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

• Court: Court of Appeals of Virginia
• Decided: July 27, 1999
• Docket: 2975981
• Status: Unpublished

Opinion

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

- 2 - [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

- 3 - 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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