# Winkelmann v. Workmen's Compensation Appeal Board

> Commonwealth Court of Pennsylvania · July 20, 1994 · 166 Pa. Commw. 154

URL: https://www.frixlaw.com/law-library/cases/9735828

## Case

- **Full name:** Lillian WINKELMANN, Petitioner, v. WORKMEN’S COMPENSATION APPEAL BOARD (ESTATE OF Eleanor C. O’NEILL, and Pittsburgh National Bank), Respondents
- **Court:** Commonwealth Court of Pennsylvania
- **Decided:** July 20, 1994
- **Citations:** 166 Pa. Commw. 154; 646 A.2d 58; 1994 Pa. Commw. LEXIS 411
- **Precedential status:** Published
- **Opinion:** Dissent by Kelley
- **Judges:** Meginley, Kelley, Kelton
- **Cited by:** 17 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9735828

## Opinion text

KELLEY, Judge,
dissenting.
I respectfully dissent. While I agree that the employer should be sanctioned with a fíne and penalty, I believe that the majority has misapplied the section relied upon.
Section 435 of the Act, 77 P.S. § 991, specifically refers to the implementation of:
(d)(i) Employers and insurers may be penalized a sum not exceeding ten per centum of the amount awarded and interest accrued and payable: Provided, however, That such penalty may be increased to twenty per centum in cases of unreasonable or excessive delays. Such penalty shall be payable to the same persons to whom the compensation is payable.
The language specifically restricts the penalty to be based on the amount of the award. Since in this case the award was not sustained on appeal, there is no underlying basis upon which to make the percentage of the penalty applicable.
I, therefore, believe it is erroneous for reliance on section 435 of the Act to impose the penalty.
Accordingly, I would remand with instructions to assess a penalty upon the employer based upon the avoidance of the payment, a supersedeas having been denied of an outstanding order, and obligation to pay compensation.
Accordingly, I dissent on the reasoning of the majority.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9735828. Public record. Not legal advice.