Newell E. Whitehead, Jr. v. City of Portsmouth FD

COURT OF APPEALS OF VIRGINIA
Present: Judges Willis, Bray and Annunziata
Argued at Norfolk, Virginia
NEWELL E. WHITEHEAD, JR.
MEMORANDUM OPINION *
v. Record No. 2975-98-1 PER CURIAM
JULY 27, 1999
CITY OF PORTSMOUTH FIRE DEPARTMENT
FROM THE VIRGINIA WORKERS’ COMPENSATION COMMISSION
James T. Martin (Lieberman & Martin, on
brief), for appellant.
William C. Walker (Donna White Kearney;
Bradford C. Jacob; Taylor & Walker, on
brief), for appellee.
Newell E. Whitehead (claimant) appeals the decision of the
Workers’ Compensation Commission (commission) denying his claim
for temporary total disability and related benefits arising from
an occupational disease. Contrary to the finding of the
commission, claimant contends that the evidence entitled him the
statutory presumption of Code § 65.2-402(C) and attendant relief.
We disagree and affirm the commission.
On review, we construe the evidence in the light most
favorable to the party prevailing below, employer in this
instance. See Crisp v. Brown’s Tysons Corner Dodge, Inc., 1 Va.
App. 503, 504, 339 S.E.2d 916, 916 (1986). Factual findings by
* Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
the commission supported by credible evidence are conclusive and
binding upon this Court on appeal. See Rose v. Red’s Hitch &
Trailer Servs., 11 Va. App. 55, 60, 396 S.E.2d 392, 395 (1990).
The pertinent facts are substantially uncontroverted.
Claimant had been employed as a firefighter for the City of
Portsmouth since 1965. On September 22, 1995, he was diagnosed
with prostate cancer, an ordinary disease of life of unknown
etiology. Claimant’s evidence, however, documented an exposure
to cadmium, a substance identified as carcinogenic by the
International Agency for Research on Cancer (IARC), as a
suspected cause of prostate cancer. Following necessary
surgical intervention on November 10, 1995, claimant returned to
work on January 6, 1996, and the parties stipulate that he was
disabled during the recuperative period. They disagree, however,
with respect to the cause and compensability of claimant’s
incapacity.
Code § 65.2-402(C), provides, in pertinent part, that
prostate cancer,
caused by a documented contact with a toxic
substance that a . . . fire fighter . . .
has encountered in the line of duty and that
causes . . . any health condition or
impairment[,] . . . shall be presumed to be
an occupational disease, suffered in the
line of duty, that is covered by this title,
unless such presumption is overcome by a
preponderance of competent evidence to the
contrary. For the purposes of this section,
a “toxic substance” is one which is a known
or suspected carcinogen, as defined by the
International Agency for Research on Cancer
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[IARC], and which causes, or is suspected to
cause, . . . prostate . . . cancer.
In denying the claim, the commission concluded that “[t]he
clear language of the section imposes a burden on the employee
to prove a causal relationship between the toxic substance[,]
exposure and the cancer,” evidence not extant in the instant
record. Thus, the commission determined that claimant “has not
satisfied the threshold burden of proof . . . required before
the presumption applies.” Claimant appeals, challenging only
the commission’s construction of Code § 65.2-402(C) to require
proof of causation.
It is well established that “[t]he province of [statutory]
construction lies wholly within the domain of ambiguity, and that
which is plain needs no interpretation.” Winston v. City of
Richmond, 196 Va. 403, 408, 83 S.E.2d 728, 731 (1954) (citation
omitted). “Words are ambiguous if they admit to ‘being understood
in more than one way[,]’ refer to ‘two or more things
simultaneously[,]’ . . . are ‘difficult to comprehend,’ ‘of
doubtful import,’ or lack ‘clearness and definiteness.’” Diggs v.
Commonwealth, 6 Va. App. 300, 301-02, 369 S.E.2d 199, 200 (1988)
(quoting Brown v. Lukhard, 229 Va. 316, 321, 330 S.E.2d 84, 87
(1985)). If “the words of [a] statute are clear and unambiguous,”
we “give them their plain meaning,” and the “general rules of
statutory construction” are unnecessary. Diggs, 6 Va. App. at
302, 369 S.E.2d at 200; see Commonwealth v. May Bros., Inc., 11
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Va. App. 115, 118, 396 S.E.2d 695, 696 (1990). The judiciary may
not “change or amend [legislative] enactments under the guise of
construing them.” Winston, 196 Va. at 407-08, 83 S.E.2d at 731.
Code § 65.2-402(C) explicitly provides that the presumption
of occupational disease applies to prostate cancer “that is
caused by a documented contact with a toxic substance.”
(Emphasis added). Thus, the commission correctly concluded that
claimant was not entitled to the statutory presumption of
occupational disease without proof that exposure to the toxic
substance cadmium “caused or contributed to cause, his prostate
cancer,” evidence clearly absent from the instant record. 1
Accordingly, the presumption does not apply to the claim,
and we affirm the decision of the commission.
Affirmed.
1
During the 1999 session, the General Assembly amended Code
§ 65.2-402(C) to remove causation as a predicate to the
occupational disease presumption. The amended statute is not
before the Court in the instant appeal.
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