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Anthony Gaus v. Norfolk Southern Railway Co

September 28, 2011


The opinion of the court was delivered by: Conti, District Judge.


Pending before the court is the motion for summary judgment (ECF No. 23) filed by Defendant Norfolk Southern Railway Company ("NSR" or "Defendant"). Plaintiff Anthony Gaus ("Gaus" or "Plaintiff") filed this civil action asserting claims under Section 504 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. §§794 et seq. ("Rehabilitation Act"), the Americans with Disabilities Act of 1990, 42 U.S.C. §§12101 et seq. ("ADA"), the ADA Amendments Act of 2008, Pub. L. No. 110-325, 122 Stat. 3553 ("ADAAA"), and the Pennsylvania Human Relations Act, 43 PA. CONS. STAT. §951 et seq. ("PHRA"). After reviewing the record, considering the submissions of the parties and the undisputed facts of record, viewing all disputed material facts in plaintiff‟s favor and drawing all reasonable inferences in favor of plaintiff, the court concludes that a reasonable jury could not find that Gaus was substantially limited in the major life activity of working with respect to conduct or events occurring before January 1, 2009, and therefore, Gaus failed to establish a prima facie case of disability discrimination with regard to NSR‟s refusal to allow Gaus to return to work during calendar year 2008. On the other hand, with respect to the conduct or events occurring after 2008, the court concludes that material issues of fact exist precluding summary judgment. Therefore, the court will grant in part and deny in part defendant‟s motion for summary judgment.

I. Factual Background*fn1

Plaintiff‟s railroad career began in September 1998 when he was hired as a car man by Consolidated Rail Corporation. (Def.‟s Concise Stmt. Mat. Facts ("Def.‟s CSMF") ¶5, ECF No. 28.) On June 1, 1999, Gaus became an employee of NSR and has been employed by NSR to the present. (Def.‟s CSMF ¶6.) NSR, which is headquartered in Norfolk, Virginia, is a transportation company in the business of hauling freight by rail in the eastern and central portions of the United States, and employs approximately 29,000 people. (Id. ¶¶3-4.)

Gaus has been employed as a journeyman electrician at the Conway Locomotive Shop from December 2004 through the present. (Id. ¶7.) Locomotive electricians are responsible for diagnostics, maintenance and repair of diesel/electrical locomotives. (Id. ¶8.) The physical duties of a locomotive electrician require lifting up to 50 pounds, working at different heights, stooping, bending and getting on and off equipment. (Id. ¶9.) The electrician job in a locomotive shop is recognized as a safety-sensitive position. (Id. ¶10.) The job of electrician in the locomotive shop requires moving on and around moving machinery and involves the operation of locomotives for diagnostic and other reasons. (Id. ¶¶11-12.) Because the electricians must also operate locomotives in the performance of their duties, the positions are subject to the rules of the Hours of Service Act, 49 U.S.C. § 20101 et seq., and the Federal Railroad Administration‟s Drug Testing Program. (Id. ¶13.)

On a number of occasions during Gaus‟ employment prior to October 2007, various medical conditions caused him to miss work. (Id. ¶14.) During the course of his employment, Gaus applied for FMLA leave on seven occasions and was granted leave five times. (Id. ¶15.) The conditions for which Plaintiff sought and was granted FMLA leave, between August 6, 2001 and September 6, 2006, include ulcerative colitis (id. ¶¶16-19), abdominal surgery to repair a hernia (id. ¶¶24-27), carpal tunnel syndrome (id. ¶¶28-30), and torn ligaments in his left shoulder (id. ¶¶33-35). Plaintiff sought FMLA leave commencing July 30, 2002 through August 6, 2002, for gall bladder surgery, but his request was denied because he had not worked the requisite hours (1,250) during the previous twelve-month period. (Id. ¶¶21-23.) On each such occasion, Gaus underwent a return to work physical at which time he was released to return to work without any restrictions. (Id. ¶¶18, 20, 23, 27, 30, 35.)*fn2

Of relevance here is the FMLA leave request submitted by Plaintiff to commence on October 27, 2007. (Id. ¶36.) The reason given for that leave request was Addison‟s disease; the leave request was tentatively approved effective October 17, 2007, and that approval was confirmed with the FMLA leave set to expire on October 31, 2007. (Id. ¶¶36-37.) In support of this particular FMLA leave request, Gaus supplied a medical certification from Dr. Parepolly who indicated that Gaus was suffering from adrenal insufficiency requiring steroid medications and testosterone deficiency also requiring daily medications. Dr. Parepolly indicated the onset of this condition was October 3, 2007. (Id. ¶38.) Although Dr. Parepolly estimated Gaus could return to work on November 1, 2007, Gaus‟ own treating physician, Dr. Karen Schogel, did not recommend his actual return until July 23, 2008. (Id. ¶¶39-40.)

During this period between October 17, 2007 and July 23, 2008 and subsequent thereto, Gaus treated for a variety of conditions for which the medical department at NSR requested additional medical information in order to assess the impact of those conditions on his ability to perform the duties of an electrician. (Id. ¶41.) Based on an evaluation dated July 8, 2008 from a neurosurgeon, Dr. Gardner, of the UPMC Department of Neurological Surgery, Gaus was treating for pituitary adenoma. (Id. ¶42.) In addition, between October 2007 and July 23, 2008, Gaus treated for panhypopituitarism with Dr. Elisabeth Bergman. (Id. ¶43.) Dr. Bergman was unsure if Gaus‟ symptoms were secondary to panhypopituitarism or chronic parvovirus infection. (Id. ¶44.)

Gaus also treated during this time for chronic parvovirus infection with Dr. Abbas. (Id. ¶45.) Dr. Abbas‟ records from March 18, 2008 were reviewed by the NSR Medical Department. (Id. ¶46.) Dr. Abbas reported in March 2008 that Gaus‟ parvovirus was complicated by the development of adrenal insufficiency, hypothyroidism and hypogonadism all in October 2007. (Id. ¶47.) When evaluated by Dr. Abbas on March 18, 2008, Gaus provided a history that he continued to experience fatigue, sweating, particularly following exertion, flushing of face, neck and upper chest, arthralgia involving several joints, including those of hands, feet and ankles. The pain was constant with the severity ranging from 5 to 8 on a scale of 10. Gaus experienced abdominal pain and back ache on and off, but this was not new. He complained of feeling overheated along with the chills. He described experiencing a fine tremor of his hands for the past several months. (Id. ¶48.)

During this time, Gaus suffered from chronic pain involving his joint, hip, low back and abdomen. (Id. ¶49.) His most recent visit for pain prior to Dr. Schogel‟s return to work document of July 17, 2008 was with Dr. Mathie at Allegheny North Arthritis Center on May 22, 2008, where Gaus presented with ongoing joint pain involving his hands, low back, and hips. He rated his pain as an 8 out of 10, and fatigue and sleep disturbances at 10 out of 10. (Id. ¶50; Def.‟s App., Ex. 26.) During this same period, Dr. Mathie recommended additional tests, injection treatment and physical therapy. (Def.‟s CSMF ¶51, ECF No. 28.) Gaus was also treating for mild to moderate sleep apnea and had undergone a sleep study on June 25, 2008. (Id. ¶52.)

Gaus felt that he was able to return to work in the spring or early summer of 2008. (Pl.‟s App., Ex. 1 at 62, ECF No. 36.) Dr. Karen Schogel, Gaus‟ primary care physician, approved Gaus to return to work on July 21, 2008. (Pl.‟s App., Ex. 3, ECF No. 36.) At that time, Gaus believed he could return to work with no restrictions. (Pl.‟s CSMF ¶6, ECF No. 35.)

Gaus completed a return to work form and had a return to work examination on July 23, 2008. (Def.‟s CSMF ¶53, ECF No. 28.) The physician hired by NSR to examine Gaus provided an opinion that Gaus could return to work without restriction. (Id. ¶54.) According to Plaintiff, despite two separate medical opinions that Gaus could return to work, one by a physician hired by NSR and the other by Gaus‟ primary care physician, the NSR medical department felt that the medical evidence was insufficient and that it required more information. (Pl.‟s CSMF ¶9, ECF No. 35.) According to Defendant, the information provided by Gaus and arising out of the July 23, 2008 exam caused the NSR medical department to seek review of Gaus‟ status before releasing him to return to work. (Def.‟s CSMF ¶55,ECF No. 28.) In a letter dated July 30, 2008, Gaus was advised by Tony Stuart, shop manager and Gaus‟ supervisor, that the NSR medical department needed additional information. (Id. ¶56.) The medication Gaus reported using on his return to work information was of concern to the medical department. (Id. ¶57.) In partial response to the request for additional records, Dr. Schogel sent a 45-page fax to the NSR medical department on July 31, 2008. (Id. ¶58.) On August 18, 2008, a 28-page fax of medical records was sent from Dr. Schogel to NSR. (Id. ¶59.) This fax included the same medical documentation previously faxed from Dr. Schogel‟s office with the addition of lab reports dated August 1, 2008. (Id. ¶60.)

At this point, the NSR medical department felt that it possessed insufficient medical evidence to make an informed decision about whether Gaus could return to work. (Id. ¶61.) On August 20, 2008, Dr. Lina conducted a comprehensive review of the information which had been received from Gaus‟ treating and referral physicians, and summarized these findings in the NSR medical records. (Id. ¶¶ 62-63.)

On August 20, 2008, Dr. Lina discussed her summary and preliminary conclusions in a telephone conference with Gaus. In a letter to Gaus dated August 23, 2008, she identified the additional records he needed to provide. (Id. ¶64.)*fn3 Dr. Lina‟s telephone conference with Gaus on August 20, 2008, was the only time she spoke to him. (Pl.‟s CSMF ¶46, ECF No. 35.) Thereafter, Dr. Schogel reiterated her position that Gaus could return to work as of August 26, 2008. (Def.‟s CSMF ¶65, ECF No. 28.) Dr. Elisabeth Bergman had offered a similar opinion on August 21, 2008 after evaluating Gaus for pituitary problems. (Id. ¶66.)*fn4 Dr. Byers released Gaus to return to work as of August 21, 2008 without restriction. (Id. ¶67.) Dr. Paul Gardner released Gaus with regard to neurosurgical issues as of August 21, 2008. (Id. ¶68.) A return to work indicating Gaus could do so without restriction as of August 26, 2008, was also submitted by Greater Pittsburgh Orthopaedic Associates. (Id. ¶69.) On August 28, 2008, Dr. Schogel wrote a letter to the NSR medical department restating her position that Gaus could return to work without restriction. (Pl.‟s CSMF ¶14, ECF No. 35.) Between Dr. Lina‟s August 22, 2008 letter requesting additional information and December 21, 2008, there were communications between Gaus, the NSR medical department and various physicians, primarily Dr. Schogel. (Def.‟s CSMF ¶70, ECF No. 28.)

On or slightly before January 9, 2009, the NSR medical department believed it finally had been provided enough medical information to permit Dr. Lina to offer an opinion on Gaus‟ request to return to work. (Id. ¶72.) Dr. Lina, however, still required more information regarding Gaus‟ sleep apnea and fatigue. (Pl.‟s App., Ex. 6 at 50, ECF No. 36.) After extensively reviewing comprehensive medical information, Dr. Lina concluded that Gaus was unable to return to his job as an electrician and advised Gaus of that by letter dated January 9, 2009. (Def.‟s CSMF ¶73, ECF No. 28.) Dr. Lina explained that "[Gaus‟] present medical condition, Chronic Pain, does not permit safe performance of the essential functions of [his] position and thus is inconsistent with [NSR‟s] medical guidelines." (Def.‟s App., Ex. 39, ECF No. 28.) Dr. Lina had two concerns at that time, based on the available medical evidence: (1) Gaus had not "established a suitable record of control and stability of his chronic pain condition"; and (2) Gaus‟ "frequent narcotics use." (Pl.‟s App., Ex. 6 at 52, ECF No. 36.) Dr. Lina‟s letter made it clear that Gaus was not being dismissed from service and that the medical restriction could be removed if his condition improved. (Def.‟s CSMF ¶74, ECF No. 28.) In her letter, Dr. Lina advised Gaus that he could take advantage of opportunities in other positions in the railroad and gave him information about how to pursue those positions. (Id. ¶75.)

In response to the decision of Dr. Lina, Gaus‟ primary care physician, Dr. Schogel, sent a letter dated January 27, 2009, reiterating her opinion that Gaus was not impaired physically by medications or medical diagnosis and, that in her opinion, no work restriction was required at that time. (Id. ¶76.) In order to assure itself that it was making a comprehensive decision based on all available medical information, the NSR medical department through Dr. Lina faxed a questionnaire to Dr. Schogel on January 29, 2009. (Id. ¶77.) The questionnaire was completed in part by Dr. Schogel and received by the NSR medical department on February 17, 2009. (Id. ¶78.) Dr. Lina‟s opinion, however, remained that Gaus was medically disqualified from his position as an electrician due to his chronic pain condition and the use of Opana ER, a narcotic medication. (Id. ¶79.) By letter dated February 20, 2009, Dr. Ray Prible advised Gaus that he reviewed Dr. Schogel‟s answers to the questionnaire which she returned on February 17, 2009, and his recommendation was that he remain medically disqualified. (Id. ¶80.)

Gaus was referred to Dr. Laurie Mathie by Dr. Schogel for the ongoing pain involving his hands, low back and both hips. At the time he saw Dr. Mathie, Gaus was using Voltaren patches, as needed, for pain and taking Ambien. In the past, he had taken Vicodin, as needed, and Demerol, but experienced hives with the Demerol. (Id. ¶81.)*fn5

NSR viewed Gaus‟ use of prescribed pain medicine to be a problem throughout 2009 and into 2010, even though Gaus contended he was able to return to work. (Id. ¶82.)*fn6 Beginning in December 2008, Gaus treated primarily for his pain at the Advanced Pain Medicine facility, where he came under the care of a number of doctors. (Id. ¶83.) At his second visit to the Advanced Pain Medicine facility on February 5, 2009, Gaus was taking Lyrica 150 mg twice a day and Opana ER 40 mg every twelve hours. He reported pain on a scale of 4 out of 10 and his use of Opana was increased to 50 mg every twelve hours. His primary complaints were pain in the lower back and left abdominal quadrant. (Id. ¶84.) Dr. Lamperski noted that Gaus tolerated the Opana ER well, and denied any lightheadedness, tiredness, nausea, cognitive difficulty, or constipation. (Def.‟s App., Ex. 44, ECF No. 28-7.)

Gaus returned to the Advanced Pain facility on April 9, 2009, and reported increased pain at that time at a level 6 out of 10. (Id. ¶85, ECF No. 28.) He reported that the Opana ER, even though increased to 50 mg, only helped his pain for six to eight hours. At this visit, the Opana ER was increased to 70 mg every twelve hours, and Gaus continued to take Lyrica at a dosage of 150 mg. twice a day. (Id. ¶86.) The office notes indicated that Gaus tolerated the Opana ER well, and he denied any lightheadedness, tiredness, nausea, cognitive difficulty, or constipation. (Def.‟s App., Ex. 45,ECF No. 28-7.)

Gaus provided the NSR medical department with a report dated April 5, 2009 from Constance Fischer, Ph.D., a psychologist who performed a neuropsychological evaluation of Gaus during three two-hour sessions in March 2009. (Def.‟s CSMF ¶110, ECF No. 28.) Dr. Fischer noted that at the time of her psychological assessment of Gaus, he was taking Ambien 10 mg, Lopressor 50 mg, Opana 50 mg, Protonix 40 mg, Lyrica 150 mg. (Id. ¶111.) Dr. Fischer opined that the results of her testing allowed her to "predict[] with a high degree of confidence that [Gaus] would indeed catch up as quickly as anyone else with any changes since he left, and would be as competent as ever." (Def.‟s App., Ex. 54, ECF No. 28-8.)

The opinions expressed by Dr. Fischer in her April 5, 2009 report did not change the NSR medical department‟s assessment of Gaus‟ abilities to perform safely the essential functions of his job. (Def.‟s CSMF ¶112.) As explained in Dr. Lina‟s April 21, 2009 letter to Gaus, the primary concern of NSR‟s medical department remained Gaus‟ use of Opana ER twice daily and Lyrica twice daily for his chronic pain. (Id. ¶113.) Dr. Lina indicated that the NSR medical guidelines prohibit the use of Lyrica and Opana within eight and twelve hours, respectively, of reporting to work. (NSR‟s Position Statement dated 6/30/09 to EEOC, at 4 (Pl.‟s App., Ex. 14 at 4 and Ex. 6 attached thereto, ECF No. 36-2).) Dr. Lina encouraged Gaus to discuss the NSR medical guidelines with his prescribing physician to determine whether an alternative medication regimen would be appropriate. (Pl.‟s App., Ex. 6 attached to Ex. 14.)

Dr. Lina took the position that Gaus could not return to work in any safety-sensitive position with NSR if he was not in compliance with NSR‟s medical guidelines regarding the use of narcotics and based on an assessment of his chronic pain condition, even if he was released by his doctors. (Pl.‟s App., Ex. 6 at 61-62, ECF No. 36-1.) The NSR "Medical Department Medication Guidelines for Safety-Sensitive and/or Physically Demanding Positions" provide that the use of Zanaflex is prohibited "while at work or within a minimum of 6 hours prior to work"; the use of MS Contin is prohibited "while at work or within a minimum of 12 hours prior to work"; the use of Opana ER is prohibited "while at work or within a minimum of 12 hours prior to work"; and the use of Lyrica is prohibited "while at work or within a minimum of 8 hours prior to work[.]" (Pl.‟s App., Ex. 15 at 1, 4-5, ECF No. 36-2.) NSR‟s medical department "Return to Work Information Sheet," provides in relevant part:

VII. Medication and Work

A number of medications, both prescription and over-the-counter, may cause side effects such as sedation, sleepiness, weakness, fatigue, and/or impairment of judgment, reflexes, balance and coordination, that can adversely impact individual and co-worker safety. Individuals occupying positions critical to safe railway operations may not work in safety critical and/or non-sedentary positions (including those positions requiring the operation of equipment or motor vehicles) if they are experiencing such side effects. In general, narcotics and other controlled substances may not be taken while at work or within a minimum of 6 hours prior to reporting to work (a longer period of time may be warranted for sustained release or longer acting medications) if in a safety critical and/or non-sedentary job. Those performing only sedentary, non-safety sensitive work should ensure their personal safety, judgment and decision-making abilities are not impaired by medication, either prescription or over-the-counter. Employees should consult their physician and/or pharmacist to address potential side effects, both individually and combined, of all prescription and over-the-counter medications they are taking. If there are questions regarding the Medical Department‟s guidelines for use of specific medications and potential effects upon safe performance of job duties, please consult the Medical Department before returning to work. (Pl.‟s App., Ex. 2 attached to Ex. 14, ECF No. 36-2.)

Dr. Lina testified that to her knowledge, the medical guidelines regarding medications have not changed over time. (Pl.‟s CSMF ¶36, ECF No. 35.) Dr. Lina could not recall NSR ever allowing anyone in a safety-sensitive position to use narcotic medication outside NSR‟s guidelines. (Id. ¶37.) Dr. Lina testified that Gaus would not be approved for his electrician position if his treatment involved medication outside NSR‟s guidelines. (Id. ¶42.) Dr. Lina‟s supervisor, Dr. Ray Prible, NSR‟s Medical Director, testified that employees would not be allowed to work if their medication fell outside NSR‟s guidelines. (Id. ¶43.) According to Dr. Lina, the term "safety sensitive position" encompass[es] job tasks that would require an individual, for example, to be working around moving equipment, work at heights, performing physical work, operating equipment, and also it would cover those jobs that . . . require commercial driver‟s licenses and that are otherwise regulated by the Federal Railroad Administration‟s regulations for hours of service, safety-sensitive employees. (Pl.‟s App., Ex. 6 at 15-16, ECF No. 36-1.) With regard to non-safety sensitive positions, Dr. Lina explained that those jobs would "most commonly fall within the clerical ranks, jobs that involve administrative work sedentary, again, the light-duty work." (Id. at 17.)

Gaus returned to the Advanced Pain Medicine facility on May 7, 2009. He rated his pain at that time as 7 out of 10. (Def.‟s CSMF ¶87, ECF No. 28.) The office notes indicate that Gaus tolerated the increase in Opana ER to 70 mg well. Gaus reported that he recently discontinued taking the Lyrica as he did not feel he was benefiting from it. (Def.‟s App., Ex. 46, ECF No. 28-7.) He did request an increase in the dosage of Opana ER from 70 mg to 80 mg, as the cost of the two medication strengths, i.e., 30 mg and 40 mg, was quite expensive. (Def.‟s CSMF ¶88, ECF No. 28.) In light of this request and Plaintiff not noting any significant benefit from the 70 mg dosage, the physician agreed to increase his Opana ER to 80 mg every twelve hours. (Id.; Def.‟s App., Ex. 46, ECF No. 28-7.)*fn7 The physician prescribed Zanaflex 4 mg at night and strongly cautioned Gaus regarding possible drowsiness and not to operate heavy machinery until he knows how he responds to this medication. (Def.‟s App., Ex. 46.)

Gaus returned to the Advanced Pain Medicine facility on June 24, 2009, at which time he continued to report chronic abdominal pain of 5 on a scale of 10. Since his last visit, he reported that the least amount of pain he experienced was 4 out of 10, and his highest level was 9 out of 10-this reflects no change in his pain status. (Def.‟s CSMF ¶89, ECF No. 28.) Plaintiff denied significant improvement from the Opana ER 80 mg and Zanaflex 4 mg, and denied adverse effects from the medication. (Def.‟s App., Ex. 47, ECF No. 28-7) Gaus indicated an interest in changing medications and the doctor substituted MS Contin at 200 mg twice daily for Opana ER. (Def.‟s CSMF ¶90, ECF No. 28.)*fn8 Plaintiff was continued on the Zanaflex at that time. (Def.‟s App., Ex. 47, ECF NO. 28-7.)

In late June 2009, Dr. Lina determined that Gaus was medically qualified for sedentary, non-safety sensitive work, which included "[p]rimarily positions in the clerical ranks." (Pl.‟s App., Ex. 6 at 64-65, ECF No. 36-1.) Based on an email from Dr. Lina, Susan Lafon, NSR‟s manager of vocational support services, sent a letter dated July 1, 2009, to Gaus, offering to assist him in locating alternative jobs with NSR. (Pl.‟s App., Ex. 16, ECF No. 36-2.) Dr. Lina contended that she could not release Gaus to safety-sensitive work, such as his electrician position, in late June to early July 2009 because she had not received sufficient information regarding his chronic pain and narcotic medication use. (Pl.‟s CSMF ¶40, ECF No. 35.) Dr. Lina clarified that Gaus could not be cleared for safety-sensitive work at that time because of a chronic pain condition and medication usage.*fn9 (Id. ¶41.)

On August 12, 2009, Gaus returned to the Advanced Pain Medicine clinic reporting pain at a level of 3 out of 10, with the worst in the intervening time being an 8 to 9 out of 10. His chief complaint remained chronic right and lower quadrant abdominal pain. (Def.‟s CSMF ¶91, ECF No. 28.)*fn10 Gaus reported that the pain increased in the evening. (Def.‟s App., Ex. 48, ECF No. 28-8.) He reported that his new medication seemed to be working better than the previous medication. (Id.) Although Gaus admitted to some grogginess and sedation, he was unsure whether the sedation was due to a parvovirus contracted two years ago, his inability to sleep due to the pain, or the pain medication itself. (Id.; Ex. 1 at 94, ECF No. 28-2.) He reported that he only felt sedated and groggy when he was "sitting still" and did not feel tired during activities such as driving and cooking. (Def.‟s App., Ex. 48, ECF No. 28-8.) Gaus reported that the MS Contin lasts approximately eight hours; however, his wife, who accompanied him to the office visit, stated that Gaus was unable to sleep due to "intolerable" pain, and repeatedly asked for an increase in his medication. (Def.‟s CSMF ¶93, ECF No. 28.) Gaus indicated that he was "unsure" if he wanted to increase his pain medication. (Def.‟s App., Ex. 48 & Ex. 1 at 96,ECF No. 28-8.) In spite of the request by Gaus and his wife to increase his pain medication, the physician did not increase the dosage of the MS Contin due to Gaus experiencing grogginess and sedation. (Def.‟s CSMF ¶94, ECF No. 28.)

Plaintiff testified at his deposition that from February 2009 through August 2009 when he was receiving treatment from the physicians at Advanced Pain Medicine, notwithstanding the pain medication and the pain he was experiencing, he was quite sure [he] could have [done his job], because most of [his] pain was at night. And [he] was resuming normal activities at home, [he] was lifting weights two hours a day, bench pressing over 400 pounds, working with the children on a daily basis, driving them back and forth to where they needed to go, plus making periodic repairs on [his] home. (Def.‟s App., Ex. 1 at 97, ECF No. 28-2.)

On September 22, 2009, Gaus was again examined at the Advanced Pain Medicine facility. At that time, he reported his lower abdomen and low back pain at a level of 5 out of 10, and that he was not sleeping due to the pain. Gaus requested an increase in his pain medication. (Def.‟s CSMF ¶95, ECF No. 28.) Gaus reported that his pain was worse at night and he had great difficulty in sleeping, and indicated that he was taking Ambien to help fall asleep. He indicated that the relief from the MS Contin 200 mg was lasting four to six hours before the pain returned. (Id. ¶96.) Gaus denied any side effects from this medication. (Def.‟s App., Ex. 49, ECF No. 28-8.) He did report feeling tired because he was not sleeping, but did not attribute that tiredness to his medication. (Def.‟s CSMF ¶96, ECF No. 28.) His prescription for MS Contin was increased with special dosage instructions at 100 mg at 7:00 a.m., 200 mg at 3:00 p.m. and an additional dosage on an as needed basis at 11:00 p.m. (Id. ¶97.)

In November 2009, Gaus was referred to Dr. Gregg Weidner at UPMC Mercy for a trial of intrathecal narcotics with an intrathecal catheter for his chronic abdominal pain. (Id. ¶98.) At the time of his visit with Dr. Weidner, Gaus was reporting significant intra-abdominal pain with no relief from 500 mg of MS Contin within a 24-hour period. (Id. ¶99.) An intrathecal catheter was placed on November 21, 2009 and 75 mg per hour of morphine infused. (Id. ¶100.) That trial was not successful and Gaus did not proceed with an implant or other permanent procedure to allow for further intrathecal administration of narcotics. (Id. ¶101.)

Gaus returned to Advanced Pain Medicine for treatment of his chronic pain on January 25, 2010. (Id. ¶102.) Gaus reported that the intrathecal morphine pump trial had not been successful and that he would like to decrease his dosage of medication. The dosage was decreased to 60 mg of MS Contin every eight hours.*fn11 (Id. ¶103; Def.‟s App., Ex. 51, ECF No. 28-8.)

On February 23, 2010, Gaus returned to the Advanced Pain Medicine clinic for a follow-up evaluation, at which time he denied any change in character or distribution of his pain or side effects from the medication. (Def.‟s CSMF ¶104, ECF No. 28.) His pain level was a 4 out of 10. (Def.‟s App., Ex. 52, ECF No. 28-8.) Gaus indicated that he wanted to taper off his current medication of MS Contin 60 mg every eight hours due to inadequate pain relief, he did not want to be taking narcotic medication. (Id.) The office notes show that a saliva drug screening performed at his last office visit was positive for morphine, which was appropriate, and Tramadol, which was not appropriate. (Id.) The results of the drug screening were discussed with Gaus. He admitted occasionally taking the Tramadol, which had been prescribed by Dr. Weidner at UPMC Mercy for headache pain, along with his MS Contin. (Id.; Def.‟s App., Ex. 1 at 104.) At this time, Gaus‟ MS Contin was decreased to 30 mg every eight to twelve hours as needed. (Def.‟s CSMF ¶106, ECF No. 28.) Gaus was again seen at Advanced Pain Medicine on March 29, 2010, at which time his MS Contin was decreased to 15 mg.*fn12 (Def.‟s App., Ex. 1 at 106, ECF No. 28-2.)

On or around June 1, 2010, Dr. Lina was provided with 78 pages of medical information and records concerning Gaus from 2009 through May 2010. (Def.‟s CSMF ¶114, ECF No. 28.) After reviewing those records, Dr. Lina in a letter dated June 18, 2010, requested additional records primarily from Advanced Pain Medicine. (Id. ¶115.) In response to Dr. Lina‟s letter, Richard Plowey, M.D. of Advanced Pain Medicine, sent a letter dated June 28, 2010 to Gaus‟ primary care physician, Dr. Schogel. (Id. ¶116.) In that letter, Dr. Plowey noted that Gaus‟ last evaluation at Advanced Pain Medicine occurred on June 25, 2010, at which time he reported pain levels of 1 to 2 on a scale of 10 and no worse than 4 to 5. (Id. ¶108.) Dr. Plowey noted that at the June 25, 2010 visit, Gaus reported increased physical activity, including activities such as lifting and climbing, and his pain level had actually improved to the point that he discontinued all prescription pain medications. (Def.‟s App., Ex. 53, ECF NO. 28-8.) Dr. Plowey reported that Gaus last took morphine in mid-April 2010, and he discontinued the use of Lyrica in May 2009 and the use of Opana in June 2009. (Def.‟s CSMF ¶¶ 109, 117, ECF No. 28.) Dr. Plowey opined that based on Gaus‟ presentation on June 25, 2010, Gaus was "able to return to work full duty without restrictions as tolerated . . . [with] no functional limitations . . .." (Def.‟s App., Ex. 53, ECF No. 28-8.) Dr. Plowey opined that Gaus "will be able to perform all necessary duties associated with his current [position] as an electrician." (Id.)

After reviewing Advanced Pain Medicine records, including the June 28, 2010 report from Dr. Plowey, Dr. Lina in a letter dated July 2, 2010, medically qualified Gaus to work as an electrician. ((Def.‟s CSMF ¶118, ECF No. 28.) Gaus returned to work on Monday, July 26, 2010, and has been working since that time. (Id. ¶119.)

II. Standard of Review

Federal Rule of Civil Procedure 56 provides in relevant part:

(a) Motion for Summary Judgment or Partial Summary Judgment. A party may move for summary judgment, identifying each claim or defense - or the part of each claim or defense - on which summary judgment is sought. The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law. The court should state on the record the reasons for granting or denying the motion. .

(c) Procedures.

(1) Supporting Factual Positions.A party asserting that a fact cannot be or is genuinely disputed must support the assertion by:

(A) citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials; or

(B) showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.

FED. R. CIV. P. 56(a), (c)(1)(A), (B).

Rule 56 of the Federal Rules of Civil Procedure "mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party‟s case, and on which that party will bear the burden of proof at trial."

Marten v. Godwin, 499 F.3d 290, 295 (3d Cir. 2007) (quoting Celotex Corp. v. Catrett, 477 ...

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