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. 

 

* 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 (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 
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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