Yost v. Davita, Inc.

Nebraska Supreme Court Online Library
www.nebraska.gov/courts/epub/
03/01/2016 08:22 AM CST
- 732 -
Decisions of the Nebraska Court of A ppeals
23 Nebraska A ppellate R eports
YOST v. DAVITA, INC.
Cite as 23 Neb. Ct. App. 732
Debra Yost, appellant and cross-appellee, v.
Davita, Inc., appellee and cross-appellant.
___ N.W.2d ___
Filed March 1, 2016. Nos. A-15-197, A-15-234, A-15-235.
supplemental opinion
Appeal from the Workers’ Compensation Court: Daniel R.
Fridrich, Judge. Former opinion modified. Motion for rehear-
ing overruled.
Eric B. Brown, of Atwood, Holsten, Brown, Deaver & Spier
Law Firm, P.C., L.L.O., for appellant.
Caroline M. Westerhold and Stephen J. Schultz, of Baylor,
Evnen, Curtiss, Grimit & Witt, L.L.P., for appellee.
Pirtle, R iedmann, and Bishop, Judges.
Per Curiam.
This matter is before the court on the motion for rehearing
filed by Davita, Inc., regarding our opinion reported in Yost
v. Davita, Inc., 23 Neb. Ct. App. 482, ___ N.W.2d ___ (2015).
We overrule the motion, but for purposes of clarification, we
modify the opinion as follows:
In the section of the opinion designated “Increase in
Incapacity,” we withdraw the eighth paragraph, id. at 495, ___
N.W.2d at ___, and substitute the following:
We also note that the compensation court made a fac-
tual finding that the L2‑3 level was not a pain generator
- 733 -
Decisions of the Nebraska Court of A ppeals
23 Nebraska A ppellate R eports
YOST v. DAVITA, INC.
Cite as 23 Neb. Ct. App. 732
based on an opinion by Dr. Cornett. Although Davita
argues there was evidence to the contrary, we cannot say
the compensation court was clearly wrong in determining
that all of the pain Yost experiences in her back is, in fact,
related to the work accident. And it is her back pain and
limitations from her work‑related back injury that have
exacerbated her depression symptoms to the point that she
is unable to work.
The remainder of the opinion shall remain unmodified.
Former opinion modified.
Motion for rehearing overruled.