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, the Galipeau
case, and the Wood
case. 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.
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.
J.T.C.C.
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