NICHOLAS VALLO JR. VS. BOARD OF REVIEW (BOARD OF REVIEW, DEPARTMENT OF LABOR) ( 2020 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0676-18T4
NICHOLAS VALLO JR.,
Appellant,
v.
BOARD OF REVIEW
DEPARTMENT OF LABOR,
and BUILDERS GENERAL
SUPPLY CO.,
Respondent.
__________________________
Submitted January 29, 2020 – Decided February 25, 2020
Before Judges Whipple and Gooden Brown.
On appeal from the Board of Review, Department of
Labor, Docket No. 153,691.
Nicholas Vallo Jr., appellant pro se.
Gurbir S. Grewal, Attorney General, attorney for
respondent Board of Review (Donna Arons, Assistant
Attorney General, of counsel; Andy Jong, Deputy
Attorney General, on the brief).
Respondent Builders General Supply Co. has not filed
a brief.
PER CURIAM
Nicholas Vallo Jr. appeals from the September 27, 2018 final agency
decision of the Board of Review (Board), Department of Labor, dismissing his
appeal from the adverse ruling of the Appeal Tribunal (Tribunal) because the
appeal was not filed within the strict time frame prescribed by N.J.S.A. 43:21-
6(c). We affirm.
After approximately sixteen months of employment, on May 15, 2018,
Vallo resigned from his position as a driver with Builders General Supply
Company because of the level of physical labor required by the job. On May
27, 2018, Vallo filed a claim for unemployment benefits, which was denied by
the Deputy of the Division of Unemployment Insurance (Deputy) under N.J.S.A.
43:21-5, on the ground that the claimant left work voluntarily without good
cause attributable to the work.
On June 18, 2018, Vallo appealed to the Tribunal and participated in a
July 13, 2018 telephonic hearing along with his employer. The proofs adduced
at the hearing 1 revealed that Vallo had been granted a medical leave of absence,
1
We glean these facts from the Tribunal's decision as the transcript of the
hearing is not a part of the record.
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after which he was allowed to return to work by his doctor with no restrictions,
but resigned instead after his employer indicated it could not accommodate him
by placing him in a less physically demanding job. Vallo neither provided
medical documentation to his employer to show that the job caused or
aggravated his condition, nor requested another leave of absence.
Following the hearing, the Tribunal affirmed the Deputy's
disqualification. Applying N.J.A.C. 12:17-9.32 and Self v. Board of Review, 91
N.J. 453 (1982),3 the Tribunal determined that while Vallo's "reason for
voluntarily leaving" the job was "compelling in nature," it was "not considered
to be good cause to leave work voluntarily" because Vallo failed "to provide
medical documentation to the employer to show that the job caused or
exasperated his condition and/or that he was incapable of continuing to work in
2
N.J.A.C. 12:17-9.3 establishes three categories applicable when an employee
leaves work for reasons related to a medical condition, which are not subject to
disqualification from benefits, provided certain conditions are met, including
making "a reasonable effort to preserve his or her employment," N.J.A.C. 12:17-
9.3(c), and providing a "medical certification . . . to support a finding of g ood
cause attributable to work," N.J.A.C. 12:17-9.3(d).
3
In Self, the Court clarified that "a departure not attributable to work is a
'voluntary departure without good cause related to work' that will disqualify the
employee from receiving unemployment benefits,'" and "[t]he only recognized
exception to that rule is where an employee is unable to work because of illness
and attempts to protect [his or] her employment." Id. at 457 (quoting DeLorenzo
v. Bd. of Review, 54 N.J. 361, 363-64 (1969)).
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the role he was hired for," and failed to request "another leave of absence or an
extension of his most recent one." Thus, the Tribunal concluded Vallo failed to
satisfy his "obligation to do those things reasonably calculated to relieve himself
of the condition or complained of circumstances before [] voluntarily leaving
the job could be justified."
The Tribunal's decision, which was mailed to Vallo on July 17, 2018,
contained explicit language warning
This decision will become final, unless, within twenty
. . . days of the date of mailing . . . , a written appeal is
filed with the Board . . . . The appeal period will be
extended if good cause for late filing is shown. Good
cause exists in situations where it can be shown that the
delay was due to circumstances beyond the control of
the appellant, which could not have been reasonably
foreseen or prevented.
Accordingly, the deadline for Vallo's administrative appeal was August 5, 2018.
Although dated August 10, 2018, Vallo filed an appeal to the Board on
August 14, 2018, simply stating "I would like to appeal the decision of the
unemployment officer on the grounds he did not [hear] all the facts." In a
September 27, 2018 decision, the Board dismissed Vallo's appeal, stating "the
appeal was filed late, in that it was filed subsequent to the expiration of the
statutory period of twenty . . . days from the date of mailing of the . . . Tribunal
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decision (N.J.S.A. 43:21-6(c)); and [g]ood cause not having been shown for such
late filing." This appeal followed.
We need not address the merits of Vallo's application for benefits because
it is clear, as a procedural matter, that his administrative appeal was out of time.
N.J.S.A. 43:21-6(c) specifies that the Tribunal's decision "shall be deemed to be
the final decision of the [Board], unless further appeal is initiated pursuant to
[N.J.S.A. 43:21-6(e)] . . . within [twenty] days after the date of . . . mailing of
such decision." "If a review . . . is not initiated . . . within the [prescribed time
limits], the decision becomes 'final' and is not subject to review except upon a
showing of fraud or other fundamental defect in the proceedings." Van Ouhl v.
Bd. of Review, 254 N.J. Super. 147, 151 (App. Div. 1992) (citing Kaske v. State
of N.J., Bd. of Review, 34 N.J. Super. 222, 225-26 (App. Div. 1955)). See
Lowden v. Bd. of Review, 78 N.J. Super. 467, 468-70 (App. Div. 1963) (strictly
enforcing the applicable filing deadline for administrative appeals).
Relief from these time constraints is afforded by N.J.A.C. 12:20-4.1(h),
which provides:
A late appeal shall be considered on its merits if it is
determined that the appeal was delayed for good cause.
Good cause exists in circumstances where it is shown
that:
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1. The delay in filing the appeal was due to
circumstances beyond the control of the appellant; or
2. The appellant delayed filing the appeal for
circumstances which could not have been reasonably
foreseen or prevented.
Although N.J.A.C. 12:20-4.1(h) allows the deadline to be extended in
limited situations upon a demonstration of good cause, Vallo offered the Board
no explanation for his delay in filing an administrative appeal. Likewise, on
appeal, Vallo renews the contentions rejected by the Tribunal, and still offers no
explanation for his untimely appeal to the Board. Accordingly, we must affirm
the Board's decision, affording it the deference it is owed as an administrative
agency on matters within its area of responsibility. See, e.g., Brady v. Bd. of
Review, 152 N.J. 197, 210 (1997); Self, 91 N.J. at 459; Futterman v. Bd. of
Review, 421 N.J. Super. 281, 287 (App. Div. 2011).
Affirmed.
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