The employer and insurer appeal the compensation judge’s determination that a departure from the treatment parameters was appropriate and the award of outstanding medical and chiropractic care expenses.  We affirm.

The employee, Lucinda Marschel, has been a long-term employee of Bird & Cronin.  She is employed as a sales representative, which requires her to drive approximately 80% of the time.  She has been involved in multiple auto accidents, occurring in 1981, 2002, and 2006, as well as three subsequent auto accidents in 2010, 2011, and 2012.  The three later auto accidents resulted in admitted work injuries and the medical expenses resulting therefrom are at issue in this matter.

On May 5, 2010, the employee was involved in a work-related auto accident in the nature of a front-end collision.  She was transported by ambulance to Douglas County Hospital with reports of headache, neck stiffness, and chest tenderness.  No significant findings were made upon a CT scan of the head and neck.  She reported the incident to her employer and the injuries were admitted.  The employee was seen for follow up and physical therapy at Twin Cities Occupational Health in the few months that followed.  In August 2010, she reported her pain levels to be 2 out of 10 and stated that she did not find physical therapy helpful.

On November 23, 2010, the employee began treating with Jennifer Schulz, D.C., at Acu-Chiropractic Wellness Center.  She noted pain in her neck, low back, and shoulders.  She also complained of headaches that were interfering with her sleep.  At that time, she rated her pain level at a 6.5 out of 10.  It was recommended that she return for chiropractic care twice per week for the next four weeks.  She was seen regularly and with reports of some improvement.  However, her pain was aggravated by driving.

On December 17, 2010, the employee was seen by Dr. Susan Evans of Noran Neurological Clinic for an evaluation of pain in her neck, back, right arm, and headaches related to the May 5, 2010, auto accident.  The employee rated her pain at level 6 out of 10.  Dr. Evans noted myoligamentous injury of the cervical, thoracic, and lumbar spine, cervicogenic headaches, possible concussion, and disc protrusion at C4-5 and disc bulge at C5-6 and C6-7 based upon a prior MRI.  She recommended that the employee continue with chiropractic care.  An MRI was performed on December 27, 2010, and showed a small disc herniation at C6-7 with no impingement or stenosis, mild disc bulging at C4-5 and C6-7, and mild to moderate degenerative findings.

The employee continued to treat at Acu-Chiropractic & Wellness into early 2011.  On January 22, 2011, she rated her pain at level 7 to 8 out of 10.  Some improvement was noted, however, she reported that her symptoms would increase without weekly treatment.  She was seen again by Dr. Evans on February 15, 2011.  Upon the employee’s statement that the chiropractic care was helpful, Dr. Evans recommended that she continue with care.  At that time, her pain level was reported to be at level 6 out of 10.

As of February 15, 2011, twelve weeks had passed since the employee’s initial chiropractic care appointment following her May 5, 2010 auto accident.

The employee continued to regularly present at Acu-Chiropractic & Wellness with complaints of ongoing neck, back, right arm pain, as well as headaches.  The employee’s twelfth visit following the expiration of the initial twelve weeks occurred on April 4, 2011.  At that time, the employee complained of neck and low back pain, headache, and stated that her right arm symptoms had improved.  She was seen for two additional treatments, which were paid for by the employer and insurer.  As of the April 21, 2011 date of service at Acu-Chiropractic & Wellness, the employer and insurer denied payment.

On May 10, 2011, one year following the auto accident, the employee was seen by Dr. Evans at Noran Neurological Clinic.  She reported an increase in stress and continued neck pain and headaches.  She rated her pain at level 5 out of 10.  She continued to treat at Acu-Chiropractic & Wellness on a regular basis through July 2011.  The employer and insurer maintained a denial for the chiropractic care rendered between April and July 2011.

On August 9, 2011, the employee was evaluated by Dr. Jack Hubbard of Minneapolis Clinic of Neurology for persistent neck and right upper extremity pain.  She reported feeling an improvement level of 50 percent.  She further reported her right arm and shoulder symptoms ranged from 5 to 8 out of 10, and her headaches ranged from 5 to 9 out of 10.  In discussing her 2006 auto accident, Dr. Hubbard noted that she did not consider the neck pain to have been debilitating, did not interfere with activities, and was rated at level 4 out of 10.  It was Dr. Hubbard’s opinion that the employee’s difficulties were muscular, originating from myofascial trigger points, and that she would benefit from myofascial and physical therapies.

On October 19, 2011, the employee was involved in a work-related auto accident in which her vehicle was struck by a loose tire from another vehicle.  She was first evaluated by Dr. Evans at Noran Neurological Clinic on November 30, 2011, with complaints of increased neck, back, right arm, and shoulder pain, as well as headaches.  Her pain was rated at level 7 out of 10.  It was noted that driving increased her pain.  Dr. Evans recommended chiropractic care, as well as MRI scans of the cervical and lumbar spine and a nerve conduction study of the right arm.  The ordered scans were performed on December 8, 2011.  The lumbar spine scan showed minimal disc bulging at L4-5.  The cervical spine scan showed a decrease in the disc herniation at C6-7, and otherwise, no changes from the December 27, 2010, MRI.  The EMG was negative.

On January 7, 2012, the employee presented at Acu-Chiropractic & Wellness with reports of exacerbation of her neck, mid back, and low back pain since her most recent auto accident.  She rated her pain at levels of 8, 5, and 6 out of 10, respectively.  It was recommended that she return for care once weekly for four weeks.

The employee presented at Acu-Chiropractic on a regular basis thereafter.  Through her date of service of March 28, 2012, her complaints of pain included not only her neck, mid back, and low back as was initially reported, but also her upper back, SI joint, right arm, and headaches.  As of March 28, 2012, the employee’s pain ratings remained relatively unchanged.  At that time, it was recommended that she continue to treat once every week and a half for a period of eight weeks.

As of March 31, 2012, twelve weeks had passed since the employee’s initial chiropractic care appointment following her October 19, 2011 auto accident.  On June 20, 2012, Dr. Evans issued an order for chiropractic evaluation and care as needed and retroactively to November 30, 2011.

The employee continued to regularly present at Acu-Chiropractic & Wellness with complaints of ongoing neck, back, and right arm pain as well as headaches.  The employee’s twelfth visit following the expiration of the initial twelve weeks took place on August 29, 2012.  As of that date of service, the employee’s rating of her neck pain was unchanged from the initial January 7, 2012, visit at a level of 8 out of 10.  She rated her right upper extremities at level 6 out of 10.  Thereafter, she was treated on September 5 and 12, 2012, at Acu-Chiropractic & Wellness for upper back pain at level 5 out of 10, neck pain rated at 6 out of 10, and right upper extremity pain at levels ranging from 5 to 6 out of 10.  The employer and insurer denied payment for all chiropractic visits subsequent to the March 31, 2012, expiration of the twelve weeks following the initial visit.

On September 24, 2012, the employee was involved in a work-related auto accident in the nature of a rear-end collision.

She presented at Acu-Chiropractic & Wellness on September 27, 2012, with complaints of an increase in pain following the most recent accident.  She reported jaw tightness and popping with pain at level 3 out of 10, headache at level 7 out of 10, neck pain into the left trapezius at level 7 out of 10, upper back pain at level 7 out of 10, mid back pain at level 7 out of 10, and low back and buttock pain at level 7 out of 10.  Dr. Schulz noted that the employee had had a disc removed for TMJ in 1981 and that she did not have any issues until this most recent accident.  It was recommended that she return for treatment twice weekly for the next two weeks.

Over the course of the approximately two months following the September 24, 2012, auto accident, the employee continued to treat at Acu-Chiropractic & Wellness.  Her pain levels decreased to levels in the range of 4 to 5 out of 10.  She was evaluated by Dr. Evans at Noran Neurological on November 1, 2012, who recommended a repeat MRI and continued chiropractic care.  The November 12, 2012, MRI of the cervical spine revealed no significant change aside from a slight increase in the size of the C6-7 disc herniation as compared to the December 8, 2011, MRI scan.

As of December 20, 2012, twelve weeks had passed since the employee’s initial chiropractic care appointment following her September 24, 2012, auto accident.  The dates of service for chiropractic care during those twelve weeks were paid for by the employer and insurer.  Payment for all subsequent chiropractic care has been denied by the employer and insurer.

The employee continued to treat at Acu-Chiropractic & Wellness into 2013 with neck, back, right shoulder and arm pain, and headaches.  She was seen by Dr. Evans at Noran Neurological Clinic on March 13, 2013, with complaints of continued neck, back, and jaw pain.  According to the employee, the chiropractic care was helping with her neck and back pain.  Dr. Evans noted that the employee’s jaw had been an issue for her previously and had returned following the most recent accident, and a referral to a specialist was provided.  She also recommended once weekly chiropractic care until the employee’s symptoms had stabilized, and that she then proceed with acupuncture and massage therapy.  Thereafter, the employee presented for chiropractic care approximately one to two times per month through the remainder of 2013.  On December 13, 2013, she reported that driving aggravated her low back pain and headache.

On January 13, 2014, the employee was seen for follow up by Dr. Evans.  Dr. Evans noted that the employee was doing better overall and had improved with chiropractic care and acupuncture, and recommended that the employee continue said treatment.  She treated at Acu-Chiropractic on a regular basis, varying from multiple times per week to once every two weeks, until she was seen again by Dr. Evans on August 25, 2014.  The employee reported to Dr. Evans at that time that she continued to have pain in her neck and back, and that she goes to the chiropractor once or twice per week which helps, but that she has right upper extremity pain if she does not go to the chiropractor at least weekly.  The employee continued to treat at Acu-Chiropractic & Wellness until October 31, 2014.  At that time, the employee rated her neck pain at level 5 out of 10, her upper back at level 4 out of 10, and her right upper extremity at a level of 4 out of 10.  At the December 2, 2014, hearing, the employee testified that she continues to seek chiropractic care.

On June 4, 2013, the employee was seen for an independent medical examination by Dr. Khalafalla Bushara.  In Dr. Bushara’s June 17, 2013, report, he noted complaints of neck pain at a level ranging from 4 to 7 out of 10, upper back pain rated at levels ranging from 3 to 6 out of 10, and low back pain, jaw pain, and right arm symptoms.  Dr. Bushara diagnosed the employee with chronic pain, fibromyalgia, TMJ syndrome, degenerative spine disease at multiple levels, and noted her neck, back, upper and lower extremity symptoms, and headaches.  It was his opinion that her current conditions are not related to the three auto accidents, and that the injuries attributable to the three auto accidents were temporary sprain/strain injuries and would have resolved within six weeks of each incident.  He opined that as of six weeks following each incident, the employee would have been at maximum medical improvement and that any treatment rendered after such a date was related to the employee’s pre-existing conditions.  He recommended no further treatment, no work restrictions, and no permanency rating.

In a letter dated November 19, 2014, Dr. Evans of Noran Neurological Clinic stated that all treatment and referrals from her office since December 17, 2010, related to the auto accidents of May 5, 2010, October 19, 2011, and September 24, 2012, and were reasonable and necessary.

In an opinion dated November 28, 2014, Dr. Schulz stated that all chiropractic treatment rendered at Acu-Chiropractic & Wellness was reasonable and necessary.  She went on to explain that the treatment beginning November 23, 2010, related to injuries sustained in the May 5, 2010, incident, and that the employee presented again on January 7, 2012, for an exacerbation of those injuries following the October 19, 2011, incident.  The employee then presented on September 27, 2014, with an aggravation of her previous injuries, as well as TMJ dysfunction, as a result of the September 24, 2012, incident.

The matter was heard on the employee’s March 3, 2014, Claim Petition on December 2, 2014.  At issue were the nature and extent of the employee’s admitted work injuries sustained as a result of the May 5, 2010, October 19, 2011, and September 24, 2012, auto accidents, and the compensability of medical and chiropractic treatment rendered by Noran Neurological Clinic and Acu-Chiropractic & Wellness.

In his Findings and Order, dated January 8, 2015, the compensation judge found that the employee had sustained musculoligamentous injuries as a result of the three auto accidents which resulted in neck, right shoulder and arm, upper, mid, and lower back symptoms, as well as headaches and an aggravation of her pre-existing TMJ condition.  He went on to award all unpaid treatment rendered by Noran Neurological Clinic and Acu-Chiropractic & Wellness.  Specifically, the compensation judge found that chiropractic treatment was payable for twelve visits beyond the initial twelve weeks for each auto accident, and found that chiropractic treatment was payable beyond those visits per allowable departures pursuant to Minn. R. 5221.6050, subp. 8.A. (documented complication) and subp. 8.E. (incapacitating exacerbation).  The employer and insurer appeal.

In reviewing cases on appeal, the Workers’ Compensation Court of Appeals must determine whether “the findings of fact and order [are] clearly erroneous and unsupported by substantial evidence in view of the entire record as submitted.”  Minn. Stat. § 176.421, subd. 1.  Substantial evidence supports the findings if, in the context of the entire record, “they are supported by evidence that a reasonable mind might accept as adequate.”  Hengemuhle v. Long Prairie Jaycees, 358 N.W.2d 54, 59, 37 W.C.D. 235, 239 (Minn. 1984).  Where evidence conflicts or more than one inference may reasonably be drawn from the evidence, the findings are to be affirmed.  Id. at 60, 37 W.C.D. at 240.  Similarly, “[f]actfindings are clearly erroneous only if the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been committed.”  Northern States Power Co. v. Lyon Foods Prods., Inc., 304 Minn. 196, 201, 229  N.W.2d 521, 524 (1975).  Findings of fact should not be disturbed, even though the reviewing court might disagree with them, “unless they are clearly erroneous in the sense that they are manifestly contrary to the weight of the evidence or not reasonably supported by the evidence as a whole.”  Id.

The employer and insurer assert that the compensation judge erred in: (1) relying upon the expert opinions of Dr. Schulz and Dr. Evans over those of Dr. Bushara; and (2) departing from the treatment parameters.  Specifically, the employer and insurer contest the award of the outstanding bills of Noran Neurological Clinic and Acu-Chiropractic & Wellness on three alternative bases: (1) that the treatment rendered after six weeks of each date of injury^[1] should be denied on the basis that each of the employee’s injuries had resolved within six weeks per the opinion of Dr. Bushara; (2) that the chiropractic treatment was outside of the treatment parameters and a departure is not warranted; and/or (3) the providers failed to notify the employer and insurer of the initiation of treatment that was outside the treatment parameters, as required by Minn. R. 5221.6050, subp. 9.A.(4).

The employer and insurer appeal from the compensation judge’s rejection of the opinions of Dr. Bushara, and adoption of the opinions of Dr. Schulz and Dr. Evans.  At Finding No. 15, the compensation judge stated that he gave “little weight” to the opinion of Dr. Bushara that the employee was back to baseline within six weeks of each auto accident.  The compensation judge found that Dr. Bushara’s opinion in this regard was based on what typically occurs with sprain/strain injuries rather than based on specifics related to the employee’s post-accident symptoms.  In his supporting memorandum, the compensation judge further stated that while Dr. Bushara concluded that the employee’s injuries were self-limiting as typical sprain/strain injuries, the employee had ongoing pain complaints and it was difficult to get her pain under control because of the driving she was required to do for her job.  He further noted that following the employee’s 2006 auto accident and payment of 3.5% permanency, the employee needed little treatment and was able to return to most activities.

The employer and insurer argue that Dr. Bushara’s examination and report were specific to the employee, contrary to the finding of the compensation judge.  Dr. Bushara examined the employee, made findings on examination, and reviewed her medical and other records.  The employer and insurer also assert that Dr. Bushara’s opinion that the employee’s condition had resolved within six weeks of each incident is corroborated by the medical records, as they show that the employee’s condition did not improve.

The employer and insurer also argue that the adoption of the opinions of Dr. Schulz was in error because those opinions include assumptions unsupported by the evidence.  They assert that Dr. Schulz was unaware of the employee’s pre-existing conditions and treatment history with regard to body parts affected by the auto accidents.  In particular, they point to Dr. Schulz’s November 28, 2014, narrative report and that it does not acknowledge or demonstrate awareness of any pre-existing condition.  Further, the medical records related to jaw pain experienced after the September 24, 2012, auto accident do not discuss the employee’s prior TMJ condition or surgery.  The employer and insurer also point out that the treatment notes of Dr. Schulz contain references to exacerbations of the employee’s symptoms as a result of non-work related activities, including running, yoga, travel, and working with a personal trainer.  The employer and insurer assert that, similarly, Dr. Evans’s records do not adequately discuss the employee’s pre-existing conditions and defer to the opinions of Dr. Schulz.

In general, a compensation judge’s choice of expert is affirmed so long as the accepted opinions have adequate foundation.  Smith v. Quebecor, 63 W.C.D. 566 (W.C.C.A. 2003) (citing Nord v. City of Cook, 360 N.W.2d 337, 37 W.C.D. 364 (Minn. 1985)).  The employer and insurer argue that the treating physicians’ opinions do not take into account pre-existing conditions.  We disagree.  Substantial evidence in the record shows, that Dr. Schulz was aware of the employee’s prior jaw condition and her 2006 motor vehicle accident and resulting neck and back symptoms.  Based upon the medical records of Dr. Schulz and Dr. Evans, both took a medical history from the employee and both performed numerous physical examinations.  While their narrative reports do not specifically point out the employee’s prior jaw condition or 2006 auto accident, the level of knowledge they have is sufficient foundation for their opinions.  See Drews v. Kohl’s, 55 W.C.D. 33 (W.C.C.A. 1996), summarily aff’d (Minn. July 11, 1996).  The compensation judge’s acceptance of the opinions of Dr. Schulz and Dr. Evans over those of Dr. Bushara is affirmed.

The employer and insurer appeal from the compensation judge’s award of payment of chiropractic treatment at Acu-Chiropractic & Wellness, as treatment that exceeds the recommendations by the treatment parameters.  The parameters at issue are Minn. R. 5221.6200 (low back pain), 5221.6205 (neck pain), and 5221.6210 (thoracic back pain).  Subpart 3 of each of these provisions provides for twelve weeks of passive treatment after the modality has been initiated (subp. 3.A.), and for twelve additional visits thereafter over the course of twelve months upon the satisfaction of a number of criteria (subp. 3.B.).  The parameters provide for treatment beyond those additional visits under circumstances in which departures are appropriate pursuant to the provisions in Minn. R. 5221.6050, subp. 8.

The compensation judge’s award of treatment in this case was made pursuant to the application of the above-cited 12/12/12 framework and the parameter departure provisions in subparts 8.E. and 8.A.  An award for treatment otherwise proscribed by the parameters may also be appropriate should a case constitute a “rare case exception” under Jacka v. Coca Cola Bottling Co., 580 N.W.2d 27, 58 W.C.D. 395 (Minn. 1998).  In Jacka, the Minnesota Supreme Court determined that the treatment parameters are to be used as flexible guidelines and a compensation judge could depart from the treatment parameters “in those rare cases in which a departure is necessary to obtain proper treatment.”  Id. at 35-36, 58 W.C.D. at 408.  Based on the analysis above, we affirm.

With regard to the May 5, 2010, auto accident, the treatment in dispute are the eleven visits between April 21, 2011, and July 22, 2011, provided after the completion of the initial twelve weeks.

The treatment rendered during this time period was awarded pursuant to Minn. R. 5221.6050, subp. 8.E., which provides a departure from the treatment parameters for an incapacitating exacerbation.  “Incapacitating exacerbation” is not contained in the definitions of Minn. R. 5221.6040.  Merriam-Webster Dictionary defines “incapacitate,” as “to make (someone or something) unable to work, move, or function in the usual way.”^[2]  Whether an incapacitating exacerbation exists is subject to the consideration of a number of factors, including but not limited to, the impact on the employee’s ability to work, impact on activities of daily living, severity of pain, documented history of the exacerbation, and findings on examination and treatment.  Riendeau v. Wal-Mart, slip op. (W.C.C.A. Nov. 30, 2001).  Whether a condition is sufficiently incapacitating is considered a question of fact.  Wilmot v. Walmart Stores, Inc., slip op. (W.C.C.A. June 25, 2002).

In awarding the chiropractic treatment rendered between April 21, 2011, and July 22, 2011, the compensation judge determined that the employee’s driving for work continually re-aggravated her neck and right upper extremity symptoms, and that those re-aggravations constituted incapacitating exacerbations under Minn. R. 5221.6050, subp. 8.E.  The evidence in the record shows that during this particular time period, the employee reported to her chiropractor that she was able to work as much as she wanted to, but was careful.  She also reported normal personal care, travel, and social life, but the same caused extra pain.  Her right upper extremity pain interrupted her sleep, and on one occasion, a headache was noted to have kept the employee from playing golf.  Driving caused aching as mentioned in the records during this time period.  The employee testified that as a result of the May 5, 2010, auto accident, she missed one day of work.  She further testified that driving long-distance for work would aggravate her condition and her pain levels would increase.

The relevant standard of review is whether substantial evidence in the record supports the compensation judge’s departure from the applicable parameters under subpart 8.E.  Id.  Where evidence conflicts or more than one inference may reasonably be drawn from the evidence, the findings are to be affirmed.  Hengemuhle, 358 N.W.2d at 60, 37 W.C.D. at 240.  Substantial evidence in the record supports the compensation judge’s finding that the employee suffered an incapacitating exacerbation during the time period of April 21, 2011, and July 22, 2011, and the award of this treatment is affirmed.

With regard to the October 19, 2011, auto accident, the only treatment in dispute is that rendered after the completion of the initial twelve weeks.  The employer and insurer maintained a denial of chiropractic treatment rendered between April 4, 2012, and September 11, 2012.  Over the course of this time period, the employee was seen at Acu-Chiropractic & Wellness on fourteen occasions.

The compensation judge awarded payment for these additional fourteen visits^[3] pursuant to the requirements set forth in subpart 3.B. of Minn. R. 5221.6200, Minn. R. 5221.6205, and Minn. R. 5221.6210.^[4]  These rules state that twelve visits may be provided beyond the initial twelve weeks if all of the above-listed requirements are met.  In awarding this treatment, the compensation judge outlined that the employee had been released to work, the treatment resulted in maintenance of functionality, the treatment was not regularly scheduled, the employee was stretching and doing yoga, and the chiropractor had encouraged at-home exercises to decrease reliance on health care providers.

The requirements set forth in subpart 3.B. are met by substantial evidence in the record.  The compensation judge determined that because the employee continued to work during this period of time, her functional status was maintained by this treatment.  The compensation judge further found that the chiropractic treatment during this period was not regularly scheduled.  While the dates of service are frequent, the records and the employee’s testimony indicate that the employee sought treatment on an as-needed basis and as her schedule would allow.  While there is no direct evidence during the April to September 2012 time period of a plan to encourage the employee’s independence, the record is clear that the employee was cognizant of the high cost of care and her reluctance to abuse it.  The compensation judge noted that the employee was stretching and doing yoga.  With this evidence, coupled with the employee’s testimony that stretching and yoga were her hobbies, it is not unreasonable to infer that these were part of her routine activities of life.  As to whether subpart 3.B.(5) and (6) are met, the treating physician, who was the compensation judge’s choice of the medical experts, did not opine that the employee was suffering from chronic pain syndrome or recommend surgery, nor did she recommend evaluations for the same.  The substantial evidence in the record supports a finding that all parts of subpart 3.B. have been met.  Therefore, we affirm the award of the additional chiropractic visits between April 4, 2012, and September 11, 2012, pursuant to subpart 3.B.

With regard to the September 24, 2012, auto accident, the employer and insurer dispute the chiropractic treatment rendered between January 30, 2013, and October 31, 2014, provided after the completion of the initial twelve weeks as treatment that exceeds the treatment parameters.  Over the course of this time period, the employee was seen at Acu-Chiropractic & Wellness on approximately thirty-nine occasions.

The compensation judge awarded payment for an additional twelve visits pursuant to the requirements set forth in subpart 3.B. of Minn. R. 5221.6200, Minn. R. 5221.6205, and Minn. R. 5221.6210, above-referenced.   The compensation judge awarded all dates of treatment subsequent to the twelfth visit pursuant to the departure provisions contained in Minn. R. 5221.6050, subps. 8.A. and 8.E. for documented complications and incapacitating exacerbations.

The awarded twelve visits occurred between January 30, 2013, and August 19, 2013.  In awarding these additional visits, the compensation judge relied on the same factors relative to the employee’s situation following the October 19, 2011, auto accident.  As was the case with the October 19, 2011, auto accident, substantial evidence in the record supports the compensation judge’s award of these additional visits relative to the 2012 injury.  The employee continued to work during this period of time and was able to maintain her functional status, the chiropractic treatment was frequent but not regularly scheduled, and was sought on an as-needed basis.  The employee was stretching and doing yoga, and she was not diagnosed with chronic pain syndrome, surgery had not been recommended, nor were evaluations for the same delayed by the chiropractic treatment.  The substantial evidence in the record supports the subpart 3.B. requirements and the award of the twelve additional visits between January 30, 2013, and August 19, 2013.  We affirm.

Substantial evidence in the record also supports the compensation judge’s award of treatment beyond the additional twelve visits, during the time period of September 17, 2013, and October 31, 2014.  The compensation judge found the departure provisions set forth in Minn. R. 5221.6050, subps. 8.A. and 8.E. to be applicable.  With regard to the applicability of subp. 8.E. for incapacitating exacerbations, the compensation judge referred to his analysis for the May 5, 2010, date of injury, which this court affirmed above and affirm here under the same analysis.  With regard to the applicability of subp. 8.A. for medical complications, the compensation judge determined that three successive injuries to the same body parts within a period of only a year and one-half constituted a medical complication.  This court has agreed that this subpart contemplates situations in which a work injury combines with a preexisting condition (other work injuries) to cause a more complicated (prolonged) course of symptoms, disability, and treatment results.  Jackson v. Minneapolis Pub. Sch. Dist. No. 1, No. WC09-5027 (W.C.C.A. Apr. 8, 2010).  We concur that the relatively short periods of time between each successive compensable auto accident, all three of which resulted in complications of previously sustained injuries to the same body parts, resulted in medical complications under the departure provisions of the applicable rules.  For this reason this court considers this case to be a “rare case exception” as referenced in Jacka and its progeny.  The compensation judge’s award of treatment between September 17, 2013, and October 31, 2014, is affirmed.

The compensation judge determined that the treatment in dispute constituted reasonable and necessary treatment.  Whether a chiropractor’s services were reasonable and necessary is a factual determination to be made by the compensation judge and is to be affirmed should the determination be supported by substantial evidence.  Bettie v. Homeward Bound, Inc., slip op. (W.C.C.A. Jan. 31, 2003).

The analysis of the reasonableness and necessity of chiropractic treatment depends upon an evaluation of a number of factors as set forth in Horst v. Perkins Restaurant, 45 W.C.D. 9 (W.C.C.A. 1991).^[5]  Additional factors to consider were set forth by this court in Fuller v. Naegele/Shivers Trading, slip op. (W.C.C.A. Apr. 14, 1993).^[6]

In his supporting memorandum, the compensation judge outlined the Horst and Fuller factors and applied them to the case at hand.  With regard to the Horst factors, he noted the employee’s testimony that she saw the chiropractor when at-home methods of pain relief were insufficient, and that the employee was also treating with a neurologist for diagnostic testing.  He determined that the employee’s chiropractic appointments were not regularly scheduled, but were instead dictated by increases in her symptoms as a result of driving for work.  The employee at times went weeks without chiropractic treatment and was able to continue her driving.  The compensation judge pointed out that there is no suggestion that long-term care has been recommended and there is little evidence of a psychological dependency.

In addition, with regard to the Fuller factors, the compensation judge considered the treatment plan to have been reasonable to treat the employee’s symptoms as she requested care, and the Acu-Chiropractic & Wellness records documented the treatments provided and reflected improvement of symptoms.  He went on to again note that the frequency of treatment was related to the employee’s attempts to treat at home.  The compensation judge concluded that there was a direct relationship between the treatment and her continued ability to work, and that the visits with the neurologist provided assurance that the chiropractic treatment was not aggravating underlying conditions.  Finally, he noted that the cost of the treatment was reasonable in light of the employee’s ability to continue working, and because the visits were limited in number to treat symptoms so as to continue driving.

The evidence in the record supports the compensation judge’s determination that the awarded treatment was reasonable and necessary.  We affirm.

The employer and insurer argue that it was improper for the compensation judge to depart from the treatment parameters because of Acu-Chiropractic & Wellness’s failure to notify the insurer of the initiation of treatment that was beyond the parameters, pursuant to Minn. R. 5221.6050, subp. 9.A.^[7]  In Olson v. Allina Health Sys., 59 W.C.D. 37, 46 (W.C.C.A. 1999), this court stated that the notice requirements in this provision are not a mere technicality and cannot be ignored even if the treatment meets the requirements for departure.  The employee argues that this defense was not raised at hearing and cannot be considered on appeal. 

While the record indicates that the employer and insurer made a general reference to Minn. R. 5221.6050, they did not specifically mention, or argue to the compensation judge, a violation of the prior notice requirement of Minn. R. 5221.6050.  As such, based upon the record before us, the employer and insurer did not raise the issue at hearing.  Furthermore, there is nothing in the record regarding whether, and to what extent, Acu-Chiropractic & Wellness complied with the notice requirements set forth in Minn. R. 5221.6050, subp. 9.A.  Nonetheless, this issue was not addressed below and may not be raised for the first time on appeal.  Dawson v. Univ. of Minn., slip op. (W.C.C.A. May 6, 1999).