MICHAEL C. DILLEY PLANNING; LWP RECONSIDERATION CLAIMS SOLUTIONS, INC., ANTONIO BENITEZ, WORKERS-COMPENSATION APPEALS BOARDSTATE OF CALIFORNIAANTONIO BENITEZ,, Applicant,vs.MICHAEL C. DILLEY PLANNING; LWPCLAIMS SOLUTIONS, INC.,, Defendant.Case No. ADJ6671132 OPINION AND ORDER DENYING PETITION FOR RECONSIDERATION Antonio Benitez (applicant) seeks reconsideration of the Findings & Order filed July 20,2010, wherein a workers’ compensation administrative law judge (WCJ) found that applicant, while employed by defendant as a landscape gardener on November 19, 2008, did not sustain an injury arising out of and occurring in the course of his employment to his face, head, neck, psyche and dental because applicant was the initial physical aggressor in the November 19, 2008 altercation that caused his injuries. Applicant contends that the WCJ erred in finding that he was the initial physical aggressorin the November 19, 2008 altercation because defendant should have foreseen an altecation under the facts of the case. Additionally, applicant contends that Dr. David Wood, the orthopedic AME, supports a finding that the injuries to his lumbar and cervical spine are entirely attributable to the November 19, 2008 altercation. Similarly, applicant argues that Dr. Noble, ffie combined psychiatric and internal medicine AME, concluded that applicant meets the 51% threshold for an industrial psychiatric injury as a result of the November 19, 2008 altercation. We have considered the allegations of the petition for reconsideration, the answer filed bydefendant and the contents of the report and recommendation on petition for reconsideration (Report) of the WCJ. , At the outset, we note that the WCJ recommends dismissal of the petition forreconsideration on the basis that it was not timely filed. The WCJ points out that the Findings and Order was served on the parties on July 20, 2010, but the petition for reconsideration was not fileduntil August 23, 2010, approximately seven days be
