concurring in part, dissenting in part.
Because I find that the Commission’s findings of fact support its conclusion that plaintiff is not entitled to elect benefits under N.C. Gen. Stat. § 97-30 as a matter of law, I respectfully dissent on the election of remedies issue. On the issue regarding attorney’s fees, I concur.
Plaintiff has not excepted to the Commission’s findings of fact; these findings are, therefore, conclusive on appeal. See Pratt v. Central Upholstery Co., Inc., 252 N.C. 716, 719, 115 S.E.2d 27, 31 (1960). Thus, this Court’s review is limited to whether the findings of fact support the legal conclusions of the Commission.
As correctly stated by the majority, an employee is entitled to benefits under N.C. Gen. Stat. § 97-30 “where the incapacity for work resulting from the injury is partialf.]” N.C. Gen. Stat. § 97-30 (emphasis added). Thus, N.C. Gen. Stat. § 97-30 “provide[s] compensation for loss of wages due to a[n] .. . ‘incapacity because of injury to earn the wages which the employee was receiving at the time of injury in the same or any other employment.’ ” Gupton v. Builders Transport, 320 N.C. 38, 42, 357 S.E.2d 674, 677-78 (1987) (emphasis added). An employee is entitled to benefits under N.C. Gen. Stat. § 97-30 when he suffers a'“ ‘diminution of the power or capacity to earn’ ” caused by the work-related injury. Id. at 42, 357 S.E.2d at 678 (citation omitted).
In the present case, the Commission found (and no exception was taken) that “[p]laintiff’s loss of wage-earning capacity was not due to his work-related injury and its aggravation.” I would conclude that this finding by the Commission supports a conclusion that plaintiff’s loss of wage-earning capacity was not a result of plaintiff’s work-related injury and therefore compels the conclusion that plaintiff was not entitled to obtain benefits under N.C.G.S. § 97-30.
Accordingly, I would affirm the Commission’s decision to deny plaintiff an election of benefits under N.C.G.S. § 97-30.