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BUREAU v. STAFFING NETWORK6/21/1996
ction 214 alone in awarding benefits, section 213 is necessarily the source of their authority. Thus, the language referring to the employees' ability to earn cannot be avoided.
Section 213 is not essentially different from earlier versions of the statute. Based on the plain language of section 213, and its settled meaning, we conclude that a partially incapacitated employee seeking to obtain or retain maximum benefits bears the initial burden to establish the unavailability of work within their work-restrictions. We have held that "when statutory language has acquired a consistent and entrenched meaning through prior judicial decisions, we will not abandon our traditional interpretation of that language unless there is express statutory language plainly showing a legislative intent to abrogate those prior decisions." Tripp, 676 A.2d at 930-31. See also Caron v. School Admin. Dist. 27, 594 A.2d 560, 563 (Me. 1991) ("In the absence of clear and explicit statutory language showing that the legislature intended a statute to modify case law, we will not interpret a statute to effect such a modification"); City of Augusta v. Inhabitants of Town of Alna, 370 A.2d 1381, 1384 (Me. 1977).
The parties concede that the legislative record is silent on the work search issue. As a matter of public policy, there may be merit in the employees' position that section 213 should be measured by actual earnings rather than the theoritical sum derived from the familiar phrase "able to earn." Whether a simpler rule would reduce the need for litigation and provide certainty in outcome without increasing employers' costs to unacceptable levels is a matter for consideration by the Board and the Legislature rather than this Court.
II.
Michael Caiazzo suffered a work-related injury in February 1993 while employed by Wright Express, Inc. (the employer). Caiazzo was totally incapacitated until April 1993, when he returned to part-time work for the employer. He was fired from his post-injury employment in August 1993 for "performance problems" unrelated to his work-injury. The employer paid Caiazzo benefits without prejudice until September 1993. Caiazzo filed petitions for award and review seeking restoration of benefits and the Board issued a provisional order pursuant to section 205(9)(D) restoring benefits pending resolution of the petition. 39-A M.R.S.A. § 205(9)(D) (Supp. 1995). Mediation was held in May 1993 and the parties signed a written mediation agreement stating that Caiazzo suffered short-term total and continuing partial incapacity as a result of his work-injury. The Board granted Caiazzo's petition for award in January 1995, ruling that the mediation agreement was binding on the issue of whether a work-related injury occurred. The Board awarded total incapacity benefits pursuant to section 212 for the period prior to Caiazzo's return to work and partial benefits pursuant to section 213 and 214 for the period following his return to work until he regained full work-capacity in February 1994. Concluding that section 214 is silent regarding employees who are fired for cause, the Board rejected the employer's argument that Caiazzo's termination from his post-injury employment should be treated as a "refusal" of an offer of reasonable employment, and we granted appellate review pursuant to 39-A M.R.S.A. § 322.
The employer contends that Caiazzo's termination for "personal problems" unrelated to his work-injury constituted a "refusal" of "reasonable employment from the previous employer" pursuant to subsection 214(1)(A) and was therefore grounds to suspend all benefits. The employer concedes that under prior law it was not entitled to suspend benefits when an employee was fired from po
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