CHARLES E. RIPPLINGER, Employee/Appellant, v. SEARS IMPORTED AUTO, INC., and STATE FUND MUT. INS. CO., Employer-Insurer, and ASSOC., ANESTHESIOLOGISTS/ PHOENIX, ABBOTT NORTHWESTERN HOSP., SPORTS & ORTHOPAEDIC SPECS., METROPOLITAN HAND SURGERY, UNITED HOSP., and BLUE CROSS/BLUE SHIELD OF MINN., Intervenors.
WORKERS= COMPENSATION COURT OF APPEALS
FEBRUARY 7, 2007
CAUSATION - SUBSTANTIAL EVIDENCE. Substantial evidence, including witness testimony, medical records and expert medical opinion, supports the compensation judge=s finding that the employee did not sustain a left shoulder injury as a result of his work with the employer.
Affirmed as modified.
Determined by: Rykken, J., Johnson, C.J., and Stofferahn, J.
Compensation Judge: Bradley J. Behr
Attorneys: James T. Hansing, Minneapolis, MN, for the Appellant. Steven T. Scharfenberg, Lynn, Scharfenberg & Associates, Minneapolis, MN, for the Respondents.
The employee appeals the compensation judge=s findings that the employee did not sustain a left shoulder injury as a result of his work with the employer. We affirm.
The dispute to be addressed on appeal relates to a left shoulder injury that Charles Ripplinger, the employee, claims to have sustained in 2004 while employed by Sears Imported Auto. The employee claims that he injured his left shoulder as a result of the physical activity required by his job, including driving, removing snow from vehicles and lifting and storing vehicle tires. In part, the employee claims that his injury resulted from heavy snow removal work on February 2, 2004, and that his other physical activities resulted in gradual worsening of his left shoulder condition.
The employee earlier sustained admitted bilateral shoulder injuries in July 2001 while working at Pan-O-Gold Baking Company, and was diagnosed with bilateral rotator cuff tendinitis. On December 18, 2001, the employee underwent left rotator decompression, anterior acromioplasty and resection of the distal clavicle by orthopedic surgeon Dr. Tilok Ghose. On May 28, 2002, the employee underwent a similar surgery to his right shoulder, in the nature of a right anterior acromioplasty and distal clavicle excision, again performed by Dr. Ghose. The employee received physical therapy post-surgery, and, by September 5, 2002, Dr. Ghose determined that the employee had reached maximum medical improvement (MMI) and assigned permanent work restrictions as follows: no lifting over 40 pounds from ground level to waist height; no lifting more than 30 pounds from waist to shoulder height; and no over-the-shoulder lifting or repetitive motion. According to Dr. Ghose=s chart note of September 5, 2002, he released the employee to return to work but the employee did not return to work for Pan-O-Gold as the only available job was a position working in one of the employer=s thrift stores on a part-time basis.
In October 2002, the employee entered into a full, final and complete mediated settlement agreement with Pan-O-Gold and its insurer, Kemper Insurance Company, relative to his left and right shoulder injuries, settling all claims related to those injuries except for future medical expenses related to his bilateral shoulder injuries. In early 2003, the employee worked for about two months at Minnesota Malted Waffles as a delivery and repair person but stopped after developing symptoms in his hands and wrists.
In March 2003, the employee began working as a driver at Sears Imported Auto. Most of his work day was spent driving, including picking up customers and driving them to work or back to their residences while their vehicles were being serviced. Occasionally he washed cars or brushed snow off vehicles in the lot. On a seasonal basis, he also picked up and delivered snow tires to and from customers= homes.
On December 29, 2003, the employee sought treatment with Dr. Ghose for right shoulder pain aggravated by driving and lifting his right arm. The next medical treatment documented in the employee=s medical records was on February 23, 2004, when the employee sought medical treatment from Dr. David Berman, also at Aspen Clinic, for neck pain that he had experienced during the past week. The employee did not report any specific injury at that examination nor did he refer to any shoulder symptoms.
At the hearing later held on this matter, the employee testified that on February 2, 2004, while working for Sears Imported Auto, he removed snow from 20 to 25 vehicles using a large squeegee. He testified that there had been a large snowfall the day before, that the snow continued on February 2, and that he spent between 12 and 2 hours removing snow. The employee testified that because he is left-hand dominant, he used his left arm more forcefully. He began experiencing pain in his shoulders, worse on his left side than right, and ceased his snow removal due to his increasing symptoms. The employee did not miss any time from work at that time as a result of his shoulder complaints. He began taking pain medication, Vicodin and Naproxen, left over from his earlier shoulder surgeries, but did not report a specific injury to his employer at that time.
On March 22, 2004, the employee sought treatment with Dr. Ghose for left shoulder pain, reporting symptoms during the past three weeks, although he did not provide any history of an injury or accident. In his chart note, Dr. Ghose stated that the employee Areports significant symptoms of pain and discomfort in his left shoulder with activities of abduction and forward flexion. He states that the symptoms have been especially acute for the past three weeks. He states significant symptoms of pain with repetitive overhead motion of his left shoulder.@ Dr. Ghose assessed recurrent impingement syndrome in the left shoulder and recommended an MRI. The March 26, 2004, MRI scan was interpreted as showing an extensive partial thickness articular surface tear that was a new finding since an MRI scan taken in July 2001. According to Dr. Ghose=s chart note from a follow-up visit on March 31, 2004, the employee reported that he had pain in his shoulder that he attributed to his driving, since he had to turn his vehicle numerous times and the rotational motion caused him significant pain and discomfort in both shoulders. Dr. Ghose concluded that the employee=s current activity was a significant contributing factor because the MRI scan showed Aa new anatomic finding.@
On April 1, 2004, the employee completed a First Report of Injury, referring to an injury date of December 28, 2003, and stating that his condition developed over time and that he had developed soreness in his shoulders and right elbow area over several months; he identified various areas and conditions, including tendonitis, rotator cuff, right elbow, left shoulder and right shoulder. In response to the inquiry on the First Report form concerning what tools and equipment were involved in his injury, the employee listed autos, auto wash equipment, tires and a squeegee; the employee explained in his hearing testimony that he used a large squeegee to remove snow from vehicles while working for Sears Imported Auto.
On April 9, 2004, the employee returned to Dr. Ghose, reporting symptoms in both shoulders and his left elbow. Dr. Ghose advised the employee that he recommended nonoperative treatment for the right shoulder, including physical therapy, and that he appeared to have a partial thickness tear in his left shoulder which could be treated by either rehabilitation or surgery. Dr. Ghose also diagnosed medial epicondylitis in the right elbow, and recommended an elbow brace. The employee evidently requested a second medical opinion; Dr. Ghose referred him to Dr. Daniel Buss to address his shoulder symptoms.
On April 29, 2004, the employee underwent an initial consultation with Dr. Buss=s nurse, Noelle Maze, R.N., M.A., C.A.N.P. She assessed the following:
1. Bilateral shoulder pain and status post bilateral subacromial decompressions.
2. Left shoulder recurrent impingement with partial rotator cuff tear.
3. Recurrent right shoulder impingement syndrome.
Ms. Maze prescribed a formal physical therapy program to provide conditioning of his rotator cuff, and advised the employee to follow-up with Dr. Buss at his scheduled May 2004 appointment. In conjunction with her examination, she reviewed the scans of the employee=s right and left shoulders performed on March 22 and April 4, 2004, and reviewed reports from Aspen Clinic assessing those scans and earlier radiographic studies. The employee was reexamined at Dr. Buss=s office on May 12, 2004, at which time the films from his 2001 MRI scans were reviewed. Dr. Buss recommended against surgical intervention to the left shoulder at that point, and instead recommended physical therapy and continued adherence to his permanent work restrictions. Dr. Buss assessed an interosseous lesion at the base of the glenoid, with signs of continuing impingement, and stated that if a record review showed an enlargement of that lesion, he then would refer the employee to a physician at the University of Minnesota for additional evaluation. There is no record that Dr. Buss referred the employee for another evaluation.
On June 1, 2004, the employee faxed a note to Ms. Maze at Dr. Buss=s office, requesting that she correct the history outlined in her chart note of April 29, 2004. In his note, the employee explained that he had no left shoulder symptoms when he consulted Dr. Ghose on December 29, 2005, but that after he pushed snow off cars at Sears on February 2, 2004, he had to stop that work because of pain in his shoulders, especially in his left shoulder. He also explained that he experienced severe pain in both shoulders and his neck for several weeks thereafter. In a chart note Ms. Maze prepared on July 29, 2004, she referred to the information outlined in the employee=s addendum and stated that the employee had experienced an exacerbation of his left shoulder symptoms, and that this incident did not represent a new injury but instead was a Acontinuation of [the employee=s] previous and chronic shoulder symptoms,@ and Aan aggravation of his underlying chronic complex rotator cuff problems.@
The employee returned to Dr. Ghose on June 23, 2004, reporting ongoing pain and discomfort in both shoulders. Dr. Ghose noted that the employee had chronic tendinitis in his left shoulder from his previous injury. He concluded that A[t]here is no new injury noted and really the only thing to do is to do physical therapy and strengthening.@ Dr. Ghose later indicated that the employee=s work activities were a significant contributing factor to the employee=s left shoulder condition, but deferred to Dr. Buss=s opinion as to whether the employee had sustained a new work-related injury. At Dr. Ghose=s recommendation, the employee underwent eight sessions of physical therapy in July 2004, to treat symptoms in both shoulders.
On July 23, 2004, the employee filed a claim petition against Pan-O-Gold, alleging bilateral carpal tunnel, hand and shoulder injuries on August 20, 2001, seeking payment for temporary total disability benefits commencing August 21, 2001. On September 24, 2004, the employee was evaluated by Dr. David Falconer at the request of Pan-O-Gold and its insurer. Dr. Falconer addressed the employee=s bilateral shoulder condition and bilateral carpal tunnel symptoms. Dr. Falconer referred to the employee=s bilateral shoulder injuries in 2001, and concluded that the employee sustained a temporary aggravation of his right shoulder condition in December 2003 while working for Sears, and sustained a new left rotator cuff injury culminating in March 2004 as a result of his work activity for Sears Imported Auto.
Dr. Falconer also concluded that the employee=s job duties for Minnesota Malted Waffles in early 2003 substantially contributed, caused, aggravated or accelerated his carpal tunnel conditions, but that this aggravation was temporary in nature and resolved by April 2003. In addition, he also concluded that the employee=s work for Sears Imported Auto aggravated his carpal tunnel condition, but that his carpal tunnel symptoms were minimal and that the employee had reached MMI by September 2004 from any aggravation of his carpal tunnel condition. Dr. Falconer also concluded that the employee had reached MMI from all of these temporary aggravations of his shoulder conditions as of June 1, 2004.
Based on Dr. Falconer=s opinion, in December 2004, Pan-O-Gold and its insurer petitioned for joinder of Minnesota Malted Waffles and its workers= compensation insurer relative to a claimed January 28, 2003, injury, and the joinder of Sears Imported Auto and its workers= compensation insurer, State Fund Mutual Insurance Company relative to a claimed injury date of December 28, 2003.
On March 15, 2005, the employee was evaluated by Dr. Jeffrey Husband at the request of Sears and State Fund. Dr Husband diagnosed impingement syndrome and acromioclavicle joint degenerative arthritis left shoulder, status post open decompression and distal clavicle excision, and ongoing shoulder symptoms with rotator cuff dysfunction. Dr. Husband opined that the employee had residual ongoing pathology of the rotator cuff after the December 2001 surgery which ultimately had progressed and caused recurrent symptoms. Dr. Husband also opined that the employee=s snow removal work in February 2004 was responsible for 10% of the employee=s left shoulder injury and condition and that his left shoulder injury in 2001 was 90% responsible. Dr. Husband later retracted his opinion that the snow removal was 10% responsible for the left shoulder condition, and concluded that the employee=s work activities for Sears Imported Auto did not substantially contribute to his left shoulder condition and rotator cuff tear. He based this change in opinion upon reviewing meteorological data that showed a minimal amount of snowfall in early February and March 2004, concluding that the employee was not required to brush significant amounts of snow from cars in February and March 2004.
On September 23, 2005, the employee filed an amended claim petition against all three employers for the above-listed dates of injury involving bilateral hand and shoulder injuries. On September 27, 2005, Pan-O-Gold, Minnesota Malted Waffles, and their insurers, entered into a settlement by which Pan-O-Gold agreed to hold Minnesota Malted Waffles and its insurer harmless against claims by the employee. That settlement was approved in an award on stipulation settlement issued on September 30, 2005. Pan-O-Gold and its insurer later reached a separate Pierringer settlement agreement with the employee, which was approved in an award on settlement issued on December 15, 2005. As a result of these settlement agreements as well as the 2002 mediation agreement between Pan-O-Gold and the employee, the employee=s remaining claims in litigation were limited to those against Sears Imported Auto and State Fund; those remaining claims were scheduled for a May 5, 2006, hearing.
In mid-November 2005, the employee was rear-ended in a motor vehicle accident, not at issue here. He consulted Drs. Berman and Ghose following the accident, reporting neck, middle back and lower back pain. On January 12, 2006, the employee consulted Dr. Ghose to request his opinion on the causation of his shoulder condition. In a chart note issued on that date, Dr. Ghose outlined the employee=s earlier work injuries and bilateral shoulder surgeries, stated that the employee had reached MMI following those surgeries, and that in March 2003, the employee started to experience pain and discomfort in his shoulders. Dr. Ghose concluded as follows:
It is my opinion that the current symptoms of shoulder pain that he is experiencing are from his employment at Sears Auto. The reason is that the patient was at maximum improvement for his shoulders prior to his employment there. Therefore, this is a new injury. This injury from Sears is a permanent injury, for which he is going to require ongoing medical treatment.
The employee again consulted Dr. Ghose on March 2, 2006, reporting pain and discomfort in both shoulders, and advising that overhead reaching was quite uncomfortable. Dr. Ghose diagnosed ongoing tendinitis, and provided steroid injections in both shoulders. The employee underwent an annual physical examination at Aspen Clinic on March 6, 2006, reporting at that time that he felt his previous carpal tunnel syndrome and shoulder symptoms had worsened since his motor vehicle accident in 2005. He also reported general weakness in his arms, which he attributed to his shoulder pain. The employee=s chart note also refers to his diagnosis in 2005 of rheumatoid arthritis for which he had been prescribed Prednisone.
A hearing was held before a compensation judge on May 5, 2006, to address the employee=s claims that he sustained a right shoulder injury on December 28, 2003, and a left shoulder injury on March 22, 2004, while working for Sears Imported Auto. The employee sought payment of temporary total disability benefits from January 15 through February 28, 2004, based on his right shoulder injury; payment of benefits based on three percent permanent partial disability of the whole body relative to his left shoulder injury; and payment for medical treatment expenses related to both shoulders.
In his findings and order served and filed June 23, 2006, the compensation judge denied the employee=s claims, finding that the employee had not proven that he had sustained a Gillette injury to his right shoulder that culminated on December 28, 2003, nor a Gillette injury to his left shoulder that had culminated on March 22, 2004, as a result of his work with Sears Imported Auto. The compensation judge also found that the employee did not claim a specific injury to his left shoulder on February 2, 2004, concluding in his findings that the employee=s Atestimony regarding a specific episode of shoulder pain while brushing snow from cars on this date was not supported by contemporaneous medical records.@ The employee appeals the compensation judge=s finding that the employee did not sustain a left shoulder injury while working for Sears Imported Auto. No appeal was taken from the denial of claims related to the employee=s right shoulder.
The employee appeals the compensation judge=s findings that the employee did not claim a specific injury to his left shoulder and did not sustain a Gillette injury to his left shoulder while working for Sears Imported Auto. He argues that substantial evidence of record, including testimony and medical records, establishes that the employee sustained a left shoulder injury while employed by Sears Auto and that the compensation judge=s findings and order are not supported by the record. Pursuant to this court=s standard of review, however, the issue is not whether the evidence will support alternative findings but whether substantial evidence supports the judge=s findings. Where evidence conflicts or more than one inference can be drawn from the evidence, the judge=s findings are to be affirmed, as long as those findings are supported by substantial evidence Ain the context of the record as a whole.@ Hengemuhle v. Long Prairie Jaycees, 358 N.W.2d 54, 37 W.C.D. 235 (Minn. 1984).
A Gillette injury is a result of repeated trauma or aggravation of a preexisting condition which results in a compensable injury. Gillette v. Harold, Inc., 257 Minn. 313, 321‑22, 101 N.W.2d 200, 205‑06, 21 W.C.D. 105 (1960); see also Carlson v. Flour City Brush Co., 305 N.W.2d 347, 350, 33 W.C.D. 594, 598 (Minn. 1981). In order to establish a Gillette injury, an employee Amust prove a causal connection between [his] ordinary work and ensuing disability.@ Steffen v. Target Stores, 517 N.W.2d 579, 581, 50 W.C.D. 464, 467 (Minn. 1994). The question of whether an employee has sustained a Gillette injury is one of fact for the compensation judge, and its determination primarily depends on medical evidence. Id.
The employee seeks a reversal of the compensation judge=s determination that he sustained no left shoulder injury as a result of his work with Sears Imported Auto. He argues that substantial evidence in the record supports a finding that he sustained a left shoulder injury, citing to the nature of his job, the corroborative testimony presented by his supervisor and co-worker, the information he provided in his first report of injury filed in April 2004, and notations in his medical records. The employee argues that his testimony was credible, consistent with his medical records, and supported by objective medical evidence and expert medical opinion. The employee specifically argues that his March 2004 MRI scan of his left shoulder indicates a new injury since it shows a 75% partial rotator cuff tear which was not present in 2001 at the time of his surgery.
Dr. Ghose determined that the employee=s work activities at Sears represented a substantial contributing factor to the new injury. Dr. Falconer also concluded that the employee=s left rotator cuff tear was a new injury related to this work activity for Sears. The compensation judge specifically considered Dr. Ghose=s and Dr. Falconer=s opinions. He noted that Dr. Ghose had originally deferred to Dr. Buss regarding whether the employee had sustained new injuries at Sears, then 16 months later opined that there had been a new injury at Sears. The judge also noted that the employee had not reported to Dr. Ghose that any particular activity caused his symptoms, and that the contemporaneous medical records contained no description by the employee that his snow removal work on February 2, 2004, caused an increase in his left shoulder symptoms. The judge concluded that the employee did not provide such a medical history to his medical providers until June 2004. In his memorandum, the compensation judge outlined his review of the employee=s medical records, citing to discrepancies between the employee=s contemporaneous medical records and later records. He specifically noted that the employee=s testimony and histories provided to Drs. Falconer and Husband in 2004 and 2005 varied from the history he gave his treating physicians in early 2004.
The compensation judge concluded that,
It is certainly understandable that repetitive use of a snow broom might cause increased shoulder pain in an individual who had prior surgery and a preexisting degenerative condition. It is also conceivable that a degenerative condition might gradually deteriorate and simply be aggravated by normal reaching activity. The employee has the burden of proving by a preponderance of the evidence that his job duties with the employer substantially contributed to a permanent worsening of his condition.
It may be argued that the employee=s MRI scan demonstrates that he sustained a new injury. While it is true that the scan was interpreted as evidence of a new partial thickness tear of the supraspinatus tendon, this is not proof of causation. Dr. Husband opined that this finding was clinically insignificant, representing a natural progression of the employee=s pre-existing degenerative condition. Dr. Buss was clearly more interested in a glenoid cyst, which apparently was unchanged since the 2001 MRI. Finally, and most importantly, there is a lack of persuasive evidence that this tear was the result of either the alleged snow brushing incident on 2/2/04 or the employee=s day-to-day job duties with the employer.
Pursuant to Steffen v. Target Stores, [cite omitted] it is the employee=s burden to prove a causal connection between his ordinary work and his ensuing disability or symptoms, based upon adequately founded medical opinion. He has not met this burden.
(Emphasis in original.) In his memorandum, the compensation judge also referred to Dr. Buss=s opinions, but the employee argues that only Dr. Buss=s nurse and not Dr. Buss himself examined the employee, and that because Dr. Buss did not review and compare all of the employee=s MRI scans, the compensation judge should not have considered his opinion. The employee also argues that the compensation judge should not have considered the opinions expressed by Dr. Buss=s nurse. The employee underwent two examinations at Dr. Buss=s office. Both examinations were documented in detailed assessments. In a letter to Dr. Ghose, dated May 12, 2004, Dr. Buss assessed an interosseous lesion at the base of the glenoid with signs of continuing impingement, but did not comment on the left rotator cuff tear. The compensation judge does not specifically rely on the opinion noted in Dr. Buss=s records, signed by the nurse, indicating that the employee had not sustained a new injury; the judge simply notes that Dr. Buss had commented on the glenoid lesion, but not on the rotator cuff tear. Dr. Buss had available to him the nurse=s assessment on which to base this comment, and the compensation judge did not err by relying on Dr. Buss=s statement as partial support for his conclusions.
The employee also argues that the compensation judge should not rely on Dr. Husband=s opinion that the employee=s injury was unrelated to his work activities on February 2, 2004. Dr. Husband initially opined that the employee=s snow removal work in February 2004 was responsible for 10% of the employee=s left shoulder condition following that incident, and that the employee=s prior injury was 90% responsible. Based upon meteorological data provided to him that showed a limited amount of snowfall on the alleged injury date of February 2, 2004, Dr. Husband later retracted his opinion that the snow removal was 10% responsible. The employee argues that since Dr. Husband=s revised opinion was based on inaccurate information concerning the amount of snow the employee would have needed to remove from cars on February 2, 2004, the compensation judge should not rely on his opinion. It is clear that the employee removed snow from cars as part of his work for Sears. And, it is obvious that the compensation judge was aware of the controversy over the amount of snow that had fallen in February 2004; the judge also noted that this inaccurate information had been withdrawn from the record.
Even before he reviewed any meteorological data, however, Dr. Husband apportioned 90% of the liability for the employee=s left shoulder condition to his 2001 work injury. Dr. Husband concluded that the employee had residual ongoing pathology of the rotator cuff after his December 2001 surgery that ultimately progressed and caused recurrent symptoms. A compensation judge, however, is free to accept a portion of an expert's opinion while rejecting other portions, Johnson v. L. S. Black Constr. Co., slip op. (W.C.C.A. Aug. 18, 1994), citing City of Minnetonka v. Carlson, 298 N.W.2d 763, 767 (Minn. 1980) (a factfinder generally may accept all or only part of any witness's testimony). The compensation judge could reasonably rely on that portion of Dr. Husband=s opinion apportioning liability to the employee=s 2001 work injury, in combination with other evidence, in concluding that the employee=s left shoulder condition was not causally related to his work activities at Sears Imported Auto.
The record contains conflicting medical opinions concerning the causation of the employee=s left shoulder condition. It is the compensation judge=s responsibility, as trier of fact, to resolve conflicts in expert testimony and opinion. Nord v. City of Cook, 360 N.W.2d 337, 342, 37 W.C.D. 364, 372 (Minn. 1985). In the present case, there is substantial evidence, including medical records and expert medical opinion, as well as other documentary evidence and witness testimony, that supports the judge=s decision that the employee did not sustain a Gillette injury to his left shoulder while working for Sears Imported Auto. Accordingly, we affirm.
The employee appealed the compensation judge=s ancillary finding that he did not claim a specific injury on February 2, 2004. The compensation judge specifically acknowledged that Dr. Husband, Dr. Falconer, and Dr. Ghose all had opined that the employee had aggravated his left shoulder on February 2, 2004, after removing snow from cars at Sears Imported Auto, but emphasized that the employee had not claimed a specific injury on that date as result of that work, but instead had claimed a Gillette injury to his left shoulder. The employee=s claim petition lists a date of injury of December 28, 2003, for his claim against Sears Imported Auto for his shoulders, left hand and wrist. The employee=s amended pretrial statement also refers to a claimed injury date of December 28, 2003. At the hearing, the compensation judge listed the employee=s claims as including a Gillette injury to the right shoulder on December 28, 2003, and a Gillette injury to the left shoulder on March 22, 2004, and the employee=s counsel concurred with that description of the claims. The compensation judge did not err by finding that the employee had not claimed a specific left shoulder injury on February 2, 2004.
That finding, however, is not dispositive of the overall issue of causation. The compensation judge thoroughly addressed the employee=s various claims and the explanations the employee provided of his symptom development, along with the employee=s medical records and reports of various medical experts. Following that review, the compensation judge concluded that the employee=s left shoulder injury, whether specific or Gillette in nature, did not result from his employment with Sears Imported Auto. Because substantial evidence supports that conclusion, we affirm that finding. Hengemuhle v. Long Prairie Jaycees, 358 N.W.2d 54, 37 W.C.D. 235 (Minn. 1984).
 Finding No. 7 refers to this treatment date of February 23, 2004. After reviewing Dr. Berman=s chart note of that date, we conclude that there is a typographical error in Finding No. 7, and therefore modify that finding, as outlined below.
On February 23, 2004, Dr. Berman examined the employee and noted the employee=s limited range of motion in his neck and some tightness and spasm of his paracervical muscles. The employee referred to his work driving cars for Sears Imported Auto, and reported ongoing carpal tunnel symptoms, stiffness in his neck and difficulty turning his neck. Dr. Berman stated in his chart note, in part, that ACharlie comes in with neck pain for about the past week. He is unaware of a specific injury.@ The chart note includes no report of left shoulder symptoms.
At Finding No. 7, the compensation judge states that AThe employee sought treatment for neck pain on 2/23/04. He did attribute his symptoms to brushing snow on 2/2/04 or report any left shoulder symptoms.@ We modify that finding to state that the employee Adid not attribute his symptoms to brushing snow on 2/2/04 or report any left shoulder symptoms.@
 Dr. Ghose=s chart note of April 9, 2004, contains a discrepancy concerning the employee=s elbow condition. His chart note states that the employee reported left elbow pain and discomfort aggravated by activities of grasping and lifting, but his examination findings showed significant symptoms of right medial epicondylar pain. The reference to right elbow symptoms correlates with the first report of injury completed by the employee on April 1, 2004.
 See Pierringer v. Hover, 21 Wis.2d 182, 124 N.W.2d 106 (1963) and Frey v. Snelgrove, 269 N.W.2d 918 (Minn. 1978).
 There is a dispute as to whether Dr. Buss and his nurse, or solely his nurse, examined the employee during his two visits at Dr. Buss=s office. The compensation judge concluded that one examination was conducted with Dr. Buss, but the employee testified that he was never examined by Dr. Buss, although it appears that Dr. Buss was present for at least a portion of one of the employee=s office visits.
 This same data, submitted by counsel for Sears and its insurer at the hearing in May 2006, erroneously stated that there had been little snowfall in February 2004 when the employee claimed to have removed a large amount of snow from vehicles. That information conflicted with data provided by the employee=s attorney, and eventually was withdrawn post-hearing. The judge referred to this data and the related dispute in his memorandum.