Date: 20020912
Docket: 2001-3303-IT-I
BETWEEN:
PATROCINIA GRAUMANN,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
Reasons for Judgment
Miller J.
[1] This case deals with whether the expense of a hydrotherapy unit, or hot tub in the common vernacular, qualifies as a medical expense for purposes of subsection 118.2(2) of the Income Tax Act. The Minister of National Revenue has denied Ms. Graumann the amount of $7,750 as an allowable medical expense for the 1997 taxation year. She appeals by way of the informal procedure.
Facts
[2] Ms. Graumann was in a motor vehicle accident in 1992. She suffered some serious injuries to her neck and was ultimately diagnosed with a herniated disc. She experienced numbness and pain and was advised to spend time both in a hot pool as well as in traction. Her condition worsened and on the advice of an orthopaedic specialist she underwent surgery in late 1993. There were some significant risks attached to this operation, including the possibility of paralysis, heart failure and uncertainty as to whether she would achieve the success sought. She determined that she would never lead a normal life without the surgery, so she took the risk.
[3] The surgery involved taking bone from her hip to reconstruct a disc. Two levels of fusion of discs were involved. She spent three weeks in hospital post-surgery and many months thereafter recuperating to ensure the graft would take. She could not take part in any activity during those many months in 1994. In late 1994, she was allowed to remove the neck brace in favour of a soft brace, which she wears on occasion to this day. She was advised that she should no longer do anything with impact, such as skiing or jogging. She continues to have a junction failure problem with her neck, which means discs seven and eight are not working properly due to the fusion of discs six and seven.
[4] Ms. Graumann was determined to overcome the pain and get back to work. Dr. Van Peteghem prescribed the acquisition of a hot tub, along with aggressive physio and massage therapy, which she did diligently. She spent a couple of years building up her muscles and putting herself in the position to be functional in the workplace. In 1997, she did find employment, slowly working up to part-time and eventually full-time.
[5] During this period, she sought a hot tub which was best suited to her needs, as she required jets on the upper part of her back and neck primarily. She found the tub through Sundance Spa at a cost of $7,750. She had it set up on the back patio of her house. No renovations were required for the installation. It is the cost of this hot tub which she included as a medical expense in her 1997 income tax return.
[6] Ms. Graumann uses the tub both before and after work. Without her own tub she would have been unable to get time from work to access tubs in clinics or hospitals. She explained the tub assists with spasms and mobility. It allows her to function in the workplace. She also described traumas brought on by flare-ups caused by nerve damage. She is bed-ridden for two or three days with these severe migraines. She also suffers from arthritis. She indicated that when her muscles get tight, the spine is misaligned and she has problems with her lower back. While she acknowledged that she can walk, she reiterated she is completely immobile during flare-ups. When asked what she does for exercise, she replied she does a lot of walking.
[7] In 2000, she and her husband moved to a new home and renovation work was required to accommodate the hot tub. She successfully claimed the cost of such renovation work as medical expenses.
Analysis
[8] Although there was some discussion as to the applicability of paragraph 118.2(2)(l.2), the parties agreed that the cost of the hot tub would not properly fall under that paragraph, but if the cost was to be considered a medical expense, it would have to be pursuant to paragraph 118.2(2)(m). I agree that paragraph 118.2(2)(m) and not (l.2) is the appropriate paragraph to be addressed. It reads:
118.2(2) For the purposes of subsection (1), a medical expense of an individual is an amount paid
...
(m) for any device or equipment for use by the patient that
(i) is of a prescribed kind,
(ii) is prescribed by a medical practitioner,
(iii) is not described in any other paragraph of this subsection, and
(iv) meets such conditions as are prescribed as to its use or the reason for its acquisition;
to the extent that the amount so paid does not exceed the amount, if any, prescribed in respect of the device or equipment;
[9] Further, Regulation 5700(i) reads:
5700 For the purposes of paragraph 118.2(2)(m) of the Act, a device or equipment is prescribed if it is a
...
(i) device that is designed to assist an individual in walking where the individual has a mobility impairment;
[10] The Respondent does not deny the hot tub was prescribed by a physician, but does maintain that the hot tub is not a prescribed device in accordance with Regulation 5700(i). I agree.
[11] The plain meaning of Regulation 5700(i) suggests a device to assist someone with the activity of walking. This implies firstly that the individual has some difficulty with walking - a mobility impairment. I acknowledge that Ms. Graumann suffered some mobility impairment. This was not connected to her ability to walk, but was to do with the movement of her upper body, primarily her neck. Indeed, with regard to walking, Ms. Graumann identified the activity of walking as her main form of exercise.
[12] She is to be commended for her strength and determination in overcoming a most serious injury followed by even more serious surgery. She is right to feel that she deserves some recognition for getting off any form of social assistance and making herself a full-time employed contributor to society. I applaud her. Her physical woes are painful and at times debilitating. They do not, however, relate to her ability to walk, although at the time of her migraines, she must resort to bed. I do not take "mobility impairment" in the context of the use of a device to assist walking to mean that type of impairment. When she is bedridden, nothing assists her walking.
[13] The second requirement of Regulation 5700(i) is that the device itself is designed to assist an individual in walking. Clearly, Ms. Graumann experiences pain, stiffness and numbness and the hydrotherapy unit does assist in the relief of those ills. The main purpose of the unit, however, is not to allow Ms. Graumann to walk. Notwithstanding the considerable respect Ms. Graumann garners for what she has accomplished, I cannot in this case stretch the common-sense meaning of "a device to assist in walking" to this hot tub. It is designed to soothe, to relax muscles and to relieve pain perhaps. Its design in this case is not aimed at Ms. Graumann's walking ability. Its design, which Ms. Graumann acknowledged, is more geared for her neck and back, and the results in this regard were most satisfactory. The relief provided did allow Ms. Graumann to function in a working environment. It cannot be said though that the design of the tub assisted her walking, which was not impaired.
[14] Both parties provided me with cases, some which denied the cost of a hot tub as a medical expense and some which allowed it. Given my view that the hot tub in this case does not qualify, I will address my comments only to those cases presented by Ms. Graumann in support of her argument. The three cases raised are judgments of Judge Beaubier of this Court; the Gordon case[1], the Galipeau case[2], and the Wood case[3]. The Gordon case was decided pursuant to paragraph 118.2(2)(l.2), the section dealing with renovation costs, so it is not applicable to the case before me. In Galipeau, the mobility impairment of Mrs. Galipeau was severe. The evidence was that she took 45 minutes to get out of bed and another 15 to 20 to get to the bathroom unless assisted. She clearly had a major problem with walking; she had to lie down almost all day. Judge Beaubier found that the design of the tub in that case was to assist her walking and mobility. This is not the case with Ms. Graumann. I do not minimize her problems in any way, but do not find that they have restricted her ability to walk as had Mrs. Galipeau's.
[15] Similarly, in the Wood case, the evidence was that Mrs. Wood could not walk by herself. This is a much different situation from someone whose main form of exercise is walking. Again, Judge Beaubier found that without the use of the tub and exercise in the tub, Mrs. Wood could not move her body at all during the winter. He concluded that the tub was designed to assist her to walk. I cannot reach the same conclusion with respect to Ms. Graumann's situation.
[16] It is not sympathy I feel for Ms. Graumann, but respect. But I must also respect the wording of the legislation and not stretch it beyond its limits to give Ms. Graumann relief that is not intended. The hot tub allows Ms. Graumann to fully function in the workplace; but that is not the test. The test relates to her ability to walk and a device designed to assist that ability. This result will likely seem unfair to Ms. Graumann, but given the spirit of determination and resolve I witnessed in her testimony, I have no doubt she appreciates how far better off she is being able to proclaim that walking is her main form of exercise, than successfully obtaining a medical tax credit due to an inability to walk.
[17] I dismiss the appeal.
Signed at Ottawa, Canada, this 12th day of September, 2002.
|
"Campbell J. Miller" |
J.T.C.C.
COURT FILE NO.: 2001-3303(IT)I
STYLE OF CAUSE: Patrocinia Graumann and
Her Majesty the Queen
PLACE OF HEARING: Kelowna, British Columbia
DATE OF HEARING: September 5, 2002
REASONS FOR JUDGMENT BY: The Honourable Judge Campbell J. Miller
DATE OF JUDGMENT: September 12, 2002
APPEARANCES:
For the Appellant: The Appellant herself
Counsel for the Respondent: Nadine Taylor
COUNSEL OF RECORD:
For the Appellant:
Name: N/A
Firm: N/A
For the Respondent: Morris Rosenberg
Deputy Attorney General of Canada
Ottawa, Canada
2001-3303(IT)I
BETWEEN:
PATROCINIA GRAUMANN,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
Appeal heard on September 5, 2002, at Kelowna, British Columbia, by
the Honourable Judge Campbell J. Miller
Appearances
For the Appellant: The Appellant herself
Counsel for the Respondent: Nadine Taylor
JUDGMENT
The appeal from the assessment of tax made under the Income Tax Act for the 1997 taxation year is dismissed.
Signed at Ottawa, Canada, this 12th day of September, 2002.
|
"Campbell J. Miller" |
J.T.C.C.