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Becirovic v. Wal-Mart Stores, Inc.

Court of Appeals of Nebraska

December 17, 2013

Fadila Becirovic, appellant,
v.
Wal-Mart Stores, Inc., appellee.

NOT DESIGNATED FOR PERMANENT PUBLICATION

Appeal from the Workers' Compensation Court: Daniel R. Fridrich, Judge.

Edward W. Hasenjager for appellant.

Jennifer S. Caswell, of Ritsema & Lyon, P.C., for appellee.

Irwin, Pirtle, and Bishop, Judges.

MEMORANDUM OPINION AND JUDGMENT ON APPEAL

Bishop, Judge.

INTRODUCTION

Fadila Becirovic appeals from the order of dismissal of the Nebraska Workers' Compensation Court. The compensation court found that Becirovic's back injury did not arise out of her employment with Wal-Mart Stores, Inc. (Wal-Mart), but, rather, was a natural progression of a preexisting, degenerative condition. We affirm.

BACKGROUND

Becirovic began working as a janitor at Wal-Mart on August 6, 2001, shortly after she and her family immigrated to the United States from Bosnia in July 2001. Her job included picking up trash bags, putting them into a wheeled cart, and taking them to a larger trash receptacle for disposal. Near the end of one of Becirovic's shifts on March 14, 2010, she lifted what she described as a 40- to 50-pound bag of trash when she "felt something in [her] back" and "couldn't feel [her] leg." Becirovic's husband and a Wal-Mart manager took her to a doctor, who ordered x rays and found that she had no broken bones. Due to Becirovic's back and leg pain, she was unable to continue performing janitorial work, but returned to Wal-Mart on light duty as a greeter a week after lifting the trash bag. Becirovic recalls working light duty for approximately 3 weeks, after which she permanently stopped working after experiencing sharp stomach pain and tingling in her head during one of her shifts. Becirovic's medical records indicate she continued to work light duty through May 2010.

Becirovic's medical records reflect that prior to the incident on March 14, 2010, she had sought treatment on numerous occasions for low-back pain radiating into her left leg with numbness in her right leg, similar to the symptoms she experienced on March 14. Three years prior to the incident at issue, in March 2007, Becirovic voiced concerns to her doctor about persistent low-back pain radiating to her legs, which pain she had been experiencing for 3 weeks. On November 1, Becirovic sought a full evaluation of the source of her pain at a hospital. Becirovic returned for a followup appointment on December 18, because she continued to experience the same symptoms. A lumbar MRI performed on Becirovic on December 20 revealed that she had mild central canal stenosis and L4-5 disk protrusion contacting an L4 nerve root.

On January 21, 2008, Dr. Angie Rakes evaluated Becirovic for treatment options regarding her low-back and leg pain, which continued to flare up episodically. Dr. Rakes prescribed medication to manage Becirovic's pain and discussed a lumbar epidural steroid injection if the medication did not work. Dr. Rakes saw Becirovic again on February 26, noting that Becirovic's pain was better, although Becirovic experienced an episode of pain in the office.

By April 21, 2009, Becirovic was reporting to her doctor that her low-back pain was becoming more of a nuisance and a worsening issue. Becirovic sought treatment from family physician Dr. Shawn Murdock, who gave her a neurosurgery referral. On August 24, Becirovic sought treatment from Dr. Mikala Albertson, another family physician, for continued back pain. Dr. Albertson's record from that appointment indicates that Becirovic reported she had a prior herniated disk, "and this resolved over time and now intermittently she has flare ups of her back pain." Dr. Albertson also states that the pain "is primarily in the lumbosacral region and radiates down her right leg." Dr. Albertson encouraged Becirovic to take ibuprofen on a more regular basis and prescribed her a muscle relaxant. On February 22, 2010, 3 weeks before Becirovic's incident at Wal-Mart, Dr. Albertson's office notes indicate issues pertaining to depression and anxiety, as well as lumbar back pain. She referred Becirovic to the Nebraska Spine Center for a potential spinal injection to treat her continued back pain.

On March 19, 2010, 5 days after the incident at Wal-Mart, Becirovic returned to Dr. Albertson. Becirovic reported that she continued to have pain and swelling in her right leg and back, but that it had been improving. Dr. Albertson noted Becirovic's appointment with the Nebraska Spine Center was pending.

Becirovic began receiving treatment for her back pain at the Nebraska Spine Center on March 23, 2010. Dr. Alicia Feldman reviewed a lumbar MRI scan taken on that date and determined the MRI film showed multilevel disk degeneration at the L3-4, L4-5, and L5-S1 levels with foraminal stenosis on the right at the L4-5 level, secondary to a foraminal bulge. Dr. Feldman's treatment plan for Becirovic included physical therapy and anti-inflammatories. Dr. Feldman treated Becirovic for her continued pain on April 27 and May 11, and administered an L4-5 transforaminal epidural on May 24. Becirovic returned to Dr. Feldman on June 1, complaining of a "whole multitude of symptoms, " including neck pain, headaches, shoulder pain, abdominal pain, nausea, low-back pain, and right-leg pain. Dr. Feldman did not believe Becirovic's nausea, neck pain, and headaches were secondary to the epidural, and explained that increased back and leg pain sometimes occurs following an injection, but would subside. Dr. Feldman discussed with Becirovic that there were no further nonoperative treatments to offer her and provided a surgical consultation referral.

Dr. John McClellan, an orthopedic surgeon at the Nebraska Spine Center, first saw Becirovic on June 21, 2010, for surgical consultation. Dr. McClellan determined Becirovic demonstrated mild L4-5 degenerative spondylolisthesis, degenerative lumbar scoliosis, foraminal stenosis at L4-5, and radiculopathy in an L5-S1 distribution. Dr. McClellan testified by deposition that spondylolisthesis is a degenerative condition present in a large number of females over the age of 40 (Becirovic was age 50 at the time of trial) and is a form of spinal instability that is known to cause certain types of nerve pain when a vertebra slips forward and catches a nerve. Dr. McClellan ordered a nerve conduction study/EMG, which Dr. Feldman performed on July 21. Dr. McClellan found that the EMG appeared normal.

Dr. McClellan requested that a second epidural injection be administered to Becirovic's lower back at the L5-S1 level, which Dr. Feldman administered on August 18, 2010. Dr. Feldman saw Becirovic again on September 14, and Becirovic reported some mild improvement in pain. Dr. ...


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