COURT OF APPEALS OF VIRGINIA
Present: Judges Humphreys, Petty and AtLee Argued at Lexington, Virginia

PITTSYLVANIA COUNTY BOARD OF SUPERVISORS AND NORTH RIVER INSURANCE COMPANY MEMORANDUM OPINION * BY v. Record No. 1869-17-3 JUDGE RICHARD Y. ATLEE, JR. JUNE 12, 2018 JANNA HALL

FROM THE VIRGINIA WORKERS’ COMPENSATION COMMISSION Andrew H.D. Wilson (Two River s Law Group, P.C., on brief), for appellants. Darren Shoen (Law Office of Da rren Shoen, PLLC, on brief), for appellee.
The Pittsylvania County Board of Supervisors and North River In surance Company (collectively, “employer”) a ppeal a decision of the Commission in favor of claimant Janna Hall (“Hall”). We find no error and affi rm the Commission’s decisio n. I. B ACKGROUND On appeal of Commission decisions, w e view the facts in the li ght most favorable to the party that prevailed before t he Commission, in this case Hall. Hess v. Va. State Police, 68 Va. App. 190, 194, 806 S.E.2d 413, 415 (2017). In 1978, Hall f ell down several stairs at work, injuring her right knee. She was twenty years old at the time. Hall and employer endorsed a “Memorandum of Agreement as to Payment of Compensation” in 1979 , describing the injury as

* Pursuant to Code § 17.1-413, this op inion is not designated fo r publication.UNPUBLISHED- 2 - a “[c]ontusion and hemarthros is of [the] right knee.[ 1 ]” Later that year, the Commission approved the parties’ agreement and entered an award. The fina l sentence of that 1979 award stated: “Medical benefits are awarded for as long as necessary .” 2 In 1980, rheumatologist Vincent Gi uliano examined Hall, and re viewed her medical records. He wrote that Hall ha d “a 2 year history of a chronic inflammatory arthritis[ 3 ] of both knees.” He concluded: Hall claims that she was well prio r to the fall a nd since that time she has had arthritis in 2 knees and 1 elbow, all of which appear to have been traumatized at that time. If her story is accurate, and I have no reason to think otherwise, then clearly her arthritis i s temporally related to her fall. Dr. Giuliano also wrote that “l aboratory data in November, 1979 . . . showed . . . a negative test for rheumatoid factor.” In 1985, orthopedic surgeon Paul Fitzgerald described Hall in a written report: “This is a 26 year old female with bilateral knee involvement secondary to inflammatory arthritis, most likely rheumatoid type, who underw ent a left total knee replace ment. . . . FINAL DIAGNOSIS: Rheumatoid arthritis[ 4 ] - inflammatory.” 5 In a 2006 letter to another doctor, Dr. Fitzgerald

1 One of Hall’s doctors later exp lained that this means that Hal l “bled into the knee[].”

2 This award also granted Hall ce rtain periods of disability com pensation, and later supplemental awards granted additio nal periods of disability co mpensation. Hall was no longer receiving any disability compens ation by the time the proceedin gs giving rise to this appeal occurred. This appeal con cerns only medical benefits.

3 “Arthritis” is “inflammation of joints.” Dorland’s Illustrate d Medical Dictionary 151 (29th ed. 2000).

4 “Rheumatoid arthritis” is a sp ecific type of arthritis, “a chr onic systemic disease primarily of the joints” whose “cause is unknown,” though “auto immune mechanisms and virus infection have been postulated.” Id.

5 Dr. Fitzgerald confirmed that Ha ll’s rheumatoid arthritis was due to the knee injury that occurred when she fell at wor k. “Attending Physician’s Report” (Jan. 20, 1984). Although this report is not included in the appendix, it is part of the recor d transmitted to this Court. Per Rule- 3 - described Hall as “a longtime patient of mine with rheumatoid a rthritis and multiple joint replacements.” Between 1979 and approximately 2010, r heumatologist Jeffrey Wi lson treated Hall. In 1998, Dr. Wilson wrote of Hall: “Th e patient certainly remains completely disabled from her chronic long standing infl ammatory spondyloarthropathy.[ 6 ]” In 2008, Dr. Wilson opined that Hall “continued to have active infl ammatory arthritis resulting from her fall as before.” In a 2010 letter to employer, Dr. Wils on wrote that “Hall has been f ollowed in our office for over 30 years with problems of i nflammatory polyarthritis[ 7 ] which has been grossly deforming, requiring multiple joint replacements, and followed a traumatic injury and fall.” During the time Dr. Wilson treated Hall, he pres cribed various medications to t reat her arthritis, and to alleviate the associated pain. Hall also underwent several surgeries in connection with her joints, including knee and hip replacements. Around 2010, Dr. Wilson r etired. Hall’s longtime primary care doctor, Michael Will, took over the management of the medi cation previously prescribed by Dr. Wilson. At his deposition, Dr. Will stated that Hall had “been termed to have post-traumatic arthritis in multiple joints since” her work injury occurred. As a result of her accident, Dr. Will stated, Hall has experienced “ch ronic pain, particularly about her neck and about her lumbar spine,” as well as “in her hips and knees, hands and feet and a nkles.” When presented with a report from one of the rheumat ologists hired by employer (who b elieved that Hall actually suffered from rheumatoid arthrit is unrelated to th e work injury ), Dr. Wilson stated:

5A:25(h), we may consider documen ts included in the record but left out of the appendix. See Cabral v. Cabral, 62 Va. App. 600, 604 n.1, 751 S.E.2d 4, 7 n.1 (2013).

6 “Spondyloarthropathy” is “disease of the joints of the spine.” Dorland’s, supra, at 1684.

7 “Polyarthritis” is “an inflamm ation of several joints together .” Id. at 1428.- 4 - Rheumatoid arthritis, you know, can be diagnosed at times by particular markers. To my know ledge, she didn’t have those. Y ou know, Dr. Wilson was the one that treated her, but he termed he r a post-traumatic arthritis. His impression, it was my understand ing from reading his records, was t hat he thought it did occur as a result of her injury, the accident. He continued, stating “to the best of my knowledge, her arthrit is problems started after she had the fall.” In March 2016, Hall received a l etter from employer notifying h er that, “[b]ased upon medical peer review, please be adv ised that effective 04/15/201 6 medications being prescribed by Dr. Will will no longer be covere d under the workers[’] comp ensation claim of 09/05/1978.” In June 2016, Hall wrote to the Commission, enclosing employer’ s letter. Hall asked the Commission for “help in resolvi ng this matter.” The Commission treated Hall’s letter as a claim for medical benefits, and event ually a deputy commissioner hear d the matter. 8 By letter to the deputy co mmissioner dated November 17, 2016, e mployer “move[d] the Commission to appoint a disint erested and duly qualified physic ian or surgeon to make a medical examination and to testify in respe ct thereto, pursuant to Va. Code § 65.2-606.” The deputy commissioner denied this mo tion, with this explanation: I will also indicate why I’m denying the motion to request for disinterested position [sic], even though the Act allows us to do it. I don’t think it’s proper for the [C]ommission [to] order a physician. I think that is almost a form of micromanagement by

8 Initially, the Commission treate d Hall’s letter as a change in condition claim. See Letter from the Commission, styled a “No tice of Referral to Alternativ e Dispute” [sic] (June 6, 2016) (“On June 3, 2016, the Injured Worke r filed the attached change in condition claim with regard to this injury.”). But the opinions of the deputy commissioner and full Commission make clear that the letter was ultimately ha ndled as a claim for medical b enefits. See Deputy Commissioner’s Opinion (Apr . 11, 2017) (explaining that the mat ter was “before the Commission upon the claimant’s claims . . . in regard to a righ t knee injury” and that claimant “sought payment of prescriptions”) ; Full Commission’s Opinion ( Oct. 23, 2017) (explaining that “[t]he claimant filed claims . . . request[ing] payment of pres criptions”). Employer does not dispute the posture of this case , or that Hall’s letter constit uted a claim for medical benefits. See Brief of employer at 1 (observi ng that “Hall filed claims seeki ng ongoing medical benefits, including the payment of prescriptions”).- 5 - the [C]ommission and I’m not f ond of doing that. I certainly t hink that is something the parties should work out between themselve s. They can obviously do independe nt medical examinations. Employer filed an interlocutory a ppeal of this denial to the fu ll Commission. The full Commission found “no basis for inte rlocutory review of the deni al of [employer’s] motion” and thus “decline[d] interlocutory r eview” and “returned [the matte r] to the Deputy Commissioner’s hearing docket.” At the hearing in front of the de puty commissioner, employer of fered the written opinions of three rheumatologists. All three doctors ha d conducted reco rd reviews on behalf of employer; none had ever examined or treated Hall. Dr. Blank opined that “the claimant did not have ‘traumatic polyarthritis’ but r ather had an inflammatory autoim mune polyarthritis unrelated to the work comp injury from the beginning.” Dr. Bello concluded that “the claimant has rheumatoid arthritis. . . . Thi s is not related to the 9/5/78 injury.” Thus, he wrote, “[n]one of the claimant’s medications are causa lly related to th e original wor kers’ compensation injury.” Finally, Dr. Patel stated: In my opinion, the bilateral knee surgeries and continued knee issues are not related to the work compensation injury that was sustained in September of 1978. I do not believe that there is any direct permanent or long-term damage from the worker’s compensation injury. The Rheumatoid Arthritis or Spondyloarthropathy are unrelated t o the patient’s fall in 1978

. Dr. Patel acknowledged that Hall “did not have blood tests thatwould indicate rheumatoid arthritis” but pointed out that “ there are 15-20% of patient[s] with rheumatoid arthritis who do not have positive lab markers.” After hearing the evidence, the deputy commissioner entered a medical award in Hall’s favor, and ruled that “medical be nefits are continued for as lo ng as necessary for reasonable, necessary and authorized treatme nt causally related to the clai mant’s September 05, 1978 injury and in particular, for payment of Celebrex, OxyContin, Pepcid a nd Vitamin D prescriptions.”- 6 - The deputy commissioner denied e mployer’s renewed motion for a medical examination pursuant to Code § 65.2-606. Employer appealed these rulings t o the full Commission, which affirmed the deputy commissioner . Employer then noted its appe al to this Court.
II. ANALYSIS Employer assigns the following errors:
1. The Commission was plainly wr ong and erred in making its findings without supporting credi ble evidence and erred in fundamentally misconceiving the significance of the evidence when it found that [Hall]’s medications were prescribed for injuries causal ly related to the accident and awarded [Hall]’s claim for continuing prescription medication benefits.
2. The Commission erred in rel ying on and misinterpreting the opinions and/or medical evidence of Drs. Will and Wilson and a November 4, 1980 letter from Dr. Guliano [sic], failing to consider and weigh the opinion of Dr. Fitzgerald, and discounti ng the opinions of Drs. Blank, Bello, and Patel in making its findings that [Hall]’s medications were prescribed for injuries causally related to the workplace accident and awarding continuing prescription medication benefits.
3. The Commission erred in denying [ employer]’s request for appointment of a disinteres ted physician for a medical examination under Virginia Code § 65.2-606. We address the first two assignm ents of error together in Part II.A. and the third assignment of error in Part II.B. A. Award Employer asserts that the Com mission erred “when it found that [Hall]’s medications were prescribed for injuries causally related to the accident a nd awarded [Hall]’s claim for continuing prescription medicati on benefits.” In making this e rror, employer argues, the Commission “misinterpret[ed] the opinions and/or medical eviden ce of Drs. Will and Wilson and- 7 - a November 4, 1980 letter from Dr . Guliano [sic], fail[ed] to c onsider and weigh the opinion of Dr. Fitzgerald, and discount[ed] the opinions of Drs. Blank, Be llo, and Patel.” “[T]he claimant has the burden t o prove that the medical attent ion, for which payment is claimed . . . , was causally related to the industrial accid ent.” Watkins v . Halco Eng’g, Inc., 225 Va. 97, 101, 300 S.E.2d 761, 763 (1983). And “[t]he consid eration and weight to be given to the evidence, including medi cal evidence, are within the sou nd discretion of the [C]ommission.” Pro-Footbal l Inc. v. Paul, 39 Va. App. 1, 10-11 , 569 S.E.2d 66, 71 (2002). Code § 65.2-603(A)(1) states, in pa rt, that “[a]s long as neces sary after an accident, the employer shall furnish or cause t o be furnished, free of charge to the injured employee, a physician chosen by the injured emp loyee from a panel of at lea st three physicians selected by the employer and such other nece ssary medical attention.” That code section “should be construed liberally in favor of the claimant, in harmony with t he [Virginia Workers’ Compensation] Act’s humane purpose.” Papco Oil Co. v. Farr, 26 Va. App. 66, 74, 492 S.E.2d 858, 861-62 (1997). The ultimate question of “[w]hethe r disputed medical treatment is compensable as ‘other necessary medical attention’ w ithin the definition of Code § 65 .2-603 presents a mixed question of law and fact, which this Court reviews de novo .” Haftsavar v. All Am. Carpet & Rugs, Inc., 59 Va. App. 593, 599, 721 S.E.2d 804, 807 (2012). But “[q]uest ions raised by conflicting medical opinions must be decide d by the [C]ommission.” Penley v. Island Creek Coal Co., 8 Va. App. 310, 318, 381 S.E.2d 231, 236 (1989). When the Commis sion weighs conflicting medical evidence and from that e vidence determines the cause of an injury, that determination is a finding of fact to which we de fer. See Estep v. Blackwood Fu el Co., 185 Va. 695, 699, 40 S.E.2d 181, 183 (1946).- 8 - “Though not necessarily conclusive, ‘ the opinion of the treatin g physician is entitled to great weight.’” Berglund Chevr olet, Inc. v. Landrum, 43 Va. Ap p. 742, 753 n.4, 601 S.E.2d 693, 698 n.4 (2004) (quoting H.J. Holz & Son, Inc. v. Dumas-Thayer, 37 Va. App. 645, 655, 561 S.E.2d 6, 11 (2002)). That weight has its limits, and “when it appears . . . that the diagnosis is shaded by doubt, and there is me dical expert opinion contrar y to the opinion of the attending physician, then the trier of the f act is left free to adopt tha t view which is most consistent with reason and justice.” Bristol Builders Supply Co. v. McReynolds , 157 Va. 468, 471, 162 S.E. 8, 9 (1932). Dr. Wilson, a rheumatologist, treat ed Hall for over thirty year s. He concluded that her arthritis was a result of t he accident she suffered in 1978. D r. Will, who took over Hall’s treatment following Dr. Wilson’s retirement, concurred in, and deferred to, Dr. Wilson’s diagnosis. Dr. Giuliano, also a r heumatologist, wrote in 1980 (after examining Hall and her medical records) that “her arth ritis is temporally related to h er fall” and noted Hall’s “negative test for rheumatoid factor.” B y contrast, Hall’s orthopedic su rgeon Paul Fitzgerald wrote in 1985 that his diagnosis was: “Rheuma toid arthritis – inflammatory,” although Dr. Fitzgerald did note that Hall’s rheumatoid arthritis was the result of her workplac e injury. See supra note 5. All three rheumatologists (Dr. Bla nk, Dr. Bello, and Dr. Patel) who performed recent reviews of Hall’s medical records on behalf of employer (but did not treat or examine her) concluded that Hall’s arthritis was unrelated to her 1978 work accident. The Commission weighed the opini ons of seven different doctors, and decided that the medical treatment was compensable. Employer asserts that “the Commission fundamentally misconceive[d] the significance of the evidence.” This is simp ly another way of complaining about how the Commission weighed the conflicting evidence. The Commission was- 9 - unconvinced by the evidence presented by employer. 9 “It is not our function, but the Commission’s, to weigh conflicti ng evidence, and when there is credible eviden ce to support the Commission’s findings, we are bound thereby.” Chandler v. Schm idt Baking Co., 228 Va. 265, 268, 321 S.E.2d 296, 298 (1984). Applying the law, specificall y Code § 65.2-603, to the facts found by the Commission, we decline to disturb the Commission’s decision. Reviewing de novo “[w]hether [the] disputed medical treatment [wa]s compensable a s ‘other necessary medical attention’ within the defin ition of Code § 65.2-603,” Haftsavar , 59 Va. App. at 599, 721 S.E.2d at 807, we find that it was. B. Medical Examination Employer also argues that “ [t]he Commission erred in denying [ employer]’s request for appointment of a disinterested phys ician for a medical examinat ion under Virginia Code § 65.2-606.” We review questions of statutory construction de novo , Woolford v. Va. Dep’t of Tax’n, 294 Va. 377, 386, 806 S.E.2d 398, 402 (2017), and “our ‘ primary objective,’ as always, is ‘to ascertain and give e ffect to legislative intent’ from the w ords of the statute,” Turner v. Commonwealth, 295 Va. 104, 108, 809 S.E.2d 679, 681 (2018) (quo ting Lawlor v. Commonwealth, 285 Va. 187, 236, 738 S.E.2d 847, 875 (2013)). W e must “give those words ‘their ordinary meaning, unless it i s apparent that the legisla tive intent is otherwise.’” Id. (quoting Phelps v. Commonwealth, 275 Va. 139, 142, 654 S.E.2d 9 26, 927 (2008) (citations omitted)). More generally, when i nterpreting a statute, “the ‘ plain, obvious, and rational meaning of a statute is to be preferred over any curious, narro w, or strained construction.’” Id. at

9 Dr. Patel conceded “that the patient did not have blood tests that would indicate rheumatoid arthritis,” but point ed out that “there are 15-20% o f patient[s] with rheumatoid arthritis who do not have positive lab markers.” Acknowledging this fact, the deputy commissioner stated: “[T]hat s till leaves an 80-85% chance tha t the claimant did not have positive lab markers because she does not have rheumatoid arthritis .” (Emphasis added).- 10 - 109, 809 S.E.2d at 681 (quoting Mee ks v. Commonwealth, 274 Va. 798, 802, 651 S.E.2d 637, 639 (2007)). Code § 65.2-606 states, in relevant part: “The Commission or a ny member thereof may, upon the application of either party or upon its own motion, ap point a disinte rested and duly qualified physician or surgeon to make any necessary medical ex amination and to testify in respect thereto . . . .” By implication, employer argues that although the statute says the Commission may appoint a disinterested physic ian to conduct an examination, i n situations like employer’s, the Commission must do so. We cannot countenance th at interpretation of the

statute. “Unless it is manifest that the purpose of the legislature was to use the word ‘may’ in the sense of ‘shall’ or ‘must,’ t hen ‘may’ should be given its ordi nary meaning—permission, importing discretion.” Masters v. Hart, 189 Va. 969, 979, 55 S .E.2d 205, 210 (1949); see also Sauder v. Ferguson, 289 Va. 449, 457, 771 S.E.2d 664, 668-69 (2 015) (“We will apply the ordinary meaning of the word ‘may’ in construing a statute unle ss a contrary legislative intention plainly appears.”); Webster’s Thir d New International Dictionar y 1396 (2002) (defining “may” as “have permission to”); may, Bl ack’s Law Dictionary (10th ed. 2014) (defining “may” as “be permitted to”). But see Chesapeake & Ohio Ry. Co. v. Pulliam, 185 Va. 908, 916, 41 S.E.2d 54, 58 (1947) (observing that alt hough “[t]he word ‘may’ is prima facie permissive, importing discretion, . . . courts construe it to be mandatory when it is necessary to accomplish the manifest purpose of the Legislature”). We see no indication that the legi slature intended the word “ma y” contained in Code § 65.2-606 to be interpreted as “sha ll” or “must”; therefore, w e give the word “may” its ordinary meaning. Ordinarily, “may” is a permissive word. It follows t hat if the Commission is permitted- 11 - to take certain action, the Commission is also permitted not to do so. 10 See also Gale v. Zaban’s Mattress & Box Spr ing Co., 191 Va. 610, 615, 62 S.E.2d 19, 21 ( 1950) (observing that it was appropriate to “leav[e] the appoi ntment of this physician, for the purpose of the examination, to the discretion of the hearing commi ssioner, as is contemplated by the statute”) (interpreting Code § 65-87, a forerunner of Code § 65.2-606). 11 The Commission exercised its legislatively-bestowed discre tion not to appoint a disintereste d physician. We find no error in that decision.
III. C ONCLUSION We find no error in the Commission’ s decision to award Hall med ical benefits. Further, the Commission did not err when it declined to ap point a disint erested physician pursuant to Code § 65.2-606. Affirmed.

10 In its brief, employer also ar gues that the failure to appoint a disinterested physician pursuant to Code § 65.2-606 was error in light of one of the de puty commissioner’s comments explaining her denial of empl oyer’s motion. The deputy commiss ioner stated that one of the reasons she felt it unnecessary t o appoint a disinterested phys ician was because the parties “can also obviously do independent medical examinations.” Employer argues in its brief that “Code § 65.2-607, section A., provides for an employer’s medical exam ination ‘so long as [the claimant] claims compensation.’ Here, Hall is not claiming com pensation. Only medical benefits are at issue per Hall’s claim for benefits, so [Code] § 65.2-607 precludes” the examination to which the deputy c ommissioner referred. (Brief of employer at 25) (first alteration in original). Because we decide that the word “may” in Code § 65.2-606 permits the Commission to decline to appoint a disinterested physician, we need not address the availability of an examination pursuant to Code § 65.2-607.

11 Dr. Patel, one of the rheumatol ogists employer hired, was conf ident enough in his diagnosis of Hall that he concl uded, near the end of his letter : “An examination is not needed because the review of records is substantial enough to diagnose this patient.”