Ms. Klimitz submitted an application for Mediation on July 20, 2006, more than two years after having received an OCF9 denying her non-earner benefits on May 31, 2004. In a preliminary issue ruling, Arbitrator Sapin found that Ms. Klimitz was precluded from proceeding to Arbitration because Allstate’s denial of the non-earner benefits was clear and unequivocal, despite the fact that the IE on which the decision was based was not enclosed with the denial. Allstate’s denial was also found to be 10 days late. Nevertheless, the Insured ought to have applied for Mediation by May 31, 2006 according to the SABS deadline of two years from the date of denial.
In a March, 2013 ruling, Director Delegate Blackman reversed Arbitrator Sapin’s decision, finding that Allstate’s denial was incomplete as the neurological report being relied upon in denying the non-earner benefit was not provided to Ms. Klimitz until July 18, 2006. He found that the requirement on the insurer to provide a copy of the IE on which they were basing their denial pursuant to the SABS was not holding them to a “standard of perfection”. Ms. Klimitz’s application for Mediation was therefore deemed to be within two years of the denial (the limitation began to run on the day Ms. Klimitz’s received the IE) and she was not precluded from proceeding to Arbitration as a result. A Notice of Application for Judicial Review has been served.