author: ROLAND L. BELSOME, Judge.

text:
    Karen KUEBEL v. DEPARTMENT OF WILDLIFE AND FISHERIES and Office of Risk Management.
    No. 2008-CA-1018.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 15, 2009.

      Daniel E. Becnel III, LaPlace, LA, for Plaintiff/Appellant.
    James D. “Buddy” Caldwell, Attorney General, Henry S. Provosty, Special Assistant Attorney General, Eric R.G. Belin, Special Assistant Attorney General, Brian R. Radcliffe, Special Assistant Attorney General, Provosty & Gankendorff, L.L.C., New Orleans, LA, for Defendants/Appel-lees.
    (Court composed of Judge CHARLES R. JONES, Judge MICHAEL E. KIRBY, Judge ROLAND L. BELSOME).
   ROLAND L. BELSOME, Judge.

1 [Plaintiff-Appellant, Karen Kuebel, appeals the trial court’s judgment sustaining Defendant-Appellee’s exceptions of no cause of action and lack of subject matter jurisdiction. For the reasons that follow, we affirm.

FACTS AND PROCEDURAL HISTORY

At the time of her injury, Appellant Karen Kuebel was a Biologist II for Appel-lee, the Louisiana Department of Wildlife and Fisheries (“DWF”). As a Biologist II, Appellant traveled on vessels to various test sites. On August 24, 2000, Appellant injured her neck and back while gathering samples in a seine net. The trial court found that Appellant’s injuries were caused by DWF’s negligence in failing to follow proper guidelines and failing to provide Appellant with a safe work environment. The court also found that the vessel on which Appellant traveled was unsea-worthy due to its lack of equipment to assist Appellant in the pulling of the seine nets.

|2Appellant filed suit on August 21, 2001, seeking damages under the Jones Act, 46 U.S.C. § 30104 (“Jones Act”) and general maritime law for her injuries. On November 12, 2007, Appellee filed exceptions of no cause of action and lack of subject matter jurisdiction, asserting that because Appellant was a State employee, she was precluded from relief pursuant to the state’s sovereign immunity; thus, Appellee argued that Appellant’s sole remedy was the Louisiana Workers’ Compensation Act (“WCA”).

Appellant argued in her opposition to the exceptions that issues of material fact existed regarding her seamen status, as evidenced by the affidavit and deposition of Appellant’s coworker, Jack Cahill, who testified as to the amount of time that Appellant spent on vessels as a Biologist II for the DWF. Appellant further argued that because of the amount of time she worked on vessels, genuine issues of fact existed regarding the applicability of the Jones Act and general maritime law, and whether the “seamen’s exception” within the WCA applied.

A hearing on the exceptions was conducted on May 12, 2008, at which time Appellant argued that the State waived its right to the exceptions because it had made maintenance and cure payments for the past several years. The trial court requested briefs regarding the specific issue of waiver. Appellee filed a supplemental brief to the trial court, arguing that the State did not waive its |,^immunity as a sovereign entity in making payments to Appellant and could therefore not be subject to suit under the Jones Act or general maritime law. The trial court signed a judgment granting Appellee’s exceptions on May 22, 2008. This appeal followed.

STANDARD OF REVIEW

This Court articulated the de novo standard of review for exceptions of no cause of action in Southern Tool & Supply, Inc. v. Beerman Precision, Inc., 03-0960 (La.App. 4 Cir. 11/26/03), 862 So.2d 271:

We review a trial court’s decision on an exception of no cause of action de novo “because the exception raises a question of law and the lower court’s decision is based only on the sufficiency of the petition.” City of New Orleans v. Board of Comm’rs of Orleans Levee Dist., 93-0690, p. 28 (La.7/5/94), 640 So.2d 237, 253. In doing so, we are confined to the allegations of the petition. No evidence can be introduced to support or to controvert an exception of no cause of action. La. C.C.P. art. 931. Rather, we must accept as true the well pleaded factual allegations set forth in the petition. Based thereon, our job is to determine “whether, on the face of the petition, the plaintiff is legally entitled to the relief sought.” Everything on Wheels Subaru v. Subaru South, Inc., 616 So.2d 1234, 1235 (La.1993).
A defendant’s peremptory exception of no cause of action is designed to test the legal sufficiency of the plaintiffs petition. It poses the question “whether the law affords a remedy on the facts alleged in the pleading.” Id. Louisiana has a system of fact pleading, and “[t]he mere conclusion of the pleader unsupported by facts does not set forth a cause or right of action.” Montalvo v. Sondes, 93-2813, p. 6 (La.5/23/94), 637 So.2d 127, 131. As we recently noted, “[i]t is | insufficient to state a cause of action where the petition simply states legal or factual conclusions without setting forth facts that support the conclusions.” Bibbins v. City of New Orleans, 02-1510, p. 5 (La.App. 4 Cir. 5/21/03), 848 So.2d 686, 691, writ denied, 03-1802 (La.10/10/03), 855 So.2d 357.
The exceptor has the burden of proving that the petition fails to state a cause of action. This burden serves the public policy of affording the plaintiff his day in court to present his case. “When it can reasonably do so, the court should maintain a petition against a peremptory exception so as to afford the litigant an opportunity to present his evidence.” Kuebler v. Martin, 578 So.2d 113, 114 (La.1991). “An exception of no cause of action is likely to be granted only in the unusual case in which the plaintiff includes allegations that show on the face of the petition that there is some insurmountable bar to relief.” City of New Orleans v. Board of Directors of Louisiana State Museum, 98-1170, p. 10 (La.3/2/99), 739 So.2d 748, 749.

Id. at pp. 6-7, 862 So.2d at 278.

DISCUSSION

Appellant asserts three assignments of error: 1) that the trial court erred in finding no cause of action against the State arising out of Appellant’s admiralty claims and disregarding this Court’s opinion in Higgins v. State of Louisiana, 627 So.2d 217 (La.App. 4 Cir.1993) and the U.S. Supreme Court’s opinion in Chandris, Inc. v. Latsis, 515 U.S. 347, 115 S.Ct. 2172, 132 L.Ed.2d 314 (1995); 2) the trial court erred in not finding that the “seamen’s exception” to the WCA applied to Appellant; and 3) that the trial court erred in allowing the issue of Appellee’s compensation to Appellant to factor into the court’s determination that Appellant did not have a cause of action for Jones Act or general maritime law claims.

ASSIGNMENT OF ERROR # 1

In Appellant’s first assignment of error, she asserts that the trial court erred in finding no cause of action against the State pursuant to the Jones Act or general | amaritime law. To determine whether Appellant may bring a Jones Act or gener-' al maritime , claim against the DWF, an arm of the State of Louisiana, we must first examine Louisiana and U.S. Supreme Court jurisprudence.

The leading case in this Circuit is Higgins v. State of Louisiana, 627 So.2d 217 (La.App. 4 Cir.1993). Higgins addressed this precise issue and held that an injured state employee could bring suit against the State of Louisiana under the Jones Act and general maritime law. In making this determination, this Court relied, in part, on Hilton v. South Carolina Public Railways Commission, 502 U.S. 197, 112 S.Ct. 560, 116 L.Ed.2d 560 (1991), which held that an employee of a state-owned railroad could bring suit against its employer under the Federal Employers’ Liability Act (“FELA”) in state court. The Jones Act and FELA have historically received similar treatment by the courts. See Welch v. Texas Department. of Highways and Public Transportation, 483 U.S. 468, 476-77, 107 S.Ct. 2941, 97 L.Ed.2d 389 (1987); James E. Pfander, Jones Act Claims Against the States After Alden v. Maine: The Surprisingly Strong Case for a Compulsory State Court Forum, 36 J. Mar. L. & Com. 1 at n. 6 (2005). Unlike the case sub judice, however, the injured State employee in Higgins did not have a remedy under the WCA at that time because of his seaman status. Higgins, 627 So.2d at 221. Moreover, since Higgins, fundamental changes in the law have occurred.

Appellee argues, and the trial court found, that the U.S. Supreme Court case of Alden v. Maine is contrary to the assertion that state employees may sue the state as their employer for claims under the Jones Act and general maritime law in state court. In Alden, a group of probation officers sued the State of Maine, their |fiemployer, for alleged violations of overtime provisions' of the Fair Labor Standards Act (“FLSA”), seeking compensation and damages. Alden v. Maine, 527 U.S. 706, 711, 119 S.Ct. 2240, 2246, 144 L.Ed.2d 636 (1999). The Court held that “the powers delegated to Congress under Article I of the United States Constitution do not include the power to subject non-consenting States to private suits for damages in state courts.” Alden, supra, at 712, 119 S.Ct. 2240 (emphasis added). The Court further held that Maine did not consent to suits for overtime pay and damages under the FLSA. Id. Accordingly, the state’s sovereign immunity operated to prevent individuals from litigating to enforce federal statutory rights against the states. Thus, “[Mainej’s refusal to consent did not improperly discriminate against a federal cause of action but permissibly invoked the state’s own constitutional right to freedom from litigation that the Court viewed as an affront to the state’s sovereign and dignitary interest.” Pfander, 36 J. Mar. L. & Com. 1, 2. The Court further found that “[a] broad immunity was necessary ... to prevent the “ ‘indignity of subjecting a State to the coercive process of judicial tribunals at the instance of private parties ...’” because to hold otherwise, “the Court reasoned, states would “face the prospect of being thrust, by federal fiat and against [their] will, into the disfavored status of a debt- or.... ” Sean M. Monohan, A Tempest in the Teapot: State Sovereign Immunity and Federal Administrative Adjudications in Federal Maritime Commission v. South Carolina State Ports Authority, 88 Cornell L.Rev. 1794, 1801-1805 (2003)(quoting Alden, supra). “The Court based its decision on 17structural principles and state dignity, as well as on a perceived need to protect its Seminole Tribe decision from erosion through efforts to shift the assertion of federal law claims into state courts.” Pfander, 36 Mar. L. & Com. at 7.

Alden and its progeny indisputably represent significant changes in U.S. Supreme Court and federal law. Alden has generated much debate and has been considered by many to be a departure from the U.S. Supreme Court’s previous jurisprudence. One author has described the Alden, Seminole Tribe, and College Savings Bank decisions (the “Alden trilogy”) as “represent[ing] a highly activist rejection of more than twenty years worth of constitutional decisions that had established Congress’ powers to subject states to suit under federal laws.” Vicki C. Jackson, Seductions of Coherence, State Sovereign Immunity, and the Denationalization of Federal Law, 31 Rutgers L.J. 691, 696 (2000). Since 1996, the Supreme Court has arguably “reversed course .... overruling] two of its own earlier decisions (Union Gas and Parden),” and “discounting] assumptions about sovereign immunity in state courts made in at least six other decisions ...” |RJackson, supra, 31 Rutgers L.J. at 696-97. Another author determined that “the most valid understanding of the interpretive process deployed in Alden is that a majority of the Court preferred state autonomy, fiscal predictability, and political accountability, and disapproved of individuals’ ability to influence the course of government through litigation.” Roger C. Hartley, Alden Trilogy: Praise and Protest, 23 Harv. J.L. & Pub. Pol’y 323, 350 (2000).

As Louisiana has not addressed this precise issue in the wake of the Alden trilogy, an examination of other jurisdictions’ opinions applying Alden v. Maine to facts which mirror the instant case is also warranted. Predictably, courts have generally interpreted Alden as disallowing suits against the state for maritime and railroad personal injuries. See Pfander, supra, at 7. For example, an employee of the Port of Portland who sustained injuries on a vessel and received state workers’ compensation benefits subsequently sought to recover damages under general maritime law and the Jones Act, alleging the Port’s negligence in causing his injuries. Nor-gaard v. Port of Portland, 223 Or.App. 543, 546, 196 P.3d 67, 69 (2008). After extensively quoting Alden, the Oregon appeals court found that because the Port of Portland was not an arm of the state, it was not entitled to sovereign immunity from suit in state court. Norgaard, 223 Or.App. at 545-46, ln196 p.3d at 69. The court noted, however, that “there is no question that the states enjoyed immunity from private actions before the ratification of the federal constitution and that they continue to enjoy such immunity.” Id.

Similarly, in Midgett v. North Carolina Dep’t of Transp., 152 N.C.App. 666, 568 S.E.2d 643 (2002), a seaman and an employee of the state’s Department of Transportation (“DOT”) appealed the Industrial Commission’s dismissal of his Jones Act claims against the DOT for lack of jurisdiction. As in Norgaard, supra, the plaintiff in Midgett had previously received a workers’ compensation settlement. Midgett, 568 S.E.2d at 644. The court examined the language of the state’s Tort Claims Act, finding that the Act constituted a specific statutory waiver of immunity under certain circumstances. Id. at 645. Relying upon Alden, the court held that although the state’s Tort Claims Act expressed the statutory waiver of immunity to some claims, the state did not consent to be sued under the Jones Act. Id. at 647. The court further held that the legislature “did not by ‘plain, unmistakable mandate’ waive the State’s immunity to suit under the Jones Act in a tort claim.” Id. at 648.

The court also dismissed the plaintiffs assertion that by not specifically addressing the Jones Act, the U.S. Supreme Court left open the possibility that states were subject to litigation in state court by private parties for Jones Act claims. Id. at 647. The court cited Federal Maritime Com. v. SCSPA, 585 U.S. 743, 767, 122 S.Ct. 1864, 152 L.Ed.2d 962 (2002), where the Court found that Seminole Tribe precluded a ‘maritime commerce’ exception to state sovereign | inimmunity, stating that “[e]ven when the Constitution vests in Congress complete lawmaking authority over a particular area, the Eleventh Amendment prevents congressional authorization of suits by private parties against unconsenting States.” Midgett, supra (quoting Federal Maritime Com., 535 U.S. at 767, 122 S.Ct. 1864)(citing Seminole Tribe of Florida v. Florida, 517 U.S. 44, 72, 116 S.Ct. 1114, 1131, 134 L.Ed.2d 252, 277 (1996)).

Perhaps most significantly, the Supreme Court of Alaska recently found that the Jones Act did not provide a state employee who was also a seaman the right to bring suit against the state (in state court) without the state’s consent in Glover v. State, Dep't. of Transp., Alaska Marine Highway Sys., 175 P.3d 1240 (Alaska 2008). In 2003, Alaska’s legislature added a provision to a statute regarding waiver of immunity from suit in state court, effectively barring suit in state court if the claim, inter alia, results from an injury, death, or illness from a [ n seaman during the course of or arising out of employment with the state. Pfander, supra, at 8-9 (citing Alaska Stat. § 09.50.250(5), 2003 Alaska Sess. Laws ch. 30 (July 1, 2003)). Alaska’s Supreme Court upheld the statute, finding that it did not violate due process or equal protection rights; that the Jones Act did not supercede the statute; that the statute did not violate the provision of Alaska’s constitution for providing for suits against the state; and that the statute was not prohibited by either the Supremacy Clause or the Admiralty and Maritime Jurisdiction Clause. See generally, Glover, supra, 175 P.3d 1240. The Glover court examined U.S. Supreme Court jurisprudence in light of Alden v. Maine and concluded that because Alaska did not consent to suit in state court under the Jones Act or general maritime law, the state employee’s exclusive remedy was workers’ compensation. Glover, 175 P.3d at 1255, 1260-63.

The Louisiana Workers’ Compensation Act provides, in pertinent part:

A. The provisions of this Chapter shall apply to every person in the service of the state or a political subdivision thereof, or of any incorporated public board or commission authorized to hold property and to sue and be sued, under any appointment or contract of hire, express or implied, oral or written, except an official of the state or a political subdivision thereof or of any such incorporated public board or commission; and for such employee and employer the payment of compensation according to and under the terms, conditions, and provisions set out in this Chapter shall be exclusive, compulsory, and obligatory; provided that one employed by a contractor who has contracted with the state or other political subdivision, or incorporated public board or commission through its proper representative, shall not be considered an employee of the state, or other political subdivision, or incorporated public board or commission; further, provided that members of the police department, or municipal employees performing police services for any municipality who are not elected officials shall be covered by this Chapter and shall be eligible for compensation; and provided further that criminal deputy sheriffs for the parish of Orleans shall be covered by this Chapter and shall be eligible for compensation as provided herein.
D. Employees of the state, but not those of political subdivisions, shall be provided compensation under this Section by the office of risk management of the Division of Administration in accordance with R.S. 39:1527, et seq. For purposes of this Section, “employees of the state” means the employees of “state agencies” as defined by R.S. 39:1527(1). Employees of political subdivisions shall be provided compensation under this Section by the governing authorities of their respective political subdivisions. The fact that the state may grant to an employee of a political subdivision any additional or supplemental pay or otherwise provide funds for the payment of such employee’s salary shall not make such employee, in whole or in part or in any way, an employee of the state.

La. R.S. 23:1034(A) and (D) (emphasis added). There are two provisions in the WCA that address seamen. The first provides, in pertinent part:

[N]othing in this Chapter shall be construed to apply to any work done on, nor shall any compensation be payable to the master, officers or members of the crew of, any vessel used in interstate or foreign commerce not registered or enrolled in the State of Louisiana.

La. R.S. 23:1037. The second provision states, in pertinent part:

No compensation shall be payable in respect to the disability or death of any employee covered by the Federal Employer’s Liability Act [FELA], the Longshoreman’s and Harbor Worker’s Act, or any of its extensions, or the Jones Act.

La. R.S. 23:1035.2.

Louisiana does not have a torts claims act. See Monteville v. Terrebonne Parish Consol. Government, 567 So.2d 1097, 1104 (La.1990). Although the Louisiana Constitution mandates that the State is not immune in tort or contract, Article 12, Section 10 of the Louisiana Constitution, entitled “Suits against the State”, also provides that the legislature may waive or limit the State’s liability:

(A) No Immunity in Contract and Tort. Neither the state, a state agency, nor a political subdivision shall be immune from suit and liability in contract or for injury to person or property.
(B) Waiver in Other Suits. The legislature may authorize other suits against the state, a state agency, or a political | ^subdivision. A measure authorizing suit shall waive immunity from suit and liability.
(C) Limitations; Procedure; Judgments. Notwithstanding Paragraph (A) or (B) or any other provision of this constitution, the legislature by law may limit or provide for the extent of liability of the state, a state agency, or a political subdivision in all cases, including the circumstances giving rise to liability and the kinds and amounts of recoverable damages. It shall provide a procedure for suits against the state, a state agency, or a political subdivision and provide for the effect of a judgment, but no public property or public funds shall be subject to seizure. The legislature may provide that such limitations, procedures, and effects of judgments shall be applicable to existing as well as future claims. No judgment against the state, a state agency, or a political subdivision shall be exigible, payable, or paid except from funds appropriated therefor by the legislature or by the political subdivision against which the judgment is rendered.

La. Constitution Art. XII § 10. Read in conjunction with the WCA, Louisiana has established a procedure for suits against the State by providing that injured State employees may bring claims under the WCA. Accordingly, we find that article 12, section 10 of the Louisiana Constitution does not evidence the state’s consent to be sued and cannot operate as an absolute waiver of sovereign immunity such that the legislature has no authority to assert immunity for specific types of claims. Accordingly, we find that the State of Louisiana has not consented to be sued in its own courts by individuals seeking recovery under the Jones Act.

In Oshinski v. Northern Indiana Commuter Transp. Dist., 843 N.E.2d 536 (Ind. Ct.App.2006), the court considered a similar issue. In Oshinski, an employee of the Northern Indiana Commuter Transportation District (“NICTD”) filed suit 114under FELA against NICTD, alleging negligence by failing to provide proper safety equipment. Oshinski, 843 N.E.2d at 538. NICTD’s affirmative defenses included the assertion of sovereign immunity and noncompliance with the Indiana Torts Claims Act (“ITCA”), upon which the trial court ultimately granted summary judgment in NICTD’s favor. Id.

With regard to sovereign immunity, the plaintiff argued that Indiana had provided blanket consent to be sued for FELA actions in state court, without regard for the ITCA. Id. at 539. NICTD conceded that the ITCA provided qualified consent for suits against the state. Id. at 540. The Oshinski court first cited College Savings Bank for the principle that “[a] state may not be sued in its own courts unless it has waived sovereign immunity by expressly consenting to such suit through a ‘clear declaration’ of that consent.” Id. at 539 (quoting Coll. Sav. Bank v. Fla. Prepaid Postsecondary Educ. Expense Bd., 527 U.S. 666, 680, 119 S.Ct. 2219, 2228, 144 L.Ed.2d 605 (1999). The court then recognized the “significant evolution” of the U.S. Supreme Court’s jurisprudence during the last few decades, particularly the Court’s overruling of Parden v. Terminal Railway of Alabama State Docks Department, 377 U.S. 184, 84 S.Ct. 1207, 12 L.Ed.2d 233 (1964) in College Savings Bank. Oshinski, 843 N.E.2d at 540.

Plaintiff Oshinski argued that certain language in Alden evidenced that Indiana consented to FELA suits in state court by composing its workers’ | ^compensation statutes to exclude railroad workers. Oshinski, 843 N.E.2d at 543. The court of appeals disagreed:

We can not conceive of any way in which the worker’s compensation statutes could be read as an unambiguous statement of Indiana’s blanket consent to FELA suits against the State in Indiana state courts. Indiana Code Section 22-3-2-2(b) simply provides that Indiana’s worker’s compensation statutes do not apply to railroad workers. The legislature makes no mention of FELA in that statute, and we are aware of no Indiana case in which our judiciary has made a statement regarding the State’s blanket consent in FELA cases. We have already identified Campbell [v. State, 284 N.E.2d 733, 737, 259 Ind. 55, 63 (Ind.1972) ] and ITCA as unequivocal statements by the judiciary and legislature declaring Indiana’s qualified consent in tort claims. Those statements are un-falteringly clear in their purpose, and there is no similarity between the level of clarity in those statements and in that which Oshinski contends is present in the worker’s compensation statutes.
Even if we were persuaded there is merit in the premise Oshinski sets forth, his argument remains unconvincing. At the very most, Indiana’s worker’s compensation statutes could be read as some sort of implied waiver of Indiana’s sovereign immunity. A waiver by implication simply is not good enough. As in the context of federal sovereign immunity, a state’s waiver of its sovereign immunity may not be implied. See Coll. Sav. Bank, 527 U.S. at 682, 119 S.Ct. at 2229.
Finally, Oshinski posits that the Supreme Court held in Hilton and Alden that Indiana has given blanket consent to FELA suits against the State in Indiana state courts. As we commented during oral argument, Oshinski seems to be asking us to read the Supreme Court’s tea leaves. We are not persuaded that the Court’s statements in Hilton and Alden should be assigned as much significance as Oshinski urges. Instead, we read them to be mere obiter dicta, meaning they were unnecessary to the opinions and lack precedential effect. See Black’s Law Dictionary 1100 (7th ed.1999).

Id. at 544-45 (footnotes omitted). Similarly, we do not find that the Louisiana WCA’s “seaman’s exception” operates as consent or waiver for private litigants to | ifibring suit against Louisiana under the Jones Act or general maritime claims in state court.

Likewise, an Alabama court considered a similar issue regarding a FELA claim and concluded that Alabama’s constitution did not demonstrate any waiver of state sovereign immunity. Alabama State Docks Terminal Ry. v. Lyles, 797 So.2d 432, 438 (Ala.2001). The state’s constitution provided “that ‘the State of Alabama shall never be made a defendant in any court of law or equity.’ ” Lyles, supra; Article I § 14, Alabama Constitution of 1901. The Lyles court acknowledged that “[w]hile the Eleventh Amendment governs the jurisdiction of federal courts over the states and immunizes the states from certain actions in the federal courts, the Eleventh Amendment is not the source of a state’s immunity from actions in its own courts.” Lyles, 797 So.2d at 436 (citing Alden v. Maine, 527 U.S. 706, 119 S.Ct. 2240, 144 L.Ed.2d 636 (1999)). Rather, “[a] state’s immunity from actions in its own courts derives from other bases, including common-law sovereign immunity and state constitutional sovereign immunity, such as the immunity guaranteed the State of Alabama by Art. I, § 14, Alabama Constitution of 1901. Id. Therefore, the court concluded, “the State [of Alabama] |17and its agencies have absolute immunity from suit in any court.” Lyles, 797 So.2d at 435.

Accordingly, because we find that Louisiana has not consented to be sued under the Jones Act in this case, we now turn to the issue of whether Congress, pursuant to the Jones Act, has validly abrogated the requirement that a state must consent to suit.

In considering this precise issue, the Glover court noted that “[t]he [U.S.] Supreme Court has issued two conflicting rulings on the applicability of the Jones Act to non-consenting states”: Welch v. Texas Department of Highways and Public Transportation, 483 U.S. 468, 107 S.Ct. 2941, 97 L.Ed.2d 389 (1987) and Hilton v. South Carolina Public Railways Commission, 502 U.S. 197, 112 S.Ct. 560, 116 L.Ed.2d 560 (1991). Glover, 175 P.3d at 1255. The Glover court adopted the appellate court’s reasoning that Hilton has been so significantly narrowed by its subsequent decisions in Alden v. Maine, supra, Seminole Tribe of Florida v. Florida, supra, and College Savings Bank v. Florida Prepaid Postsecondary Edtication Expense Board, 527 U.S. 666, 119 S.Ct. 2219, 144 L.Ed.2d 605 (1999) that its findings are inapplicable to state employees seeking to bring suit against a state under the Jones Act in state court.

First, the court discussed Hilton with regard to Glover’s argument that because the State of Alaska chose to enter the field of maritime commerce, it constructively consented to Jones Act and maritime litigation in its state courts:

11^Hilton concerned an injured employee of a state-owned railroad that sued his state employer under the Federal Employers’ Liability Act (FELA). The Court held that South Carolina was subject to suit by an injured state employee suing under FELA (and, by implication, the Jones Act) and that the Eleventh Amendment immunity of the state did not bar the suit. The Hilton decision relied on the court’s 1964 interpretation of FELA language in Parden v. Terminal Railway of Alabama Docks Department and general principles of stare decisis that courts should generally stand by settled principles of law. In the 1964 decision in Parden the Court held that “when Congress enacted FELA and used the phrase ‘[e]very common carrier by railroad,’ 45 U.S.C. § 51, to describe the class of employers subject to its terms, it intended to include state-owned railroads.” The Par-den Court further held that states that engaged in interstate commerce by operating railroads constructively consented to suits under FELA. The Parden Court also held that FELA was enacted in the exercise of Congress’ “constitutional power to regulate interstate commerce.”
In 1987, the U.S. Supreme Court overruled that portion of Parden that stood for the proposition that FELA constituted a waiver of the Eleventh Amendment in Welch v. Texas Department of Highways & Public Transportation. In Welch, a Jones Act suit against the State of Texas was brought in federal court. The Court held that the Jones Act, which applies the FELA’s remedial provisions to seamen, does not amount to a clear statement of Congressional intent to abrogate the states’ Eleventh Amendment sovereign immunity. The Court held that employee Welch could not bring her Jones Act claim against the state in federal court in the absence of a clear statement in the legislation to abrogate state sovereign immunity.
Hilton was decided in 1991. The Hilton majority concluded that upsetting the long-standing FELA liability rule set forth in Parden in state court actions would be unfair, particularly since Hilton would be left with no remedy for his injuries unless his FELA claim was recognized and since many states’ workers’ | ^compensation laws specifically exclude railroad workers from coverage because of the assumption that FELA provides adequate protection for those workers. The Hilton court recognized that its decision represented an exception to the “clear statement rule” announced in Welch. The court held that the cases were distinguishable because the Eleventh Amendment does not apply in state courts and, thus, the Parden decision was based solely on principles of statutory construction of FELA as opposed to the constitutional construction issues presented in Welch.

Id. at 1260-61 (footnotes and internal citations omitted). The court then turned to Alden v. Maine, supra, and its finding that Hilton is to be narrowly construed:

The Alden Court explained that suit against the state in Hilton was allowed because the state, [by entering into the railroad business after the Court had earlier held that all who operated railroads would be subject to suit by injured workers under FELA effectively] consented to suit by its injured railroad workers. Sovereign immunity was not raised as an issue in Hilton, likely because the case was decided after- the Court had decided Parden v. Terminal Railway of Alabama Docks Department, which held that Alabama had “constructively” consented to suit by engaging in the railroad business after the enactment of FELA, but before the Court subsequently completely overruled Parden’s theory of constructive waiver in College Savings Bank v. Florida Prepaid Postsecondary Education Expense Board.

Id. at 1261-62 (emphasis added) (citations omitted). Finally, the court examined the language in Alden which found that Hilton was not an acknowledgment of congressional authority to subject nonconsenting states to private lawsuits in their own courts:

Our decision was “controlled and informed” by stare decisis. A generation earlier we had held that because the FELA made clear that all who operated railroads would be subject to suit by injured workers, States that chose to enter the railroad business after the statute’s enactment impliedly waived their sovereign immunity from such suits.... Some States had excluded railroad workers from the coverage of their workers’ compensation | ¡^statutes on the assumption that the FELA provided adequate protection for those workers. Closing the courts to FELA suits against state employers would have dislodged settled expectations and required an extensive legislative response.
There is language in Hilton which gives some support to the position of petitioners here but our decision did not squarely address, much less resolve, the question of Congress’ power to abrogate States’ immunity from suit in their own courts. The respondent in Hilton ... neither contested Congress’ constitutional authority to subject it to suits for money damages nor raised sovereign immunity as an affirmative defense....
... When so read, we believe the [Hilton ] decision is best understood not as recognizing a congressional power to subject nonconsenting States to private suits in their own courts, nor even as endorsing the constructive waiver theory of Farden, but as simply adhering, as a matter of stare decisis and presumed historical fact, to the narrow proposition that certain States had consented to be sued by injured workers covered by the FELA, at least in their own courts.

Glover, 175 P.3d at 1262 (quoting Alden v. Maine, 527 U.S. at 736-38, 119 S.Ct. 2240, 144 L.Ed.2d 636) (citations omitted)(emphasis added).

The Glover- court concluded that because the “constructive consent” of Par-den, supra, had been overruled by the Supreme Court, and no express consent to suit by the state was evidenced, no basis for constructive consent to suit existed. Nor, the court found, was the scenario in Glover analogous to Hilton, as the Alaska statute expressly provided for workers’ compensation act benefits. Glover, supra, at 1263. The court noted that “[t]his distinction is particularly compelling because Hilton emphasized the importance of the ‘practical adverse effects’ of allowing an assertion of sovereign immunity, whereas here the state employees are eligible for workers’ compensation.” Glover, supra, at 1254-55 (footnotes omitted). Moreover, the court noted that where a sovereign declines to consent to suit under [2ithe Jones Act, “no constitutional principles are violated by substituting workers’ compensation.” Glover, 175 P.3d at 1254.

The court in Glover thus followed Alden’s mandate that states are free to decide when and under what terms they will consent to suit for private state court damage actions regarding federal claims brought against the state, “absent evidence that ‘the State has manipulated its immunity in a systematic fashion to discriminate against federal causes of action.’ ” Roger C. Hartley, Alden Trilogy: Praise and Protest, 23 Harv. J.L. & Pub. Pol’y 323, 361 (2000)(quoting Alden, 119 S.Ct. at 2268). “[I]n most cases it does not matter if a state waives its sovereign immunity in state tort or contract actions because a state may withhold consent on similar federal claims.” Hartley, supra, 23 Harv. J.L. & Pub. Pol’y at 368.

It is unlikely that many states have consented to suit in their own courts on damage claims by individuals alleging violation of federal rights. Alden makes plain that Maine, for example, has not consented to FLSA overtime actions. Alden-type litigation was routine prior to the [Alden] Trilogy. In addition to Maine, cases were brought in Arkansas, Florida, Iowa, Louisiana, Maryland, Massachusetts, New Jersey, New Mexico, New York, Tennessee, and Wisconsin. One |22can say with reasonable assurance that in these states there was no waiver of sovereign immunity permit•ting state courts to hear damage claims based on the federal causes of action in those cases. Otherwise, there would have been no need to litigate whether nonconsenting states can be sued for damages in state court-the issue in these cases.

Hartley, 23 Harv. J.L. & Pub. Pol’y at 368.

Notably, Alden did not explicitly overrule Hilton, which has been argued by some as preserving a provision for state courts to hear federal maritime personal injury claims. See Pfander, supra, at 3. However, as in Glover, supra, the case sub judiee is distinguishable from Hilton because the Appellant has access to remedies afforded under the state workers’ compensation act, while the injured employee in Hilton did not. See Glover, 175 P.3d at 1255 (citing Hilton, 502 U.S. at 202-03, 112 S.Ct. at 560). Moreover, Hilton has been significantly narrowed by the [^Supreme Court’s subsequent decisions, namely Alden, supra, Seminole Tribe, supra, and College Savings Bank, supra.

Accordingly, as the law currently stands pursuant to the U.S. Supreme Court’s “Alden trilogy” decisions, Appellant may not bring suit against the State of Louisiana under the Jones Act in State court without its consent. Therefore, 12tapplying the foregoing U.S. Supreme Court jurisprudence to the facts of the case mb jvdice, we find that Appellant, as an employee of the DWF, an arm of the State, is governed by the exclusive remedies available under the Louisiana Workers’ Compensation Act.

Assignment of Error # 2

Appellant asserts that Chandns, supra, controls in establishing her seaman status; that defendants did not set forth evidence that Appellant was not engaged in commerce and that the vessel was employed to execute Louisiana’s police and administrative powers. As previously noted herein, it is unnecessary to reach the issue of whether Appellant established seaman status, as Appellant, a state employee, is governed by the exclusive remedies of the WCA, and the State of Louisiana has not given its consent to suit under the Jones Act.

Assignment of Error # 3

In her final assignment of error, Appellant asserts that the trial court erred in considering Appellees’ maintenance and cure payments in the context of determining her seaman status and the merits of her Jones Act and maritime claims.

A review of the record evidences that Appellant initially received maintenance checks beginning on September 1, 2000 at a rate of $175.00 per week. Starting on January 20, 2002, Appellant’s benefits were changed to the State workers’ compensation rate of $298.17 per week. Appellant was issued a|2scheck for the difference between the maintenance rate and the State rate on February 5, 2002. Appellant’s medical bills have also been paid.

As Appellant acknowledges, Appellees were essentially required to issue maintenance and cure payments to Appellant immediately. We agree with the trial court’s findings that the initial payment of maintenance and cure did not constitute a waiver of any defenses, particularly considering that our brethren in the Third Circuit found that such payments do not constitute waiver of an employer’s defenses. Thurman v. Patton-Tully Transp. Co., 619 So.2d 879, 881 (La.App. 3rd Cir.1993)(“The payment of maintenance and cure prior to suit does not constitute a waiver of any defenses which might be asserted.”). Thurman further held that an employer may be held liable for compensatory damages if a claim for maintenance and cure is unreasonably denied. Id. Therefore, we conclude that the aforementioned payments did not constitute a waiver of any Jones Act defenses.

|MCONCLUSION

For the foregoing reasons, the trial court’s judgment is hereby affirmed.

AFFIRMED.

      . A seaman injured in the course of employment or, if the seaman dies from the injury, the personal representative of the seaman may elect to bring a civil action at law, with the right of trial by jury, against the employer. Laws of the United States regulating recovery for personal injury to, or death of, a railway employee apply to an action under this section.
      46 U.S.C. § 30104 (2008).

      . The State argued that because Karen Kue-bel’s status had not yet been determined by the court, the State had initiated maintenance and cure to avoid possible penalties. The State maintained that while the maintenance and cure remedy is construed expansively and paid almost automatically to an injured seaman, it does not constitute a settlement with a plaintiff. The State submitted that it opposed Ms. Kuebel's alleged seaman status from the inception of the lawsuit in its Answer to Ms. Kuebel's petition. Furthermore, the State argued that although it initially paid maintenance and cure, it subsequently determined that Ms. Kuebel was more likely a State employee and therefore entitled to full Workers' Compensation benefits in 2002, attaching a letter to Ms. Kuebel from the State as an exhibit. The State further noted that full Workers' Compensation benefits are greater than maintenance and cure benefits, and that when it stopped paying the maintenance and cure, it issued a check to Ms. Kuebel for the difference between the maintenance rate and the Workers' Compensation rate for her disability benefits, as evidenced by the letter. Accordingly, the State argued that Ms. Kuebel had been receiving Workers’ Compensation benefits, not maintenance and cure payments, for the previous six years.

      . Appellate courts review a trial court's judgment on an exception of lack of subject matter jurisdiction by an application for supervisory writs, if it is arguably incorrect. Robinson v. Simmons Co., 1998-1936 (La.App. 4 Cir. 11/18/98), 725 So.2d 27 at n. 1.

      . The Jones Act allows a seaman injured in the course and scope of her employment to bring a civil action against an employer. 46 U.S.C. § 30104.

      . The Alden Court noted that petitioners originally filed the action in the United States District Court for the District of Maine. While that suit was pending, the U.S. Supreme Court decided Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 116 S.Ct. 1114, 134 L.Ed.2d 252 (1996), "which ma[de] clear that Congress lacks power under Article I to abrogate States’ sovereign immunity from suits commenced or prosecuted in the federal courts.” Alden, supra, at 712, 119 S.Ct. 2240. Pursuant to Seminole Tribe, the District Court of Maine dismissed petitioners' claims; the dismissal was affirmed by the Court of Appeals. Id. The claimants subsequently filed an identical action in state court, and the state court dismissed the action on the basis of sovereign immunity, which the Maine Supreme Judicial Court affirmed. Id.

      . See, e.g., Sean M. Monohan, A Tempest in the Teapot: State Sovereign Immunity and Federal Administrative Adjudications in Federal Maritime Commission v. South Carolina State Ports Authority, 88 Cornell L.Rev. 1794, 1801-1805 (2003)(referring to Alden v. Maine as "the [U.S. Supreme] Court's most significant and controversial Eleventh Amendment decision to date”).

      . See Pennsylvania v. Union Gas, 491 U.S. 1, 109 S.Ct. 2273, 105 L.Ed.2d 1 (1989) (upholding provisions subjecting states to suit in federal court under the Superfund Act); Parden v. Terminal Ry., 377 U.S. 184, 84 S.Ct. 1207, 12 L.Ed.2d 233 (1964) (upholding provisions subjecting states to suit in federal court as employers under the Federal Employers' Liability Act); see also Petty v. Tennessee-Missouri Bridge Comm'n, 359 U.S. 275, 79 S.Ct. 785, 3 L.Ed.2d 804 (1959) (upholding federal jurisdiction over Jones Act suit against bi-state agency whose compact included sue and be sued clause and intent to preserve federal jurisdiction).
      Vicki C. Jackson, Seductions of Coherence, State Sovereign Immunity, and the Denationalization of Federal Law, 31 Rutgers L.J. 691, n. 22 (2000).

      . See note 7, supra. “Parden's constitutional conclusion was overruled in College Savings Bank; Union Gas was overruled in Seminole Tribe." Jackson, supra, 31 Rutgers L.J. at n. 23. Union Gas and Parden are also discussed at length infra.

      . See Hilton v. South Carolina Pub. Ry., 502 U.S. 197, 204-05, 112 S.Ct. 560, 116 L.Ed.2d 560 (1991); Will v. Michigan Dep't of State Police, 491 U.S. 58, 63-64, 109 S.Ct. 2304, 105 L.Ed.2d 45 (1989) (noting that Eleventh Amendment does not apply in state courts and referring to a state's common law immunity from being sued without its consent); Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 240 n. 2, 105 S.Ct. 3142, 87 L.Ed.2d 171 (1985); Maine v. Thiboutot, 448 U.S. 1, 9 n. 7, 100 S.Ct. 2502, 65 L.Ed.2d 555 (1980) (asserting that "No Eleventh Amendment question is presenl, of course, where an action is brought in state court''); Nevada v. Hall, 440 U.S. 410, 418-21, 99 S.Ct. 1182, 59 L.Ed.2d 416 (1979) (noting that no constitutional immunity protects a state from being sued in the courts of another state); Employees of the Dep’t of Pub. Health and Welfare v. Department of Pub. Health and Welfare, 411 U.S. 279, 286, 93 S.Ct. 1614, 36 L.Ed.2d 251 (1973) (noting that Fair Labor Standards Act arguably permits suits in state courts, but describing that as a question the court need not reach); id. at 297 n. 11, 93 S.Ct. 1614 (Marshall, J., concurring in the judgment) (arguing that states can be sued in state court); General Oil Co. v. Crain, 209 U.S. 211, 228, 28 S.Ct. 475, 52 L.Ed. 754 (1908) (treating state sovereign immunity rules in state courts as insufficient to bar the Supreme Court from reviewing whether defendant’s enforcement of state statute would violate the constitution).
      Jackson, supra, 31 Rutgers L. J. at n. 24.

      . The State of Alaska's legislature amended its statutory waiver of immunity subsequent to Alden, ostensibly to articulate that Alaska plainly wished to invoke its immunity from federal maritime personal injury claims, thus leaving state Workers’ Compensation as the remedy available to employees. Pfander, Jones Act Claims, supra, at 2; Alaska Stat. § 09.50.250(5), 2003 Alaska Sess. Laws ch. 30 (July 1, 2003).

      . See, e.g., Glover v. State, Dep’t. of Transp., Alaska Marine Highway Sys., 175 P.3d 1240 (Alaska 2008)(holding that a state-employed seaman could not bring suit against its employer in state court under the Jones Act or general maritime claims); Alabama State Docks Terminal Ry. v. Lyles, 797 So.2d 432, 438 (Ala.2001)(holding that the state of Alabama was immune from suit for FELA claims and that the state constitution definitively established that sovereign immunity was not waived).

      . "To the extent [a State] has chosen to consent to certain classes of suits while maintaining its immunity from others, it has done no more than exercise a privilege of sovereignty concomitant to its constitutional immunity from suit.” Midgett, 568 S.E.2d at 647-48 (quoting Alden, 527 U.S. at 758, 119 S.Ct. at 2268, 144 L.Ed.2d at 680-81)(emphasis added).

      . See note 14 infra.

      . Other noteworthy U.S. Supreme Court decisions include Federal Maritime Commission v. South Carolina State Ports Authority, 535 U.S. 743, 122 S.Ct. 1864, 152 L.Ed.2d 962, 2002 AMC 1372 (2002)(holding that sovereign immunity operates to protect nonconsenting states from having to answer private complaints before the Federal Maritime Commission) and Raygor v. Regents of the University of Minnesota, 534 U.S. 533, 122 S.Ct. 999, 152 L.Ed.2d 27 (2002)(holding that state sovereign immunity can shield a state from the limitations-tolling provision in the federal supplemental jurisdiction statute). See David W. Robertson and Michael F. Sturley, Recent Developments in Admiralty and Maritime Law at the National Level and in the Fifth and Eleventh Circuits, 27 Tul. Mar. L.J. 495, 499-502 (2003).
      Additionally, in reversing an unpublished decision of the United States Court of Appeals for the Eleventh Circuit, the Supreme Court in Northern Insurance Co. v. Chatham County, 547 U.S. 189, 193-93, 126 S.Ct. 1689, 1695, 164 L.Ed.2d 367 (2006), held that a county is not entitled to sovereign immunity from suits in admiralty when it is not acting as an arm of the state. See David W. Robertson and Michael F. Sturley, Recent Developments in Admiralty and Maritime Law at the National Level and in the Fifth and Eleventh Circuits, 31 Tul. Mar. L.J. 463, 473-74 (2007). The unanimous Court explained:
      This Court’s cases have recognized that the immunity of States from suit "is a fundamental aspect of the sovereignty which the States enjoyed before the ratification of the Constitution, and which they retain today ... except as altered by the plan of the Convention or certain constitutional amendments.” Alden v. Maine, 527 U.S. 706, 713[, 119 S.Ct. 2240, 144 L.Ed.2d 636] (1999); see Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 55-56[, 116 S.Ct. 1114, 134 L.Bd.2d 252] (1996); Principality of Monaco v. Mississippi, 292 U.S. 313, 322 — 323[, 54 S.Ct. 745, 78 L.Ed. 1282] (1934). Consistent with this recognition, which no party asks us to reexamine today, we have observed that the phrase " 'Eleventh Amendment immunity' ... is convenient shorthand but something of a misnomer, for the sovereign immunity of the States neither derives from, nor is limited by, the terms of the Eleventh Amendment.” Alden, 527 U.S. at 713, 119 S.Ct. at 2240.
      A consequence of this Court’s recognition of preratification sovereignty as the source of immunity from suit is that only States and arms of the State possess immunity from suits authorized by federal law.

        Chatham County, 547 U.S. 189, 126 S.Ct. at 1693 (quoting Alden v. Maine, 527 U.S. at 713, 119 S.Ct. at 2240)(emphasis added). See Robertson and Sturley, supra, 31 Tul. Mar. L.J. at 474 (2007).

      . With regard to immunity in tort or contract, the Louisiana Constitution provides that "[n]either the state, a state agency, nor a political subdivision shall be immune from suit and liability in contract or for injury to person or property.” LSA-Const. Art. 12 § 10. The section further provides that "[t]he legislature may authorize other suits against the state, a state agency, or a political subdivision. A measure authorizing suit shall waive immunity from suit and liability.” Id.

      . Furthermore, even if the State of Louisiana had absolutely waived sovereign immunity, the State could ostensibly mandate that the WCA is the vehicle by which such litigation should proceed. See Glover, 175 P.3d at 1252.

      . "[TJhe doctrine that a sovereign could not be sued without its consent was universal in the States when the [U.S.] Constitution was drafted and ratified.” Alden, 527 U.S. at 715-16, 119 S.Ct. 2240.

      . As noted herein, the Supreme Court, in College Savings Bank, overruled Parden and its constructive-waiver theory (the theory that Alabama waived its immunity from FELA suits because it operated a railroad used in interstate commerce). Coll. Sav. Bank, 527 U.S. at 680-82, 119 S.Ct. 2219.

      .The plaintiff in Oshinski relied upon the following language from Alden:

      Hilton, then, must be read in light of the doctrinal basis of Parden, the issues presented and argued by the parties, and the substantial reliance interests drawn into question by the litigation. When so read, we believe the decision is best understood not as recognizing a congressional power to subject nonconsenting States to private suits in their own courts, nor even as endorsing the constructive waiver theory of Parden, but as simply adhering, as a matter of stare decisis and presumed historical fact, to the narrow proposition that certain States had consented to be sued by injured workers covered by FELA, at least in their own courts.

        Alden, 527 U.S. at 737-38, 119 S.Ct. at 2258.

      . The Oshinski court further noted:
      In the alternative, if the Supreme Court did intend for its statements to be more than dicta, they do not affect our holding in this case. The Hilton Court stated, “Worker's compensation laws in many States [ (e.g. Indiana) ] specifically exclude railroad workers from their coverage because of the assumption that FELA provides adequate protection for those workers.” Hilton, 502 U.S. at 202-03, 112 S.Ct. at 564. In Alden, the Court said that Hilton “is best understood ... as simply adhering, as a matter of stare decisis and presumed historical fact, to the narrow proposition that certain States had consented to be sued by injured workers covered by FELA, at least in their own states.” Alden, 527 U.S. at 737-38, 119 S.Ct. at 2258.
      Even if we read these statements as holdings regarding Indiana’s consent to be sued in state court under FELA, nothing in them suggests blanket consent. In particular, the Hilton Court seemed to opine that states, such as Indiana, excluded railroad workers from their worker’s compensation statutes with the expectation that FELA would provide those workers with a cause of action. Our holding in this case does not run contrary to that policy consideration because we conclude that FELA claims against the State remain available to workers who comply with ITCA’s qualifications.

        Oshinski, 843 N.E.2d at 545.

      . Pursuant to Alden v. Maine, a private party may sue the state only if (1) the stale consented, (2) if Congress had validly abrogated the need for state consent, or (3) under Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908). Alden, 527 U.S. at 755-58, 119 S.Ct. 2240. Appellant does not assert that Ex Parte Young is applicable to the facts of the instant case.

      . The superior court's discussion was adopted and attached as "Appendix A" to the Alaska Supreme Court's opinion.

      . Petitioner's argument [that Congress has abrogated the States' Eleventh Amendment immunity from suit under the Jones Act] fails in any event because Congress has not expressed in unmistakable statutory language its intention to allow States to be sued in federal court under the Jones Act. It is true that the [Jones] Act extends to '[a]ny seaman who shall suffer personal injury in the course of his employment,” § 33 (emphasis added). But the Eleventh Amendment marks a constitutional distinction between the States and other employers of seamen. Because of the role of the States in our federal system, '[a] general authorization for suit in federal court is not the kind of unequivocal statutory language sufficient to abrogate the Eleventh Amendment.’

        Welch v. Texas Dept. of Highways and Public Transp., 483 U.S. 468, 475-76, 107 S.Ct. 2941, 2947, 97 L.Ed.2d 389 (1987).

      . “We think the constructive-waiver experiment of Farden was ill-conceived, and see no merit in attempting to salvage any remnant of it.... Whatever may remain of our decision in Parden is expressly overruled.” Glover, 175 P.3d at 1262 (quoting College Savings Bank v. Florida Prepaid Postsecondary Education Expense Board, 527 U.S. 666, 680, 119 S.Ct. 2219, 144 L.Ed.2d 605 (1999))(emphasis added).

      . ''[W]aivers of sovereign immunity normally are drawn narrowly and seldom include waiver of individual damage actions based on federal law.” Hartley, supra, 23 Harv. J.L. & Pub. Pol'y at 368.

      . Two factors lead to a different conclusion regarding the constitutionality of a state remedy for state-employed seamen. First, the federal government provides at least some of its employed seamen with federal workers' compensation, as do several other states. These cases suggest that where a sovereign declines to submit to Jones Act suits, no constitutional principles are violated by substituting workers' compensation. Second, the case law justifying preemption has either failed to weigh the conflicting federal principle of state sovereign immunity at issue here or has been significantly narrowed by more recent U.S. Supreme Court cases, as discussed extensively below. These factors lead us to conclude that the Federal Constitution does not prohibit the application of state workers’ compensation to state-employed maritime workers, and therefore allows us to evaluate Glover's rights and the state's assertion of sovereign immunity in light of the fact that Glover is entitled to receive the remedy of workers' compensation.

        Glover, 175 P.3d at 1254 (footnotes and citations omitted).

      . "In Alden, for example, the Court never addressed petitioner's argument that Maine had consented to state law-based claims similar to the FLSA claims because there was no allegation that Maine had systematically manipulated its immunity to discriminate against federal claims.” Hartley, supra, 23 Harv. J.L. & Pub. Pol'y at n. 227 (citing Alden, 119 S.Ct. at 2268).

      . See Chavez v. Arte Publico Press, 157 F.3d 282, 291 (5th Cir.1998) (finding that, even if copyright suits against the states cannot be brought in federal court because Congress lacks Section 5 power to enact the copyright laws and noting in dicta that the Eleventh Amendment only shields states from. being sued in federal court); Aaron v. Kansas, 115 F.3d 813, 817 (10th Cir.1997) (holding that an FLSA action for damages against the state may not be brought in federal court, but suggesting in dicta that "the employee can sue in state court for money damages under the FLSA as a state court of general jurisdiction is obligated by the Supremacy Clause to enforce federal law”); Wilson-Jones v. Caviness, 99 F.3d 203, 211 (6th Cir.1996) ("[Sjtate employees may sue in state court for money damages under the FLSA, and a state court would be obligated by the Supremacy Clause to enforce federal law.”); see also Coolbaugh
        v. Louisiana, 136 F.3d 430, 441 (5th Cir.1998) (Smith, J., dissenting) (concluding that a finding that Congress lacks Section 5 authority to enact the ADA would not "eviscerate the basic protections the ADA gives disabled individuals against discriminatory state action [because] the plaintiff could still sue a state in state court to enforce the obligations the state owes the disabled under the ADA").
      Hartley, 23 Harv. J.L. & Pub. Pol'y at n. 78 and n. 229.

        See, e.g., Ahern v. New York, 244 A.D.2d 7, 11[, 676 N.Y.S.2d 232] (N.Y.App.Div.1998) ("In Seminole Tribe v. Florida ..., the United States Supreme Court merely held that the 11th Amendment prevents a private party from suing a State in Federal court, not that Federal statutes do not apply equally to both non-State and State defendants" because the sovereign immunity principle animating the Eleventh Amendment is not “ ‘immunity from suit in any forum.’” (quoting Bartlett v. Bowen, 816 F.2d 695, 610 [710] (D.C.Cir.1987))). Other states have taken the same position. See Whittington v. State, [126 N.M. 21,] 966 P.2d 188 (N.M.Ct.App. 1998), vacated, [527 U.S. 1031,] 119 S.Ct. 2388[, 144 L.Ed.2d 790] (1999); Bunch v. Robinson, [122 Md. App. 437,] 712 A.2d 585 (Md.Ct.Sp.App.1998); Jacoby v. Arkansas Dep't of Educ., [331 Ark. 508,] 962 S.W.2d 773 (Ark.998), vacated, [527 U.S. 1031,] 119 S.Ct. 2387[, 144 L.Ed.2d 789] (1999); Ribitzki v. School Bd. of Highlands County, 710 So.2d 226 (Fla.Dist.Ct.App.1998); Clover Bottom Hosp. & Sch. v. Townsend, 513 S.W.2d 505 (Tenn.1974).
      Hartley, 23 Harv. J.L. & Pub. Pol’y at n. 79 and n. 229.

        See, e.g., Allen v. Fauver, [327 N.J.Super.14,] 742 A.2d 594 (N.J.Super.Ct.App.Div.1999); Keller v. Dailey, [124 Ohio App.3d 298,] 706 N.E.2d 28 (Ohio Ct.App.1997); Alden v. State, 715 A.2d 172, 174 (Me. 1998), aff'd, [527 U.S. 706,] 119 S.Ct. 2240[, 144 L.Ed.2d 636] (1999) (dismissing claim under the overtime provisions of the FLSA); Jackson v. State, 544 A.2d 291, 298 (Me.1988), cert. denied 491 U.S. 904[, 109 S.Ct. 3185, 105 L.Ed.2d 694] (1989) (dismissing claim under the federal Rehabilitation Act); Board of Comm’rs. v. Splendour Shipping & Enters., 255 So.2d 869 (La.Ct.App.1972); see also Morris v. Massachusetts Maritime Academy, [409 Mass. 179,] 565 N.E.2d 422, 426 (Mass.1991) ("Although the Supreme Court has never addressed the question whether States may claim immunity in their own courts when the Eleventh Amendment bars suit in Federal Court, we think that, absent congressional command to the contrary, they may.")
      Hartley, supra, at n. 80 and n. 229.

      . Justice Souter dissented from the majority in Alden, with Justices Stevens, Ginsburg, and Breyer joining, asserting that the majority erroneously referred to sovereign immunity as an "inherent notion of statehood” that was preserved by the Tenth Amendment. Ann Alt-house, The Alden Trilogy: Still Searching for a Way to Enforce Federalism, 31 Rutgers L.J. 631, 653 (2000).
      Because sovereign immunity lacks a constitutional text, it needs something more to have the capacity to survive the creation of federal legislative powers, according to Justice Souter. He assumes that whether this capacity exists or not depends on whether sovereign immunity deserves the appellation "natural law.” He proceeds to analyze at length whether sovereign immunity is "natural law" or mere common law, even though the majority does not agree that this distinction determines whether Congress' original powers entail the power to abrogate immunity. But, Justice Souter's analysis of whether sovereign immunity is "natural law” or merely common law really only boils down to asking whether or not sovereign immunity is "defeasible by statute.” In other words, it is another way of asking the same old question: Does Congress have the power to abrogate sovereign immunity?
      Allhouse, supra, 31 Rutgers L.J. at 655 (footnotes omitted). The dissenting opinion expressed concern for the state employees who could be adversely affected by the majority’s decision:
      For the dissenters, straightforward normative reasoning seems to demand that these workers receive their lost wages. One senses Justice Souter’s frustration with the recalcitrant state when he wonders why it did not see fit to end all of this litigation by simply paying the workers what the FLSA required and when he ridicules, as mere "whimsy,” the majority's idea that the Secretary of Labor can serve the litigation interests of the nation’s 4.7 million state workers.

        Id. at 658-59 (footnotes omitted). The author concludes that Alden necessarily protects states from excessive litigation:
      Because Congress can still impose on the states, though only in a particular, deferential way, Alden is an example of the moderate version of enforcing federalism. In comparison to overruling Garcia [v. San Antonio Metropolitan Transit Authority, 469 U.S. 528, 105 S.Ct. 1005, 83 L.Ed.2d 1016 (1985)(as being averse to judicial enforcement of federalism) 1, Alden can be seen as better because it does not restrict Congress from regulating in all areas and protects the states from the excesses of litigation by permitting only federal officials to bring lawsuits for retrospective relief. Not only can this be seen as a preferable way to balance state and federal interests, but it is a better way to use judicial resources. Garcia spares courts from having to figure out where to draw the line between what Congress can and cannot regulate, and Alden relieves courts of all but the lawsuits that federal officials deem worthwhile.

        Id. at 660 (footnotes omitted).

      . Prior to Alden, the Supreme Court could, and did, soften the blow of denying plaintiffs a federal forum by suggesting that plaintiffs still could enforce federal rights in state court. Alden now precludes that mollification.
      Hartley, 23 Harv. J.L. & Pub. Pol’y at 366-67 (footnotes omitted). However, a different outcome in Alden, as previously noted, would have resulted in even more confusion:
      Had Alden been decided differently, state courts would have experienced an abundant influx of private damage actions to enforce federal rights against the state. The inevitable result would have been an increased demand on the Supreme Court to mediate the fairness of local procedural rules at a time when the Court’s precedent is somewhat chaotic. This is no-win work for the Court. Either the Court imposes federal procedural rules on discontented stale court judges and officials or it abandons plaintiffs to the vicissitudes and burdens of local rules. The Aklen decision liberated the Court from this trap.
      Hartley, 23 Harv. J.L. & Pub. Pol'y at 359.

      . Correspondence dated May 22, 2008 from a claims adjuster for the State of Louisiana to counsel for Appellees referenced Appellant's name, claim number, date of injury, dates and amounts of compensation, and further indicated that Appellant's medical bills were paid.

      . When a seaman becomes ill or injured while in the service of his ship, the shipowner must pay him maintenance and cure regardless of whether the shipowner was at fault or whether the ship was unseaworthy. See Morales v. Garijak, Inc., 829 F.2d 1355, 1358 (5th Cir.1987). "Maintenance” is the right of a seaman to food and lodging if he falls ill or becomes injured while in the service of the ship. "Cure” is the right to necessary medical services. This duty to pay maintenance and cure is of ancient vintage, and its origin is customarily traced back to the medieval sea codes. See The Osceola, 189 U.S. 158, 169, 23 S.Ct. 483, 484-85, 47 L.Ed. 760 (1903); see generally Grant Gilmore & Charles L. Black, Jr., The Law of Admiralty § 6-6, at 281 (2d ed.1975); Thomas J. Schoenbaum, Admiralty and Maritime Law § 6-28, at 348 (2d ed.1994).

        Guevara v. Maritime Overseas Corp., 59 F.3d 1496, 1499 (5th Cir.1995).

      .Should the defendant ultimately be found to have unreasonably denied the claim, then the defendant may be liable for compensatory damages in addition to maintenance and cure. If the defendant's conduct is further found to be arbitrary and capricious, then the defendant is subject to the additional penalty of punitive damages.

        Thurman v. Patton-Tully Transp. Co., 619 So.2d 879, 881 (La.App. 3rd Cir.1993).


source: Caselaw Access Project

author: MADELINE JASMINE, Judge Pro Tempore.

license: Public Domain

text:
    Elmire NUERGE, Terri Nuerge Fantazia and Frederick Nuerge v. COLDEWY CORPORATION.
    No. 08-CA-1258.
    Court of Appeal of Louisiana, Fifth Circuit.
    April 28, 2009.

      Anthony V, Ligi, Jr., Attorney at Law, Metairie, LA, for Plaintifí/Appellee.
    William W. Hall, Attorney at Law, Me-tairie, LA, for Defendant/Appellant.
    Panel composed of Judges MARION F. EDWARDS, SUSAN M. CHEHARDY, and MADELINE JASMINE.
   MADELINE JASMINE, Judge Pro Tempore.

| .¿The defendant, Coldewy Corporation, has appealed a trial court judgment in favor of plaintiffs. The plaintiffs have answered the appeal requesting an increase in the damage award. For the reasons that follow, we affirm.

FACTS

The plaintiff, Terri Nuerge Fantazia, testified that she owns a house in Metairie, Louisiana along with her mother and brother, who are also plaintiffs in this action. Ms. Fantazia testified that a portion of the roof of this house was damaged during Hurricane Katrina causing water to enter the house. The roof needed to be repaired prior to repairing the damage to the interior of the house. In order to have the roof repaired, her brother signed a contract with the defendant, Coldewy Corporation doing business as Landrieu Brothers, to repair the roof for the amount of $10,700.00.

The contract, which was admitted into evidence, provided the following would be performed: (1) remove existing pitch roof and repair roof decking as needed prior to installing the new roof, (2) 197 linear feet of drip edge would be installed, (3) re-flash the chimney, (4) furnish and install new 25 year GAF 3 tab Land 30 pound felt, remove and haul away existing flat roof, two layers, (5) furnish and install new rubber-oid torch down white gravel, (try to build up on two ends), and replace roof decking as needed.

Ms. Fantazia testified that the new roof was installed and Landrieu Brothers was paid in full for this work. After the new roof was installed, the roof leaked in two separate places during a rain storm. Ms. Fantazia testified that she called Landrieu Brothers and left a message on their answer machine to tell them the roof was leaking. Ms. Fantazia’s husband went into the attic and circled the areas where the water was coming through the roof. Lan-drieu Brothers sent a representative out to look at the leaks and work was performed in a different area than Ms. Fantazia felt the leaks originated. The roof continued to leak. Ms. Fantazia called Landrieu Brothers and explained that they did not find the source of the leaks. The same representative was sent to the house and Ms. Fantazia’s husband got on the roof with a hose to show him where the water was coming through the roof. The representative pointed out several things that were wrong with the roof and assured Ms. Fantazia that they would come back and repair them. He also placed roofing cement on the roof. After this visit, Ms. Fantazia testified that the roof was still leaking.

Ms. Fantazia testified that she went to the Landrieu Brother’s office and spoke to the manager. She explained that the representative who had been sent out to the house was not trying hard enough to fix the leaks. She was informed that she had to work with this representative because that was his job. Later, a meeting was set up wherein Greg Landrieu came to the house to look at the roof. Mr. Landrieu told Ms. Fantazia that a sealant needed to be put on the flat roof and that more shingles needed to be put on the roof and that he would send someone out to perform these tasks.

|4Ms. Fantazia explained that at that point she became concerned about the quality of the roof, so she contacted an attorney. At the attorney’s suggestion, she contacted Patrick Vicknair to inspect the roof.

On cross-examination, Ms. Fantazia explained that she lives in Texas and her mother lives with her brother in Jefferson Parish. Neither were available to testify for this matter. She testified that there was no damage to the interior of the house due to leaking of the roof installed by Landrieu Brothers. Ms. Fantazia testified that she did not see the roof leaking in March of 2007, nor did she know if it was leaking at the time of trial. She did not have the roof repaired by someone else. She also admitted that there was one leak in the roof caused by a squirrel eating a stack on the roof over the bathroom.

Patrick Vicknair was accepted by the court as an expert in roof damage. Mr. Vicknair testified that he examined the roof on the plaintiffs’ house, took pictures, and wrote up a document explaining what it would cost to replace the roof. Mr. Vicknair testified that it was raining when he examined the roof and it was leaking. Using the pictures that were admitted into evidence, Mr. Vicknair explained the deficiencies in the roof. He explained that the rubber roid flat roof was not properly torched down and is curling. He depicted the area on the pictures where the entire edge of the flat roof is curled up. He showed an area where the shingles are also curled up. Mr. Vicknair testified that there is another roof under the new roof and the water is leaking through the new roof and going to the other roof and leaking down the back wall. He explained that this is why Ms. Fantazia does not see the leaks. Mr. Vicknair explained that the flat roof is not installed properly. He further testified that the shingles on the shingled roof are not installed according to the manufacturer’s specifications. Mr. Vick-nair explained that since the roof is improperly installed, there is no manufacturer’s warranty. In Mr. LVicknair’s opinion, the existing flat roof was not removed prior to installing the new flat roof. Mr. Vicknair explained that there are waves in the flat roof which will allow water to get under the roof and deteriorate the wood. Mr. Vicknair opined that the chimney was not re-flashed as provided for in the contract. Using a picture of the area where the flat roof ties into the sloped roof, Mr. Vicknair testified that the flashing was not properly installed. He explained that the siding was not removed in order to put flashing underneath. Instead, roofing cement was applied on top of this area, which, in Mr. Vicknair’s opinion, will crack and leak within three years. He further testified that when flashing is placed on top of shingles, water will go under the flashing and down the walls. This will cause the walls to rot, creating a termite trap.

In sum, Mr. Vicknair testified that the back gable and flat roof were installed improperly and these entire portions of the roof have to be removed and replaced. He testified that the “front gable is o.k.” Mr. Vicknair also stated that any wind damage to this roof would not be covered by the homeowner’s insurance policy because the roof is not installed properly.

Greg Landrieu testified that he is the owner of Landrieu Brothers, which has performed roofing work since 1983. Documents depicting the material ordered and a sketch of the roof were introduced during his testimony. One document indicated there was a change order wherein more expensive material was used because the original material was not available. The plaintiffs agreed to pay for this change. Mr. Landrieu testified that he went to the house to look at the roof after Ms. Fanta-zia accused him of not installing a roof they were paid to install. He showed Ms. Fantazia that the roof was replaced and pointed out the damage caused by squirrels. He testified that a flat roof has to cure for 60 to 90 days before the sealant can be applied. Mr. Landrieu explained that a document dated [ (¡September 7, 2006 depicts the work performed by Landrieu Brothers’ representative, Mr. Bill Forbes who went to the house to address Ms. Fantazia’s concerns. This document states:

(1) silver coat (3) flat roofs
(2) change (2) lead caps eaten by squirrels and wrap mesh/wire around caps so squirrels won’t eat anymore
(3) install electric flange properly under shingles
(4) seal left side where flat roof meets shingles
(5) torch flat roof material on right side over edge of roof, make it look like left side, roof is leaking in 2 places at this location.

Mr. Landrieu testified that it is very common for the edge of flat roofs to “peel up” and that the entii-e roof did not need to be replaced. He testified that the roof was torched properly. He further testified that the transition between the slope roof and flat roof was sealed and the flashing was properly installed.

Mr. Landrieu testified that his company was not allowed back on the property to remedy the problems in the roof. He did not agree that the there was no manufacturer’s warranty on the roof. He stated that the shingles and the flat roof were installed according to the manufacturer’s specifications. He stated that any repairs that needed to be performed on the roof could be done for minimal cost. Mr. Lan-drieu testified that this roof could be replaced for $1.50 to $2.00 per square foot for materials and labor and that the roof was 1400 square feet.

Mr. Landrieu further testified that he was on the property on three to four occasions and did not see any leaks in the roof.

In response to Mr. Vicknair’s testimony, Mr. Landrieu disagreed that the siding had to be removed to place flashing in the transition from the slope to flat roof. He further pointed out that he did not contract to take the siding off. He reviewed the pictures taken by Mr. Vicknair and stated that the roof was “put down pretty well.”

|7On cross-examination, Mr. Landiieu testified that although he has no hands on experience in installing roofs, he has taken classes and has knowledge regarding installation. He agreed that if a roof is not installed properly, problems may not be visible for years. With regards to the drip edge, he testified that it was installed properly and there was no other way to avoid it being higher than the other portion of the roof.

Upon questioning by the court, Mr. Lan-drieu testified that the contract was to remove the two layers of flat roof and he assumed this was done. He stated that the charge for the flat roof was $4.25 per square foot but now the cost has increased to $5.50 per square foot and the cost to replace the back gable was $2.50 to $3.00 per square foot. He testified that when he inspected the roof to address Ms. Fanta-zia’s concerns, the roof did not appear as it did in the pictures taken by Mr. Vicknair. He specifically noted that the edges were not curled up.

Timothy Hoggart testified that he had worked for Landrieu Brothers for fifteen years, installing over 200 roofs. His job was to supervise the crews and inspect the jobs. Mr. Hoggart testified that this job was unique because of the transition from the slope roof to the flat roof. He had never seen a roof designed like this. For that reason, an experienced crew, headed by a longtime employee, Mr. Seline, was assigned to do this installation. Mr. Hog-gart testified that he was “almost certain” that the underlying roof was removed pri- or to installing the new roof. He further testified that there were no curled edges when he inspected the roof. He testified that it was “pure speculation” that the roof was installed improperly. Mr. Hoggart testified that the changes in the weather caused the roof to curl and lift up. He also stated the weather was the reason for the waves in the flat roof. With regard to the sealant that was not placed on the roof, Mr. Hoggart 18testified that the roof has to cure, so the coating could have been applied in May, June, or July.

The court questioned Mr. Hoggart about the proper way to install flashing, inquiring whether shingles should be placed underneath or on top of flashing. Mr. Hog-gart responded “it depends.”

At the conclusion of trial, the court found the flat roof was not torched down properly and was improperly installed causing it to be wavy. The court also found the roof on the back gable of the house was not put on properly. The court awarded $6,000.00 to replace the back gable and the flat roof. This timely appeal followed.

LAW AND DISCUSSION

On appeal, appellant contends the trial court erred in awarding damages because (1) the appellees have enjoyed uninterrupted beneficial use of the contractor’s work, (2) the appellees suffered no damages by anything appellant did or did not do, and (3) that the trial judge substituted his own experience to find the workmanship on the contract was defective. We disagree and find the record supports the trial court’s judgment.

LSA-C.C. art. 2769 states that if an undertaker fails to do the work he has contracted to do, or if he does not execute it in the manner and at the time he has agreed to do it, he shall be liable in damages for the losses that may ensue from his non-compliance with his contract. Under this article, a building owner seeking to recover damages from a construction contractor for defects, bears the burden of proving: (1) both the existence and nature of the defects; (2) that the defects were due to faulty materials or workmanship; and (3) the cost of repairing the defects. |9Mount Mariah Baptist Church, Inc. v. Pannell’s Associated Electric, Inc., 36,361 (La.App. 2 Cir. 12/20/02), 835 So.2d 880.

Ms. Fantazia testified that the roof leaked after the installation and after the two occasions where representatives of Landrieu Brothers attempted to repair the leaks. While she was not sure if the roof was leaking at the time of trial, her expert, Mr. Vicknair, testified that the roof was leaking and the water was running down the back wall, which is why the leak was not visible. Mr. Vicknair further testified that the roof was not properly installed due to the rubber roid not being properly torched and the shingles not being properly placed. The pictures introduced into evidence clearly showed the edges of the roof were curling up and the flat roof was wavy preventing the roof from draining properly. Additionally, the trial court obviously credited the testimony of Mr. Vick-nair over that of Mr. Landrieu regarding the improper installation of shingles over flashing in the area where the slope roof transitions to the flat roof. Thus, based on the testimony presented by Ms. Fantazia and Mr. Vicknair, as well as the pictures introduced into evidence, appellees carried their burden of proving the existence of defects and that the defects were due to faulty workmanship.

Appellant’s contention that appellee suffered no damages due to the defects in the roof is without merit. Mr. Vicknair explained that the improper installation caused the manufacturer’s warranty to be void. The improper installation would prevent the homeowner’s insurance coverage for any future wind damage since the shingles were not properly installed. Furthermore, Mr. Vicknair testified that the roof was leaking which would lead to wood rot creating a condition described as a “termite trap.”

Likewise, we find no merit to the appellant’s contention that the trial judge substituted his experience when the record indicates otherwise. The trial judge Instated that he had not had any work performed by Mr. Vicknair or by Landrieu Brothers. His statement that flashing is supposed to be placed under shingles is supported by Mr. Vicknair’s testimony.

With regard to costs, Mr. Vicknair testified that it would cost $12,300.00 to replace this roof. Appellees have answered this appeal seeking an increase in the damage award from $6,000.00 to $10,700.00, the contract price. Mr. Vick-nair testified that the front gable was installed properly. Thus, the entire roof did not have to be replaced. A review of the diagram of the roof indicates approximately 50% of the roof had to be replaced due to defects resulting from appellant’s poor workmanship. The $6000.00 award represents approximately 50% of the contract price. Additionally, appellee’s expert testified that it would cost $12,300.00 to replace the entire roof and $6,000.00 is nearly half of that amount. Thus, we see no error in the award.

CONCLUSION

For the foregoing reasons, the judgment from the trial court is affirmed.

AFFIRMED.


author: MARION F. EDWARDS, Judge.

text:
    Rita DORION v. GULF STATES ASPHALT CO., L.P.
    No. 08-CA-670.
    Court of Appeal of Louisiana, Fifth Circuit.
    April 28, 2009.

      Leo J. Palazzo, David D. Bravo, Palzaz-zo Law Firm, Gretna, LA, for Plaintiff/Appellant.
    Amanda H. Carmon, Attorney at Law, Baton Rouge, LA, for Defendants/Appel-lees.
    Panel composed of Judges MARION F. EDWARDS, SUSAN M. CHEHARDY, and FREDERICKA HOMBERG WICKER.
   MARION F. EDWARDS, Judge.

12Plaintiff/appellant, Rita Dorion (“Do-rion”), appeals a judgment of the Office of Workers’ Compensation (“OWC”) dismissing with prejudice her claim for benefits, penalties, and attorney’s fees.

In October of 2004, Dorion filed a disputed claim for compensation alleging that she was injured in the course and scope of her employment with Gulf States Asphalt Company, L.P. (“Gulf States”) and that her injuries developed over time as a result of heavy lifting. Gulf States and the Louisiana Workers’ Compensation Corporation (“LWCC”) filed an answer and general denial, averring, in part, that there was no alleged date of an accident. Trial in the matter was ultimately set for April 4, 2008, following which the OWC judge determined that there was no evidence of record regarding the work required by Gulf States, such as what objects Dorion had to lift, how often or how heavy they were, and whether she was standing, stooping, etc. The court found that no specific accident took place as is defined by LSA-R.S. 23:1021 and required by LSA-R.S. 23:1031. Further, the court stated that “[s]ome physicians have found that Ms. Dorion suffers from a |3degenerative disc disease,” which condition was specifically excluded by LSA-R.S. 23:1031(B). The court, thus, dismissed her petition.

Dorion began working at Gulf States some time in 1998. Prior to- her employment at Gulf States, she worked on an assembly line at Intralox Company for nine years, during which employment she developed carpal tunnel syndrome. She became pregnant and stopped working, and, as a result, her symptoms disappeared. Dorion testified that, in 2003, she began having severe headaches, tension, and numbness in her hands, and severe pain in her left elbow. MRIs taken on April 4, 2003 and on August 1, 2003 indicated cervical spasm and a degenerative fifth cervical disc. .

In February 2004, Dorion continued to experience pain in her left shoulder and her neck but then began to suffer from severe headaches and vomiting. She asked for and received a leave of absence. Dorion went to the emergency room at West Jefferson Hospital and was told to see a neurologist. According to Dorion, she eventually sought treatment from Dr. Dhanpat Mohnot (“Dr. Mohnot”), who diagnosed her with a herniated disc, a pinched nerve in her neck, and arthritis, as well as carpal tunnel syndrome. She gave her employer the medical reports from both Dr. Mohnot and Dr. Ralph Katz (“Dr. Katz”), an orthopedist. Upon receipt of the medical report, Gulf States cancelled Dorion’s health insurance and terminated her employment.

A number of medical records were entered into evidence. Dr. Meyer Sutton (“Dr. Sutton”) treated Dorion in January and February of 2004 for various complaints, including headaches, pressure in her neck, and numbness in her hands. Dr. Sutton did not provide a diagnosis but noted Dorion had previously been diagnosed with carpal tunnel syndrome. Dr. Sutton referred her to Dr. Mohnot.

Lin March of 2004, Dorion saw Dr. Moh-not at the New Orleans Headache and Neurology Clinic for complaints of severe headaches, neck pain, and dizziness. Dr. Mohnot ordered an MRI and an EEG. The MRI showed disc protrusions at C4-5 and C5-6 causing spinal lateral recess and .stenosis. There was no diagnosis of a neurological disorder by Dr. Mohnot but one of his diagnoses was cervical degenerative disc disease. Dr. Mohnot referred Dorion to Dr. Katz at the Westside Orthopedic Clinic for further evaluation of her neck and arm pain.

Dr. Katz noted that his examination, the MRI, and X-rays indicated some cervical disc protrusion at C4-5 and C5-6, with some stenosis. He further determined that Dorion suffered with carpal tunnel syndrome and “[diffuse posterior cervical pain which appears to be muscular with associated left-sided trapezial muscle pain,” and possible tension headaches. She was treated conservatively with medication and referred back to Dr. Mohnot for a nerve conduction study.

In March of 2005, Dorion went to Hou-ma Hospital and saw Dr. Morteza Shams-nia (“Dr. Shamsnia”), a neurologist. Dr. Shamsnia ordered another MRI and EMG. The MRI taken at that time showed disc herniation at C4-5. He testified that, with a degenerative disc, an event occurs that causes the disc, which is like a cushion, to lose water and change shape, moving out of place or collapsing on another disc. With a herniated disc, the cushion moves and comes out. A herniated disc can lead to degenerative disc disease and vice-ver-sa. The number of spinal discs involved can determine the type of injury and, in degenerative disc disease, multiple levels of discs are involved. The discs which evidence “wear and tear” are higher up, at C5-6 and 6-7. Because Dorion’s herniation was higher up, it was “against natural wear and tear.” Dr. Shamsnia testified that carpal tunnel syndrome can affect posture, the way the arm is held and used, and, thus, can put | ¿pressure on the neck. He opined that, in Dorion’s case, absent evidence of an accident or evidence of an earlier disc disease, the carpal tunnel syndrome affected her posture and put pressure on her neck, causing the herniated disc. The carpal tunnel syndrome and the resultant cervical problem developed over a long period of time. Dr. Shamsnia was still Dorion’s treating physician at the time of trial.

Dr. Stefan Pribil (“Dr. Pribil”), a neurosurgeon, testified via deposition. He examined Dorion on June 9, 2006 for neck and bilateral arm pain. Dorion told him she worked an assembly line approximately six years, lifting anywhere from ten to 100 pounds. Dr. Pribil examined Dorion and reviewed her records, including the MRI, and diagnosed Dorion with hernia-tions at C4-5 and C-5-6. He believed that the repetitive assembly line work contributed materially to the development of carpal tunnel, shoulder, and cervical disc problems. Degenerative disc disease develops over time, and he felt that Dorion’s entire condition “happened over a ... long period of time, yes, chronically developed.” Dr. Pribil recommended an angio-cervical discectomy.

Dr. Eric George (“Dr. George”) performed carpal tunnel release surgery on Dorion and found that, as of May 12, 2006, she was at maximum medical recovery.

In workers’ compensation cases, the appropriate standard of review to be applied by the appellate court to the OWC’s findings of fact is the “manifest error-clearly wrong” standard. Under the manifest error standard, the appellate court must determine whether the workers’ compensation judge’s factual findings are reasonable in light of the record reviewed in its entirety. The determination of | ¿whether injury occurred in the course and scope of employment is a mixed question of law and fact.

The judgment here contains errors of both fact and law. In her deposition in the record, Dorion testified that, in her job as an assembly worker, she cut and packed rolls of weatherproof sealant tape into boxes. For one hour she had to wind the roll of tape on the conveyor. She would have to sit down and roll the tapes, box the containers, and put the boxes on a pallet. Ten five-pound boxes were packaged into one larger box, and she would put those larger boxes on the pallet. The pallet would hold thirty or forty large boxes, which were then transferred to a forklift. The history taken by Dr. Pribil supported her testimony. Therefore, the record does not support the determination by the court that there was no evidence of the work required of Dorion by Gulf States.

Further, when legal error interdicts the fact-finding process in a workers’ compensation proceeding, the de novo, rather than the manifest error, standard of review applies. Likewise, “[t]he interpretation of statutes pertaining to workers’ compensation is a question of law and warrants a de novo review to determine if the ruling was legally correct.” Because we find that the trial court also committed legal error in its interpretation of the workers’ compensation laws, we review the matter de novo.

The Workers’ Compensation Act is to be liberally construed in favor of protecting workers from the economic burden of work-related injuries. Generally, an injured employee is entitled to receive benefits for an injury that arises out of and in the course of his employment. LSA-R.S. 23:1031. ^Specifically, LSA-R.S. 23:1031.1 governs workers’ compensation claims for occupational disease. In 2004, LSA-R.S. 23:1031.1, in relevant part, read:

A. Every employee who is disabled because of the contraction of an occupational disease as herein defined, or the dependent of an employee whose death is caused by an occupational disease, as herein defined, shall be entitled to the compensation provided in this Chapter the same as if said employee received personal injury by accident arising out of and in the course of his employment.
B. An occupational disease means only that disease or illness which is due to causes and conditions characteristic of and peculiar to the particular trade, occupation, process, or employment in which the employee is exposed to such disease. Occupational disease shall include injuries due to work-related carpal tunnel syndrome. Degenerative disc disease, spinal stenosis, arthritis of any type, mental illness, and heart-related or perivascular disease are specifically excluded from the classification of an occupational disease for the purpose of this Section.

Prior to the legislative extension of workers’ compensation coverage to include occupational diseases, a worker’s entitlement to compensation hinged on the occurrence of an “accident,” which can only be established by the heightened burden of proof by the claimant of an “identifiable precipitous event” that caused injury. While enlarging workers’ compensation coverage to eases of occupational disease, LSA-R.S. 23:1031.1 retains the requirement that an employee establish the disease arises from his work, i.e., from “causes and conditions characteristic of and peculiar to the particular trade, occupation, process, or employment in which the employee is exposed to such disease.” Thus, the claimant must show that he contracted the disease at issue during the course of his employment and that the disease was the result of the nature of the work performed. The causal link |8between a claimant’s illness and his work-related duties must be established by a reasonable probability; the claimant fails in his burden of proof upon a showing of only a possibility that the employment caused the disease or that other causes not related to the employment are just as likely to have caused the disease.

Gulf States does not contest the fact that Dorion’s carpal tunnel syndrome was the result of her employment, and, in fact, has paid some benefits for that condition. Rather, Gulf States’ position at trial was that Dorion’s inability to work is the result of degenerative disc disease, which is specifically excluded from coverage as an occupational disease under LSA-R.S. 23:1031.1.

Nevertheless, that statute also clearly states that an occupational disease shall include injuries due to work-related carpal tunnel syndrome. Dr. Shamsnia, Dorion’s treating physician, opined that Dorion’s ruptured or herniated cervical discs were the result of the changes in posture and pressure on her neck caused by her carpal tunnel syndrome. None of the medical testimony contradicts Dr. Shamsnia’s conclusion that carpal tunnel led to Dorion’s subsequent injuries, whatever the diagnosis of the injuries may have been. Contrary to Gulf States’ assertion and the finding of the trial court, only one physician, Dr. Mohnot, diagnosed Dorion’s problem as degenerative disc disease. At least two Louisiana circuit courts have indicated that other injuries resulting from carpal tunnel syndrome are compensable. Based on the record, we find the herniated discs are injuries due to work-related carpal tunnel syndrome. That Dorion’s cervical problems developed over time does not require the conclusion that her problems were caused by degenerative disease, nor lessen the fact that these were injuries sustained as a result of carpal tunnel syndrome.

[^Additionally, in Louisiana it is well-settled that an employee’s disability is compensable if a pre-existing condition or disease is activated or precipitated into a disability manifestation as a result of work. It is also axiomatic that an employee’s work injury is presumed to have aggravated, accelerated, or combined with his preexisting disease or infirmity to produce his disability when the employee proves that, before the accident, he had not manifested disabling symptoms but that commencing with the accident the disabling symptoms appeared and manifested thereafter and medical or circumstantial evidence indicates a reasonable possibility of a causal connection. An occupational disease which causes disability in that manner is equally compensable.

At trial, Ms. Thea Smith, a claims representative for the LWCC, testified that compensation benefits were initially denied because the injuries claimed were “cervical” and there was no report of an accident. At no time did LWCC request Do-rion to consult a physician of its choice.

LSA-R.S. 23:1201(F) grants a claimant the statutory right to penalties and attorney’s fees for all unpaid compensation and medical benefits. The section does not apply if the claim is reasonably controverted. The test to determine whether the employee’s right to benefits was reasonably controverted is whether, given the facts, medical and otherwise, known to the employer or his insurer, did the employer or insurer have a reasonable basis to believe that medical expenses and compensation benefits were not due the employee. Stated another way, did the employer or his insurer have sufficient factual and medical information to reasonably counter the factual and medical information presented by the claimant. Here, the medical records available to Gulf States prior to trial discussed cervical 1 ^herniations with no particular link to carpal tunnel syndrome. Attorney’s fees should not be imposed in doubtful cases, where a bona fide dispute exists as to the employee’s entitlement to benefits, and the mere fact that an employer loses a disputed claim is not determinative. In the absence of an identifiable accident, it was not unreasonable to counter Dorion’s claims of cervical injuries. We, thus, decline to award penalties and attorney’s fees.

For the foregoing reasons, we reverse the judgment of the trial court dismissing Dorion’s case and remand the matter for further proceedings.

REVERSED AND REMANDED.

      . Dean v. Southmark Const., 03-1051 (La.7/6/04), 879 So.2d 112 (citations omitted).

      . Pugh v. Casino Magic, 37,166 (La.App. 2d Cir.4/11/03), 843 So.2d 1202, reh'g denied.

      . Dean v. Southmark, supra.

      . MacFarlane v. Schneider Nat'l Bulk Carriers, Inc., 07-1386 (La.App. 4 Cir. 4/30/08), 984 So.2d 185 (citing Brantley v. Delta Ridge Implement, Inc., 41,190, p. 8 (La.App. 2 Cir. 6/28/06), 935 So.2d 308, 314).

      . MacFarlane, supra (citing Lirette v. Patterson Serv., Inc., 05-2654, p. 4 (La.App. 1 Cir. 11/17/06), 951 So.2d 223).

      . Winford v. Conerly Corp., 04-1278 (La.3/11/05), 897 So.2d 560.

      . See, Thomas v. Alliance Compressors, 04-1034 (La.App. 3 Cir. 12/8/04), 889 So.2d 424, writ denied, 05-0086 (La.3/18/05), 896 So.2d 1010 (citing O'Regan v. Preferred Enter., Inc., 98-1602, pp. 10-13 (La.3/17/00), 758 So.2d 124).

      . Id. (citing Coats v. Am. Telegraph Co., 95-2670 (La. 10/25/96), 681 So.2d 1243).

      . Id.

      . See, e.g., Shields v. GNB Technologies, Inc., 33,911 (La.App. 2 Cir. 10/4/00), 768 So.2d 774. See, also Elliott v. OMSI, 97-71 (La.App. 3 Cir. 4/30/97), 693 So.2d 847, writ denied, 97-1841 (La. 10/17/97), 701 So.2d 1327.

      . Jackson v. Wal-Mart Stores, Inc., 03-1054 (La.App. 5 Cir. 2/10/04), 868 So.2d 813.

      . Ziegler v. Bagby Constr./LWCC, 99-1120 (La.App. 5 Cir. 4/25/00), 760 So.2d 513, 520, writ denied, 00-C-1458, (La.6/30/00), 766 So.2d 544.

        .Parker v. ADM Milling Co., 01-649 (La.App. 5 Cir. 11/27/01), 804 So.2d 120.