Specially Assigned, dissenting.
It is frequently said that hard cases make bad law. This case may well be classified as a hard case because of the prospect that a firefighter who suffered a permanently disabling occupational disease might be precluded form obtaining workers’ compensation benefits to which he should be entitled. What I believe to be errors committed by the circuit court and an erroneous interpretation by this Court of the Workers’ Compensation Act may have resulted from a natural desire to avoid a harsh result. But believing that avoidance of a harsh result does not justify a misconstruction of the law, I respectfully dissent.
Because the facts and the procedural background of this case are unusual and involve several sections of the Worker’s Compensation Act, a recitation of the applicable statutory provisions and a summary of the proceedings below may be helpful to an understanding of this case.
*433Applicable Provisions of the Workers’ Compensation Act
Maryland’s Workers’ Compensation Act is now codified as Title 9 of the Labor and Employment Article (L.E.) Of Md.Code (1991 RepLVol.). The following sections of Title 9 are applicable to this case:
•L.E. § 9-101(g) defines “Occupational Disease” as a disease contracted by a covered employee:
(1) as the result of and in the course of employment; and
(2) that causes the covered employee to become temporarily or permanently, partially or totally incapacitated.
•L.E. § 9-502(a) defines “disablement” as the event of a covered employee becoming partially or totally incapacitated.
•L.E. § 9-503(a) provides that a firefighter who is a covered employee is presumed to have an occupational disease that was suffered in the line of duty and is compensable under Title 9 if
(1) the individual has heart disease, hypertension, or lung disease resulting in partial or total disability or death.
•L.E. § 9~711(a) provides that “[i]f a covered employee suffers a disablement or death as a result of an occupational disease, the covered employee or the dependents of a covered employee shall file a claim with the Commission within 2 years ... after the date:
(1) of disablement or death; or
(2) when the covered employee or dependents of the covered employee first had actual knowledge that the disablement was caused by the employment.
§ 9-711(b) provides that failure to file a claim under subsection (a), unless waived, bars a claim under Title 9.
®L.E. § 9-736 provides, in effect:
(a) that, in the case of aggravation, diminution, or termination of disability after the rate of compensation is set or compensation is terminated, the Commission, on application by any party in interest or on its own motion, may:
*434(1) readjust for future application the rate of compensation; or
(2) if appropriate, terminate the payments
(b) The Commission has continuing powers and jurisdiction over each claim and may modify any finding or order as it considers justified, but may not (except in certain circumstances not applicable to this case) modify an award unless the modification is applied for within 5 years after the last compensation payment.
Factual and Procedural Background
In December 1982, Mr. Schwing, a Baltimore City firefighter, suffered a relatively mild heart attack (myocardial infarction), which was sufficiently disabling that he could not return to work for about two months. Later, in July 1983, he underwent cardiac catheterization, which required him to lose a few more days of work. In June 1983, Mr. Schwing filed with the Workers’ Compensation Commission a claim for compensation benefits, asserting that he had suffered an occupational disease. The City sought to implead the Subsequent Injury Fund and the Commission passed an order that the case would not be scheduled for hearing until all parties filed a stipulation containing certain information. Nothing further was ever done in that case, No. A895606 (hereinafter the A Claim). Meanwhile, by virtue of a contract between the City and the claimant’s union, Mr. Schwing received full pay for the entire period he was off work, and all of his medical bills were paid by insurance.
From the time Mr. Schwing returned to work in 1983 until he suffered another myocardial infarction in December 1993, he continued to perform his normal duties, without restriction. The second episode was much more severe than the first one. He required, and underwent, a quadruple by-pass. On 21 March 1994, Mr. Schwing filed with the Commission another claim, No. B 309534 (hereinafter the B Claim), seeking compensation for an occupational disease: “heart disease; cardiovascular disease.” The Commission concluded that, since *435myocardial infarction is a result of cardiovascular disease, the B Claim was not a new claim and the then current condition was merely a worsening of the same illness he had in 1982. Consequently, by order dated 27 July 1994, the Commission disallowed the B Claim as being barred by limitations.
The claimant appealed the Commission’s decision disallowing his claim to the Circuit Court for Baltimore City, which, after a hearing on cross-motions for summary judgment, issued an order on 27 September 1996, stating, “[F]or reasons stated on the record in court on September 26, 1996____”
1. That, in accordance with this Order, the case is remanded to the Workers’ Compensation Commission for further consideration; and
2. That, in accordance with this Order, the case is remanded to the Workers’ Compensation Commission for further consideration; and
3. That on remand the Commission shall determine to what, if any, Workers’ Compensation benefits Claimant is entitled by virtue of Appellant’s Claim filed June 23, 1983, Claim No. A-895606; and
4. That Claim No. A-895606 is not time barred by Section 9-736 of the Workers’ Compensation Law of Maryland.
In its oral opinion on the record, the court expressly stated that it agreed with the City’s contention [and thus with the Commission’s ruling] that the claim filed in March 1994 was barred by limitations, because it was not filed within two years of the initial disablement, which had occurred back in 1982. Nevertheless, the claimant had filed a timely claim within two years after that disablement [the A claim, filed in 1983].
Both parties appealed to this Court from that order. In December 1996, the circuit court filed a “Memorandum Opinion Addendum” in which it deviated from its previous opinion and order. Consistently with its earlier decision, the court again concluded that the claimant’s occupational disease originally manifested itself in 1982; this time, however, the court opined, contrary to its earlier ruling, that Mr. Schwing was not disabled by the disease until he underwent by-pass sur*436gery in 1993. “That being the case,” the court stated, “the claim filed on March 10, 1994 is not barred by the two-year statute of limitations set forth in § 9-711(a)---- Mr. Schwing first suffered a ‘disablement’ or incapacity from his occupational disease in December, 1993, and filed his 1994 claim within the two-year period.”
Having done, or attempted to do, a post-appeal about face, the circuit court equivocated. Referring to its original opinion, it stated:
[I]f it were to be decided that Mr. Schwing not only was diagnosed with an occupational disease in 1982 when he first had a heart attack but also was incapacitated, then he should be permitted to pursue his first claim as there was never any adjudication on it. In the alternative, in view of the fact that he was able to continue his employment for ten years and suffered no adverse change in wage earning, he did not become disabled or incapacitated because of the cardiovascular disease until the by-pass surgery in December, 1993. Therefore the second claim he filed in March, 1994, is not barred by the statute of limitations. For these reasons, albeit in the alternative, the decision of the Workers’ Compensation Commission is REVERSED.
So ordered.
Apparently, the circuit court, uncertain of the legal significance, consequences, or effect of its original decision on the claimant’s ability to obtain workers’ compensation benefits, attempted to hedge its bet by conceding that there might be a factual dispute over whether the claimant was disabled or incapacitated in 1982-1983 and by ruling that he would be entitled to compensation under one of his two claims in either event.
I
In its brief, the City asserts, as the heading of its first argument, that the circuit court did not have jurisdiction to decide whether claim No. A-895606, filed on June 23, 1983, was barred by the limitations provision of L.E. § 9-736. The *437majority agrees with that assertion but fails to address the implication of the argument supporting that assertion. From a purely academic standpoint, I agree with the majority opinion and with the circuit court that L.E. § 9-736 does not apply with respect to the A Claim because there has never been any award or order in that claim that would be subject to modification or to the five year limitation period for modification of awards. That issue, however, as the City contends, was not before the circuit court. Indeed, it was a non-issue that never should have been raised by the City. The Commission decision that was appealed to the circuit court involved only Claim B; it was a decision disallowing Claim B because it was barred by L.E. § 9-711, which provides that a claim for occupational disease must be filed by the employee within two years after the date of “disablement” and that a claim not filed within that time will be barred.
Generally, a circuit court, upon an appeal from the Workers’ Compensation Commission, is jurisdictionally limited to a review of the issues raised and decided explicitly or implicitly, and to such relevant matters upon which there was evidence before the Commission. Altman v. Safeway Stores, 52 Md. App. 564, 566, 451 A.2d 156 (1982); Trojan Boat Co. v. Bolton, 11 Md.App. 665, 670, 276 A.2d 413 (1971).
The reviewing court considers and passes only on matters covered by the issues raised and decided below or on relevant matters as to which there was evidence before the Commission.
Pressman v. State Accident Fund, 246 Md. 406, 415-16, 228 A.2d 443 (1967).
The only issue raised and explicitly decided by the Commission was that the B Claim was barred by the two year limitation on filing claims set forth in L.E. § 9-711. Implicitly decided by the Commission, of course, was that the claimant’s occupational disease (coronary artery disease or heart disease, which is presumed, by virtue of L.E. § 9-503(a), to have been suffered in the line of duty and therefore to be compensable) resulted in “disablement” or incapacity in 1982. When the *438court, in its oral opinion on 26 September 1996, agreed with that implicit determination as well as the Commission’s explicit decision that the B Claim was barred by limitations, the only proper decision that it could make, within its jurisdiction, was to affirm the Commission’s decision. It had no jurisdiction to rule on or decide the viability vel non of the A Claim. Its ruling that the A Claim was not time barred by L.E. § 9-736 was beyond its jurisdiction, and it certainly had no authority to order or direct the Commission to determine what benefits the claimant was entitled to under the A Claim.
Another anomaly in the circuit court’s original decision was its order vacating the Commission’s order in part and sustaining it in part. It is difficult to comprehend how a simple order disallowing a claim can be dissected so that part of it can be sustained and another part vacated.
II
The City also asserts that the circuit court did not have jurisdiction to issue its Memorandum Opinion Addendum on 17 December 1996. That assertion is, of course, absolutely correct and we ought to say so. The December 1996 opinion and order attempted to change the circuit court’s judgment after both parties had appealed that judgment to this Court. The September judgment, in effect, said that the claimant’s coronary artery disease did disable or incapacitate him in 1982 and, therefore, the B Claim, filed twelve years later, was barred by the § 9-711 two-year period of limitations. Where the court went wrong was in attempting to adjudicate the viability of the A Claim, which had never been decided by the Commission and was not before the court. The December 1996 decision of the court was an attempt to reverse its previous order by concluding that there was no disablement in 1982-1983 and, therefore, the 1994 claim was timely filed within two years after the illness became disabling in 1993. It is, of course, axiomatic that a trial court cannot alter its judgment after an appeal from that judgment has been taken. “[T]he law is well settled that ordinarily, the trial court’s jurisdiction is ended upon the filing of an appeal to this *439Court.” Stacy v. Burke, 259 Md. 390, 401, 269 A.2d 837 (1970). An appeal does not divest the trial court of all jurisdiction over the case, but it does divest the court of jurisdiction over the judgment appealed from and any matter embraced therein. As the Court of Appeals explained in Bullock v. Director of Patuxent Institution, 231 Md. 629, 633, 190 A.2d 789 (1963):
An appeal to this Court from a nisi prius court does not necessarily stay all further proceedings in the trial court, nor does it strip said court of all power over the proceeding in which the appeal has been taken. The trial court may act with reference to matters not relating to the subject matter of, or affecting, the proceeding; make such orders and decrees as may be necessary for the protection and preservation of the subject matter of the appeal; and it may do anything that may be necessary for the presentation of the case in this Court, or in furtherance of the appeal. But, when an appeal is taken, it does affect the operation or execution of the order, judgment or decree from which the appeal is taken, and any matters embraced therein. After the appeal has been perfected, this Court is vested with the exclusive power and jurisdiction over the subject matter of the proceedings, and the authority and control of the lower court with reference thereto are suspended. (Footnotes omitted.)
See supporting authorities set out in note 3 thereof. See also, Irvin v. State, 276 Md. 168, 170, 344 A.2d 418 (1975); State v. McCray, 267 Md. 111, 145, 297 A.2d 265 (1972); and State v. Jacobs, 242 Md. 538, 540-41, 219 A.2d 836 (1966), all quoting the above language from Bullock.
A more interesting feature of the December 1996 opinion is the uncertainty that occurs in the last paragraph, in which the court said that, if it were to be decided that its earlier decision was right and the claimant was disabled in 1982 when he had his first heart attack, then he should be allowed to pursue his A Claim, but if, in the alternative, it is decided that “disablement” did not occur until 1993, the B Claim is still viable. There are two major problems with that equivocation: (1) if *440the court recognizes the possibility of doubt as to when the claimant was first disabled by his heart disease, the case should not have been decided by summary judgment; and (2) the Commission had already decided, implicitly, that Mr. Schwing was disabled or incapacitated by his heart disease in 1982-1983, otherwise it could not have ruled that the B Claim was barred by limitations. Fortunately, that perceived possibility presents no problem in this case. The undisputed facts admit of but one conclusion: as a matter of law, Mr. Schwing was disabled, temporarily, from performing his work as a fireman during a two-month period in 1982-1983.
Ill
I fully agree with one conclusion reached by the circuit court, which with the majority opinion concurs: neither L.E. § 9-736 or Waskiewicz v. General Motors Corp., 342 Md. 699, 679 A.2d 1094 (1996), is applicable to this case. L.E. § 9-736 deprives the Commission of authority to exercise its power to reopen or modify a previous order or decision if the application to reopen or for modification is not filed within five years after the last compensation payment. That provision is inapplicable to Claim A because there has never been an order or decision to modify. Waskiewicz held that a claimant cannot avoid the five year limitation provision by filing a new claim, for worsening of a condition for which compensation had been paid, on the theory that he had been subjected to additional injurious exposures. In this case, there had been no prior award that could have been modified and L.E. § 9-736 did not apply. As noted above, § 9-736 has nothing to do with this case and should never have been injected into it to befog the issues.
Where I disagree with the majority opinion is in its conclusion that L.E. § 711 does not apply if, after more than two years have elapsed since the employee was temporarily disabled by an occupational disease, he becomes permanently disabled by reason of a worsening of the disease. I disagree with the conclusion that a compensable permanent disability arising out of the same occupational disease that earlier *441caused a temporary disability can be treated as if it were a different disease or as if the temporary disability had not already given rise to a compensable claim. Those conclusions, and the reasoning behind them, are, I believe, utterly inconsistent with L.E. §§ 9-101(g) and 9-502 and with the logical basis for the § 9-711 two year limitation on filing claims to begin with disablement, as explained by the Court of Appeals in Lowery v. McCormick Asbestos Co., 300 Md. 28, 39-40, 475 A.2d 1168 (1984), quoted by the majority on page 32 of its slip opinion.
As pointed out in Lowery, occupational diseases usually involve “a long history of exposure without disability, culminating in the forced cessation of work on a definite date.” The date of disability “is the moment at which the right to benefits accrues; as to limitations, it is the moment at which in most instances the claimant ought to know he has a compensable claim; ----” Section 9-101(g) defines “Occupational Disease” as a disease contracted by a covered employee as a result of and in the course of employment that causes the employee to become temporarily or permanently incapacitated; § 9-502 defines “disablement” as the event of an employee becoming partially or totally incapacitated, because of an occupational disease, from performing the work of the employee in the last occupation in which the employee was injuriously exposed to the hazards of the occupational disease. Under L.E. § 9-503(a), the last occupation in which Mr. Schwing was injuriously exposed to heart disease is presumed to be that of a Baltimore City firefighter; on 2 December 1982, he became temporarily incapacitated from performing his work as a firefighter, and thus he suffered a “disablement” (§ 9-503(a)) from an occupational disease (§ 9-101(g)), which started the running of the two-year period of limitations for filing a claim (§ 9-711).
The majority opinion recognizes that Mr. Schwing’s heart disease caused him to be temporarily incapacitated in 1982-1983 and that the same disease resulted in a more severe, presumably permanent, incapacity in 1993. Consequently, although the date of onset of the claimant’s coronary artery *442disease can probably not be determined, the date of temporary disability is known: 2 December 1982, when he suffered a heart attack or myocardial infarction. As of that date he knew or ought to have known that he had a compensable claim; on that date began the two-year period of limitations within which his claim for compensation had to be filed or it would be lost.
The worsening over a period of time of an occupational disease from a temporarily disabling condition to a permanently disabling condition, even if the employee continues to be subject to injurious exposures, does not create a new compensable disease, beginning a new period of limitations; it is merely the aggravation of the same disease. Waskiewicz, 342 Md. at 704-13, 679 A.2d 1094. That proposition is as applicable to Mr. Schwing as it was to Mr. Waskiewicz, even though no award was ever made in this case.
I believe that, in view of the errors committed below, the only proper course of action by this Court would have been to reverse the judgment of the circuit court and remand the case to that court for the passage of an order affirming the Workers’ Compensation Commission. It is not for this Court or for the circuit court to instruct the Commission as to the law governing the A Claim, and it was certainly not within the jurisdiction of the circuit court to direct the Commission to act upon the A Claim.