the basic machine itself.” (Emphasis added.) The regulation interprets the statutory definition of “machinery” conjunctively. Under the commissioner’s regulation, the term “machinery,” at a minimum, is the basic machine itself; at its maximum, however, the term “machinery” is the basic machine itself together with all its components, contrivances, and all its equipment when purchased in the same transaction. Thus, the commissioner’s interpretation looks at the “transaction” in which the item is purchased. If in that “transaction” the taxpayer purchases a basic machine plus component parts, the machine and its component parts are exempt. If in the “transaction” only component parts are purchased, the exemption does not apply because there has not been a purchase of “machinery” in that transaction, i.e., not a purchase of a basic machine. The regulation, therefore, is not as narrow as the plaintiff argues.

We disagree with the plaintiff’s argument that the regulation frustrates the policy behind § 12-412 (34). The legislative history of the statute makes it clear that one of the purposes behind the exemption is to stimulate manufacturing industries in Connecticut. While, arguably, the plaintiffs interpretation of the statute could further this goal, we do note that in 1977 and 1978, the legislature refused to expand the definition of “machinery” to include separately purchased parts, specifically, repair and replacement parts. In refusing to expand the definition, the legislature responsibly recognized the counterbalancing revenue considerations which are inherent in any exemption from tax. We, therefore, cannot accept the plaintiffs argument that a decision upholding the validity of the commissioner’s regulation would necessarily frustrate the legislative purpose of § 12-412 (34).

Taken together, the foregoing considerations lead us to the conclusion that the commissioner’s regulation is valid and not inconsistent with the statute. A component part of a machine must constitute a machine in and of itself or be purchased in conjunction with a machine in order to be exempt from the Connecticut sales and use tax pursuant to § 12-412 (34) of the General Statutes. The answer to the reserved question, therefore, is yes.

No costs will be taxed in this court to either party.

In this opinion the other justices concurred.

       General Statutes § 12-412 (34) provides: “Machinery used in manufacturing or agricultural production. Sales of and the storage, use or other consumption of machinery used directly in a manufacturing or agricultural production process. The word ‘machinery’ as used in this subsection means the basic machine itself, including all of its component parts and contrivances, such as belts, pulleys, shafts, moving parts, operating structures and all equipment or devices used or required to control, regulate or operate the machinery, but excluding office equipment or data processing equipment other than numerically controlled machinery used directly in the manufacturing process.”

       The parties have stipulated that none of the disputed devices constitutes repair or replacement parts.

       At oral argument, the plaintiff withdrew its claim that the commissioner’s interpretation amounted to an unconstitutional exercise of administrative power.

       In support of this position, the plaintiff argues that the definition of “machinery” was not intended to be viewed so narrowly as to include only the basic machine itself. It claims that the statute nowhere requires that component parts be purchased at the same time from the same vendor. Rather, the term “machinery” was intended to be used in a broad sense, i.e., “to include the entire machine with its necessary component parts at the point when it is ready for operation.”

       The predecessor of General Statutes § 12-412 (18), General Statutes (Rev. to 1977) § 12-412 (r), provided: “Production materials. Sales of and the storage or use of materials, rope, fishing nets, tools and fuel or any substitute therefor, but excluding machinery or replacement parts thereof used in production, which become an ingredient or component part of tangible personal property to be sold or which are used directly in agricultural production or in the fishing industry or in an industrial plant in the actual fabrication of the finished product to be sold. The word ‘machinery’ as used herein shall mean the basic machine itself, including all of its component parts and contrivances, such as belts, pulleys, shafts, moving parts, operating structures and all equipment or devices used or required to control, regulate or operate the machinery. For the purpose of this subsection, the raising of poultry and livestock shall be construed to be included in the term ‘agricultural production.’ Sales of and the storage or use of materials, tools and fuel or any substitute therefor, but excluding machinery or replacement parts thereof, when such products are used directly in the furnishing of power to an industrial manufacturing plant or in the furnishing of gas, water, steam or electricity when delivered to consumers through mains, lines or pipes.”
      In 1978, the legislature deleted, inter alia, the sentence which referred to the definition of “machinery.” Public Acts 1978, No. 78-71, § 3.

       The stated purpose of § 12-426-llb of the regulations of Connecticut state agencies is: “To consolidate §§ 12-426-11 and 12-426-11 (A) to eliminate any contradictory language between the two and to have the new regulation conform with changes made by Public Act 78-71, which exempted the sale of machinery from the sales tax when used directly in a manufacturing or an agricultural production process.”

       In 1978, the legislature reduced the tax on exempted machinery from 2.5 percent to zero. Public Acts 1978, No. 78-71.

       We point out that the remarks of Senator Lawrence J. DeNardis were made in support of a legislative bill to include repair and replacement parts within the exemption. Although the disputed devices in this case are not repair or replacement parts, the comments of Senator DeNardis are relevant to the issue of legislative awareness of the commissioner’s regulatory interpretation of General Statutes § 12-412 (34).

       Senator Audrey P. Beck stated: “After meeting with a large number of sectors of the business community, we began this tax reduction and today will complete the elimination of the Sales Tax on machinery and equipment. . . .
      “We do this for two reasons, Mr. President. The first is that in the judgment of the Committee, the sector of the business community having the greatest difficulties is the manufacturing sector and, therefore, by eliminating the Sales Tax on machinery and equipment, we feel that we will be stimulating the manufacturing sector to modernize, to improve, to remain efficient and competitive ....
      “We will provide relief for the business sector by way of this complete elimination of the Sales Tax on machinery and equipment . . . . It is a great pleasure to be able to completely repeal a tax . . . . ” 21 S. Proc., Pt. 3, 1978 Sess., pp. 1151-52; see also 21 S. Proc., Pt. 3, 1978 Sess., pp. 1149-60; 21 H.R. Proc., Pt. 5, 1978 Sess., pp. 1949-66.

       At oral argument before this court, the plaintiff claimed that the commissioner’s interpretation of his regulation is erroneous. We need not address this claim because it is not properly before us as it is not included in the reservation.