The claimant applied to the LAT disputing her entitlement to NEBs. The insurer raised a preliminary motion arguing that the claimant’s dispute was barred by the limitation period, as it was commenced two years after a valid denial. Adjudicator Flude agreed with the insurer and dismissed the claim. The insurer denied the claimant’s NEBs on two occasions: first after receipt of an unsupportive OCF-3 and second in response to counsel’s request to pay the claimant NEBs. In the second denial, the insurer wrote: “Please provide our office with the Disability Certificate (OCF-3) supporting the Non-earner benefit for further consideration”. Adjudicator Flude held that both letters constituted a valid denial and that the second denial did not “muddy the waters.” Adjudicator Flude relied on supportive case law to determine that the second denial was no more than the insurer keeping an open mind as the original OCF-3 did not support NEBs. Moreover, Adjudicator Flude dismissed the claimant’s argument that the failure to check off the “not eligible/stoppage of benefit” box created ambiguity. Adjudicator Flude also noted that the claimant was represented by counsel during this time. Adjudicator Flude found that he would not exercise his discretion to extend the limitation period per s. 7, noting that the delay of five years after the insurer’s denial was a major consideration.
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