concurring in part and dissenting in part:
I concur in part IIA of the majority opinion. I dissent to part IIB, however, because I am persuaded that the administrative law judge and the appellate tribunals that have reviewed this case have misconstrued the standard established by section 8-42-110(3), 3B C.R.S. (1990 Supp.), to determine whether an employer is entitled to limit an award of permanent partial disability benefits by reemploying an injured employee. I would remand the case for application of what I believe to be the correct standard.
Section 8-42-110(3) creates an incentive for employers to retain or reemploy persons who suffer a permanent partial disability as a result of injuries sustained in the course of their employment. This incentive takes the form of reduction in the amount of disability benefits payable if an employer continues to employ a partially disabled employee and if the standards set by the statute are satisfied. Section 8-42-110(3) provides:
In any case where an employer reemploys or continues the disabled employee at work in the employment of the employer at the employee’s preinjury rate of pay and extends to the employee the usual wage adjustments, the employee’s permanent partial disability award shall be limited to permanent medical impairment or a payment under section 8-42-107, whichever is less. This subsection (3) shall not apply if the director finds that due to the injury the employee is permanently unable to perform the duties offered by the employer. If, during the two years following the date of return to work or reemployment, the injured employee, as a result of said employee’s permanent disability due to the injury, is dismissed from employment or resigns from employment with the employer, said employee may petition the director for a redetermination of the original permanent partial disability award, and, upon a proper showing of the employee’s limitations in the labor market, the director shall order an appropriate award of permanent partial disability.
(Emphasis added.)
Petitioner Kenneth R. Fulton suffered a permanent partial disability when he injured his left hand in the course of his employment as an apprentice mechanic with King Soopers. After a time, he returned to that same work at the same salary. A hearing was held before an administrative law judge (AU) of the Department of Labor and Employment to determine the extent of Fulton’s disability and *716the disability award to which he was entitled. The AU made the following findings concerning Fulton’s ability to perform his work:
Claimant is unable to do heavy lifting due to strength and grip limitations in his left hand. Claimant must wear a glove while performing his work. Claimant is unable to function well in cold weather and is unable to handle small hardware. Claimant attempts to get assistance from other store employees when doing heavy lifting. Claimant is required to lift conveyers on an almost daily basis. The conveyers weigh approximately 85 to 90 pounds. Claimant also is unable to work with heavy angle iron, lift batteries, or break hydraulic fittings by himself. Claimant also has difficulty in taking out the overhead door operator since he must hold the operator with one hand and remove the screws with the other hand. Claimant fears that his condition will worsen and that he will lose his ability to function as a journeyman mechanic. Claimant has had no complaints from his supervisors about his job performance since his return to work. Claimant has continued to work the same 40-hour work week since his return.
The AU found that Fulton “has returned to his same job and is performing the job without complaints from his supervisors.” The AU accordingly concluded that Fulton was performing his duties on a satisfactory basis and that his permanent partial disability award should therefore be limited pursuant to section 8-42-110(3). The Industrial Claim Appeals Panel affirmed on the basis that “[t]he AU’s finding that the claimant is performing his preinjury job without complaints from his supervisors is supported by substantial evidence, and is therefore binding on review.” The Colorado Court of Appeals affirmed in a divided opinion. Fulton v. King Soop-ers, Inc., 811 P.2d 421 (Colo.App.1990). We granted certiorari, and now the majority affirms as well.
The critical issue on which the applicability of the statutory limitation of award for permanent partial disability benefits turns is whether “due to the injury the employee is permanently unable to perform the duties offered by the employer.” § 8-42-110(3). The AU’s implicit conclusion that Fulton was not permanently unable to perform the duties offered by King Soopers was based on the finding that Fulton had returned to the same job “and is performing the job without complaints from his supervisors.” This finding also supplies the basis for the conclusions of the Industrial Claim Appeals Panel and the majority opinion of the Colorado Court of Appeals that the statutory standard was satisfied. Justice Erickson’s majority opinion for this court now appears to adopt that same analysis. See op. at 714-715.
In his dissent to the court of appeals’ majority opinion, Judge Dubofsky rejects the construction of section 8-42-110(3) apparently adopted by the AU, the Industrial Claim Appeals Panel, a majority of the panel of the court of appeals, and now by a majority of this court — that if the employer is willing to accept without complaint even a greatly reduced level of performance of the employee’s job assignment, then the employee is able to “perform the duties offered by the employer.” Rather, the dissenting judge would construe the statute to require that the employee “can substantially perform in a competitive manner all of the duties offered by the employer,” i.e., the duties of the job that the employee is assigned to perform, before the limitations on a permanent disability award will be applicable under section 8-42-110(3). Fulton, 811 P.2d at 424. I agree with this conclusion and with the reasoning on which it is based. No useful purpose would be served by restating Judge Dubofsky’s analysis here.
I concur in part IIA of the majority opinion, dissent to part IIB, and would remand the case for an administrative determination whether Fulton can substantially perform in a competitive manner all of the duties offered by his employer.