Manuel Palacios v. Campbell Industries, and Director, United States Department of Labor Office of Workers' Compensation Programs

Manuel Palacios appeals a decision of the Benefits Review Board (BRB) affirming an administrative law judge’s determination of disability benefits under the Longshoremen’s and Harbor Workers’ Compensation Act (LHWCA), 33 U.S.C. §§ 901 et seq. Palacios challenges the selection and application of the statutory method used to calculate the average annual earnings upon which his disability award is based.

On September 6,1973 at San Diego, California, Palacios was hired as an extra shipyard painter by Campbell Industries. He was assigned to work on a ship being repaired under contract with the United States Navy. Campbell hired extra painters whenever it had repair projects that exceeded the work capacity of its permanent staff. Palacios worked as a painter for about five weeks before leaving the job on October 29, 1973, because of a disabling allergic reaction to paint fumes. Other extra painters hired for the same project worked until December 18, 1973, when the project was completed. Had Palacios not suffered injury, he also would have been terminated on that date because he lacked seniority for transfer to the permanent painting staff. Campbell again hired extra painters in July…