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The last injurious exposure rule has been called a rule that is “rationally related to the permissible governmental goal of providing efficiency and certainty in the settlement of workers compensation claims.” The rule consists of two main, complementing parts. First, the rule holds that the last employer of a claimant with an accepted claim relating to a specific body part bears the burden of proving that an injury to the claimant at a subsequent employment was new, was not caused by the prior incident, and independently contributed to a worsening of the claimant's underlying condition.

Second, when an employee sustains a subsequent injury that is found, in fact, to be a new injury, the liability for all awards is placed on the insurer of the risk at the time of the second injury, thus absolving the insurer at the time of the first injury of liability for compensation payments.

In other words, under the last injurious exposure rule, if an employee is injured on the job today, and a dispute arises between the previous employer and the current employer over whether the injury is new or simply an aggravation of an injury that the employee suffered while at the previous job, it is the duty of the previous employer to show that the injury is a new one. If that is accomplished, the current employer (or, as is more likely, the current employer's workers compensation insurer) must make any relevant compensation payments; if that is not accomplished, the previous employer (or its insurer) may end up paying the compensation or splitting the payments, depending on how and to whom the workers compensation board apportions the injury.

It should be remembered, that under the last injurious exposure rule, if the current employer is ordered to make all the compensation payments, neither the employer nor its insurer is allowed to pursue the previous employer or its insurer for any contribution to the payment unless state law permits such a course of action.

For your purposes, knowing what the rule calls for will enable you to convey the information to your clients and try to impress upon them the importance of keeping accurate, up to date workers compensation accident records. Should one of your client's be called upon to prove that a former employee's injuries are not the result of an accident that happened while that employee worked for your client, accurate record keeping will be a valuable asset.