dissenting.
I agree that the plaintiff employee, Richard E. Cox, suffered an injury as the consequence of an accident which arose “in the course of’ his employment with the defendant employer, Fagen Inc. However, I respectfully dissent, because by characterizing the putting on of one’s coveralls as something other than an everyday activity and oversimplifying the issues concerning the cause of the injury, the majority erroneously concludes that the evidence supports as well the finding of the Workers’ Compensation Court that the accident also arose “out of’ the employment. In doing so, the majority has transformed a system designed to compensate work-caused injuries into one which, except for heart attacks and strokes, compensates any injury which manifests itself at work, regardless of the cause.
In heart attack cases, Leitz v. Roberts Dairy, 237 Neb. 235, 465 N.W.2d 601 (1991), and stroke cases, Smith v. Fremont Contract Carriers, 218 Neb. 652, 358 N.W.2d 211 (1984), where we recognize there is an element of personal risk involved, we have utilized the split test of legal and medical causation discussed in 1A Arthur Larson & Lex K. Larson, The Law of Workmen’s Compensation § 38.83(a) (1995). This test embraces two elements: (1) legal cause and (2) medical cause. Leitz states at 237 Neb. at 241, 465 N.W.2d at 605, quoting Larson, supra: “ ‘Under the legal test, the law must define what kind of exertion satisfies the test of “arising out of the employment.” Under the medical test, the doctors must say whether the exertion (having been held legally sufficient to support compensation) in fact caused this [injury].’ ” See, also, Smith, supra. But see Morton v. Hunt Transp., 240 Neb. 63, 480 N.W.2d 217 (1992) (disapproved split test in cases of carpal tunnel syndrome, as syndrome shares none of difficulties of etiology surrounding heart attacks). In Sandel v. Packaging Co. of America, 211 Neb. 149, 154-55, 317 N.W.2d 910, 914 (1982), we observed:
“The exertion ‘greater than nonemployment life’ test has been applied by this court only in cases involving heart attacks allegedly caused by the activities or stress of employment. . . .
*688“The rationale for the rule is discussed at some length in Sellens [v. Allen Products Co., Inc., 206 Neb. 506, 293 N.W.2d 415 (1980)]. Where a person suffers from a preexisting condition which he claims is aggravated by his employment, he has an increased burden of proving causation. The exertion ‘greater than nonemployment life’ test is simply an application of the increased burden of proof required in preexisting condition cases to the unique problems of proving causation of a myocardial infarction. We find no reason to extend the rule to other cases where the proof of causation is not usually as complex.”
(Emphasis in original.)
However, the enhanced degree of proof in preexisting condition cases was expressly overruled in Heiliger v. Walters & Heiliger Electric, Inc., 236 Neb. 459, 461 N.W.2d 565 (1990). In addition, this court stated in Leitz, supra, that the “exertion greater than nonemployment life” test is not an application of the enhanced degree of proof, but, . rather, a function of proximate or legal causation.
Larson’s treatise correctly urges use of the split test of legal and medical causation in areas other than heart attack cases, observing that “what is being attempted here is a rule that will have general validity and practicality. . . . [T]here are cases on the books that make one wonder whether the cerebral hemorrhage or disc protrusion might not have been just as much the result of natural progression as any coronary thrombosis.” 1A Arthur Larson & Lex K. Larson, The Law of Workmen’s Compensation § 38.83(e) at 7-340 (1995).
Thus, the split test of legal and medical causation is properly utilized whenever an employee contributes some personal element of risk to the performance of a task involved in daily living.
“ ‘[W]hen the employee contributes some personal element of risk ... the employment must contribute something substantial to increase the risk. The reason is that the employment risk must offset the causal contribution of the personal risk. This is necessary to break any causal connection between the natural progression of the preexisting condition or disease *689and the injury at the workplace. Otherwise, the fact that the . . . injury occurred at work would be strictly fortuitous.
Leitz, 237 Neb. at 242, 465 N.W.2d at 606.
A number of courts have held that everyday activities performed at work which trigger preexisting conditions do not satisfy the legal causation requirement. United Parcel Service v. Fetterman, 230 Va. 257, 336 S.E.2d 892 (1985) (bending over to tie shoelace); Southern Bell Tel. & Tel. Co. v. McCook, 355 So. 2d 1166 (Fla. 1977) (employee, while sitting on toilet, bent over to pick up toilet tissue); Barrett v. Herbert Engineering, Inc., 371 A.2d 633 (Me. 1977) (walking at normal gait to retrieve tools); Board of Trustees v. Industrial Com., 44 Ill. 2d 207, 254 N.E.2d 522 (1969) (turning in chair); Market Food Distrib., Inc. v. Levenson, 383 So. 2d 726 (Fla. App. 1980) (bending over to pull out desk drawer); Davis v. Houston General Ins. Co., 141 Ga. App. 385, 233 S.E.2d 479 (1977) (putting on coat); Hansel & Gretel Day Care v. Indus. Comm’n, 215 Ill. App. 3d 284, 574 N.E.2d 1244 (1991) (arising from chair); Hopkins v. Industrial Comm’n, 196 Ill. App. 3d 347, 553 N.E.2d 732 (1990) (turning in chair).
The basis for these holdings is that risk of injury in engaging in the various everyday activities by the injured claimants was not in any way peculiar to or increased by the employment, and the injuries resulted from hazards to which the employees would have been equally exposed apart from the employment or a risk personal to the employees. Thus, it is clear that the split test of legal and medical causation is the proper test to be applied in cases of injury resulting during the performance of everyday activities at work.
In order to satisfy the split test, the employee must first establish legal causation. “[T]he employee must prove that he or she suffered some work-related stress or exertion which is greater than that in the ordinary nonemployment life of the employee or any other person.” Leitz v. Roberts Dairy, 237 Neb. 235, 242, 465 N.W.2d 601, 606 (1991). “ ‘ “Note that the comparison is not with this employee’s usual exertion in his employment, but rather with the exertions present in the normal *690non-employment life of this or any other person.” ’ ” (Emphasis in original.) Id.
In addition to establishing legal causation, the employee must establish medical causation. “[M]edical causation is established by a showing by the preponderance of the evidence that the employment contributed in some material and substantial degree to cause the injury.” Id. at 244, 465 N.W.2d at 607.
The compensation court impliedly found that Cox brought an element of personal risk to the activity in that he had a preexisting back condition, specifically noting that Cox had been previously treated by the chiropractor and that the orthopedist stated that the injuries he treated after the accident were the same as the injuries the chiropractor treated. The compensation court went on to state that
[the orthopedist] diagnoses the plaintiff’s injury as a lumbar strain with nerve root irritation and opines that said injury and resulting permanent impairment of 7 percent and physical restrictions were caused by the accident of December 27, 1993 .... The Court finds from said evidence that the plaintiff did suffer an injury to his back as a result of an accident as defined by § 48-151(2) on December 27, 1993.
It is true that factual determinations by the compensation court will not be set aside on appeal unless such determinations are clearly erroneous. Toombs v. Driver Mgmt., Inc., 248 Neb. 1016, 540 N.W.2d 592 (1995); Aken v. Nebraska Methodist Hosp., 245 Neb. 161, 511 N.W.2d 762 (1994); McGowan v. Lockwood Corp., 245 Neb. 138, 511 N.W.2d 118 (1994). However, as in any other case, an appellate court is obligated in workers’ compensation cases to make its own determinations as to questions of law. Pettit v. State, ante p. 666, 544 N.W.2d 855 (1996); Hull v. Aetna Ins. Co., 247 Neb. 713, 529 N.W.2d 783 (1995); McGowan, supra.
While the evidence supports a factual finding that Cox’s injury was caused by the December 27 accident in the medical sense, that does not necessarily mean that the evidence is such as to establish a sufficient nexus between the injury and work-related activity so as to prove that the work-related activity was the proximate or legal cause of the injury.
*691Noteworthy in this regard is the orthopedist’s testimony:
Q. Doctor, if I came to you today and I said, Doctor, I went to put my suit on this morning and I put on my suit pants and I lifted up my left leg and I just felt like I got a stabbing pain in the low back, how would that history provide you with any diagnostic benefit?
A. Well, I think the history that you got the back pain would give me a clue and I guess I would evaluate you from that standpoint on. I think people can get pinched nerves in their back from a variety of things that, you know, we don’t realize that they put any stress on our backs.
Q. So a variety of things could be several just everyday activities?
A. Everyday activities.
Q. Lifting your leg, crossing your leg, things of that nature?
A. That’s right.
Q. Would it be significant to you if I — As we talked about this and you were trying to diagnose the cause of my pain in the low back, would it be significant to you if I said and, Doctor, you probably should know that about seven months earlier, I was experiencing low back pain and I’ve been treated by a chiropractor?
A. I think that would be important, yes.
Q. Why would that be important?
A. Well, that would indicate to me that he was having back problems and it’s very possible that they can get worse at any time.
Q. Just from very simple daily activity; correct?
A. That’s right ....
As Larson notes, looking at only medical causation without resort to legal causation
sometimes leads to a slighting of the need for precision in defining the legal rule, with the result that decisions may be based on statements by doctors that the exertion did or did not cause the [injury], although neither the doctors nor the lawyers may have had a clear and consistent concept of what “caused” meant in this setting.
*6921A Arthur Larson & Lex K. Larson, The Law of Workmen’s Compensation § 38.83(a) at 7-318 to 7-319 (1995). In Bryant v. Masters Mach. Co., 444 A.2d 329, 336-37 (Me. 1982), the Supreme Judicial Court of Maine provided a detailed analysis of the need for the legal causation prong of the test:
Absent the content provided by “legal cause,” the causation requirement . . . would allow compensation for any disability that could be shown as a matter of medical or physical fact to have occurred because of the effect of ordinary activity upon a pre-existing condition during the course of employment. Such was clearly not the intent of the Legislature in using the “arising out of” language. It was intended that compensation should be available only where disability results from some sufficient causal relationship to the conditions under which the employee works. . . . This legal element of the causation requirement is the mechanism by which it becomes possible to distinguish between two types of disabilities: (1) that such happens to occur at work as a result of the employee’s existent condition but without any enhancement of his susceptibility to its occurrence arising out of any conditions or requirements of the work activity or environment, and (2) that disability which occurs only because some condition of his employment increases the risk that he will sustain a disability above that level of risk which, because of his condition, he faces in his normal everyday life. Only by that mechanism can we distinguish the disability that is more likely than not produced, at least in part, by a risk related to the employment from one that is not produced in any way by such a risk. Thus, to meet the test of legal cause where the employee bears with him some “personal” element of risk because of a pre-existing condition, the employment must be shown to contribute some substantial element to increase the risk, thus offsetting the personal risk which the employee brings to the employment environment.
Cox brought to his employment a personal risk by way of a prior back condition and was engaging in an everyday activity when he was injured. The risk from that activity was not *693peculiar to or increased by his employment. Furthermore, the injury to Cox’s back resulted from a hazard (putting on clothes) that he would have been equally exposed to apart from the employment. Therefore, the legal causation prong of the split test is not satisfied; as a result, Cox’s back injury of December 27, 1993, cannot be said to have arisen out of his employment.
In short, this is not a case in which Cox’s fall caused the back injury, but, rather, a case in which the preexisting back condition caused the fall.
Accordingly, I would reverse the award of the compensation court and remand the cause for dismissal.