Almost two years after leaving office, a former Florida workers' compensation judge accused of vengeful and unreasonable actions continues to make waves for his former employer, and says he will keep doing so to protect a system he believes in passionately.

Mark Zientz

Former Judge of Compensation Claims Gerardo Castiello, who was not renominated in 2016 after 16 years on the bench, said that he and his attorney plan to file written comments on proposed judicial performance criteria — criteria that were prompted by his own petitions to a district court.

"I will say that the Florida Division of Administrative Hearings and the Office of Judges of Compensation Claims need simply to comply with the specific statutory criteria spelled out by the Florida Legislature, and then implement and enforce rules that assure that the due process rights of judges coming up for reappointment are respected," Castiello told WorkCompCentral in an email. "It really is that simple."

The judges' office will accept public comment on the proposed judicial performance criteria until April 13. The criteria, which some of Castiello's former colleagues said have been followed informally for a decade, track the number of cases that have been assigned and resolved, the age of pending cases, extraordinary fees awarded, and other measures.

"We've always believed in transparency, and all of these numbers are published on the website and in our annual report," said David Langham, deputy chief judge of the Office of Workers' Compensation. He called Castiello a "brilliant" legal mind and said he understands the reasons behind his legal maneuvering.

Castiello felt that his performance numbers had been good for years, Langham said. So, when he was not renominated, he was offended and took the matter to district court, charging that the nomination process was ignoring state law by not adopting written rules and adhering to the criteria.

The Florida Division of Administration Hearings acknowledged in January that Castiello had a point, and took steps to formalize the criteria as part of the nomination process. Castiello's second court petition about nominating guidelines is on appeal, and a court has stayed a third until that appeal is heard.

Castiello "was probably right as far as the criteria is concerned, but it wouldn't have made a difference in his reappointment," said prominent Miami claimants' attorney Mark Zientz, who was one of the first to complain about Castiello's unreasonable nature and unauthorized rulings several years ago. 

Castiello was kicked off the bench not because of any measurable inefficiency in hearing claims, but because he overstepped his bounds and angered attorneys, fellow judges,and others involved in the workers' compensation process, Zientz and others have said. 

Castiello ordered one attorney to take an ethics class. For another, he slashed the amount of attorney fees in a workers' compensation case. District courts overruled a number of Castiello's rulings, saying compensation judges have no authority to take those types of actions.

The newly minted performance criteria may have been a technical victory for Castiello, but will do little to check errant judges, Zientz said.

"They don't tell you anything you really need to know," Zientz said, "like the number of times the judge has been reversed by the appellate court because of an abuse of his discretion." 

Zientz added that since Castiello left the bench, "on the whole, the court does seem to be running better. At least the judges talk to each other now."

Castiello, still a member of the Florida Bar in good standing, said he will continue to work to correct perceived flaws in the state's workers' compensation nominating process so that outspoken judges can stay on the court.

"The Florida Legislature set up a system which expressly spells out the quick and efficient delivery of disability and medical benefits to an injured worker as a primary goal," Castiello said. "As a disabled person myself, I can appreciate the importance of this being fact and not just a lofty goal that gets lost in a myriad of misleading and/or irrelevant data."

He added: "We should all be working to achieve a Florida workers' compensation system that lives up to the goal of being efficient and just."