dissenting. I respectfully dissent as I find the construction of R.C. 4123.59(D)(2) adopted by the majority unsound. It ignores phrasing in the statute which, if acknowledged, admits of only one meaning.
While R.C. 4123.59(D)(2) is a challenging statute to understand from a cursory reading, the aim of the statute is made clear in the following diagram:
“A child under the age of eighteen years * * * [is presumed wholly dependent] upon:
only the one parent[:]
[1] who is contributing more than one-half of the support for such child[;]
and
[2] with whom [the child] is living at the time of the death of such parent,
or
[3] [the child] for whose maintenance such parent was legally liable at the time of his death.” (Emphasis added.)
In contrast, the majority’s reading of the statute looks like this:
“A child under the age of eighteen years * * * [is presumed wholly dependent] upon [EITHER]:
[1] only the one parent who is contributing more than one-half of the support for such child and with whom [the child] is hving at the time of death of such parent, OR
[2] [either parent (because all parents have a legal duty to support their children) ].”
The reading adopted by the majority seems illogical. It is unlikely that the legislature would , have fashioned such a strict category as set forth as the majority’s alternative [1] above, followed by a catch-all that swallows the first category completely. It allows a presumption of wholly dependent status for any child because every parent has a common-law and statutory obligation to support. Why then did the General Assembly set forth criteria for the wholly dependent presumption status as between the parents of a child? What possible sense does it make that one category considers the amount of support actually provided and *353the other negates it completely? How, under this reading, could the commission ever get to the partial dependency, case-by-case considerations as set forth in the statute?
Under the majority view, a child can be presumed wholly dependent upon both parents because, as the analysis goes, every parent has a continuing obligation to support a child. The General Assembly, however, obviated such a construction of the statute by employing the phrase “upon only the one parent.” When determining the presumption, the line is drawn as between the parents by using the “more than one-half of the support” language because, as between two persons, only one of them can logically contribute more than one-half support. The majority reading of R.C. 4123.59(D)(2) ignores the emphasis upon “only the one parent” and attributes no meaning to the corollary language regarding more than one-half support.
The commission correctly determined that contributing more than one-half support is a necessary condition to a presumption of whole dependency status, together with either cohabitation or a legal obligation of support.
The majority concludes that the commission’s interpretation is “undesirable” because a child of “neglectful parents” is “twice penalized,” i.e., denied death benefits because she did not actually receive financial support during the parent’s lifetime. However, R.C. 4123.59(D)(2) does not preclude a dependent child from receiving death benefits. Rather, the statute precludes a child from being presumed wholly dependent. In fact, R.C. 4123.59(D) provides, “In all other cases, the question of dependency, in whole or in part, shall be determined in accordance with the facts in each particular case existing at the time of the injury resulting in death of such employee * * Nothing in the statute precludes a child who is not presumed wholly dependent from presenting additional evidence to establish whole or partial dependency status. Thus, the majority’s concern that a child is twice penalized is unwarranted.
Finding no error in the logical construction applied to the statute by the commission and “some' evidence” supporting the factual conclusions, I would affirm the judgment of the court of appeals denying the writ.
Moyer, C.J., and Wright, J., concur in the foregoing dissenting opinion.