COURT OF APPEALS OF VIRGINIA

Present: Judg es Willis, Bray and Annunziata Argued at Norf olk, Virginia

NEWELL E. WH ITEHEAD, JR. MEMORANDUM OPINION * v. Record No. 29 75-98-1 PER CURIAM JULY 27, 1999 CITY OF PORTSMOUTH FIRE DEPARTMENT

FROM THE VIRGINIA WORKERS’ COMPENSATION COMMISSION James T. Martin (L ieberman & Martin, on brief), for appellant. William C. Walker (Donna White Kearney; Bradford C. Ja cob; Taylor & Walker, on brief), for appellee.

* Pursuant to Code § 17.1-413, recodifying Code § 17-116.010, this opinion is not designated for publication. Newell E. Whitehead (claimant) appeals the decision of the Workers’ Compensation Commission (commissio n) denying his claim for temporary tota l disability and related benefits arising from an occupational disease. Co ntrary to the finding of the commission, cl aimant contends that the evidence enti tled him the statutory pres umption of Code § 65.2-402(C) and at tendant relief. We disagree and affi rm the commission. On review, we construe the evidence in th e light most favorable to the part y 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). Factua l findings bythe commission supporte d by credible evidence are conclusive and binding upon this Court on appeal. See Rose v. Re d’s Hitch & Trailer Servs. , 11 Va. App. 55, 60, 396 S.E.2d 392, 395 (1990). The pertinent fact s are substant ially uncont roverted. Claimant had been em ployed as a fi refighter for the City of Portsmouth since 1965. On Sept ember 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 stipulat e that he was disabled during the re cuperative period. Th ey disagree , however, with respect to the cause and comp ensability of claimant’s incapacity. Code § 65.2-402(C), provid es, in pertinen t 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 establis hed that “[t]he prov ince of [s tatutory] construction lies wholly within th e domain of ambi guity, and that which is plain needs no interpreta tion.” Winston v. City of Richmond , 196 Va. 403, 408, 83 S.E.2d 728, 73 1 (1954) (citation omitted). “Words are am biguous if they admit to ‘bei ng understood in more than one wa y[,]’ refer to ‘two or more things simultaneously[,]’ . . . are ‘d ifficult to co mprehend,’ ‘of doubtful import,’ or lack ‘c learness and de finiteness.’” 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 wo rds of [a] statute are clear and un ambiguous,” we “give them their plain meaning,” and the “gener al rules of statutory constr uction” are un necessary. Diggs , 6 Va. App. at 302, 369 S.E.2d at 200; see Commonwealth v. May Bros., Inc. , 11

- 3 -Va. App. 115, 118, 39 6 S.E.2d 695, 696 (199 0). The ju diciary may not “change or amend [l egislative] enac tments 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. - 4 -